Joint Statement by Covenants Watch representing 80 participating NGOs
Dear members of the review panels,
On behalf of the 80 NGOs which participated in the preparation of the parallel reports compiled by the Covenants Watch, I would like to express my sincere gratitude to all of you. Your willingness to take on this duty to help Taiwan realize its goals in human rights is an encouragement to us. The statement Ms. Yibee Huang and I are going to present is the opinion common to the NGOs and focuses on recent developments.
1 Since President Tsai’s administration took office in May, it has not made public a comprehensive human rights policy or an action plan. This is not to say that the Tsai administration neglected human rights altogether. In fact, the government boldly took on issues like judicial reform, pension reform, same sex marriage, long-term care policy, and transitional justice. President Tsai also officially apologized to indigenous peoples on behalf of the government. All of these actions have significant bearings on the protection and promotion of human rights. These reforms are underway, and the outcomes remain to be seen, but the NGOs have several concerns.
(1) Issue framing: The Tsai administration did not present these issues in human rights terms. It thus missed the opportunity to broaden the views of the general public on human rights, and to guide public debate in the framework of realizing the rights of different parties. When there came the occasions for the government to insist on human rights values, the officials often retracted to a value-neutral position.
(2) Procedure: Judged by the process of these reforms, the government has yet to establish a credible and lawful procedure in soliciting public opinion. The participation by the public needs to be initiated and managed in an open and organized manner. The current procedure of hearings is defective in its preparatory and execution stages, and the design failed to facilitate information disclosure and rational exchange of ideas. The current procedure allows officials to give ambiguous responses, and often attracts emotional declaration of pre-formed stances by participants. Lacking the mechanism to clarify the points of dispute, obtain decent replies from parties, and foster rational debate, the purpose of participation is defeated.
(3) President Tsai has repeatedly declared, during election campaign and after she took office, the need to fully realize the rights and to restore the sovereignty of indigenous peoples. She also proclaimed to promote indigenous transitional justice, but the processes were not immune from the insufficiencies stated above.
2 The mechanisms to protect and promote human rights:
(1) The National Human Rights Commission: The Presidential Office Human Rights Consultative Committee has made policy recommendations in July 2014 and again in July 2016, but the Tsai administration has not taken any definite step forward. Probable reasons include: (a) The concern about the potential redundancy of functions with the Control Yuan. Yet the current Control Yuan does not meet the criteria laid out in the Paris Principles regarding pluralism and functions to review laws and policies. (b) The uncertainty about the investigative power of the NHRI, and the worry over possible public perception of “power expansion” of the Presidential Office. This concern could have been addressed by careful understanding and delineation of the nature and scope of investigations to be undertaken by the NI.
(2) “The Act to Implement the Covenants” requires the review of laws and regulations and to amend those which are incompatible with the Covenants, but this has not been carried out in a regular and systematic manner. The duties and roles of the legislative, judiciary, and executive branches in this regard have not been explicitly defined in the Implementation Act.
(3) Many judges do not have a clear view on the status of international human rights treaties in the domestic legal order. The interpretation by the judges of the Supreme Administrative Court in August 2014, that the rights covered by the Covenants, unless explicitly instructing the state to take action, such as providing primary education, cannot serve as a basis for claims (Anspruchsgrundlage). This interpretation effectively ruled out the applicability of ICESCR in courts. Its effect is particularly harmful for those rights not yet protected by Taiwan’s Constitution, such as the right to adequate standard of living and the right to housing. The Administrative Court has confused the convention being “justiciable” with “self-executing”, as warned against in General Comment #9 of Committee on Economic, Social and Cultural Rights.
(4) The Ministry of Justice is the office overseeing the implementation of the covenants in the Executive Yuan. In fact, the MoJ held a press conference last week precisely for the current review. Deputy Minister Chen said that “Between 2010, the year following the enforcement of Implementation Act, and 2016, a total of 1095 judgements applied the two covenants in the three levels of courts.” Yet Mr. Chen concluded “we should be concerned whether the application of Covenants have been excessive”. He also commented with regard to death penalty that “Some judges applied the Covenants to avoid sentencing with the full rigor of the law. Some judgements for (potential) death penalty cases applied the Covenants and often caused disputes. In fact, death penalty is permissible with the Covenants. Taiwan has not ratified the second optional protocol (to ICCPR) which requires abolition of death penalty.” It seems that the MoJ is advising judges not to apply the Covenants in their judgements, a position that is deeply troublesome.
(5) There is currently no human rights office in the Executive Yuan, and various human rights committees at the Executive Yuan and Ministry levels have been working with insufficient staff and almost zero budget. There is insufficient staff and expertise to
a) coordinate and oversee the progress made according to the Concluding Observations and Recommendations in each Ministry;
b) develop human rights education suitable for different target populations and purposes;
c) develop tools to enhance the monitoring of human rights: such as human rights impact assessment, human rights statistics, and human rights indicators;
d) coordinate and monitor the human rights practices of the local governments.
3 Anti-discrimination duties: The government has the obligation to eliminate all forms of discrimination on the prohibited grounds, yet:
(1) There is currently not a comprehensive anti-discrimination law. Articles on discrimination are scattered in some laws, particularly on gender equality related to work and education, but they do not cover all the prohibited grounds of discrimination stipulated by the Covenants. An even more fundamental problem is that no clear definition of discrimination can be found in domestic law. Protection and remedies by law will be impossible when practices of direct and indirect discrimination remain unspecified in legal terms.
(2) Although the Republic of China was a formal state party to the ICERD before it withdrew from the UN and ICERD remains effective today, the convention has been neglected.
(3) One critical element missing in the domestic legal system is the positive duties on the government’s part. In the UK Equality Act, for example, the government has the duties to advance equality of opportunity between those who share a protected characteristic and those who do not, and to foster good relations between them by tackling prejudice and promoting understanding. In contrast, the government is passive and ignores all forms of prejudice and discrimination against LGBT, persons with disabilities, indigenous peoples, recent immigrants, migrant workers, refugees, and people without nationality. Degrading comments towards gay marriage, some bordering on hate speech, in public and social media abounded in the past few months, with the government sitting almost silently. The lack of proactive measures will leave structural and systemic discrimination unchallenged.
(4) Positive action duties, such as providing reasonable accommodation for persons with disabilities, is ignored by the government even when the Legislative Yuan has ratified the CRPD and passed the implementation act.
(5) On a related note, courses and discussions on equality, fairness, and social justice in formal education (from K to 12) are very limited or become a mere formality. It is utterly insufficient to cultivate the spirit to appreciate diversities in society, or the ability to recognize that the socioeconomic outcome of each individual is shaped by inherent and environmental factors. Thus, our education is incapable of cutting to the core of discrimination and social exclusion.
(6) Human rights education for teachers, civil servants, police, judges and prosecutors remains inadequate.
Dear members of the review panels, in the following days you will be hearing the representatives of the government and civil society. This forum thrives on the enthusiastic participation by all corners of the society. I must say, however, that not all groups are here to plea for the realization of rights. As you will hear, some groups are here to persuade that traditional and religious moral standards need to be observed, even when they infringe on some persons’ rights. I humbly remind you that not all groups are rights-based.
Dear members of the review panels, I call upon your attention to the procedures and mechanisms which are the foundation for the protection and promotion of human rights. With this long introduction, may I wish the best for each of you, and thank you again for your selfless contribution to Taiwan.
* 共同聲明團體 List of Signatories：
台灣原住民族政策協會 (Association for Taiwan Indigenous Peoples' Policies)
婦女新知基金會 (Awakening Foundation)
社團法人臺灣兒童權益聯盟 (Children’s Rights Alliance Taiwan)
中國合作學社 (China Cooperation Cooperative societies)
公民參與媒體改造聯盟平台 (Citizen Media Watch)
民間公民與法治教育基金會 (Civic and Law-Related Education Foundation)
公民同志平權推動聯合會 (Civic LGBT Equal Rights Association)
人權公約施行監督聯盟 (Covenants Watch)
中華民國儲蓄互助協會 (Credit Union League of the Republic of China)
經濟民主連合 (Economic Democracy Union)
環境法律人協會 (Environmental Jurists Association)
萬國法律事務所 (Formosa Transnational)
校園同志甦醒日 (Gay & Lesbian Awakening Days)
好蟾蜍工作室 (Good Toad Studio)
龜山反大湖重劃自救會 (Guishan Self-help Association against Dahu Land Consolidation)
世新大學社會發展研究所遊民工作坊 (Homeless Workshop of Graduate Institute for Social Transformation Studies)
華光社區訪調小組 (Huaguang Community Concerned Group)
原住民族青年陣線 (Indigenous Youth Front)
台灣性別不明關懷協會 (Intersex, Transgender and Transsexual People Care Association)
靖娟基金會 (Jing Chuan Child Safety Foundation)
民間司法改革基金會 (Judicial Reform Foundation)
LIMA台灣原住民青年團 (LIMA Taiwan Indigenous Youth Working Group)
樂生保留自救會暨樂生青年聯盟 (Losheng Self-Help Association and Youth Alliance for Losheng)
中華心理衛生協會 (Mental Health Association in Taiwan)
南澳青年聯盟 (Mklesan Tayal Youth Union)
沒有名字的人 (Nameless Indigenous)
台灣婦女團體全國聯合會 (National Alliance of Taiwan Women's Associations)
台北大學翻牆社 (NTPU CROSS)
臺大學生會性別工作坊 (NTU Gender Studio)
紹興學程 (NTU Student Activist Group Shaoxing Program)
中華民國愛滋感染者權益促進會 (Persons with HIV/AIDS Rights Advocacy Association of Taiwan)
監所關注小組 (Prison Watch)
RCA自救會 (RCA Self-Help Association)
撒烏瓦知部落 (Saowac Community)
社會住宅推動聯盟 (Social Housing Advocacy Consortium)
南鐵居住正義青年小組 (Southern Railway Youth)
台南市性別平等促進會 (Tainan Association for the Promotion of Gender Equality)
台北律師公會人權委員會 (Taipei Bar Association)
台北市婦女救援社會福利事業基金會 (Taipei Women’s Rescue Foundation)
台灣少年權益與福利促進聯盟 (Taiwan Alliance for Advancement of Youth Rights and Welfare)
集遊惡法修法聯盟 (Taiwan Alliance for Rights of Assembly and Parade)
都市更新受害者聯盟 (Taiwan Alliance for Victims of Urban Renewal)
反迫遷連線 (Taiwan Alliance of Anti-Forced Eviction)
台灣廢除死刑推動聯盟 (Taiwan Alliance to End the Death Penalty)
社團法人台灣伴侶權益推動聯盟 (Taiwan Alliance to Promote Civil Partnership Rights)
台灣障礙者權益促進會 (Taiwan Association for Disability Rights)
台灣人權促進會 (Taiwan Association for Human Rights)
冤獄平反協會 (Taiwan Association for Innocence)
台灣民間真相與和解促進會 (Taiwan Association for Truth and Reconciliation)
工作傷害受害人協會 (Taiwan Association for Victims of Occupational Injuries)
中華民國律師公會全國聯合會 (Taiwan Bar Association)
台灣防暴聯盟 (Taiwan Coalition Against Violence)
永社 (Taiwan Forever Association)
罕見疾病基金會 (Taiwan Foundation for Rare Disorder)
台灣性別平等教育協會 (Taiwan Gender Equity Education Association)
台灣酷兒權益推動聯盟 (Taiwan Gender Queer Rights Advocacy Alliance)
台灣健康人權行動協會 (Taiwan Health Right Initiative)
台灣國際醫學聯盟 (Taiwan International Medical Alliance)
台灣國際勞工協會 (Taiwan International Workers’ Association)
台灣勞動與社會政策研究協會 (Taiwan Labor and Social Policy Research Association)
台灣勞工陣線 (Taiwan Labor Front)
台灣職業安全健康連線 (Taiwan Occupational Safety and Health Link)
台灣警察工作權益推動協會 (Taiwan Police Union)
台灣農村陣線 (Taiwan Rural Front)
社團法人台灣同志諮詢熱線協會 (Taiwan Tongzhi (LGBT) Hotline Association)
台灣女人連線 (Taiwan Women's Link)
淡海二期反徵收自救聯盟 (Tamhai Phase II Alliance of Self-Help Groups for Anti-Expropriation)
桃園航空城反迫遷聯盟 (Taoyuan Aeropolis Anti-Eviction Alliance)
機場捷運A7站自救會 (The Airport Metro A7 stop Self-help Association)
勵馨社會福利事業基金會 (The Garden of Hope Foundation)
中華民國身心障礙聯盟 (The League for Persons with Disabilities, R.O.C.)
全國教師工會聯合會 (The National Federation of Teachers Unions)
南洋台灣姊妹會 (TransAsia Sisters Association, Taiwan)
天主教會新竹教區越南外勞配偶辦公室 (Vietnamese Migrant Workers and Brides Office)
塭仔圳反迫遷連線 (Wen Zi Zhen Anti-Eviction Alliance)
台灣蠻野心足生態協會 (Wild at Heart Legal Defense Association, Taiwan)
工作貧窮與租稅政策研究室 (Working poor & Tax Policy Research Center)
當代漂泊協會 (Working Poor Unite)
苑裡反瘋車自救會 (Yuanli Self-Help Group)