Author: Daniel Severson, Harvard University
Taiwan has come a long way since it emerged from martial law just a quarter century ago. Back then, the struggle for basic rights, including freedom of assembly, speech, and the press, remained fierce. In 1989, democracy activist Cheng Nan-jung famously set himself on fire to protest restrictions on freedom of expression.
Today, Taiwan is a vibrant democracy with a strong two-party system, lively media and healthy respect for the rule of law. And now, thanks to an ongoing process notable for its creativity and increased civil-society participation, the government’s compliance with core international human rights norms is receiving increased scrutiny.
In 2009, the Taiwanese legislature (known as the Legislative Yuan) passed, and President Ma Ying-jeou ratified, two United Nations treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The UN Secretary General rejected Taiwan’s request to deposit the instruments of ratification because it is not a UN member state. The government nevertheless passed the Implementation Act, which gives both treaties special status in domestic law just below that of the Constitution.
The government issued Taiwan’s first official state report in April 2012, and then invited a group of international experts to evaluate Taiwan’s compliance with the two covenants. After three days of public hearings, on 1 March the experts released their concluding observations and recommendations, directed at enabling the government to better meet the requirements of the two treaties. The recommendations cover a wide array of issues, from promoting gender equality and safeguarding the rights of indigenous peoples to recognising torture as a crime and reducing the size of the prison population. The Ministry of Justice has since begun to task relevant government agencies with providing responses to the experts’ recommendations, and to host a series of implementation consultation meetings.
Yet five months after the review’s conclusion, it appears that actually implementing the recommendations will be a challenge. In April, just weeks after the report strongly encouraged the Taiwanese government to immediately reinstate a moratorium on executions, the government decided to proceed with the execution of six death-row inmates, to the outrage of some human rights advocates. Members of civil society have also expressed disappointment at the lack of concrete progress in addressing the experts’ recommendations during the general follow-up process, citing the absence of high-ranking government officials from the consultation meetings as a particular frustration. Another problem is that the review process suffered from inadequate media coverage and government publicity; most Taiwanese are not aware of the commitments their government has made.
Given bureaucratic resistance, progress may be piecemeal and confined to select issues like protecting migrant workers and the disabled. Contentious issues like the death penalty and forced evictions are likely to need clear national leadership.
Still, despite shortcomings, the process has undeniably been positive. Prior to the review, the government and NGOs were not well versed in international human rights processes, a product of Taiwan’s long separation from the UN. Now they are familiar with a set of international documents and standards. And to defend their rights, civil society also has a new tool to lobby the government: according to Article 8 of the Implementation Act, domestic laws that are not compatible with international regulations must be amended within two years, and the experts’ recommendations highlight remaining discrepancies.
The review also confirms that international human rights norms are an authoritative source of law in Taiwan’s legal system. The Judicial Yuan has already recognised that criminal trials that fail to separate verdict and sentencing during oral argument can result in biased decisions, and do not comply with the ICCPR’s due process guarantee. This year, Taiwan’s Supreme Court, recognising the ICCPR as domestic law, cited the covenant when it overturned a death penalty ruling on appeal, and it directed the lower court to follow draft legislation that seeks to bring Taiwan’s criminal procedure in line with the ICCPR. If Taiwan’s upper courts reverse decisions that fail to cite the UN covenants, lower courts and other officials will take notice. Internalising these norms will be a gradual process, but legal scholars and human rights activists are already training judges and lawyers to cite the covenants.
Also noteworthy is that Taiwan’s review process was held ‘onsite’ rather than in New York or Geneva. This feature enabled greater participation by both the government and civil society. The international experts were impressed with the government’s strong commitment, and they praised civil society’s very active engagement in all aspects of the process for having helped them to gain a deeper understanding of many complex issues. In light of calls for reform of the UN treaty review process, Taiwan’s onsite review process could serve as a possible model for reviews in other countries. Most important though, the review sends a signal to the international community that Taiwan’s people aspire to abide by international norms, regardless of Taiwan’s diplomatic status.
Daniel Severson, a former Fulbright Fellow in Taiwan, is a student at the Harvard Law School and Harvard University’s John F. Kennedy School of Government.
This piece is adapted from an article that first appeared in the August 2013 issue of Taiwan Business TOPICS, the American Chamber of Commerce in Taipei’s monthly journal.