The Taipei High Administrative Court’s overturning of a ruling against National Defense University for discriminating against people with HIV and AIDS was criticized by human rights campaigners yesterday, who said the ruling would set a precedent that would rule out enforcing anti-discrimination legislation at government agencies.
“The implications of the Ministry of Health and Welfare’s defeat are huge because all sorts of similar discrimination rulings could be overturned for similar reasons,” Persons with HIV/AIDS Rights Advocacy Association of Taiwan secretary-general Ivory Lin (林宜慧) said.
National Defense University filed a suit after the ministry ordered it to reinstate an HIV-positive student whom it expelled in 2013 for “poor conduct.”
The Taipei High Administrative Court found that the ministry lacked the administrative authority to order the university — which is administered by the Ministry of National Defense — to reverse the order expelling the student.
Lin criticized the court’s decision, saying it was focusing on administrative technicalities while ignoring the obvious discrimination behind the student’s expulsion.
“After the school learned that the student was HIV-positive, a series of incidents occurred, including him being required to wash his clothes and eating utensils separately from other students and also being forbidden from using the school’s swimming pool,” she said, adding that the school had sought to use “persuasion” to encourage the student to leave, before “magnifying” his disciplinary violations to force his expulsion.
Legal Aid Foundation attorney Kuo I-ching (郭怡青) — who represents the student — said the disciplinary violations which were used to justify the expulsion — including “concealing an unreported laptop on campus — were far lighter than those that had justified past expulsions.
“Over the past 10 years, the school has expelled more than 20 students, with only two expelled for poor conduct. Those two were expelled for committing a crime and fabricating a diploma, so the seriousness of offenses is clearly quite different,” Kuo said.
She accused the school of trying to force the student out because it viewed him as unfit to serve as a military officer and that it had also filed a civil lawsuit to recover more than NT$800,000 in government subsidies for tuition fees from the student.
National Chengchi University associate professor of law Bruce Liao (廖元豪) said the court’s ruling that the Ministry of Health and Welfare lacked jurisdiction over the case went against the spirit of the HIV Infection Control and Patient Rights Protection Act (人類免疫缺乏病毒傳染防治及感染者權益保障條例), which the ministry is charged with enforcing.
“The Ministry of Health and Welfare is listed in the law as possessing the greatest authority on this particular issue because it has the requisite expertise,” Liao said. “If expulsions cannot be regulated no matter how discriminatory they are, what was the point of passing the act?”
He said that the ruling also goes against past precedent, whereby different ministries regulate each other, citing local labor departments ordering military schools to redress discrimination based on gender and disability.
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