In response to the paragraph 2-4 of the State Report on ICCPR, Article 1 is intended to safeguard Indigenous Peoples’ right to self-determination and emphasizes all Peoples to hold the integrity of right to self-determination on political position, the freedom of economic, social and culture development and the natural resources. The State Report mentioned that the government has adopted “the Regulations of Consult and Acquirement of the Consent and Participation from the Indigenous Peoples and Communities”1 and legalizing the “Tribal Council as public juristic person”2 as the efforts they made to achieve Indigenous Peoples’ self-determination. However, there are still many obstacles when implementing Indigenous Peoples’ right to self-determination. For example, in the development projects of public or private sectors, Indigenous communities can only passively make the decision of accepting or rejecting the project, but cannot participate fully in the process of planning, discussion, decision-making and promotion. In addition, the operation of power of autonomy among Indigenous Peoples is to form the agent of management in different scales and to decide the rules of management, according to the issues in question; these were traditionally carried out within the system of each people. The purpose of legalizing the Indigenous communities as public juristic person is to promote independent development of indigenous tribe at its will, as stated in the Indigenous Peoples Basic Law. In other words, to recognize the Indigenous communities’ public juristic person is to return the inherent rights of self-determination and autonomy to indigenous peoples through the modern legal mechanism of states.
We urge that：
When enforcing, monitoring all the land utilization and development programs, all level of the national institution shall actively safeguard the local Indigenous Peoples’ right to fully participate in all stages of project planning, execution, and assessment as to facilitate realization of the right to self-determination.
In the point 35 of “Response to the Concluding Observations and Recommendations Adopted by the International Group of Independent Experts”, regarding to “Implementation of the Indigenous Peoples Basic Law”, the current actions are still far from the standards listed in the Concluding Observations and Recommendations, ICCPR article 1, and articles 3, 4, and 5 of the UN Declaration on the Rights of Indigenous Peoples.
The current regulations regarding to the right to political participation in the Constitution poses a great obstacle to Indigenous Peoples’ political participation and actual self-determination and governance, especially in the legislator elections. The current system of legislator elections still follows the divisions of “Mountain Indigenous Population” and “Plain-land Indigenous Population” from Japanese colonial period and KMT totalitarian period, which undermines the differences among indigenous groups, imbalance of representativeness among indigenous groups, and inequality in the value of each vote. This is a violation of article 2 of ICCPR, the principle of equality without discrimination.
Because the regulations about election are based directly on the Constitution, the government should seriously consider constitutional amendment. Otherwise it would be impossible to implement Article 4 of the Indigenous People Basic Law, “The government shall guarantee the equal status and development of self-governance of Indigenous Peoples and implement Indigenous Peoples’ autonomy in accordance with the will of Indigenous Peoples.” Since the representativeness in the parliament is flawed, it is unlikely that the legislature would pass laws of governance at the local level capable of reflecting the true will of indigenous peoples.
In the State Report, the “Public Juristic Persons” is seen as a progress to safeguard the self-governance and self-determination of indigenous peoples, however, it remains unsolved how this would fit into the existing legal framework of local self-governing bodies. Furthermore, when it comes to delineating the actual scope and matters under the jurisdiction of self-governance, a great deal of legal regulation and accommodations need to be negotiated, so as to clarify the rights and obligations between the self-governing institutions and the central government. Thus, it seems that apart from the downward legal amendments extending to the local level, there is a need to enact a “upward” reform to the constitution level, so as to eliminate the obstacle to Indigenous Peoples’ political participation and share equal ground of dialogue in political arena with other groups. By doing so, there could be a possibility to implement the Indigenous Peoples Basic Law in a concrete sense.
Therefore, we recommend a constitutional amendment to remove obstacles to Indigenous Peoples’ full and effective political participation. To be concrete, the government should consider putting the content of the Indigenous Peoples Basic Law’s directly into the text of Constitution in the form of a special chapter. And with the mothed of Constitutional Order (Verfassungsauftrag) commanding the government branches to act promptly, to solve the problem of legislation sloth and executive procrastination. Lastly, it would be worth considering recognizing in Constitution the UN Declaration on the Rights of Indigenous Peoples or the principles therein.
<li><p>When drafting the Regulation of Establishing the Public Juristic Persons of Tribal Councils, the Council of Indigenous Peoples shall make sure that there remains flexibility and freedom in the regulation, and avoid basing its decisions on single dimension and stereotypic viewpoints which would limit the inherent autonomy of Indigenous communities.</p></li> </ol>In response to ICCPR State Report Paragraph 11, although there are some national laws and regulations on anti-discrimination, it still lacks a supreme principle in the legal system to prohibit all kinds of discrimination in a full picture. In particular, Taiwan is composed by multiple ethnic groups, but maintains a single-dimensioned imagination of culture, a legacy of from the totalitarian period. And it poisoned many aspects of the legal and education system, which caused the Taiwan Indigenous Peoples to suffer from severe racial discrimination both systemically and personally. Moreover, long before Taiwan withdrew from the United Nations, the government had ratified the International Convention on the Elimination of all Forms of Racial Discrimination in 1966. However, it hasn’t yet been implemented as domestic law.
For instance, the media often highlights the Indigenous identity of crime cases, which usually leads to collective harms upon and deepens stereotype towards Indigenous Peoples. And there is not any regulation imposing restriction on this matter. It is evident that there are gaps and holes in protection against discrimination if it’s provided in separate laws and regulations. The government should thoroughly examine and review the situation and amend or adopt relevant measures or laws.
We suggest the government to follow the pattern of adopting and integrating the ICCPR and ICESCR in domestic laws, i.e., to adopt the “Implementation Act of the International Convention on the Elimination of All Forms of Racial Discrimination” as soon as possible and establish the regular State Report mechanism. After finishing inventorying and reviewing all the regulations that conflicts with the ICERD, and then moving forward to promote much more concrete laws, such as a comprehensive Anti-Discrimination Law, or Law of Equality among all Ethnic Groups.
According to ICCPR and ICESCR article 1, ICESCR article 15, ICCPR article 26, the anti-discrimination regulation, UN Human Rights Committee general comment 12, UN Economic Social and Cultural Rights Committee general comment 21 paragraphs 11 and 13, Additional Articles of the Constitution of the Republic of China (Taiwan) article 10 section 11, The Indigenous Peoples Basic Law article 19, article 20 section 1, and article 23.
According to the statistical analysis conducted by Taiwan Legal Aid Foundation, more than 230 Indigenous persons have been prosecuted and sentenced for violation against the Wildlife Conservation Act since 2004 to March, 2016. Also, more than 100 Indigenous person were prosecuted for violating the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife, and sentenced for probation or even imprisonment. The most severe one is the case of the Bunon hunter who was sentenced to 3 years and 6 months by the Supreme Court. These has shown that the state has obviously violated the regulations mentioned above and failed to protect Indigenous cultures, and offended Indigenous natural/inherent sovereignty.
We recommend the government to amend the Wildlife Conservation Act and Regulations Governing Indigenous Peoples Hunting and Use of Wild Animals Based on Traditional Culture and Ceremony Needs, as well as restoring Indigenous hunting management system to the communities:
The current Wildlife Conservation Act and Regulations Governing Indigenous Peoples Hunting and Use of Wild Animals Based on Traditional Culture and Ceremony Needs in Taiwan both failed to define “traditional culture”, which caused some law enforcement personnel who are not aware of the hunting culture of Indigenous Peoples to make discriminative verdict and administrative measures that could oppress Indigenous Peoples’ hunting culture.
According to academic research, the Indigenous Peoples’ hunting activities are not only ecologically tolerable, but also properly balance the amount of wild animals, and further promote ecological harmony.
We recommend legislators to consider all the facts above, and make amendments of the Wildlife Conservation Act article 21-1 and amend article 3 section 15 with definition of traditional culture and omitting or amending the Regulations Governing Indigenous Peoples Hunting and Use of Wild Animals Based on Traditional Culture and Ceremony Needs that limit the definition of Indigenous traditional culture.
According to ICCPR and ICESCR article 1, ICESCR article 15, ICCPR article 26, Human Right Committee general comment 12, Economic Social and Cultural Rights Committee general comment 21 Paragraph 11-13, Additional Articles of Constitution article 10 section 11, as well as Indigenous Peoples Basic Law article 10, article 19, article 20, article 22, and article 23.
The Taitung Country Government established the Fu-Shan Fishing Resource Conservation Zone according to the Fishery Act article 44 claiming restriction on collecting and fishing activities. The Coast Guards penalized local Amis Peoples several times, and even requested the people to put their catch back to the water. The restriction has damaged Amis Peoples’ lifestyle, the inherent sea ceremony, fishing, gathering and other traditional culture and it also influenced the heritage of ocean culture of Amis Peoples. In addition, Amis Peoples are often prosecuted for theft according to the Forestry Act article 52 for collecting rattan hearts, bamboo shoots, and anthodia mushrooms. So it is absolutely necessary to reassess the current laws.
We urge to amend the Fishery Act article 44, the Fishing Port Act Article 18, the Commercial Port Law article 36, the Act for the Development of Tourism article 36, which remove daily fishing, hunting, and collecting, ceremonies from restrictions and prohibitions. Lastly, we recommend that the Executive Yuan to issue an order to the National Police Agency of the Ministry of the Interior to minimize police interference on Indigenous People’s’ hunting, fishing, or using rifles in hunting for ceremonial purposes. We also recommend to review and amend the Act of Forestry and other laws or regulation offending Indigenous collecting rights in the forests, and exclude traditional Indigenous collecting from criminal penalization.
In response to Paragraph 6 of State Report on ICCPR, referencing on ICESCR article 15 section 1-B, the Indigenous People Basic Laws article 23.
The Act on Controlling Guns, Ammunition and Knives, Article 20 section 1 was amended, and the use of self-made hunting rifles for livelihood was exempted from criminal penalty and changed to administrative penalty. However, the Regulation Governing Permits and Administration for Guns, Ammunition, Knives and Weapons article 2 section 3 and 4 still goes beyond the authorization from the above law and limits Indigenous Peoples’ rights of using technologically advanced and safer hunting rifles and fishing spears, the regulation also set stringent limits on the definition of “self-made hunting rifles”. Because of these limitations, some indigenous hunters had to use unsafe rifles and several cases of severe injuries and even deaths occurred. The fact that the State Report failed to mention this situation shows that government has been ignoring Indigenous Peoples’ need of safe and technologically advanced hunting rifle, thus limiting the Indigenous hunting rifles to something outdated and lacking security and technology advancement. This is has already constituted discriminations against Indigenous hunting cultures.
Furthermore, the Act for Controlling Guns, Ammunition and Knives article 5-2 section 6, which stipulates that if the owner is convicted and sentenced to a fixed term of imprisonment, the gun permit will be revoked or cancelled. It could lead to the situation in which elders with rich hunting skills and knowledge to lose the opportunity to use legal hunting guns for good and interfere with their mandate to pass down the culture to future generations. The above act clearly violates the principle of proportionality.
We recommend amending the Regulation mentioned above. Revoking of gun license should be reserved for those with repeated and intentional offenses (Article 5-2, section 6). For article 20 of the same Regulation to allow use of safer and advanced hunting rifles and fishing spears not limited to the self-made rifles in accordance to the Self-defense Guns Control Act. The Ministry of Interior and Council of Indigenous Affairs should establish channels for Indigenous Peoples to obtain safe and technologically advanced hunting rifles and ammunitions. We recommend amending or removing the Regulation Governing Permits and Administration for Guns, Ammunition, Knives and Weapons articles 2-4, and articles 15-19 with regards to definitions and applications of self-made rifles and fishing spears.
In reference to Article 1 of the Two Covenants concerning self-determination, Article 15 of the ICESCR concerning cultural rights, Article 26 of the ICCPR on anti-discrimination, HRC General Comment No.12, CESCR General Comment No. 21 Paragraphs 11 and 13, when handling affairs relating to the Indigenous Peoples, the government should respect the language, cultures, customs, and values of the Indigenous Peoples when formulating laws and regulations, administering justice and various procedures (incl., administrative remedial procedures, notarization procedures, mediation procedures, and arbitration procedures). In addition, the government shall provide interpreters fluent in the languages of Indigenous Peoples who are unfamiliar with Mandarin.
In some verdicts of the courts regarding Indigenous hunting, the text read that hunting culture was “an anachronistic and archaic culture” and furthermore expressed the inclination to eliminate Indigenous hunting altogether or confine hunting to specific temporal and spatial boundaries. This clearly shows that the government’s misuse of the judicial system to violate the cultural rights of Indigenous Peoples.
We suggest that the Judicial Yuan should intervene and oversee court organization and judicial reform. Not every case concerning Indigenous Peoples (e.g., drunk and driving and drug-related offenses) has to be tried in the Special Court of Indigenous Peoples. To enhance the quality of rulings produced by the Special Court of Indigenous Peoples and maintain the reasonable utilization of judicial resources, we suggest that only cases concerning the protection or impact of Indigenous culture be tried in the Special Unit of Indigenous Peoples or Special Court of Indigenous Peoples. We also recommend that the government reinforce the training of legal enforcement personnel regarding to indigenous cultures.
We suggest that the government incorporate a traditional jury system comprising jurors who are familiar with the cultures of the parties concerned into the Special Court(Unit) of Indigenous Peoples. The existing Special Court(Unit) of Indigenous Peoples can be reinforced by inviting two or more jurors who are familiar with the cultures of the parties concerned when reviewing the cases regarding indigenous traditional or cultural affairs and using the jurors’ suggestions as references in ruling. Prior to the implementation of the aforementioned system, judges shall conduct field surveys or appoint impartial experts to facilitate their understanding of the cultural practices of the parties concerned. Verdicts formulated without tangible evidence or survey data and based on the a cultural understanding out of imagination are unlawful.
Paragraph 104 of the State Report on ICCPR indicates that consent must be acquired from Indigenous Peoples through consultation for research involving human subjects. Although Article 15 of the Human Subjects Research Act clearly stipulates that when the research involves Indigenous Peoples, additional consultation to obtain the consent of the indigenous group is required. However, a number of academic researchers failed to fully understand the definition of indigenous peoples’ collective consent, leading to the illegal establishment of databases using the biological specimens of Indigenous groups without proper collective consent. For example, the Taiwan Biobank Ethics Committee approved the recruitment of Indigenous Peoples in the third meeting in 2014 and commenced the collection of samples from Indigenous Peoples and communities in 2015.
The Council of Indigenous Peoples and the Ministry of Health and Welfare jointly announced the Regulations on the Consultation and Approval and Engagement Business Benefit of Human Subject Study Involving Indigenous Peoples on 31st December 2015, taking effect on 1st January 2016. However, scholars’ lack of understanding concerning the collective consent of Indigenous Peoples renders the effectiveness of this regulation questionable.
Response to Paragraphs 160, 161, and 164 of the State Report on the ICCPR: In December 2014, an Atayal inmate with bipolar disorder, Mr. Wei-Hsiao Lin, was sexually assaulted and tortured to death in prison.3 This incident not only highlighted the management and care issues for mental patients in prisons but also exposed the illegal use of constraints. Relevant supervisors involved in this incident were impeached by the Control Yuan. The human rights of Indigenous Peoples in prisons remain a grave concern, yet no data is currently available. Therefore, we request that the Agency of Correction, Ministry of Justice, investigate and release the report on human rights conditions of Indigenous Peoples (incl., juveniles) in prison. Data should include the number of Indigenous inmates, ethnic, genders, and offense. Moreover, the Agency of Correction should make additional efforts looking into whether the appeals of Indigenous inmates are related to racial discrimination.
Response to Paragraphs 143, 187 to 190 and 350 of the State Report on ICCPR: The government has established employment counseling and vocational training systems to facilitate the reintegration of inmates and juvenile delinquents into society. However, these systems do not take into account the specificities of Indigenous Peoples’ social structures. The underlying social backgrounds of Indigenous inmates and juvenile delinquents are typically ignored by the rehabilitation and protection system. Therefore, the existing rehabilitation and protection system is ineffective in helping reintegration into schools, general society, or Indigenous communities is extremely difficult for former Indigenous inmates and juvenile delinquents. Instead, they are prone to both ethnic and socioeconomic discrimination, leading to a vicious cycle. We suggest that the Ministry of Justice establish a rehabilitation and protection system that are culturally sensitive and takes into account the Indigenous Peoples, communities, and groups, thereby fulfilling restorative justice.
The First State Report on ICESCR (para. 9) stated “during post-disaster reconstruction of Indigenous Peoples, when implementing ‘special zone demarcation’ for disaster-ridden areas (also known as the ‘dangerous zone’) or utilizing land involving the traditional territories of Indigenous Peoples…, informed consent made by Tribal Council or community-based decision-making progress must be required, as to respect diversified and different voices in the communities.” However, this principle was not adhered to in the regulations of disaster prevention and relief, organization establishment and mechanisms in village relocation, neither in the National regulations and Disaster Prevention and Relief System. The mechanism of participation, indigenous peoples’ traditional knowledge on disasters referring to the site, decision-making, and consultation was not comprehensively understood by the government; neither was it based on survey data of tribal disaster prevention options. The prevention and relief system, therefore, is unable to meet the essential demand of indigenous peoples without embracing indigenous viewpoints in existing process of disaster prevention and relief plan and the establishment of the organization.
Article 7 and 9 of Disaster Prevention and Protection Act which was amended in April 2016 directly restricts Indigenous Peoples’ right to participating in critical decision-making process. Moreover, The Indigenous People Basic Law article 25 indicates that “The government shall establish a natural disaster prevention and relief system in indigenous peoples’ regions and natural disaster prevention priority zones to protect physical and property safety of indigenous peoples.” This shows that the national laws neither lack a mechanism for direct engagement of Indigenous experts and representatives of Indigenous Peoples nor propose post disaster reconstruction mechanism with Indigenous Peoples’ consensus. Besides, the government invited only the authorities on level of central government, such as National Science and Technology Center for Disaster Reduction and Council of Indigenous Peoples, to participate in the making of natural protection zones, yet without Indigenous experts and representatives of Indigenous Peoples.
The restrictions above mentioned have not only affected Support network and relocation decision-making mechanism of indigenous peoples, but also lead to the invasion of culture right of indigenous peoples. For example, Typhoon Morakot in 2009 forced the numerous indigenous communities to relocate from the original sites, which makes the indigenous peoples face serious challenges in adapting new environment and cultural heritage. The fundamental problem is that Indigenous knowledge is not entirely respected, heard, and included in communities’ relocation decision-making process. The government even ignored Indigenous traditional decision-making mechanisms, including site selection, decision-making, and consultation, which resulted in severe communities’ disruption and vulnerability of physical and spiritual recovery. However, the National Science and Technology Center for Disaster Reduction hasn’t showed any regret in this regard. Yet even after amending the laws for so many times, the indigenous knowledge of disasters and traditional decision-making are not yet included in the policy whatsoever, and even the basic research work has not been started.
In sum, we suggest that the government to look into the indigenous knowledge of disasters, site selection, traditional decision-making mechanism, and Free Prior Informed Consent of Indigenous Peoples. Meanwhile, we recommend the government to establish the indigenous community-based support network of disasters; to facilitate the implementation of the traditional decision-making mechanism in indigenous communities, and to respect the will of Indigenous Peoples in planning and make sure the indigenous peoples being included in the research projects of National Disaster Prevention and Relief Center. Also, we suggest the government to work together with Indigenous Peoples to amend the article 7, 9, 10, 11, 20, 22, and 36 of Disaster Prevention and Protection Act as well as article 25 of the Indigenous Peoples Basic Law. And we recommend the government to establish the regulations to empower indigenous peoples of disaster prevention and relief and climate change research focus on indigenous regions and make them the central rules in National Disaster Prevention and Relief Center.
In response to Paragraph 242 of the State Report on the ICCPR concerning the mandatory defense statistics of legal aid cases, Article 31, Paragraph 5 of the Code of Criminal Procedure states, “Prosecutors, judicial officers, or judicial police shall notify legal aid of accused or suspected parties with Indigenous status who are unable to appoint a defender during their ruling, and a legal representative shall be appointed to them.” The law clearly states that Indigenous Peoples have the right to request legal aid. However, past data show that the majority of Indigenous defendants forfeited this right, and mostly took place during the police investigation stage.
According to the data released by the Taiwan Legal Aid Foundation, the First Criminal Interrogation Accompanied by Legal Aid Attorney Program was launched on 15 July 2012. Up to 31st December 2015, There are 25,113 cases qualified for legal aid program. However, only 3,401 cases were provided with legal aid attorneys, and 21,060 forfeited their right to legal aid during interrogation, which makes up the rate of 83.86%. We request the authorities investigate the reasons for the high forfeit rate and ensure that improvements are made.
Article 31 of the Code of Criminal Procedure clearly states that Indigenous Peoples have the right to mandatory defense. However, in reality, there are some prosecutors adopting the summary trial proceeding4 to evade legal defense for the defendants. There are 2,495 summary judgments and ruling were made in the Hualien and Taitung regions in 2015. We recommend that the authorities investigate the appropriateness of Indigenous Peoples prosecuted by the police on account of practicing the traditional customs and being ruled using summary trial proceeding, even though they may be ruled innocent in the court. And we further require to ensure the improvements are made.
In reference to Paragraph 247 of the State Report on the ICCPR concerning the amendment to the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife, this amendment was based on The Supreme Court Judgment No. 5093 in 2013, which clearly stated, “Constituents of criminalization or decriminalization shall not be further specified or explained by administrative institutions or orders.” Nonetheless, administration authorities defined self-made hunting rifles as critically dangerous and outdated for the convenience of management and security considerations, which is a complete disregard of the constitution, the Two Covenants, Indigenous Peoples Basic Law, and even the provisions that safeguards the Indigenous Peoples’ right to hunt in the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife.
The Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife was amended in 2014, but only the provisions concerning self-made rifles as above mentioned in The Supreme Court Judgment No.5093 in 2013. Amendments failed to address “To respect cultural diversity, self-modifications that are safe and enhance usability are permitted,” which was also mentioned in judgment No. 5093. To fulfill the provisions specified in Articles 10 and 11 of the Additional Articles of the Constitution of the Republic of China (Taiwan), the fundamental rights of Indigenous Peoples to hunt wild animals with self-made rifles as stipulated in Articles 10, 30, and 19 of the Indigenous Peoples Basic Law. With respect to the cultures of Indigenous Peoples as stipulated in Article 20, Paragraph 1 of the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife have gradually become administrative penalty. Since the law doesn’t restrict the methods for loading gunpowder or ammunition into self-made rifles, therefore, both muzzle-loading and rear-loading rifles should be both equally regarded as “self-made” rifles.
The multi-gender perspective of Taiwan Indigenous Peoples can be seen in their oral stories. For example, the co-existence of male and female demonstrates on the most revered clay pot of the Paiwan Peoples. Interviews with several elders of the Amis Peoples show that homosexuals had once emerged among the Indigenous Peoples. They had strong personal characteristics and abided by Indigenous regulations. They were unable to marry, but they were accepted by the Indigenous Peoples for carrying the important roles of the cultural bearer and promoter.
Affected by western religion and traditional Confucian ideologies, the social gap between men and women are becoming increasingly apparent. In the Amis society, the custom of men moving in with their wives after marriage is gradually changing into male-dominant marriages, weakening the traditional gender and cultural ideologies of the Amis Peoples. Marriage is a key concern of Taiwanese people. Therefore, the legalization of same-sex marriage has sparked heated discussions in Taiwan. At present, only a number of counties and cities have permitted the registration of same-sex marriage. However, registration does not include the legal protection of marriage, such as co-declaration of assets or acting as the primary medical decision-maker. For the classed societies of the Paiwan and Rukai Peoples, marriage is a crucial issue because it entails the promotion and demotion of family and social status and even the continuity of the household. Homosexual people in these cultural contexts would be forced to marry the opposite sex to abide by cultural traditions and customs. Moreover, people’s freedom to love is also compromised with the restrictions on marriage. With the ratification of marriage equality, homosexuals will be free to marry the people they love, raise children through adoption or surrogate mothers, and under the premise that traditional cultures remain unaffected and ensure their basic human rights.
Current regulations in Taiwan concerning the change of gender on citizen identity cards require individuals to undergo gender reassignment surgery. This is a cruel punishment for transgender people desiring bear to children, a deprivation of the freedom of identity, and hazard to physical and mental health. We recommend amending these provisions so that gender identity can be altered through the consultation of a psychiatrist to confirm that the individual shows symptoms of gender identity insecurity. These amendments would not only resolve the issue of childbirth but also ensure the identity and childbirth rights of transgender people.
In reference to Paragraph 388 of the State Report on the ICCPR, Article 25 of the ICCPR states that the governments are obligated to eliminate all obstacles and provide equal opportunity for citizens to participate in civil service examinations and secure government employment. The Second State Report on the ICCPR responded to the provisions concerning civil service examination conditions for Indigenous Peoples and the number of admissions. However, the report failed to address the correlation between the objectives and effectiveness of civil service examinations5.
The government’s organization of the Civil Service Special Examinations for the Indigenous Peoples should not only guarantee the employment rights of Indigenous Peoples6 but also aim to encourage Indigenous Peoples to participate in their civil affairs in the attempt to restore their special political status. Since the ratification of the Indigenous Peoples Basic Law in 2005, numerous rights of Indigenous Peoples have been regulated or amended, and the civil affairs of Indigenous Peoples within the Taiwan’s administration system have become more sophisticated and detailed. Civil servants tasked with the administrative affairs of Indigenous Peoples (e.g., Forestry Bureau) should be proficient in Indigenous cultures and knowledge systems. Ministry of Examination, Examination Yuan, should consider the changes in Taiwan’s legal system when selecting Indigenous candidates for civil services and comprehensively review the subjects tested in the current Civil Service Special Examinations for the Indigenous Peoples, including essential subjects or revising extant content7, thereby ensuring the political involvement rights of Indigenous Peoples.
The Constitution of the Republic of China (Taiwan) reserves 6 legislator seats for Indigenous Peoples. However, numerous unreasonable limitation existing the election system that severely constitutes the inequality of political involvement and violates Article 25, Paragraphs 1 and 2 of the ICCPR concerning the prevention of unreasonable limitations and inequality. Several of these items are discussed in the following section.
Concerns arising from the division of mountain and plain areas based on identity rather than space or ethnic: The current division of mountain and plain areas is based on the geographical division adopted by the Japanese government during their occupation for the convenience of management. These divisions neither have anthropology or ethnology bases nor acknowledged by Taiwan’s Indigenous communities. After the Taiwanese government had assumed governance, it followed the divisions set by the Japanese but changed their original spatial orientation into identity orientation. In other words, the Taiwanese government previously conducted a demographic survey and categorized the residents in the mountain regions of Taiwan as Taiwan’s Indigenous population. This identity does not change with relocation, and it is inherited by future generations. The outcome is that the Indigenous Peoples and their descendants that have moved to the city are still categorized in the “mountain” Indigenous population. Nevertheless, this “identity” contains no tangible ethnical value.
Electoral districts for Indigenous legislators are larger than their actual jurisdiction: Currently, the electoral districts of the six Indigenous legislator seats encompass the entire country. By comparison, the only other candidates that have nationwide electoral districts are the presidency and vice presidency candidates. In terms of election costs, that for Indigenous legislator campaigns far exceeds that of non-Indigenous legislator campaigns, creating an invisible election threshold and benefits strong political parties from monopolizing legislator seats. Another distinct difference between the election of president/vice president and that of Indigenous legislators is that the citizens nationwide are potential voters for the presidency and vice presidency campaigns. Indigenous legislator campaigns only target Indigenous Peoples, which are further split into Indigenous Peoples residing in mountain and plain areas. The consequence of this system is that the current legislators have a considerable advantage in both media coverage and control over voter lists. Opponents almost never stand a chance. Therefore, even with an election system, legislators are almost always reelected. The following table shows the latest legislator election results (2016).
<table class="table table-bordered table-hover table-condensed"> <thead> <tr> <th title="Field #1">Name</th> <th title="Field #2">District</th> <th title="Field #3">Party</th> <th title="Field #4">Terms</th> </tr> </thead> <tbody> <tr> <td>Wen-Gi Kong</td> <td>Mountain</td> <td>KMT</td> <td align="right">4</td> </tr> <tr> <td>Dong-Ming Chien</td> <td>Mountain</td> <td>KMT</td> <td align="right">3</td> </tr> <tr> <td>Su-Mei Kou Jing</td> <td>Mountain</td> <td>No Affiliation</td> <td align="right">5</td> </tr> <tr> <td>Kou-Dong Liao</td> <td>Plain</td> <td>KMT</td> <td align="right">5</td> </tr> <tr> <td>Tien-Tsai Zheng</td> <td>Plain</td> <td>KMT</td> <td align="right">2</td> </tr> <tr> <td>Ying Chen<sup>8</sup></td> <td>Plain</td> <td>DPP</td> <td align="right"></td> </tr> </tbody> </table>Deprivation of Indigenous voters’ citizenship rights: Although Indigenous legislator seats are protected by the Continuation in Taiwan’s current legislator election. The regulations also stipulate that only indigenous citizens are permitted to vote for Indigenous legislators, which is synonymous to isolation policies. These regulations allow non-Indigenous legislators to completely ignore Indigenous affairs, creating an irreducible gap between ethnics. Overall, these regulations have marginalized Indigenous affairs and rights from mainstream society.
Concerns of disclosed voting: Indigenous legislator candidates are responsible for a nationwide electoral district. However, the Indigenous population accounts for a mere 2% of the total population in Taiwan. Beside a comparatively denser Indigenous groups residing in a small number of urban areas in their home districts, votes in other districts are largely in the single digits. Some areas even accumulate as little as a single vote. Therefore, candidates are able to easily estimate the number of votes in each area, leading to doubts in anonymity. This situation is in clear violation of Article 25, Paragraph 2 of the ICCPR, which states that votes should be conducted in the form of a secret ballot to ensure the freedom of expression rights of all voters.
In retrospect of the preceding discussion, we strongly recommend that the government redefine the election system of Indigenous legislators to conform with the requirements of the Two Covenants, thereby reinforcing the representability (ethnically and regionally) of the electorates and eliminating implicit thresholds and limitations created from unfavorable system designs. As a resolve, Indigenous legislator candidates can first engage in postal voting to ensure the anonymity of the voters, as well as the rights of the Indigenous Peoples and Taiwanese citizens in general.
In response to Paragraph 402 of the State Report on the ICCPR, the government announced the commencement of the era of high definition television in 2012. Despite considerable advancements in digital television, Taiwan Indigenous Television still cannot be viewed on digital TV channel. It can only be viewed through cable or through designated set top boxes. Ironically, digital television channels include numerous public broadcasting channels, such as the Public Television Channel and Hakka TV. Only Taiwan Indigenous Television is unavailable. This situation not only deprives the viewing rights of the public but also obstructs the development of multiculturalism and public media.
- In respond to Indigenous People Basic Law Amendment Paragraph 4 of Article 21:” The central Indigenous competent authority shall stipulate the regulations for delimiting the area of Indigenous land, communities and their adjoin-land which owned by governments, procedures to consult, to obtain consent by Indigenous Peoples or communities and to participate and compensation to their damage by restrictions in preceding three Paragraph.” administrative orders and related measures.
- Indigenous People Basic Law article 2-1 section 1: ”In order to promote independent development of indigenous tribe at its will, the tribe should establish Tribal Council. The tribe which ratified by the central authority in charge of indigenous affairs shall be considered as public juristic person.”
- Mr. Wei-Hsiao Lin, an inmate with mental disorder, was placed in solitary confinement for extended periods and subjected to the illegal use of constraints 49 times. He eventually died of asphyxiation after being bound and handcuffed to a corridor railing in a sitting position for five hours.
- Summary judgement and ruling refers a simple judgement procedure claimed by the prosecutor or exercised by a court judge for cases in which the accused confessed to petty crimes or the court deems the evidence sufficient to rule against the accused, and the sentence is probable, detainable, or six months or less and commutable by a fine. Such procedures do not require oral arguments, which bar legal representatives from providing a defense, even if the case is a conflict of Indigenous customs and rule of law, such as firearms and hunting rights of Indigenous Peoples.
- Please refer to Item 397 of the Second State Report on the ICCPR.
- Article 6, Paragraph 2 of the Civil Service Examinations Act states, “In order to meet staffing needs of institutions of a special nature, as well as to provide for the employment rights of Indigenous Peoples and the disabled, Special Examinations are held at grades 1 through 5 in accordance with the above said levels and grades. Except where this Act stipulates otherwise, persons qualifying under Special Examinations are not permitted to transfer outside the originally allocated agencies for a period of six years. Regulations regarding this six year restriction vary by the nature and scope of the examining organization and are stipulated in the respective examination regulations.”
- For example, after the ratification of the Patent Act in 2008, intellectual property administration was separated into an independent subject in the civil services examination to meet the growing requirement of relevant administration tasks.
- In the 2012 Indigenous legislator elections, plain area legislator, Mr. Zheng-Er Lin (4-term reelectorate) was disqualified on suspicion of accepting bribes, resulting in only five legislators elected in 2012. Besides a new legislator, Ms. Ying Chen, elected in 2016, the five remaining legislators were all reelectorates.