The Special Chapter for Indigenous Peoples in Taiwan's new Constitution

Cheng-Feng Shih (施正鋒), Ph.D., Professor

Department of Public Administration and Institute of Institute of Public Policy

Tamsui, Tamkang University (淡江大學)

P.O. Box 26-447, Taipei 106, TAIWAN (台灣)

Tel: 886-2-2706-0962; Fax: 886-2-2707-7965

E-mail: ohio3106@ms8.hinet.net; HTTP://mail.tku.edu.tw/cfshih

As an election campaign promise to promote indigenous rights, President Chen Shui-bian successively signed the “New Partnership Between the Indigenous Peoples and the Government of Taiwan” and the reaffirmation of the aforementioned partnership. Following his re-election, President Chen further declared that a special chapter for the rights of indigenous people would be included in the new constitution of the country, which not only excited the indigenous elite but also motivated them to probe into the significance of such a special chapter.

In response to the inclusion of special chapter for indigenous rights, the Council of Indigenous Peoples of the Executive Yuan established a special working group on  constitutional indigenous policy and the promotion of a new Constitution. This task force proposed ten major issues for the future special chapter, and invited related academics to respond to these issues with dissertations. In addition, indigenous civil servants at all levels, indigenous rights activists and students are all invited to conduct fierce discussions on weekly basis about these issues. Recommendations are also proposed during the discussion.

Major issues that have been highlighted include:

1. Why should indigenous rights be enshrined in the Constitution?

2. What is the definition of “inherent rights” of indigenous peoples?

3. What is the significance of natural sovereignty of indigenous peoples?

4. What is the justification of rights to self-determination of indigenous peoples?

5. Why do indigenous peoples demand autonomy?

6. The autonomy arrangement of unitary/federal mechanism, including the dispute of ultimate authority of autonomy.

7. The significance of indigenous representatives and the arrangement for effective political participation.

8. The establishment of a central tribal council of indigenous peoples.

9. The relations between the ancestral domain, rights to land and resources, and fishing and hunting rights.

10. The judicial power and customary law of indigenous peoples.

11. Stipulation of fiscal power of indigenous peoples in the Constitution.

12. Looking at the quasi interstate relations between the state government and indigenous peoples from treaties signed between the two parties.

13. Constitutional issues facing the special chapter for indigenous rights.

Generally speaking, in a settler’s society, a state government would redefine its relation with the indigenous peoples with declaration making (United States), treaty signing (New Zealand), constitutional enshrinement (Canada) and verdict (Australia). Subsequently, the redefinition will be realized by means of legislation. The Constitution Act of Canada enacted in 1982 is the most definite example of affirming the collective rights/ethnic rights of indigenous peoples with constitutional enshrinement. The Act states, “the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Consequent to the democratization of Latin American countries from late 1980s onwards, 11 states of the region, namely Argentina (1994), Bolivia (1994), Brazil (1988), Columbia (1991), Ecuador (1998), Guatemala (1985), Mexico (1992), Nicaragua (1987), Panama (1994), Paraguay (1992), Peru (1993) and Venezuela (1999) have already articulated the protection for indigenous rights in the constitution. Rights of the Sami are also protected in the constitution of three Northern European countries, including Finland (1999), Norway (1995) and Sweden (1998). In addition, New Zealand and Australia are seriously considering how to enshrine indigenous rights in the constitution amid promoting a new constitution in recent years. Both countries regard the constitutional enshrinement of indigenous rights as crucial for making historic reconciliation with indigenous peoples.

Symbolically, enshrining indigenous rights in the constitution stands for the state’s determination to rebuild its relations with indigenous peoples. The constitutional enshrinement is also a social contract, indicating that the indigenous peoples who have been taken in by uninvited alien regimes will begin to “construct” this state with the former. Furthermore, the recognition of indigenous rights in the constitution is an ultimate protection to indigenous peoples. Considering the advantage of the non-indigenous society in its size of population, residing indigenous rights in the constitution can prevent the non-indigenous populations from dominating the legislative process to endorse bills detrimental to the rights of indigenous peoples. Doubtless, such constitutional enshrinement also demonstrates the state government’s vision to promote the overall status of indigenous people in its future administration.

Last but not least, the promotion of discussions regarding the issue of including indigenous rights in the constitution can raise more attention of the general public to indigenous rights. Dialogues between indigenous and non-indigenous elites may be furthered as result of relevant discussions to build the sense of community for all.

By large, content of a constitution about indigenous peoples are written in the form of a preamble, in articles against discrimination and for the protection of rights. The preamble is oftentimes about making efforts to identify the historical status of indigenous peoples, and especially for the definition of indigenous peoples. This usually involves  emphasizing that one should not define “indigenous peoples” by looking at what the word “indigenous” means. The definition does not involve anthropologists’ concern regarding whether inhabitants at the Stone Age are the ancestors of the indigenous peoples today. Rather, “indigenous peoples” should refer to the inhabitants who have settled on this piece of land long before the arrival of the settlers.

As to the anti-discrimination content, they mostly include general substance for the protection of all minorities. In addition to the aforementioned rights for indigenous peoples to identify themselves as indigenous and to be recognized as such, the element of indigenous rights in the constitution include rights to self-determination, cultural rights, property/land rights and compensation rights.

Apart from studying the concrete content of the constitution, there should be prior specification of any framework/procedure of the negotiation between the indigenous peoples and the government. An instance of this is to conclude whether to adopt the mechanism of majority vote or the consensus mechanism of minority veto. Additionally, the indigenous peoples should integrate themselves from within for matters such as representation or mandate of their representatives for the negotiation with the state government.

Various arrangements to ensure indigenous peoples rights could be found in the draft of Taiwan’s constitution proposed by the civil society. The preamble of Dr. Hsu Shih-kai’s Draft for a Taiwan Republic Constitution states, “Our Malay-Polynesian ancestors had lived freely and peacefully on the plains of Taiwan.” The draft constitute on for the Taiwan Republic proposed by Dr. Ng Chiau-tong recommends setting up a ministry for the indigenous affairs in the Cabinet. Both drafts constitution of Taiwan proposed by the two citizens’ constitution-making congress, respectively convened by the Democratic Progressive Party in 1991 and the World United Formosans for Independence in 1994 include a special chapter for the indigenous peoples. It is likely that President Chen has made the statement of constitutional enshrinement of indigenous rights based on the consistent opinions of indigenous rights activists.

We believe that constitution-making is not an exclusive privilege to so-called scholars or experts. All citizens of the country should be invited to participate in related dialogues. The efforts we have made so far are merely for the research of theories. Further communication should be carried out with political figures. Relevant clarification should also be made to the general public with easy-to-understand language. This will guarantee genuine dialogues between academics, politicians, the general public and the media. We earnestly hope that President Chen Shui-bian will faithfully realize his promise to indigenous peoples rather than tailoring any king’s new clothes.

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