Article 33 State Implementation and Monitoring (in response to Paragraphs 306-310 of the State Report)
State Report does not provide explanations on implementation and monitoring measures in accordance with requirements under CRPD Reporting Guidelines
The State Report did not comply with the requirement of the “Guidelines on treaty-specific document to be submitted by states parties” (CRPD/C/2/3) that sets out the State Reporting obligation under Article 33 of the CRPD. The State Report did not address any measures taken to designate one or more ‘focal points’ in accordance with Paragraph 1, Article 33, nor did it identify any ‘independent mechanisms’ as required under Paragraph 2 that can monitor the implementation of the Convention. The State also failed to report on any measures taken to involve civil society in the monitoring process and the preparation of the State Report. Finally, the State Report did not explain how disability issues can be integrated on the agenda of all government agencies, how their programs and functions are designed and how their budgets are allocated for the purpose of national implementation and monitoring.
In the List of Issues, the Review Committee should seek clarification from the Government to address any gaps in the protection mechanisms, coordination mechanism within the government, and budget allocations for the purpose of national implementation and monitoring to promote and protect the rights of persons with disabilities.
Paragraph 1, Article 33: Implementation Committee under the Executive Yuan has an ambiguous role and lacks efficiency
According to Paragraph 308 of the State Report, the government, under the Executive Yuan, created the Committee for the Promotion of the Rights of Persons with Disabilities (“Implementation Committee”) that is tasked to oversee the implementation of the provisions of the CRPD. The Government did not stipulate whether the Implementation Committee fits with the definition of a ‘designated focal point’ under Paragraph 1, Article 33 of the Convention. The Implementation Committee is mandated to meet once every three months in accordance with the requirements under the Installation Guidelines for the Committee for the Promotion of the Rights of Persons with Disabilities (“Installation Guidelines”); however, according to the meeting records provided by the Ministry of Health and Welfare, the Implementation Committee have so far only managed to fit two to three meetings per year since it was established, and lacked a clear documented working process and structure. For example, the Implementation Committee was given the power to accept individual complaints under Article 6 of the Act to Implement the Convention on the Rights of Persons with Disabilities (“CRPD Implementation Act”); however, there is no clear provisions on the process of handling any individual complaints. There is also no process to establish the administrative and legislative steps following the successful lodgment of an individual complaint. There is real doubt as to whether the Implementation Committee is able to fulfil the mandates as set out under Article 6 of the CRPD Implementation Act. Overseeing the implementation of the CRPD Implementation Act and coordinating efforts as the secretariat of the Implementation Committee fall under the responsibility of Ministry of Health and Welfare; however, in practice, these duties are being carried out only by a few staff from the Social and Family Affairs Administration Department, making the full realization of Article 6 of the CRPD Implementation Act difficult.
The Implementation Committee is headed by a Chairperson, appointed from Ministers without Portfolio, while Committee members should include deputy ministers, academic experts and representatives from organizations representing persons with disabilities. The Implementation Committee, through its mandate and membership, should be able to fulfil the requirement of a ‘designated focal point’ as stipulated under Paragraph 1, Article 33 of the CRPD. However, the Ministry of Health and Welfare does not publish any record of member attendance of these meetings, making it difficult for civil society to know which member was present at these meetings. The meeting minutes also indicated the Chairperson or key members were often not present at these meetings; instead, their functions were carried out by nominated ‘proxy’ members, and only a few members would speak during the meetings. The Implementation Committee is headed by a Chairperson, appointed from ministers of state, while Committee members should include deputy ministers, academic experts and representatives from organizations representing persons with disabilities. The Implementation Committee, through its mandate and membership, should be able to fulfil the requirement of a ‘designated focal point’ as stipulated under Paragraph 1, Article 33 of the CRPD. However, the Ministry of Health and Welfare does not publish any record of member attendance of these meetings, making it difficult for civil society to know which member was present at these meetings. The meeting minutes also indicated the Chairperson or key members were often not present at these meetings; instead, their functions were carried out by nominated ‘proxy’ members, and only a few members would speak during the meetings. Very few of the 24-member Implementation Committee identify themselves as persons with disabilities and most of the academic expert members are already under government commission or consultant contract in other related projects. We believe this creates ethical conflicts and conflicts of interest with regard to the member’s duty and obligation towards the Implementation Committee and the Government.
The Review Committee should request the Government to clarify whether the Implementation Committee appointed by the Executive Yuan functions as a designated coordination mechanism. If it does, the Implementation Committee should function in accordance with the requirements under the CRPD and the Government’s own CRPD Implementation Act. The Implementation Committee should be required to amend the Installation Guidelines, conduct meetings more frequently, and oblige its members to attend meetings personally, without the use of proxies. Persons with Disabilities and their representative organizations should account for at least one-third or even half of the membership of the Implementation Committee, and guidelines for avoidance of conflict of interest and an ethical code of conduct should be in place. The above requirements should be applied across all similar mechanisms in other government departments and ministries.
Paragraph 2, Article 33: NHRC should be established to take on the independent monitoring role
As Paragraph 307 of the State Report points out, the Control Yuan is empowered by the Constitution to independently exercise a number of powers for monitoring and conducting investigations on government agencies and public servants to protect the rights of citizens. However, since the implementation of the CRPD (through the enactment of the CRPD Implementation Act), the Control Yuan has only made one correction in February 2017 relating to the Fund to Improve and Promote Access-free Equipment and Facilities for Persons with Disabilities. The Control Yuan has otherwise not fulfilled its obligations under Paragraph 2, Article 33 of the CRPD as an independent monitoring mechanism. We recommend that the Control Yuan should increase its own expert capacity on the provisions of the CRPD, as well as develop a comprehensive working mechanism and process in order to ensure the Government meaningfully fulfil their obligations under the Convention.
The Control Yuan does not meet the requirements set under the 1993 United Nations Paris Principles on National Institutions for the Promotion and Protection of Human Rights, in both the composition of personnel and its functions. Since 1998, civil society organizations in Taiwan have called for the establishment of an independent National Human Rights Institution. This was supported in the Concluding Observations and Recommendations of both the 2013 and 2017 reviews of the Two Covenants, as well as the 2014 Review of the Convention on the Elimination of All Forms of Discrimination Against Women. President Tsai In-Wen finally made a commitment on January 20, 2017 that plans to establish a National Human Rights Institution in accordance with the Paris Principles will be finalized by the end of this year (2017). We strongly encourage the government to fulfil the commitment made by President Tsai, and ensure the independent National Human Rights Institution is tasked with the responsibility of implementing, monitoring, and coordinating the implementation of all ratified human rights conventions, including the CRPD.
Paragraph 3, Article 33: Government should ensure that Persons with disabilities and civil society are actively involved
Government should ensure that Persons with Disabilities and their representative organizations are actively involved in all aspect of governance, from policy formation, implementation, to evaluation, in order to ensure the interests of Persons with Disabilities are properly considered and consulted. Apart from the provisions stipulating a proportion of Persons with Disabilities among the members of the Implementation Committee under the Executive Yuan and other government agencies and local governments, no other mechanisms are in place to ensure that Persons with Disabilities are properly involved and consulted in the decision-making process. This falls short of the “Nothing about us without us” principle, as well as the requirements under Paragraph 3, Article 33 of the CRPD.
The government should institutionalize civic participation mechanisms by amending relevant laws: the administration currently makes arbitrary decisions when selecting information and processes for disclosures, consulting stakeholders, as well as exercising discretion as to the effect of citizens’ proposals. In view of the above, the Ministry of Justice should propose promptly amendments to the Administrative Procedure Act regarding public participation in decision-making, so that they can be reviewed and approved by the Parliament.