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Pursuing Indigenous Self-Government in Taiwan* |
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Cheng-Feng Shih, Professor** Department of Public Administration
and Institute of Public Policy Tamkang
University, Tamsui, Taiwan |
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Introductions The
12 Indigenous Peoples constitute roughly 2% of the 23,000,000 population of
Taiwan. Before the 2000 presidential election, Chen Sui-bien, candidate of the then opposition party, Democratic
Progressive Party (DPP), signed a “partnership” agreement with leaders of the
Indigenous movement in Taiwan in 1999. The next year, President Chen
signed another agreement with these leaders and reconfirmed his determination
to honor those pledged in the earlier agreement, including promoting
indigenous self-governments. After his reelection in 2004, President
Chen, to the surprise of the Indigenous Peoples, announce that he would put
up an exclusive chapter for the Indigenous Peoples in the much discussed new
constitution in 2006. While Indigenous leaders are endeavoring to draft
such a constitutional bill for themselves, there are concerns that President
Chen is only paying lip service to them. This article will examine what
efforts have been made to arrive at the goal of self-government within the
administration since the DPP came to power in 2000. The focus will be
on comparing the two versions of Indigenous Self-Government Bill,
especially how the notion of “nation-to-nation” is embodied. And then,
we will examine how indigenous intellectuals have reacted to them.
Finally, we will look into what barriers may have arisen on the road to
indigenous self-government.
Taiwan
is a settler society like Canada, United States, Australia, and New
Zealand. Before settlers began arriving at the island four centuries
ago, the Indigenous Peoples had resided here since time immemorial. From
discovery, conquest, to settlement by the “others,” they still had gradually
retreated to remote areas or to accept cultural assimilation. The
state, seeking to become a modern nation-state, is playing a two-level game
(Fig. 1): one the one hand, it has to resist forceful absorption by the
motherland, China, and domination by neighboring power; on the other hand, it
has to strike a balance among settlers, indigenes, and later-coming
immigrants. Basically, it is a three-pronged task: state-making in the
sense of securing sovereignty, nation-building in terms of forging common
national identity, and state-building in the process of institutional
engineering.
Nowadays,
it is generally agreed that there are four major ethnic groups in Taiwan
(Fig. 2): Indigenous Peoples, Mainlanders, Hakkas,
and Holos. While the former are of
Austronesian stock, the latter three are descendants of those Han
refugees-migrants-settlers of Mongolian race who sailed from China as early
as 400 years ago. Ethnic competitions would be found mainly along three
configurations: Indigenous Peoples vs. Hans (Mainlanders＋Hakkas＋Holos), Hakkas vs. Holos, and
Mainlanders vs. Natives (Indigenous Peoples＋Hakkas＋Holos). For the
past two decades, the number of marriage immigrants from Southeast Asian
countries and China has surpassed that of the Indigenous Peoples: yet, it is
not clear whether they would constitute a new ethnic groups
against the natives. Finally, there is a reclaiming collective identity
of Plaines Indigenes, who had almost lost their indigenous characteristics
until the 1930s. In the old days, they had chosen to Sincized themselves and become “human beings” in order to
avoid systemic discrimination. In essence, these are actually Mestizos
who have so far considered themselves Creoles. However, most of
them are not officially recognized as indigenes by the government. Efforts In
the past two decades, the Indigenous Movement in Taiwan, based on the idea of
inherent indigenous rights, has focused on three interlocked goals: the right
to be indigenes, self-rule, and land rights. Being the Indigenous
Peoples of Taiwan, they claim that they are not merely ethnic minorities but
indigenes that deserve their rights enshrined in international laws. It
is argued that Indigenous Peoples have never renounced their sovereignty
seized by the aliens. Indigenous elites insist that indigenous lands
dispossessed a century ago be returned to the Indigenous Peoples.
Buttressed by the idea of self-determination, they demand the establishment
of self-governments in place of present-day local administrative units.
It is believed that only self-rule without being patronized can lead to true
autonomy where the Indigenous Peoples can decide what is
the best for themselves. To certain degree, the government seems
to realize that protecting indigenous rights is a gesture of reconciliation.
So
far, two versions of the Indigenous Self-Government Bill have been
prepared. Bill A, while excessively detailed in light of Continental
Laws, was drafted by experts on local government and fashioned after the Local
Government Law in the spirit that the authority of the indigenous
government is delegated by the central government. It was then replaced
by Bill B after been stalled during the process of cross-ministry reviews, in
the hope that this simplified version would be a model of procedural law
rather than substantial one for future drafting of separate autonomous
statute, read “treaty,” between each indigenous people and the central
government. Tactically speaking, it was purposefully calculated that
this reduced bill would ease the painstaking process of lawmaking.
However, after some heated deliberations in the Legislature, the government
was forced to withdraw the bill as indigenous legislators complained that no
adequate indigenous rights had been guaranteed in the bill. It was
forcefully insisted that some itemized list of indigenous rights, especially
financial support in certain proportions to the annual national budget, be
specifically recognized in the bill. Otherwise, it was contested that
the bill-in-principle was nothing but an undisguised hoax to deprive the
Indigenous Peoples of what they deserve. The
most fundamental issue raised is whether the idea of indigenous sovereignty
is compatible with the existing state’s indivisible sovereignty. In
other words, it is suspected that how sovereignty is to be shared by the
Indigenous Peoples and the state. It is also doubted whether it would
challenge the territorial integrity of the state if the Indigenous Peoples choose
to exercise their right to self-determination and declare outright
independence. Some even argue that the Indigenous Peoples have never
possessed any right to the lands except the right to exploitation.
Others have gone so far so to dismiss the whole notion of indigenous
rights. Strongest resistances come from the Bureau of Forest Services
and from the Bureau of Water Resources, whose jurisdictions largely overlap
with the designated areas for indigenous self-governments, particularly the
former. While daring not to speak out openly, some DPP elements have suggested that the emperor’s new clothes be thrown
into closet as a responsible ruling party, implying that those promises to
wood the Indigenous Peoples are nothing but empty electoral rhetoric during
presidential campaigns. Engulfed
in the disillusioned clouds, an Indigenous Fundamental Law was
unexpectedly passed by the outgoing legislators in 2005. Praised as the
Indigenous Constitution, the law may be considered as a de facto
treaty between the Indigenous People and the state. Essentially a
synthesis of abstract principles and concrete protections of indigenous
rights, the law designates the formation of an Enacting Committee under the
Executive for its enforcement, where two-thirds of its members be reserved
for the Indigenous Peoples. It also requires
concerned ministries and agencies to revise relevant laws and statutes in its
conformity in three years. Last but not least, it attaches a sting that
there shall be a separate chapter for the Indigenous Peoples in the intended Bill
of Rights. Within
the Council of Indigenous Peoples, a working group made up of ministerial
delegates, indigenous representatives, and scholars, was established in early
2006 to assist further considerations of the abovementioned enacting
committee. Since its inception, its members have been working under
four substantive groups: administration, education-culture,
economics-development, and indigenous lands. While ministerial
delegates are ready to protect their constituencies, indigenous
representatives are similarly eager to defend their inherent rights.
This sometimes leaves scholars as crucial arbitrators when disputes
arise. When those civil servants throw doubts upon, if not ridicule,
the whole idea of indigenous rights, non-indigenous participants qua
scholars have to come up with legitimate rationales upon international laws,
political philosophy, and practices from other countries that lie under the Indigenous
Fundamental Law. From time to time, it is argued without valid
proof that indigenous rights may conflict with national interests and that
therefore their fulfillment be suspended. At
this juncture, scholars have to point out that there is no necessary
contradiction between indigenous rights and national interests; even if there
is, some compensatory measures are warranted. At times, in addition to
professional knowledge, scholars have to work on their conscience while
walking on a thin line between the quarreling parties, so that they would not
be suspected of being agents of either. IssuesLogically,
there are three plausible options when Indigenous Peoples exercise their
rights to self-determination: to accept assimilation, to maintain
self-government, and to seek independence. A series of alien rulers had
in the past sought at all costs to assimilate Plains Indigenes in western
Taiwan, whose descendants are now almost inextinguishable from
non-indigenes. Only those Indigenous Peoples who have bee geographically segregated in central mountain areas
and eastern Taiwan are lucky enough to retain their cultural
identities. Enlightened by the spirit of multiculturalism, more and
more Indigenous Peoples are proud to express their distinguished
characteristics. Nonetheless, indigenous are still divided over the
rationality of upholding self-governments (Fig. 4).
While
some, for fear of discrimination, suspect the wisdom to resist further
assimilation, some more, judging from the fact that non-indigenous peoples
have only exploitation on their minds, economic development and social
welfare assured by the government are the only guarantee for progress.
In their view, therefore, the abstract principle of self-determination and
the remote goal of self-rule are nothing but futile illusions. On the
extreme of the spectrum, few indigenous elites have claimed that only
political independence can lead to authentic salvation, even though no
serious effort has been made to promote its materialization. As a
result, self-government turns out to be a pragmatic compromise: while
reserving their right for claiming independence, indigenous leaders would see
how the government is willing to prevent indigenous governments from being
empty shells. Meanwhile,
it is believed that guarded by the three-layered protection from the Indigenous
Fundamental Law, the proposed chapter on Indigenous Peoples for the
proposed new Constitution, and a similar one for the Bill of Rights as
pledged by President Chen, indigenous self-rule may enjoy a better
fate. However, since there is no guarantee that the latter two would be
eventually passed by the opposition-dominated Legislature,
they are drafted to include as many indigenous rights as possible stipulated
in the United Nations Draft Declaration on the Rights of Indigenous Peoples,
1995. Of course, many doubts and reservations have been raised
within and without the Council of Indigenous Peoples, which is in charge of
the two bills. In
terms of technical feasibility, there is some disagreement over whether a
federal system for central government is the only territorial arrangement
compatible to indigenous self-rule. However, experiments from countries
with and without indigenous peoples have show that
unitary systems may equally serve the purpose of autonomy well (Fig. 5), as
the case of Nicaragua has illustrated.
There
are also concerns over which body is going to arbitrate between indigenous
self-governments and central/local governments when disputes arise.
Without any precedent, four options have been suggested: the Parliament, the
Constitutional, a special committee, and the President. Since indigenous
MP’s constitute less than 5% of the Parliament, it is doubtful how this
mechanism, brought into being under the principle of one-man-one-vote, would
be in any position to defend indigenous rights, unless a parliamentary
committee where indigenous MP’s dominate is created. While the
Constitutional Court seems an impartial branch of the central government, it
is still precarious to leave the future of Indigenous Peoples in the hand of
an organ where no indigenous judge would be presiding over the case in the
ten to twenty years. There are suggestions that some kind of special
committee is designed under the President, or the President is responsible to
resolve disputes (Fig. 6). Nonetheless, it is uncertain whether the
President would consider himself/herself as the head of state mandated by the
dominant non-indigenes only, or as a dispassionate arbitrator supported by
the Indigenous Peoples as well. In the end, there is no answer for the
following challenge: “If the relationship between the Indigenous Peoples and
the state is considered as “partnership,” shouldn’t there be an outside third
party to play the role of arbitrator?” This question deserves further
considerations not only among the Indigenous Peoples but also between elites
from indigenous and non-indigenous sectors.
Eventually,
the final battleground is found in the appropriation of lands for indigenous
self-governments. Under Article 2 of the Indigenous Basic Law,
two relevant terms are defined: “Indigenous Areas” means those areas
traditionally occupied by Indigenous Peoples and sanctioned by the Executive,
and “Indigenous Lands” includes traditional lands occupied by the Indigenous
Peoples and current lands nominally reserved for them. Since these two
are conceptually distinct, we may delineate their possible relationships in
terms of Venn Diagrams (Fig. 7). Since
the end of World War II, the government has confined the so-called
“Indigenous Areas” into 55 townships, among which 30 are designated as
“Mountain Indigenous Townships,” and 25 “Plains Indigenous Townships.”
For most ministries and agencies concerned, especially the Bureau of Forest
Services and, to a less degree, the State Park Authorities, this
administrative arrangement is definite without any doubt. In other
words, the “Indigenous Lands” lie within the limits of the “Indigenous
Areas.” This defensive interpretation makes them anxious calculate how
many lands they would be forced to release to Indigenous Peoples in case any
self-governments come into existence. In their contemplation, the best
strategy is to retain the ongoing system of token monetary compensation
without their jurisdictions over indigenous land being taken away. In
the meantime, they also keep close eyes on the proposed mechanisms for
co-management on indigenous lands confiscated for public utilities.
However,
for the Council of Indigenous Peoples, which is currently undertaking surveys
of traditional lands that had once been utilized by the Indigenous Peoples in
the past, there is no reason why the boundaries of these old administrative
units cannot be subject to any adjustments. According to the maps of
traditional territories drawn according to oral narratives so far, some
Indigenous Peoples have claimed that their tribal lands extend beyond the
highly restricted “Indigenous Areas.” Therefore, even though the
so-called “Indigenous Lands” stipulated in the Indigenous Basic Law
have not been designated, they are expected to cover the whole “Indigenous
Areas.” Theoretically
speaking, the whole island used to belong the
Indigenous Peoples. Nonetheless, it is not clear whether they are
descendants of those assimilated Plaines Indigenes. Unless the 12
Indigenous Peoples forge formal alliance with Plaines Indigenes, claims over
the land beyond the “Indigenous Areas” will be strongly resisted. In the
short time, one feasible compromise is to limit land claims to the
“Indigenous Areas,” in the hope that the whole officially designated
indigenous reserved lands be handed over to indigenous self-governments. Visions For
an indigenous self-government to work effectively with an eye to protect
indigenous rights, three aspects are crucial for meaningful institutional
designs: authority, efficiency, and representativeness (Fig. 8). First
of all, to be truly autonomous, political authority of the indigenous
government must find its place in the Constitution. Otherwise, its
uniqueness as a manifestation of inherent indigenous rights would run the
risk of being compromised, if not nullified, by a legislature dominated by
non-indigenes. Secondly, there are also debates over whether there
shall be one indigenous government only, one self-government for each
Indigenous People, or as many tribal governments as possible. Since not
all Indigenous Peoples are opt for self-rule, at least in the short run, a pan-indigenous
self-government, even a confederation in the loosest sense, seems
impractical. On the other hand, tribal governments appear to be
the best model to express grassroots participation for direct democracy,
caution should be made against low economy of scale.
Finally,
there have be conflicting views over what
institutional arrangements to represent the Indigenous Peoples (Fig.
9). It appears that the goal of sufficient representation may at times
contradict that of efficiency. Ideally, there would be one tribal
council for each tribe with and without self-government. As a result,
depending on the definition of tribe, it is estimated that there would be
roughly 250 tribal councils. While retaining their autonomy, these
tribal councils are expected to forge some forms of coalition along cultural
lines in order to bargain with the government. Depending on different
patterns of tribal organizations, whether scattered or concentrated, these
processes of internal integration warrant some cautious procedures.
Thirdly, there have some suggestions that a second chamber be established in
the national legislative body. This amounts to bestow a right of
minority veto to the Indigenous Peoples. It is not clear if the
‘mainstream” of society is ready to embrace this Lijphartian
consociational mechanism. Finally, indigenous
leaders have persistently put forward to the formation of a pan-indigenous
assembly fashioned after the Assembly of First Nations in Canada. It is
hoped that this representative body may select a grand chief who is co-equal
with the President so that the idea of “nation to nation” relation may be
formally embodied.
ConclusionsThe
author was fortune enough to deliver a speech on indigenes’ constitutional
rights at the first assembly of indigenous leaders in history at Taichung,
Taiwan, on June 28, 2006. At this historical occasion, these tribal
leaders expressed their endorsement for the draft indigenous chapter of the
new constitution. They also declared their determination to take back
their traditional lands. So far, at least one Indigenous Assembly,
formed by the Thao People, a people with a
population less than 1,000, has been recognized by the government, which has
agreed to return a 150-acreage land to this smallest people. Still,
there are not without any setbacks. For instance, in the
aftermath of the downsize of the Parliament after
constitutional amendments in 2005, guaranteed indigenous seats will be
reduced from 8 to 6 in the future. Also, there have been subtle
restrictions on indigenous affirmative actions. They are still strangers on
their own lands. * Prepared for the
International Peace Research Association Biannual Conference “Patters of
Conflict Paths to Peace,” University of Calgary, Calgary, Alberta, Canada,
June 29-July 3, 2006. ** The author is co-convenor of the Indigenous Working Group for Promoting New
Constitution, Council for Indigenous Peoples. He also serves as
chairman of the Administrative Sub-committee of the Working Group for
Enacting the Indigenous Basic Law, Council for Indigenous Peoples. His
articles in English may be found at http://mail.tku.edu.tw/cfshih/default2.htm.
For correspondence: cfshih@mail.tku.edu.tw. |
