New Taipei City’s Education Bureau has announced the purchase of 125 carbon monoxide test instruments for distribution to every private and public junior and senior-high school in the municipality to help them ferret out student smokers.
The bureau says that this measure is part of an effort to keep tobacco and narcotics off school campuses. It says that it has spent NT$2.5 million (US$83,430) in the hope that the tests will allow schools to keep tabs on students’ smoking habits and put “deviant” students back on the straight and narrow.
This move by the authorities is taking Taiwan back from a 21st-century country where freedom and the rule of law prevail to the kind of police state that existed under martial law in the 1970s. All of a sudden, human rights in Taiwan have gone back to where they were 40 years ago.
New Taipei City’s “grown-ups” are introducing the testing on the grounds of preventing “teenagers and young adults” from getting hooked on tobacco.
The tests are certainly an invasion of students’ personal freedom, but are such measures constitutional? Furthermore, from the perspective of education policy, it is also worth considering whether this policy is in keeping with the modern concept of student-centered, liberal, open and pluralistic schooling.
In 19th-century police states, any kind of measure could be considered legitimate and lawful based on the purpose of preventing danger. However, this unavoidably gave rise to abuse of authority. Therefore, in the 20th century, the constitutions of countries genuinely practicing the rule of law all explicitly demanded that even measures designed to safeguard the public’s security and prevent danger could only be adopted if the public agreed to them.
Furthermore, authorities are obliged to choose those measures that are the least harmful to people’s rights. Only if they are in keeping with these principles can the measures taken be considered to conform to the constitutional requirements for safeguarding basic human rights.
To use the specialized language of constitutional jurisprudence, whether measures that limit basic human rights are constitutional can be judged according to the formal reservation of statutory powers and the actual grounds of the public interest and principles of proportionality and suitability.
The first issue is whether the measures comply with the reservation of powers. The bureau says that extending the range of people subjected to urine tests is based on the five categories of people listed in the Regulations Governing Urine Sample Testing for Specific Categories of People (特定人員尿液採驗辦法).
First, school and college students who have acted contrary to the Narcotics Hazard Prevention Act (毒品危害防制條例), including those who seek treatment voluntarily. Second, students who have not reached adulthood and who, when applying to resume studies, are deemed to be in need of undergoing a urine test. Third, school and college students for whom there is deemed to be sufficient evidence to suspect that they are using narcotics. Fourth, minor students not included in the previous three subsections whose school or college believe they need to undergo urine tests, and whose parents’ consent has been obtained. Fifth, drivers of school and college vehicles.
It is quite clear that the bureau has applied a broadened interpretation of the applicable categories, which are strictly limited by the regulations. Besides, however broad an interpretation one might make, the regulations only allow for the use of urine sample tests, not carbon monoxide tests. Therefore, the bureau’s policy contravenes the principle of the reservation of statutory powers.
The second issue is whether the tests are legitimate in the sense of being in the public’s best interest as laid out in the Constitution. The bureau argues that statistics show a link between tobacco smoking and narcotics use, in that teenagers who smoke tobacco are more likely than others to get hooked on narcotics. This argument is permeated with excessive and improper inferences by the “grown-ups” who work for the bureau.
If statistics show that the majority of murderers smoke cigarettes, could one then infer some kind of causal connection between smoking and murder? This kind of persuasive, but fallacious, inference can hardly establish the constitutional legitimacy of being in the public’s best interest.
The final issue is whether the tests are in keeping with the principle of proportionality. The bureau says that compiling a register of students who smoke is a necessary step toward effectively preventing narcotics from getting onto campuses.
Even though registering students who smoke might help to keep illicit drugs out of schools, the question of whether such a policy conforms to the principles of proportionality remains. Considering all available measures, subjecting every student to carbon monoxide tests is not the one that is least harmful to students’ rights. Therefore, the measure violates the principles of proportionality and suitability.
The measure of subjecting students to the tests is unconstitutional in that it infringes the principle of the reservation of statutory powers, the public’s best interests and the principle of proportionality. Behind this policy, created seemingly out of concern for the safety of young people, lie the populist votes that can be gleaned from the strong support of parent groups in New Taipei City.
The policy might be touted as “one puff to clear your name for your security and convenience,” but under the surface it is a return to the special power relations of a police state. New Taipei City’s testing policy has been adopted with complete disregard for the human rights that students ought to enjoy in a nation where the rule of law prevails.
Hsu Yue-dian is a professor of law at National Cheng Kung University and a visiting academic at the Humboldt University of Berlin.
Translated by Julian Clegg
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