• When it is required that the presence of any zero score or the condition that the average score of professional subjects or the score of any specific subject falls below the required thresholds in the Special Examination for Doctors of Chinese Medicine is deemed failure, does such requirement violate the Constitution?
  • February 2, 2011
  • Law Firm: Lee Tsai Partners - Taipei Office
  • 1.      Facts

     

    Individual A participated in the 1992 Professional and Technical Personnel Special Examination for Doctors of Chinese Medicine.  Although his total examination score reached 60, still his scores of professional subjects, such as Chinese Internal Medicine and Diagnostics of Chinese Medicine, failed to reach the passing threshold stipulated under Article 9, Paragraph 3 of the Examination Rules for Doctors of Chinese Medicine and thus he did not pass.

     

    Individual A applied to the Ministry of Examination (hereinafter, the “MOE”) to verify the scores of various examination subjects.  After his examination papers and cards were retrieved by the MOE, it was concluded that there is no scoring oversight and that the examination scores are consistent with the report card.  As a result, a score verification table was attached to a letter issued to Individual A. 

     

    Dissatisfied with the MOE’s disposition that he failed the examination, Individual A filed an administrative appeal, which was rejected by the Examination Yuan.  He subsequently brought an administrative action, which was finally rejected by the decisions of the Taipei High Administrative Court and the Supreme Administrative Court.  It was thus finally affirmed that Article 15, Paragraph 2 of the Enforcement Rules of the Law for Examination for Professional and Technical Personnel, Article 3, Paragraph 1 of the Rules for Total Score Calculation Concerning Examination for Professional and Technical Personnel, and Article 9, Paragraph 3 of the Examination Rules for Professional and Technical Personnel Special Examination for Doctors of Chinese Medicine, which were applicable to the final decision, are controversial for their potential violation of the principles of equality and legal reservation and of Individual A’s right to work.  Thus, a motion was filed to seek constitutional interpretation.

     

    2.      Decision of the Grand Justices ¿ Judicial Interpretation No. 682

     

    (1)   Occupational freedom and the right to take an examination

     

    Many patents in this country rely on the diagnosis of Chinese medicine.  In early days when formal education of Chinese medicine was not popularized, the Examination Yuan sought to screen and select qualified doctors of Chinese medicine to meet social needs by promulgating the Rules for the Special Examination for Doctors of Chinese Medicine on February 23, 1962, the Rules for the Accreditation of Doctors of Chinese Medicine on March 23 of the same year, and the Rules for the Qualification Examination of Doctors of Chinese Medicine on April 2, 1968 pursuant to a mandate under the Examination Law at that time in order to prescribe the eligibility requirements for the examinees based on their educational and experience and to organize special examination, accreditation examination and qualification examination for doctors of Chinese medicine.  An examinee would be qualified to practice Chinese medicine only by passing the special examination or accreditation examination for Chinese medicine practitioners.  Subsequently as a result of social changes and the growing popularity of Chinese medicine education in universities or independent colleges, although the legislators made the policy of cultivating Chinese medicine practitioners through Chinese medicine programs in universities and independent colleges, they nevertheless included the requirement in Article, Paragraph 3 of the Medical Practitioners Law that individuals who have passed qualification examination for Chinese medicine practitioners may participate in the special examination for Chinese medicine practitioners to ensure that individuals who are not graduates of a Chinese medicine department of universities or independent colleges, who are not graduates of a department of medicine but who have finished all necessary courses of Chinese medicine, or who are not graduates of a department of medicine but have selected and finished all courses offered by a department of Chinese medicine as a second major have the opportunities to participate in examination to become qualified doctors of Chinese medicine.  This approach is adopted to comply with the objective of protecting the people’s right to take examination Article 18 of the Constitution.  It is pursuant to such requirements that the Examination Yuan organized two types of examination, namely the Senior Examination for Doctors of Chinese Medicine and the Special Examination for Doctors of Chinese Medicine, and prescribed the requirement at issue pursuant to the mandate under the Law for Examination for Professional and Technical Personnel and based on professional judgment and due process of law.  The requirements for the Special Examination for Doctors of Chinese Medicine and the passing thresholds so imposed are reasonable means to determine if the examinees possess the qualifications of Chinese medicine practitioners.  This neither contradicts the principle of proportionality under Article 23 of the Constitution nor violates the gist of Article 15 regarding the protection of the people’s freedom of occupation or of Article 18 regarding the people’s right to take examination. 

     

    (2)   Equal Protection

     

    Article 7 of the Constitution, which protects the people’s equal rights, seeks to prevent legislators from power abuse and to avoid unreasonable discriminative treatment of the people.  Whether a legal requirement meets the criteria for equal rights protection should be determined by considering if the objectives of the discriminative treatment under such legal requirement are constitutional and if there is a certain degree of association between the categorization so adopted and the objectives of the requirement.  Although a relevant agency’s use of the examinees’ education and experience as the criteria for categorized examinations and adoption of different examination contents and passing criteria are closely tied to the restriction on the people’s freedom of occupational choices and right to take examination, still decisions regarding manners of examination involve professional judgment.  If the categorization criteria and the means so are reasonably linked with the examination objective, which is to discriminate the knowledge and ability of the examinees, the principle of equality would not be violated.  The legislators stipulate in Article 3 of the Law for Examination for Professional and Technical Personnel that examinations for professional and technical personnel consist of senior examinations, ordinary examinations and elementary examinations and special examinations equivalent to such three categories of examination may be organized to address special needs, while the eligibility requirements for such categories of examination under Articles 9, 10 and 11 of the same law combine the examinees’ education and experience.  Article 22 further expressly stipulates that training or learning may be implemented after the examination is passed, and that a certificate evidencing the passing of the examination will not be issued until the performance of the trainees meets the qualification requirement at the end of the training.  This suggests that although professional personnel are examined and selected by the examination agency pursuant to law, the examination conducted by the examination agency should be generally fair and just.  However, whether examination is conducted in the form of written or oral examination, test, on-site examination, examination of works or invention or examination on certificates for education or experience relating to the required knowledge or ability, there are still certain constraints on the discrimination of the examinees’ professionalism and know-how.  In addition, the practical and ethical abilities of professionals cannot be cultivated without a certain degree of systemized education and can hardly be discriminated simply by way of examination.  Therefore, to ensure that the professionalism and capacity of examinees passing the examinations exceed a certain practice threshold, the legislators stipulate in said requirements that different examinations should be conducted to accommodate the different cultivation backgrounds of the examinees and that practitioner training or learning should be conducted after the examinees pass the examinations in the hope that the mutually accommodating measures can form a reasonable selection and screening system for professionals.  The Examination Yuan categorizes the qualification examination for Chinese medicine practitioners into senior and special examinations pursuant to Article 3 of the Medical Practitioners Law and the Law for Examination for Professional and Technical Personnel.  In addition, since the examinees of the senior and special examinations for Chinese medicine practitioners have different educational and training backgrounds for Chinese medicine and divergent basic knowledge and capacity, the provisions regarding passing requirements and examination subjects under the examination rules also differ to accommodate the differences in their cultivation backgrounds.  Moreover, Article 9, Paragraph 3 of the Examination Rules for Professional and Technical Personnel Special Examination for Doctors of Chinese Medicine at issue provides that the examinees of special examination for Chinese medicine practitioners should score 55 for Chinese Internal Medicine and 45 for the rest of the professional subjects in order to pass the examination.  This is a professional judgment exercised by the examination authority pursuant to due process of law rather than an arbitrary choice of the examination authority and has reasonable connections with the determination if the examinees of the Special Examination for Doctors of Chinese Medicine have the knowledge, know-how and competence required to practice as Chinese medicine practitioners.  Therefore, the said requirement at issue prescribed by the Examination Yuan does not violate the gist of Article 7 of the Constitution regarding the protection of the people’s equal rights.

     

    (3)   Conclusion

    Based on the foregoing, the requirement at issue neither contradicts the principles of legal reservation and proportionality under Article 23 of the Constitution and equal rights protection under Article 7 nor violates the gist of Article 15 of the Constitution regarding the protection of the people’s right to work and Article 18 regarding the people’s right to take examination.