Executive Summary
Introduction
Covenants Watch: The Legislative Yuan ratified the ICCPR and ICESCR in 2009, and passed the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (the Implementation Act) to impose legal power. The Covenants Watch – an alliance comprising a coalition of 40 human rights groups founded by Mr. Peter Huang – was established in the same year to monitor the government in fulfilling the obligations stipulated in the two Covenants. Since then, the Covenants Watch (hereafter referred to as “CW”) has closely monitored the government to conform to the standards stipulated by the United Nations (UN) in terms of the review process and specifications. We participated in reviewing the laws and regulations according to the Covenants, monitored the implementation progress of the Concluding Observations and Recommendations, and continue to propose constructive suggestions for law amendment and policy formulation.
Transfer of Power: Between the Review of the Initial State Report in February 2013 and the second review in 2017, significant political changes have taken place. The Sunflower Parliament Occupation Movement in March 10 2014, which garnered the increased attention of the public towards democracy and the government, has brought a significant influence. In addition, the coalition of the Umbrella Movement in Hong Kong in September 2014 and the disappearance of five people associated with Causeway Bay Books at the end of 2015 spurred people’s awareness concerning the importance of safeguarding human rights in Taiwan. The outcomes of the 2014 Local Elections and the 2016 Presidential and Parliament Elections indicated a significant change in Taiwan’s political landscape. Although the Democratic Progressive Party (DPP) assumed office between 2000 and 2008, the Kuomintang (KMT) has held majority seats in the Legislative Yuan since 1949. This situation changed following the inauguration of the 9th Legislative Yuan in March 2016. For the first time, the DPP held more seats in the Legislative Yuan than the KMT by a ratio of 69:35, with five New Power Party (NPP) legislators and four People First Party (PFP) legislators.
In the following section, discussions are categorized into the former and current government administrations (using the presidential inauguration in May 2016 as the cut-off point).
Former Government Administration
Composition of National Reports: The Second National Report was largely composed in the second half of 2015 using the same approach adopted for the composition of the Initial State Report. First, the various governmental departments composed a draft based on predetermined division of labor. Then, the Presidential Office Human Rights Consultative Committee convened consultation meetings at the Ministry of Justice where government representatives hear from invited public interest groups. A number of members of the CW partook in the consultation meetings, requesting that more accurate data be presented in the reports to reflect the progress and regress of various rights. The Second National Report on ICCPR and ICESCR was announced by the Office of the President in April 2016.
The Government’s Follow-Up on the Concluding Observations: The Concluding Observations and Recommendations was the core human rights document created during the review of the First National Report in 2013. The CW actively partook in the follow-up review meetings organized by the government. We suggested in the first meeting that various governments departments should individually organize review meetings to establish direct dialogue with the public. As a result, relevant departments collectively organized 26 public hearings in addition to the review meeting hosted by the Ministry of Justice in the second half of 2013. Under the repeated pronouncement by public interest groups, competent authorities are expected to apprehend the plight and proposition of the public.
The Extent of Implementation of the 81 Recommendations: Besides Points 11 (ratification of the Implementation Act of the Convention on the Rights of the Child and Act to Implement the Convention on the Rights of Persons with Disabilities), 60 (granting medical parole to former President Chen Shui-Bian), 61 (partial amendment of the Habeas Corpus Act), 62 (amendment of the Immigration Act in accordance with Judicial Yuan Constitutional Interpretation No. 710), and 69 (repeal of the HIV Infection Control and Patient Rights Protection Act and other restrictions on aliens with infections), the remaining insufficiencies have yet to be improved in accordance with the recommendations. Based on the evaluation outcomes of the NGOs, the extent of implementation is extremely limited, particularly concerning the execution of capital punishment and forced evictions, which continue to take place.
The Mechanism for Human Rights Protection: The government’s institutions to protect and promote human rights were clearly inadequate. First, the Presidential Office Human Rights Consultative Committee does not have administrative authority over the government. In principle, the Working Group on Human Rights Protection and Promotion of the Executive Yuan is responsible for reviewing the human rights policies of various departments, rectifying the flaws of various authorities, and mediating interministry cooperation. However, this working group has been functioning at a minimum level. On the other hand, the establishment of the National Human Right Commission was repeatedly deferred during President Ma’s tenure.
Legislation Review: Article 8 of the Implementation Act stipulates that “All levels of governmental institutions and agencies should review laws, regulations, directions, and administrative measures within their functions according to the two Covenants. All laws, regulations, directions, and administrative measures incompatible to the two Covenants should be amended within two years after the Act enters into force by new laws, law amendments, law abolitions, and improved administrative measures.” However, no mechanism for systematic reviews has been established beside the “Inventory of Various Competent Authorities Reviewed for the Compliance of Laws, Regulations, and Administrative Measures to the Two Covenants” produced in the first round of reviews held in 2011. The government also failed to systematically promote the introduction, research, and analysis of international human rights regulations.
Application of the Two Covenants in Courts: Observations on the implementation of the Two Covenants in the court system revealed that the Justices of the Constitutional Court had referenced the Two Covenants on multiple cases after 2009 to interpret constitutional rights. A combined total of 207 cases in which the implicated parties based their claims on or which the court referenced the Two Covenants were recorded among the Supreme Courts (including Criminal Civil, and Administrative Courts) in a five-year period between the date of ratification of covenants and September 2014. This statistic confirms the increased implementation of the Two Covenants compared to the pre-ratification period. However, the implementation of the Two Covenants in district courts remains lackluster.
The Covenants as cause of action: According to the concluding comments of the First Supreme Administrative Court Division-Chief Judges and Judges Extended Meeting held in August 2014, “the human rights provisions stipulated in the ICCPR and ICESCR pertain domestic legal status. However, whether a claimant can directly pursue a cause of action against government departments is dependent on whether the content, terms, and conditions of the cause of action are clearly stipulated in the relevant regulations of the Two Covenants. Clearly defined regulations, such as Paragraph 3, Article 24 of the ICCPR: ‘Every child shall be registered immediately after birth and shall have a name,’ and Subparagraph 1, Paragraph 2, Article 13 of the ICESCR: ‘Primary education shall be compulsory and available free to all,’ can be used as a legal basis for cause of action.” This comment is extremely conservative. The Supreme Administrative Court should have encouraged judges to reference the Two Covenants, and to avoid confusion among judges the concepts of “justiciability” and “self-executing.” According to the experience of lawyers, judges remain unfamiliar with the principle of making “interpretations of domestic laws which give effect to their Covenant obligations.”
Ratification of Conventions: The government ratified the Implementation Act of the Convention on the Rights of the Child and the Act to Implement the Convention on the Rights of Persons with Disabilities in 2014. However, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families have remained in a prolonged “research” stage. The International Convention on the Elimination of All Forms of Racial Discrimination is a convention ratified before Taiwan withdrew from the United Nations. It currently requires an implementation act to pertain domestic legal status.
Stagnation of Issues Concerning the Self-Determination and Traditional Territories of Indigenous Peoples: Not only is the indigenous people in Taiwan subject to extreme marginalization, but they are also at risk of losing their cultural identities and languages. Since the Review of the First National Report in 2013, no substantive progress has been made on issues concerning the self-determination of indigenous peoples, confirmation of their traditional territories, or respect towards indigenous cultures and customs.
Exacerbation of Low-Wage Trends and Economic Inequality: Improvements in labor conditions in Taiwan remain unsubstantive, yet the income of high-income earners continues to rise, consequently broadening the wealth gap. Income tax statistics show that Taiwan’s top five percent of income earners received 55 times, 94 times, and 112 times more income than the bottom five percent of income earners in 2005, 2010, and 2014, respectively. In addition, taxes only account for 12.4% of the Taiwan’s overall GDP because of the low rates on capital gain, limiting the efficacy of income redistribution.
Lack of National Human Rights Action Plans: President Ma’s administration manifested neither engaged in systematic planning nor formulated national human rights action plans. The government continues to adopt a perfunctory piecemeal approach to address human rights demands and resolve protests and petitions.
Citizen Participation: No increase in citizen involvement in public policy formulation and community development are exhibited since 2013. In terms of public policy formulation, President Ma’s administration manifested desirous intention to establish closer trade relations with the PRC and openly expressed its support of the One-China Principle on international media. The government denied citizen participation, even in policies involving core issues of national identity and long-term national interest. The tension finally exploded with the undemocratic ratification of the Cross-Strait Service Trade Agreement (CSSTA) by KMT legislators in March 2014, leading to the rise of the Sunflower Movement, where protesters occupied the Legislative Yuan and took to the streets in protest. In terms of community development, the government continues to promote urban renewal, urban land consolidation, and industry or business park development projects in various regions of Taiwan without arranging suitable channels for citizen participation. Land acquisition for these projects is primarily government-led. Some urban land redistribution projects also hold closed ballots for local landowners relying on majority votes. Both methods severely affect the rights of local residents, particularly the rights of minority landowners and non-landowners, who are often forcefully evicted. Additionally, development of the traditional territories lacks a standardized process in which the views and opinions of the indigenous people are taken into consideration.
Human Rights Education: Although human rights courses are available to civil servants and judges, the participation is mostly voluntary. Therefore, the coverage of these courses is relatively low. Moreover, the benefits of lecture-based (unidirectional) course for raising human rights awareness are limited. As a resolve, the government should systematically collate actual cases, develop teaching materials, and foster dedicated teachers.
Human Rights Tools: The government maintains a conservative attitude towards the research, development, and promotion of human rights indicators, human rights statistics, human rights impact assessments, and other tools to monitor human rights performance effectively.
New Administration
President Tsai’s administration assumed office in May 2016. The outcomes of human rights policy implementation remain to be observed as the new government has only been in office for two months. Nonetheless, several observations on the new government are presented below.
Human Rights Policy: President Tsai failed to mention human rights in her inauguration speech, and her administration has yet to announce a complete human rights policy. However, three of the agendas addressed by President Tsai in her speech directly affect human rights, namely, judicial reform, transitional justice, and pension reform.
National Human Rights Commission: In the Presidential Office Human Rights Consultative Committee Meeting directed by the newly elected Vice President Chen on 22 July 2016, members conceded that the commission should be established without delays, and established a list of preference to the four establishment proposals. The stagnation of this matter from 2014 had finally gained progress.
Transitional Justice: The purpose of transitional justice is to compensate for or rectify the human rights violations that occurred in Taiwan during KMT governance after WWII. These violations included the 228 Incident, in which the government ordered the military repression of protesters against the KMT and the military; and the martial law (White Terror) period, in which the KMT government suppressed political dissidents through imprisonment, torture, and murder, and implemented various policies (incl., restricting assembly, restricting speech, restricting publication, and controlling election) to protect its totalitarian actions.
The Presidential Office shall establish a Truth and Reconciliation Commission.
The Statute Governing Promotion of Transitional Justice shall be discussed in the Legislative Yuan. The Executive Yuan shall establish the Transitional Justice Promotion Committee to implement four objectives, specifically, (1) disclosing political files to the public; (2) eradicating authoritarian symbols and preserving historical sites under the then authoritarian regime; (3) reinstating cases of injustice, restoring historical truth, and promoting social reconciliation; and (4) handling assets improperly obtained by political parties.
The Legislative Yuan ratified the Act Governing the Handling of Ill-gotten Assets of Political Parties and Their Affiliate Organizations in July 2016, which had been blocked by KMT legislators 306 times in the past 14 years. In addition, the Executive Yuan shall establish the Ill-Gotten Asset Handling Committee. KMT assets are largely categorized into three sources: (1) treasury asset and foreign exchange assets of the PRC transferred to the KMT formally or privately during KMT governance; (2) assets acquired from Japan after 1945; and (3) revenue created by investment and profit-seeking companies owned by the KMT. Other assets include the gratis donations of possessions by various government institutions to the KMT and its affiliates, discounted acquisition of government land and real estate, seizures of public land, and privileges gained from KMT-owned enterprises.
Transitional Justice of the Indigenous People: On 1 August 2016, President Tsai represented the Presidential Office in extending a formal apology to the indigenous people of Taiwan for the oppression and exploitation of the Han people. The Indigenous People’s Transitional Justice Committee shall be established in the Presidential Office to comprehensively handle affairs concerning indigenous culture, language, native title, and governance.
Judicial Reform: During her inauguration speech, Present Tsai expressed that the general sentiment is that people have lost confidence in Taiwan’s judicial system. A national congress on judicial issues shall be held in October 2016, inviting citizens to participate in judicial reform, but the agenda has yet to be announced.
Pension Reform: Taiwan’s pension system fundamentally comprises the Statutory Pay-As-You-Plan (calculated based on individuals’ pension schemes during employment) and the Occupational Plan. Currently, the two most prominent issues concerning pension are financial security and fairness. Subsequently, a large gap exists between the rate of replacement of labor pension and that of civil service pensions. For example, the pension received by retired elementary teachers far exceeds the average salary of young workers.
Conclusion
The concluding observations and recommendations following the review of the Initial State Report had significant impact on the Taiwanese government and civil society. Although progress remains unsubstantive, outcomes are cumulative. We anticipate that the new government will be more open to the suggestions of international experts. Covenants Watch aims to urge the government in establishing comprehensive human rights protection and promotion mechanisms. Such mechanisms include establishing the National Human Rights Institute and a dedicated human rights office at the Executive Yuan to coordinate the handling of interdepartmental human rights issues and supervise human rights affairs in the various ministries. The applicability of the covenants in courts relies on the continued review of existing domestic laws and regulations by the administrative and judicial departments, as well as the timely mitigation of gaps or discrepancies between domestic and international laws and regulations by the Legislature. These are long-term plans. We look forward to your constructive and professional opinions to facilitate progress in Taiwan.