The constitution is the founding document of a state. It is often the highest law in a state's legal system, having supremacy over statutory law. It sets up the state's system of governance and its institutions, and it distributes and constrains the powers and functions of these institutions.Footnote 1 The constitution is also pivotal to profound reforms of the state's system of governance and its mode of operation because of its centrality to the state's organization and functioning. Such deep reform can be a transition from one type of political regime to another,Footnote 2 for instance a democratic transition. Indeed, the existing literature has carefully set out the various ways in which constitutions have, at least to a degree, influenced processes of democratic transition.Footnote 3
This article seeks to make an essential contribution to the literature on the role of the constitution in transitions. It clarifies the constitution's significance to indigenous peoples and their attempts to reform a state system that has been imposed on them through colonialism or conquest.Footnote 4 It argues that constitutional reforms (or constitutional change) facilitating democratic transition ideally also transform the state system's approach to indigenous peoples through a process of ‘double transition’, giving indigenous peoples a voice to push for reform within an increasingly democratized political order. This article seeks to fill a gap in the available research on constitutions and transitions, which has very rarely addressed indigenous peoples.Footnote 5 It thus contributes to advancing constitutional theory on indigenous peoples.
In the next section, the article first sets out the theoretical framework of double transition. This theoretical framework is then applied to a case study of Taiwan's constitutional reforms. The reforms’ content and their meaning to Taiwan's indigenous peoples are analyzed. Indigenous peoples’ participation in these reforms is also explained.Footnote 6 Taiwan provides a highly interesting example of constitutional reform and indigenous peoples because it made a gradual democratic transition through subsequent amendments of the Constitution of the Republic of China (中華民國憲法; Zhonghua minguo xianfa; ROC Constitution). This allows for a careful assessment of double transition and indigenous peoples’ involvement, and their incorporation into the ROC Constitution. Moreover, most research on indigenous peoples and constitutions concentrate on the Americas;Footnote 7 little research is available on how Asian states address indigenous peoples in their constitutions, although two-thirds of the world's indigenous peoples live in Asia.Footnote 8 The case study is evaluated in Part III. The article's final section includes an outlook on the potential for further progress in Taiwan's constitutional development as far as indigenous peoples are concerned.
The article's findings were obtained through two research methods. First, various written sources were consulted, including legal texts, reports, news articles, and literature from the fields of law and social sciences. Second, interviews were held with government officials, politicians, NGOs, lawyers, scholars, indigenous activists, and representatives of indigenous communities. These interviews were conducted in English or Mandarin Chinese, sometimes with the help of a native Taiwanese translator.
Finally, it is necessary to clarify this article's use of terms. Taiwan's indigenous peoples are officially called yuanzhuminzu (原住民族) (see Part II.C.1), which literally means ‘first living peoples’. English language literature and research translate this term as ‘indigenous peoples’ or ‘aborigines’. This article chooses the term ‘indigenous peoples’ to connect with international law and to emphasize that yuanzhuminzu includes the notion of ‘peoples’ (see Part II.C.1). Furthermore, it is important to understand the distinction between the Republic of China (ROC) and ‘Taiwan’. The ROC is the political entity that governs Taiwan through the ROC Constitution, laws, and institutions.Footnote 9 The name Taiwan is commonly used to refer to the geographical and social entity. Moreover, the various indigenous groups living in Taiwan are commonly identified as ‘tribes’. Although the term ‘tribe’ might be associated with the racist terminology of 19th century colonialism,Footnote 10 Taiwan's laws and regulations and English-language literature widely use the term in connection with Taiwan's indigenous peoples. Lastly, the ROC Constitution consists of a main text and the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文; Zhonghua minguo xianfa zengxiu tiaowen; Additional Articles) (see Part II.A.2). When this article refers to the ROC Constitution, it means both the main text and the Additional Articles. If necessary, however, the main text or Additional Articles will be specifically mentioned.
I. THE CONSTITUTION AND DOUBLE TRANSITION
A. The Constitution Facilitates Democratic Transition
A constitution can be defined as a usually (but not always) written document which establishes a state's system of government, and the powers and functions of its institutions. The constitution also outlines the constraints on the government system's institutions.Footnote 11 More broadly understood, the constitution is an ‘institution’ that connects with its social and political context. As such, constitutional theory has proposed different understandings of the constitution's nature and functions.Footnote 12 A constitution can first be considered as an expression of national identity, aspirations, and values. A second understanding is that a constitution entrenches the interests and preferences of a state's economic, political, and social elites. A constitution can also be seen as the result of a coordination effort between a state's government and its population. A final understanding is that the constitution is a ‘social contract’ that has been negotiated between elites, outside powers, and/or a state's population.Footnote 13 To these understandings of the constitution's nature and functions, the present study adds that the constitution can be seen as an instrument that sets a framework for a double-sided reform process of democratic transition and ‘internal decolonization’.Footnote 14
The literature has set out the role of the constitution in democratic transitions. Democratic transition is the change from an authoritarian, undemocratic political system to a more democratic political system.Footnote 15 It usually involves a shift in the power balance between the elites and the masses in a state, with the latter gaining more access and control over a state's institutions.Footnote 16 The constitution provides the framework for this shift in power.Footnote 17 It coordinates the transfer and redistribution of powers, and determines the procedure to gradually open up the political system in an orderly way.Footnote 18 Moreover, it creates or modifies executive, legislative, and judicial institutions.Footnote 19 It can also reflect or guide the many changes in a society in democratic transition by promoting consensus or a certain set of values.Footnote 20 Finally, the constitution secures the human rights that are essential for the establishment and functioning of a democratic model of government. Civil and political rights, or ‘democratic rights’, such as freedom of expression and opinion, and freedom of association, are essential to every democratic political system. Cultural, economic, and social rights can create the conditions to guarantee that everyone has access to the free and fair enjoyment of the democratic rights.Footnote 21 The constitutional protection of human rights therefore is essential for establishing, preserving, and strengthening a democratic political system.Footnote 22
B. The Constitution as a Framework for Internal Decolonization
In addition to democratic transition, a constitution can shape and promote internal decolonization. Internal decolonization refers to the transition process that changes a system of ‘internal colonialism’ which oppresses indigenous peoples. Internal colonialism usually originates in ‘external colonialism’, which is the ‘classic’ form of colonialism under which the colonizing state and the colonized territories were geographically separated. The colonizing state extracted natural resources and exploited the local population to serve its economic development and expansion.Footnote 23
When colonies became politically independent from their colonizers through a process of ‘external decolonization’,Footnote 24 indigenous peoples were included in the framework of the state as dependent nations.Footnote 25 They have remained ‘trapped’ within this ‘postcolonial’ state that has been constructed on their territories without their consent or involvement. The postcolonial state has assumed exclusive jurisdiction over them and their territories. It has elaborated a system of internal colonialism that is aimed at keeping indigenous peoples under control and securing access to their lands and natural resources.Footnote 26 Indigenous peoples’ precolonial sovereign powers are not restored, their lands remain occupied or are being invaded, and their cultures are being suppressed.Footnote 27
A system of internal colonialism can nevertheless be dismantled through ‘internal decolonization’. Internal decolonization seeks to restore the sovereignty that indigenous peoples enjoyed before they were colonized,Footnote 28 and to break up the state's domination over indigenous peoples. The relationship between the state (and its dominant society) and indigenous peoples is transformed from a relationship of domination to one of equality and mutual recognition.Footnote 29 Internal decolonization is also a process of reparation and redress for indigenous peoples’ loss of sovereignty at a historic moment in time.Footnote 30
So, how can the constitution support internal decolonization? First, indigenous peoples are to be involved in all stages of the process of constitutional reform, from the earliest agenda setting to the final ratification.Footnote 31 This corrects their historical absence from the drafting of the constitutions that were imposed on them following their involuntary incorporation in the postcolonial state, and acknowledges their existence and status as actors. Indigenous peoples can participate in constitutional reforms in different ways, such as through representation in specifically convened constituent assemblies or through existing legislative and executive bodies.Footnote 32 Their representation and participation should ensure that they can effectively influence the constitutional reform process and its outcomes.
Second, the constitution can promote internal decolonization if it recognizes indigenous peoples’ historical presence and includes their distinctive values, symbols, perspectives, aspirations, and experiences.Footnote 33 This highlights the existence of indigenous peoples as a distinctive group within the state's society with specific entitlements and acknowledges the relevance of their existence and histories to the state. Thus, indigenous peoples are made part of the state's constitutional identity.
The constitution can also distribute (or redistribute) and share powers and privileges between the state and indigenous peoples. In particular, if the constitution guarantees the specific human rights of indigenous peoples, ie ‘indigenous rights’, it can empower indigenous peoples. The concept of indigenous rights covers a wide range of individual, collective, and group rights.Footnote 34 Two types of indigenous rights are especially important to internal decolonization: the right to self-determination and rights to land.
Indigenous peoples’ right to self-determination is commonly understood as a right to ‘internal self-determination.’Footnote 35 This means that indigenous peoples are entitled to enjoy a limited form of self-government within the state, which includes regulating their internal affairs, participating effectively and actively in decision-making procedures on matters that concern them, and exercising limited control over their lands.Footnote 36 It also includes the application of their customary law and the preservation (or re-establishment) of their customs, traditions, practices, procedures, and institutions.Footnote 37 In this way, indigenous peoples can decide how to accommodate their relationship with the state and govern themselves to a large degree in accordance with their cultures, if they desire to do so. Furthermore, the right to self-determination is the key right to which other indigenous rights are connected, as expressions of the right to self-determination.Footnote 38
Land rights protect indigenous peoples’ distinctive conceptions of land use and land tenure.Footnote 39 To indigenous peoples, land is a ‘field of relationships of things to each other’, in which humans are part of a network of relations between the animals, trees, rocks, lakes, rivers, and other elements of the land.Footnote 40 If they are separated from their land, their physical and cultural survival are seriously threatened.Footnote 41 Land rights therefore include collective rights to own, use, develop, and control lands, territories, and natural resources.Footnote 42
Finally, a constitution that recognizes indigenous peoples and their specific interests, experiences, values, and rights serves as a basis for the reparation and restitution of indigenous peoples’ lost sovereignty and lands, and other injustices that they have suffered. They also form a buffer against the repetition of such injustices.Footnote 43 These ideas of reparation and non-repetition are integral to the concept of ‘transitional justice’.Footnote 44
Briefly, a constitution can address the historical abuses and oppression suffered by indigenous peoples. Indeed, it can reshape the relationship between the state and indigenous peoples and reform the postcolonial state.
C. The Constitution Promotes Double Transition
Democratic transition and internal decolonization are closely connected processes which mutually influence and deepen each other. Therefore, whenever states initiate a democratic transition process, internal decolonization ideally takes place simultaneously. Firstly, the concerted purpose of both democratic transition and internal decolonization is to give indigenous peoples the collective and individual power to take independent decisions on their lives. By removing the legacy of the colonial domination of the state over indigenous peoples and at the same time granting them meaningful possibilities to voice their concerns, the impact of colonialism can be addressed. Furthermore, democratic transition usually seeks to grant adequate and equal opportunities of political participation to the various groups in a given society,Footnote 45 including indigenous peoples. This underlines the importance of democratic transition for internal decolonization. It also demonstrates that the principal objective of democratic transition and that of internal decolonization coincide in the form of a transfer and distribution (or redistribution) of power, which is spread over various stakeholders. Thus, there is a close connection between the processes of democratic transition and internal decolonization. Working together, they can be seen as a ‘double transition’ for indigenous peoples from authoritarianism to democracy, and from internal colonialism to internal decolonization.
Similar to how the constitution can contribute to the separate processes of democratic transition and internal decolonization, it can also promote double transition. A constitution that facilitates double transition focuses on the democratic rights and indigenous rights that together stimulate indigenous peoples’ individual and collective agency. Agency is the capacity to act and operate independently so as to actively influence cultural, economic, political, religious, and social circumstances, and/or social events.Footnote 46A constitution that as part of democratic transition guarantees indigenous peoples democratic rights, as citizens of the State, thereby creates the political and social space for indigenous peoples to freely put forward their internal decolonization demands.Footnote 47 The freedom of expression, the freedom of association, the right to information, the right to vote, the right to run for political office, and the freedom of the press all promote their individual and collective political participation, and help them to pressure and control the government.Footnote 48 Concerning constitutional reform, democratic rights empower indigenous peoples to claim a place at the negotiating table to include their demands in a new or amended constitution and to effectively take part in the constitutional reform procedures and mechanisms.
Furthermore, a constitution's democratic rights and indigenous rights reinforce each other in substance. Indigenous peoples can hardly exercise their right to internal self-government if they do not enjoy democratic rights.Footnote 49 In turn, indigenous peoples can only make full use of their democratic rights if the constitution strongly safeguards indigenous rights that enable them to establish (or re-establish) and develop their societies, economies, and cultures. In addition, indigenous rights strengthen indigenous peoples’ bargaining power in constitutional reform negotiations, consultations, debates, and procedures in which they can freely participate through their democratic rights.
The theory of double transition envisions a broad political and social function for the constitution. If the constitution secures democratic rights and indigenous rights, it can promote the undoing of indigenous peoples’ historical exclusion from the state system and enable them to share in the state's law-making and decision-making power. Thus, the constitution not only gives indigenous peoples the tools to take action, but also creates the circumstances for them to do so freely and effectively. Double transition understands the constitution as a framework that balances the relationship between the government and indigenous peoples; it facilitates comprehensive, interrelated, and ongoing processes of reform, representation, and dialogue, as well as reparation and restitution between the state and indigenous peoples in which both parties interact as equals. These processes stretch from the drafting or amending of the constitution to its implementation and interpretation.
A constitution entitles and empowers indigenous peoples if, first, it confirms indigenous peoples’ existence and their specific histories and cultures. Such confirmation can be included in the constitution's preamble and/or its main text.Footnote 50 It can consist of a narrative of the State's colonial history and indigenous peoples’ place in that history.Footnote 51 It can also assert the multi- or pluricultural character of the state's society and/or expressly declare that indigenous peoples live in the state.Footnote 52 Finally, it can embrace indigenous peoples’ concepts and values.Footnote 53
Second, a constitution grants power to indigenous peoples if it guarantees their democratic rights and indigenous rights, in particular the right to self-government and rights to land. Ideally, the constitution would contain a well-arranged catalogue of rights that are directly conferred on indigenous peoples.Footnote 54 This acknowledges that they are full bearers of rights. Indigenous peoples can use these rights to claim a place in law-making and decision-making bodies and procedures, and to support their demands. They can then work with the state to further define (or redefine) their relationship to establish a foundation for internal decolonization. In addition, they can subject the state's behaviour to judicial review if the state does not act in accordance with democratic or indigenous rights, or both. They can invoke their constitutional rights before courts and challenge the state's action or inaction.Footnote 55
In sum, a constitution that promotes internal decolonization includes indigenous peoples and their democratic and indigenous rights. It thus sets out the contours and conditions for working towards a harmonized, ‘decolonized’ relationship between the state and indigenous peoples.Footnote 56
II. CASE STUDY: TAIWAN'S CONSTITUTION AND DOUBLE TRANSITION
A. Overview of the Historical Context and the Progress of Taiwan's Constitutional Reforms
1. Taiwan's Colonial and Authoritarian History and Democratic Transition
Taiwan's indigenous peoples have experienced a prolonged period of external colonialism by different colonial regimes. The Dutch arrived in Taiwan in 1624 and were the first and only European power that ruled a part of Taiwan for an extended period.Footnote 57 The indigenous peoples then successively came under the control of General Koxinga and his sons (1662–83) and that of the Qing Empire (1683–1895).Footnote 58 The Japanese governed Taiwan from 1895 to 1945.Footnote 59 The colonial regimes were structured differently and operated in distinctive timeframes, and only the Japanese managed to fully subjugate Taiwan and all of its indigenous peoples.Footnote 60 The colonial regimes, however, pursued similar policies which curtailed indigenous peoples’ self-government, deprived them of most of their lands, and sought to assimilate them.Footnote 61
In 1945, after losing the Second World War, the Japanese were forced to abandon Taiwan. The indigenous peoples then became ‘internally colonized’ through a particular external decolonization process in which the ROC leader Chiang Kai-Shek and his political party, the Kuomintang (國民黨; KMT), took over Taiwan. Taiwan thus became a province of the ROC. Meanwhile, Chiang was fighting a civil war in mainland China against Mao Zedong and his Communist troops (1927–36, 1946–50). When they were losing the battle, Chiang and his armies fled to Taiwan in 1949.Footnote 62 Shortly afterwards, Chiang installed an authoritarian regime.Footnote 63 The regime broadly continued the colonial policies on indigenous peoples. Although indigenous peoples were given token representation in central and local legislative bodies, full self-government was not returned.Footnote 64 The regime and its cronies took indigenous peoples’ lands and natural resources for exploitation.Footnote 65 The regime also tried to change indigenous peoples’ cultures.Footnote 66 Indigenous peoples who demanded self-government or the protection of their lands and natural resources were arrested, imprisoned, and sometimes executed.Footnote 67
In the 1970s and 1980s the authoritarian regime gradually began opening up. The regime further liberalized the political system in the early 1990s, which culminated in the first democratic elections for the National AssemblyFootnote 68 and Legislative YuanFootnote 69 in 1991 and 1992. The first presidential election was held in 1996, which was won by the KMT's Lee Teng-hui.Footnote 70 The 2000 presidential election was a milestone and turning point in Taiwan's democratic transition, for it was won by the opposition, ie the Democratic Progressive Party (民主進步黨; Minzhu jinbu dang; DPP) presidential candidate, Chen Shui-bian.Footnote 71 Chen was re-elected in 2004. In 2008, the presidency returned to KMT hands with the election of Ma Ying-jeou. He also served two terms. In 2016 the DPP's Tsai Ing-wen became Taiwan's first female president after a clear victory over her KMT rival.Footnote 72
2. Reforms of the Constitution Through the Additional Articles
Taiwan is governed by the ROC Constitution, which was drafted and adopted in mainland China in the 1930s and 1940s. It has been in force in Taiwan throughout the period of KMT authoritarian rule and the democratic transition and its main text has not been changed.Footnote 73 The principal reason not to replace or to significantly modify the ROC Constitution is the threat from the People's Republic of China (PRC). The PRC can accept the current pro-unification Constitution, but any modification or new constitution aimed at establishing Taiwan more clearly as an independent state would be seen as a provocation by the PRC.Footnote 74 Instead, between 1991 and 2005 various constitutional reforms have gradually been pursued by adding the Additional Articles. This is a document that is annexed to the ROC Constitution. The Additional Articles guided Taiwan's democratic transition, and they contain procedures for the democratized political system and reformed state institutions, as well as a set of policy directives.Footnote 75
B. Democratic Rights but Limited Participation in the Constitutional Reforms
Taiwan's indigenous peoples did not participate in the drafting of the main text of the ROC Constitution. At the time, eighteen delegates from Taiwan were included in the Constitutional Assembly that drafted the main text.Footnote 76 Although one of the delegates was the medical doctor and politician Nan Zhi-xin from the Puyuma tribe,Footnote 77 he represented the entire Taiwanese population and not the indigenous peoples exclusively. In any case, it is unlikely that the Taiwanese delegation significantly influenced the making of the ROC Constitution because they were not informed in advance of the content of the draft ROC Constitution. They were also a very small minority among the 1,500 participants in the Assembly.Footnote 78 Therefore, Taiwan's indigenous peoples – and arguably the Taiwanese people as a whole – did not participate significantly in the making of the ROC Constitution.Footnote 79
The absence of indigenous peoples in the making of the ROC Constitution has been only slightly remedied during the constitutional reforms that led to the adoption of the Additional Articles. The constitutional reforms have taken place in a top-down fashion through the National Assembly (國民大會; Guomin dahui). The National Assembly was a separate body under the ROC Constitution which had the power to elect the president and the vice-president. It could also propose and adopt constitutional amendments. After some constitutional reforms in the 1990s, it was eventually abolished in 2005.Footnote 80 Indigenous peoples were granted representation in the National Assembly: a ‘protective quota’ of six out of 325 seats which was gradually increased in subsequent constitutional reforms.Footnote 81 The quota has its roots in a provision of the ROC Constitution that mandates the State to assist the ‘racial groups’ in the ROC's frontier regions (邊疆地區各民族之; bianjiang diqu ge minzu zhi) in their self-governmentFootnote 82; however, the provision has consistently been narrowly interpreted as a right to political representation for indigenous peoples at the local and central government level.Footnote 83 Indigenous peoples thus could elect their representatives, exercising the ROC Constitution's right to voteFootnote 84, the right to hold public officeFootnote 85, and the right to hold political campaigns.Footnote 86 The representative function of the indigenous legislators can nevertheless be questioned: most of them come from the largest tribes because of the Single Non-Transferable Vote voting mechanism.Footnote 87 Thus, in the constitutional reform rounds, only a handful of indigenous tribes were actively and directly involved in the procedures within the National Assembly. In addition, the indigenous representatives were a small minority, occupying only around 3 per cent of the National Assembly seats.Footnote 88 Yet the indigenous tribes all have unique cultures, languages, social systems, and histories. Although they share very similar concerns, such as the struggle for self-government and land, the different impact of colonial history and the socio-cultural differences between the tribes also shape their particular experiences.Footnote 89 Therefore, assuming that, for instance, an Amis legislator automatically represents all other tribes can be likened to assuming that a German legislator can have a fully representative function for all European states simply because he or she is ‘European’.
Moreover, other than through the political representatives, there was no significant platform for indigenous peoples to directly participate in the constitutional reform process. There was no mechanism for deliberation and consultation with indigenous peoples.Footnote 90 Indigenous peoples therefore mainly attempted to influence the constitutional change through street demonstrations, given the absence of any direct access to decision-making processes.Footnote 91 They staged protests and also lobbied with National Assembly members to put their claims on the constitutional reform agenda. They used the ROC Constitution's democratic rights such the right to free speechFootnote 92 and the freedom of assemblyFootnote 93, which were reactivated and given substance after they were seriously restricted under the KMT regime.Footnote 94
These protests and strategies supported indigenous representatives elected into the National Assembly through the quota mechanism. At the same time, these representatives translated the demands of the indigenous movement into constitutional initiatives in the National Assembly.Footnote 95 Thus, ‘the streets and the seats’ effectively worked together to put indigenous peoples’ demands on the constitutional reform agenda. The indigenous representatives in the National Assembly nevertheless needed the support of their non-indigenous colleagues to have their proposals adopted. Eventually, indigenous peoples succeeded in mobilizing sufficient support for some proposals, but for most of the proposals, they could not do so (see Part II.C below). Hence, democratic rights facilitated indigenous peoples’ participation in the constitutional reforms, but the model for including them in these reforms eventually reduced their contribution. The participation of indigenous peoples in the constitutional reforms was restricted to representation in the National Assembly through a few indigenous representatives from a limited number of tribes.
C. Mixed Response to Indigenous Peoples’ Demands for Constitutional Reforms
1. Successful Campaigning for a Name Change
The ROC government has given a mixed response to indigenous peoples’ demands for constitutional reforms. On the one hand, it accepted the insertion of indigenous peoples in the Additional Articles and changed the official name for indigenous peoples. On the other hand, it did not include a chapter with indigenous rights, but instead opted for an ‘indigenous clause’.
One of the demands of the indigenous movement was to change their official designation as shandi tongbao (山地同胞) or shanbao (山胞), which means ‘mountain compatriots’. This name was introduced by the KMT regime to replace the Japanese colonial term of banjin (蕃人), which means ‘savages’.Footnote 96 To the KMT regime, this marked a rupture with Japanese colonial rule, and was also an attempt to obtain the support of the aborigines and keep them under control while the KMT were still fighting the Communists on the mainland.Footnote 97 In addition, shandi tongbao stressed that the indigenous peoples were part of the great Chinese nation. The term suggested a Chinese fraternity with the indigenous peoples;Footnote 98 the Mandarin Chinese term tongbao literally means ‘originating from the same uterus’. In other words, indigenous peoples also belonged to the Chinese nation.Footnote 99
However, indigenous peoples found that shandi tongbao was derogatory and was bent towards colonialism and assimilation. The indigenous movement initially proposed the term yuanzhumin (原住民). This new term was not only meant to substitute the term ‘mountain compatriots’ but was also aimed at fostering a collective identity as distinct groups in Taiwanese society, based on their shared historical experiences and a common identity with respect to the ‘Chinese’.Footnote 100 But through their participation in international indigenous rights conferences, their familiarization with United Nations (UN) statements on indigenous peoples, and their contacts with other national, international, and regional indigenous peoples, Taiwan's indigenous peoples quickly realized two major shortcomings of the term yuanzhumin. First, it did not sufficiently connect to the collective rights granted by international law to indigenous peoples. Indigenous peoples had actively campaigned for the recognition of such rights in the ROC Constitution (see Part II.C.2).Footnote 101 Second, it did not express that there are different distinctive indigenous groups (or ‘peoples’) on Taiwan.Footnote 102 They therefore started lobbying for the name yuanzhuminzu (原住民族). Yuanzhumin has an individual understanding and is linked to individual rights. Adding 族 (-zu), however, implies a collective dimension (‘peoples’). It can be connected to the collective rights of indigenous peoples under international law and reflects the diversity of Taiwan's indigenous peoples.Footnote 103
Indigenous peoples took to the streets to pressure the government to accept the new name yuanzhuminzu.Footnote 104 The name was, however, controversial to the political elites. The politically dominant KMT considered that recognizing indigenous peoples as separate ‘peoples’ or ‘nations’ challenged its traditional ideology of the great Chinese nation and its view of Taiwan's national identity. Similarly, the DPP feared that setting the indigenous peoples apart from the non-indigenous Taiwanese as distinctive ‘peoples’ challenged its views on a unique Taiwanese national identity composed of different yet closely connected cultures. There was also reluctance to recognize the collective rights connected to the concept of ‘peoples’ under international human rights law.Footnote 105 Following indigenous lobbying, it eventually was agreed to change the name to yuanzhumin: this name does not necessarily set the indigenous peoples apart from the great Chinese nation as separate ‘peoples’Footnote 106 and, as noted above, has a more individual meaning. Yuanzhumin was subsequently incorporated into the Additional Articles in the round of constitutional reforms that took place in 1994.Footnote 107
Yet, indigenous peoples kept campaigning for the name yuanzhuminzu. Their chance came when the KMT and also the DPP needed the votes of the indigenous legislators for the round of constitutional reforms in 1997. Negotiations eventually resulted in indigenous backing of the KMT constitutional reforms in exchange for including yuanzhuminzu in Article 10 of the Additional Articles.Footnote 108 Interestingly, the indigenous representatives were mostly KMT members who – instead of following the party line – chose to back the indigenous movement's demands for constitutional reforms (see also Part II.C.2).Footnote 109
2. No Inclusion of a Chapter on Indigenous Rights
The main text of the ROC Constitution does not contain any specific provisions on the indigenous peoples; in the language of the ROC Constitution, indigenous peoples are among the ROC's ‘racial groups’ (see Part II.B above).Footnote 110 Indigenous peoples therefore actively pushed for inserting specific individual and collective rights for indigenous peoples into the ROC Constitution's chapter on rights. They pursued constitutional recognition for these rights within the state framework;Footnote 111 they did not challenge the state system, but sought strong acknowledgement and protection of their status and needs as distinctive groups within Taiwan's society.
The government, to a certain degree, responded to the indigenous peoples’ demand by including an ‘indigenous clause’ in the ROC Constitution in 1992.Footnote 112 It safeguards indigenous peoples’ identity, political participation, and social welfare. However, it was not included in the main text's chapter on basic rights and freedoms, but in the Additional Articles’ chapter on policy directives.Footnote 113 The indigenous clause was further refined in the constitutional reforms that took place in 1994 and 1997. The indigenous movement successfully pushed for an extension of the indigenous clause through intensive street demonstrations in Taipei, and indigenous legislators negotiated with their KMT and DPP colleagues.Footnote 114 As noted in Part II.C.1 above, both the KMT and the DPP sought support from the indigenous legislators to realize a number of constitutional reforms. In return for the indigenous legislators’ votes, the KMT and DPP accepted some of their proposals.Footnote 115 Thus, it was agreed to include a provision that the state is to guarantee and grant ‘assistance and encouragement’ for, among others, indigenous languages and cultures, economic activity, and land.Footnote 116 The appropriate implementation of these directives is to be set by further laws. The protection to be offered stretches to the indigenous peoples collectively, as ‘peoples’.Footnote 117
However, the collective rights for indigenous peoples linked to the term yuanzhuminzu have never been inserted into the Additional Articles. The constitutional reforms focused chiefly on remodelling the structure of government. Expanding constitutional rights was not on the constitutional amendment agenda.Footnote 118 The government was also reluctant to recognize the collective rights connected to the concept of ‘peoples’ under international human rights law, which might also explain why the ‘indigenous clause’ was not inserted into the chapter on rights.Footnote 119 The indigenous clause only contains policy directives; it does not include any ‘hard’ rights, that is, concrete entitlements that the ROC government needs to enforce and respect and that indigenous peoples can invoke before courts. The policy directives are based on the Additional Articles’ affirmation of cultural pluralism (多元文化; duoyuan wenhua).Footnote 120 This recognition of the presence of various cultures in Taiwan does not mean acknowledging that indigenous peoples are ‘peoples’ with distinctive claims to self-government and lands;Footnote 121 it only explicitly underscores that their cultures are different. Besides, Article 10 also refers to the islands of Kinmen and Matsu, the outlying islands controlled by the ROC. This seems to indicate that indigenous peoples were included in the Additional Articles because as citizens living in Taiwan's ‘periphery’, like the residents of Kinmen and Matsu, they also deserve protection, and not because they are ‘peoples’ with specific rights under international law.Footnote 122
The indigenous clause of the Additional Articles furthermore bears striking resemblance to the provisions on ‘racial groups’ in the main text of the ROC Constitution.Footnote 123 It is arguably just a somewhat updated version of these provisions. Chapter XIII sets out the ROC's ‘Fundamental National Policies’ (基本國策; Jiben guoce). The last section concerns the ‘various racial groups in the frontier regions’ (邊疆地區各民族之; bianjiang diqu ge minzu zhi).Footnote 124 It mandates the ROC government to legally protect these racial groups and to assist them in their ‘local self-government’ (地方自治事業; difang zizhi shiye).Footnote 125 It also provides that the government should promote the development of their education, culture, social and economic infrastructure, and public health.Footnote 126 Like the indigenous clause, these provisions are formulated as directives which require the government to offer protection and give ‘assistance’ and support, but they cannot be seen as independent rights.Footnote 127
D. The Constitution Only Minimally Promotes Indigenous Peoples’ Agency
The watered-down inclusion of indigenous peoples in the Additional Articles implies that the ROC Constitution does not strongly promote indigenous peoples’ agency. The reforms have principally focused on granting indigenous peoples democratic rights and guaranteeing their political participation. Through these rights and political participation, indigenous peoples were able to influence the course of constitutional reforms to some degree.Footnote 128 Indigenous peoples have guaranteed representation in the Legislative Yuan, and they possess a wide range of democratic rights that promote their agency. This empowerment is important because Taiwan's indigenous peoples have historically been excluded from decision-making processes. Thus, it can be seen as a form of redress and recognition of indigenous peoples’ existence.
But on a closer look, the exercise of these rights and the political participation have taken place entirely on conditions unilaterally set by the ROC government. First, this is because the exercise of democratic rights is subject to the restraints set by law, as stipulated in the ROC Constitution.Footnote 129 Second, indigenous peoples take part in the law-making bodies set up by the state, through mechanisms determined by the state: there is no connection with indigenous peoples’ political organization and traditions.
A closely related shortcoming of the ROC Constitution is that it does not recognize indigenous peoples’ internal self-government. The National Assembly could not be persuaded to explicitly recognize such a right. Instead, it agreed to include the phrase that ‘the status of the ethnic groups should be secured’ and that any state assistance and support shall not take place against the will of the ‘ethnic groups.’Footnote 130 The term yuanzhuminzu is not used. This provision bears close resemblance to the article in the main text of the ROC Constitution on the ‘self-government’ of ‘racial groups’, which has been consistently interpreted (continuing the KMT regime's approach) as a right to political participation and not a full right of indigenous peoples to manage their internal affairs.Footnote 131 Moreover, the ROC Constitution confirms the government's full jurisdiction over the entire territory.Footnote 132 The ROC Constitution does not acknowledge indigenous peoples’ sovereignty and does not distribute any powers to indigenous peoples to handle their internal affairs. Rather, it confirms and legitimizes the State's superior authority.
Similarly, the ROC Constitution does not empower indigenous peoples to protect, manage, and claim a return of their traditional lands. The Additional Articles stipulate that the State is to ‘guarantee and provide assistance and encouragement’ for indigenous peoples’ land and that it should adopt legal measures to this end.Footnote 133 This is clearly formulated as a directive to promote government action, not as a legal entitlement. It cannot support indigenous peoples’ demands for respect for their rights to land before the courts; at most, it can be used by indigenous peoples to challenge the constitutionality of laws and regulations that may impact indigenous peoples’ traditional lands.Footnote 134 Yet, they cannot be judicially enforced if the government does not take measures to implement them.Footnote 135 The ROC Constitution therefore gives indigenous peoples little power to restrain or challenge government action (or inaction) regarding their traditional lands, and maintains their dependence on the goodwill of the government.
E. Indigenous Peoples Are Not Part of the Constitutional Identity
Indigenous peoples have been included in the ROC Constitution as a separate, distinctive group in the Additional Articles under the name yuanzhuminzu. This can be seen as a departure from the dominant view on Taiwan's national identity under KMT authoritarian rule. The regime's official ideology advocated a distinct and superior Chinese identity as part of its nation-building programme for Taiwan. It maintained that Taiwan had only one ethnicity and culture – that of the Chinese. It stressed the unity of the Chinese on the mainland and those in Taiwan and attempted to justify its claim that it was the legitimate and representative government of all of China, including the mainland and Taiwan.Footnote 136 This ‘Chinese only’ ideology also served to justify the ROC's claims to the mainland and its official objective of retaking the mainland.Footnote 137
However, the democratic transition brought about a shift from this dominant view on Taiwan's ethnic and cultural identity. Indigenous peoples, minority groups such as the Hakka, and the opposition DPP challenged the ideology that imposed a Chinese identity on Taiwan. They stressed their cultural, historical, and social differences from mainland China, and promoted a ‘multicultural’ Taiwan.Footnote 138 This view of Taiwanese identity was embraced and adapted by factions within the KMTFootnote 139 and found its way into the Additional Articles. As noted above, the Additional Articles stipulate that the state affirms (肯定; kending) ‘cultural pluralism’, positively stating that Taiwan consists of various cultures.Footnote 140
Yet, as highlighted above, the same paragraph that contains the policy objectives on indigenous peoples stresses that the same policy objectives apply to the (non-indigenous) inhabitants of the islands of Penghu, Kinmen, and Matsu, the outlying islands under the control of the ROC. This suggests that indigenous peoples are still considered as somehow living in the ROC's frontier regions, or perhaps more symbolically as living at the borders of a state that remains centred on Chinese culture.Footnote 141 Indeed, the ROC Constitution is strongly connected to the mainland, for which it was originally intended, and the KMT.Footnote 142 For instance, its preamble declares that it has been drafted in conformity with the ideology of the mainland Chinese politician and philosopher Sun Yat-sen, and the national flag is the same as the KMT party flag.Footnote 143 The Additional Articles have not broken this link to the mainland, but instead its preamble explicitly states that the Additional Articles are ‘added or amended’ to the ROC Constitution ‘to meet the requisites of the nation prior to national unification’.
Only the policy directives mention indigenous peoples, and the only indigenous concept included in the ROC Constitution is yuanzhuminzu. The ROC Constitution does not reflect on indigenous peoples’ historical presence in Taiwan, or their aspirations, values, and views. Some of the ROC Constitution's provisions in fact directly oppose indigenous peoples’ cultures and traditions, such as the exclusive conception of land as an economic asset.Footnote 144
In brief, the ROC Constitution and its Additional Articles present a Taiwanese identity that is strongly based on a historical and cultural connection to mainland China and a possible reunification.
F. The Constitution Does Not Support Transitional Justice
The ROC Constitution cannot serve as a foundation for reparation and redress for the historical injustices undergone by indigenous peoples. It does not address the legacy of the historical abuse that indigenous peoples have suffered under colonial and authoritarian rule. The ROC Constitution does not correct the historical injustice of the cancellation of indigenous peoples’ sovereignty and the appropriation of their lands. It does not restore indigenous peoples’ pre-colonial sovereignty over Taiwan, and does not unravel the government's domination over indigenous peoples. Instead, it confirms the government's supreme powers over indigenous peoples.Footnote 145 The ROC Constitution neither facilitates the return of traditional lands lost during the period of colonial and authoritarian rule, nor gives indigenous peoples the legal tools to reclaim these lands.Footnote 146 Instead, it firmly states that land is the property of the state;Footnote 147 land that has mostly been expropriated from indigenous peoples during the colonial period.Footnote 148 The ROC Constitution also sets out that ‘private ownership of land shall be protected and restricted by law’.Footnote 149 This complicates the return of lands that are in public or private non-indigenous hands to indigenous peoples.
Moreover, the constitutional provisions that justified the KMT regime's efforts to assimilate indigenous peoples have not been modified. These provisions mandate the government to ‘protect’ and ‘assist’ (扶助; fuzhu) the ‘racial groups’ and to promote their development in education, culture, social and economic infrastructure, and public health.Footnote 150 The KMT regime used these provisions to impose policies that sought to modify indigenous peoples’ political organization, cultures, and languages.Footnote 151 Despite the traumatic legacy of these provisions and their paternalist approach to indigenous peoples, they have not been scrapped from the ROC Constitution, but were instead copied and inserted into the Additional Articles.
The ROC Constitution also fails to sufficiently guarantee the non-repetition of the exploitation of indigenous peoples by granting indigenous peoples strong rights, in particular to self-government and land. The ROC Constitution actually continues providing the pillars for a relationship between the government and indigenous peoples that is based on dominance and not on equality. The indigenous clause requires the government to ‘protect’, ‘support’, and ‘assist’ indigenous peoples; language that suggests a relationship of ‘benevolent’ domination.Footnote 152
For the reasons given above, the ROC Constitution does not have significance for efforts to provide reparation and redress to indigenous peoples for the historical injustices that they have suffered. It does not promote transitional justice.
III. EVALUATION: THE CONSTITUTION'S LIMITED SIGNIFICANCE TO DOUBLE TRANSITION
A. Taiwan's Constitutional Reforms Do Not Imply Double Transition
The case study demonstrates that the course of the constitutional reforms in Taiwan does not entirely follow the key assumptions of the theory of double transition. There are relatively weak links between the ROC Constitution's provisions, the democratic transition process, and the internal decolonization process.
The reforms of the ROC Constitution have facilitated democratic transition and democratic development. The ROC Constitution's main text and the Additional Articles regulate the powers and the functioning of democratically elected legislative bodies. The main text also contains a set of democratic rights that have been reactivated during the democratic transition. Together with the indigenous quota for the Legislative Yuan (and previously in the National Assembly), which are grounded in the constitutional duty to assist in self-government for ‘racial groups’, the ROC Constitution provides a democratic framework of representation and participation for indigenous peoples. It also enabled indigenous peoples to participate in the amendment of the ROC Constitution. They were represented in the National Assembly and could lobby and protest freely. The development of the indigenous movement was fostered, and that movement was able to push for the incorporation of indigenous peoples in the reformed constitutional framework. Indigenous peoples also successfully persuaded the state to accept a new official designation for them. Thus, to a certain degree the ROC Constitution and its development heed the trajectory of double transition.
Yet the ROC Constitution does not thoroughly spread power to indigenous peoples. Neither indigenous peoples’ involvement in the constitutional reform rounds, nor their exercise of their democratic rights, has resulted in strong constitutional provisions that boost internal decolonization. Although the reformed ROC Constitution recognizes ‘indigenous peoples’ and obliges the government to consider their needs and interests, it does not acknowledge that they are ‘peoples’ with specific rights operating within the State but not under its full supervision. Indigenous peoples are allowed to participate in law-making, but in bodies set up and regulated by the government. This redistribution of powers is limited and there is no overall framework for indigenous peoples’ agency grounded in their right to internal self-government and rights to land. In addition, indigenous peoples’ historical presence in Taiwan is not recognized and their values, views, concepts, and aspirations are not included the ROC Constitution, except for the name yuanzhuminzu that was picked by indigenous peoples. Finally, there is no basis for reparation or redress in the ROC Constitution that facilitates transitional justice.
In sum, the interchange between democratic transition and internal decolonization in the ROC Constitution and its reform processes is skewed. The ROC Constitution grants democratic rights for indigenous peoples and their participation in constitutional reforms. Although indigenous peoples have subsequently been incorporated into the ROC Constitution, this has not resulted in a profound change in the ROC Constitution's approach to indigenous peoples and their relationship with the government. The ROC Constitution does not set up a fully elaborated framework for the wide-ranging and complex double transition processes.Footnote 153
B. Implications of the Case Study for Constitutional Theory
The ROC Constitution and its development in the course of Taiwan's democratic transition add some important insights to constitutional theory and the study of indigenous peoples. First, as explained in the preceding Part, the Taiwan case study demonstrates that the relationship between democratic transition and internal decolonization is not given: although in Taiwan indigenous peoples gained democratic rights and constitutional reforms were made, eventually this did not significantly impact constitutional development towards internal decolonization. The postcolonial state was not fully reformed.
One explanation for this is the mechanism of indigenous participation in the constitutional reforms. In general, arranging public participation in constitutional reforms is a huge challenge,Footnote 154 but Taiwan's mechanism for involving indigenous peoples has two major shortcomings. First, it was based on having indigenous representatives in the constitutional reform bodies. It can be doubted whether these representatives sufficiently represented the indigenous peoples.Footnote 155 More importantly, however, they formed only a small minority in the National Assembly. They were very much dependent on non-indigenous majority support to realize indigenous claims. The few gains of the indigenous legislators and the indigenous movement can be attributed to political deal-making and legislators’ defiance of their political party.Footnote 156 This mechanism for indigenous participation in constitutional change is therefore not satisfactory.
Moreover, it was mostly the KMT that directed the constitutional reforms in the 1990s through its strong representation in the National Assembly; the KMT maintained a majority during the period of the principal constitutional reforms in the 1990s.Footnote 157 It decided on the rules of constitutional reformFootnote 158 and also largely dictated its choices and outcomes. The KMT was also responsible for the abuses suffered by indigenous peoples under authoritarian rule. It proved hard to convince the KMT to change its approach to indigenous peoples and to acknowledge its prior wrongdoings,Footnote 159 as demonstrated by the similarity between the ROC Constitution's main text provision on ‘racial groups’ and the Additional Articles’ indigenous clause.Footnote 160 The strong presence of a former authoritarian regime with a record of violating indigenous peoples’ rights can therefore hamper double transition in constitutional reform. The KMT steered the constitutional amendments towards remodelling the structure of government, and did not prioritize human rights-oriented reforms.Footnote 161 The indigenous peoples’ few gains in the constitutional change process can be largely attributed to the rare instances in which it was in the KMT's interest to carefully back indigenous peoples’ demands.Footnote 162
Moreover, the issue of national identity particularly influenced the constitutional reforms and the model for the incorporation of indigenous peoples in the ROC Constitution. The KMT has traditionally aimed to reunify Taiwan with the mainland and has strongly advocated a Chinese identity for Taiwan. The ROC Constitution's main text and the Additional Articles thus contain many references to the reunification goal, and to mainland Chinese philosophies and symbols.Footnote 163 Pressured by the indigenous movement and the DPP, the KMT recognized that Taiwan has various cultures. Nevertheless, acknowledging indigenous peoples as distinctive ‘peoples’ with specific rights would be compatible with neither the KMT's nor the DPP's visions on Taiwan's identity.Footnote 164 Thus, the model of cultural pluralism was inserted in the ROC Constitution. This model confirms that indigenous peoples have distinctive cultures that deserve the government's support and protection. However, it maintains a relationship of dominance over indigenous peoples. The ROC Constitution's model of cultural pluralism incorporates indigenous peoples as culturally distinctive but dependent entities. It does not change the government's relationship with the indigenous peoples to a more balanced relationship based on indigenous peoples’ sovereignty. Questions of national identity may thus at least partially determine the manner of incorporation of indigenous peoples in the Constitution.
Another key feature of the ROC Constitution is that its indigenous clause contains policy objectives. These policy objectives do not set out any concrete indigenous rights, but instead determine in broad terms that the government has to adopt the measures necessary to safeguard indigenous interests. Therefore, the ROC Constitution does not establish a clear legal framework but rather leaves it to the executive and legislative to do so. Thus, complex decisions on granting indigenous peoples self-government and rights to land have been left to further deliberations, separate from the constitutional reform process. As will be explained below, laws have indeed been adopted to implement the policy objectives. The policy objectives are undoubtedly a way of including indigenous peoples in the constitution but, as argued in this article, it has serious flaws, most importantly because they do not fully empower indigenous peoples. Nevertheless, it can provide a solution to controversial issues in the constitutional reform process that otherwise slow down or entirely prevent including indigenous peoples in the constitution.
To end with a positive note, it is important to observe that the ROC Constitution includes indigenous peoples under a name they chose themselves. They managed to cancel the former official name shandi tongbao, which was associated with colonial and authoritarian rule, and came under the name yuanzhuminzu, which expresses their historical presence in Taiwan and their common identity, and is linked to the international term ‘indigenous peoples’. Indigenous peoples have thus been able to gather under a pan-indigenous constitutional identity, freed from historical oppression and racismFootnote 165 and underlining their historical status. Allowing indigenous peoples to choose their own constitutional, official name therefore is meaningful.
The findings above demonstrate that, first, the context of the democratic transition can impact the constitutional reform process and its outcomes for indigenous peoples. Broader issues of the power of the former authoritarian regime and national identity can have significant impact. In addition, a constitutional reform model that fully subjects indigenous peoples to majority decision-making is unlikely to result in meaningful constitutional guarantees for indigenous peoples. The strongest guarantees that indigenous peoples in Taiwan could bargain for were policy objectives, as well as incorporation in the ROC Constitution under a name respecting their identity as the first inhabitants of Taiwan.
In other words, the case study of Taiwan confirms but also refines the theory of constitutions and double transition. The ROC Constitution safeguards indigenous peoples’ democratic rights. These democratic rights secured their participation in constitutional reform and enabled them to present their demands and to lobby the National Assembly. Some of their demands were accepted. However, the eventual progress on establishing a constitutional framework for internal decolonization was minimal. The case study shows that the context of the democratic transition and the constitutional reform model can distort the connection between democratic rights and indigenous rights.
IV. PROSPECTS FOR TAIWAN'S CONSTITUTION AND DOUBLE TRANSITION
A. The Complex Procedure of Amending the Constitution
The ROC Constitution does not provide a strong framework for internal decolonization. It is not expected, however, that it will soon be amended to insert, for instance, strong indigenous rights or even a reference to indigenous self-government. This is because it has become nearly impossible to further change the ROC Constitution after the 2005 constitutional reforms.Footnote 166 The constitutional amendment procedure now involves very strict requirements to pass any proposal for modification. There are now two stages. First, at least one-fourth of the Legislative Yuan needs to propose a constitutional amendment. It then has to be passed by at least three-fourths of the Legislative Yuan. Second, the amendment will be subjected to a public referendum. In this referendum, more than half of Taiwan's eligible voters have to participate and vote in favour of the amendment before it can be passed.Footnote 167
These requirements have arguably increased the constitutional amendment procedure's democratic quality and improved public participation in the procedure. However, future constitutional amendments will need to gather broad political and social support. It is unlikely that indigenous peoples’ demands for stronger self-government and rights to land will obtain such support. First, indigenous and non-indigenous legislators have not been able to hammer out a law on self-government over the last two decades. Although most of the controversies concentrate on the modalities of indigenous self-government, there is also more fundamental disagreement on the sharing of power with state authorities and control over land and natural resources.Footnote 168 Similarly, stronger constitutional protection of indigenous peoples’ land rights will be difficult to realize. Regularly, conflicts erupt between indigenous peoples and local authorities and companies over the development of lands claimed by indigenous peoples.Footnote 169 Moreover, the return of lands claimed by indigenous communities has not been a priority for the government so far,Footnote 170 and there are special concerns regarding the difficulties of giving back lands that are currently in private, non-indigenous hands.Footnote 171 Briefly, the current amendment procedure and the social context are not friendly to indigenous peoples and their demands.
The introduction of an indigenous rights catalogue in the ROC Constitution therefore seems far away. Similarly, it will be hard to obtain sufficient political backing for adding an indigenous narrative and views and concepts to the ROC Constitution; such a move will probably be interpreted by the PRC as an attempt to sharpen a distinct Taiwanese constitutional identity, a risk that only hardliners in favour of Taiwanese independence might be willing to take. The political majority will not, however, want to take the risk of antagonizing the PRC – especially in light of the recent pressures on Taiwan from the Xi Jinping government.Footnote 172
B. The Basic Law and Other Laws Promoting Double Transition Outside the Constitution
Some of the shortcomings of the ROC Constitution regarding double transition have been addressed through statutes establishing state institutions that grant indigenous peoples decision-making powers over indigenous issues. Moreover, laws and regulations have been enacted that guarantee indigenous rights and promote transitional justice.
First, the Council of Indigenous Peoples (原住民族委員會; Yuanzhuminzu weiyuanhui; CIP) was established by law in 1996.Footnote 173 The CIP is the central government body that is in charge of indigenous affairs generally. It plans, coordinates, and furthers policies, institutions, laws, and regulations on indigenous peoples.Footnote 174 The CIP is principally administered by indigenous peoples; it is headed by a Chairman, or Minister, who is indigenous and is appointed by the Executive Yuan. The Minister is assisted by three Deputy Ministers, at least two of whom are indigenous.Footnote 175 The Council has at least nineteen members, and each indigenous tribe has at least one representative.Footnote 176 The CIP gives indigenous peoples some powers of internal self-government, but it cannot act fully independently because the Executive Yuan has to approve the CIP's legislative proposals and can amend these without requiring the consent of the CIP.Footnote 177 Furthermore, concerning the important topic of land, the CIP does not have any decision-making power; instead, this power rests with the government body managing land.Footnote 178 The CIP's limited powers make it a target of criticism for the indigenous movement, which accuses the CIP of not doing enough to protect indigenous peoples’ interests.Footnote 179 The indigenous movement also sees the CIP as being too closely connected to the government and complains that it does not sufficiently consult indigenous peoples in its decision-making.Footnote 180
Another important legal reform outside the framework of the ROC Constitution was the adoption of the Basic Law on Indigenous Peoples (原住民族基本法; Yuanzhuminzu jibenfa; Basic Law) in 2005.Footnote 181 Indigenous peoples actively campaigned for the enactment of this lawFootnote 182 and it implements, among others, the policy objectives of the ROC Constitution.Footnote 183 It is one of the few laws specifically dedicated to indigenous peoples in Asia.Footnote 184 The Basic Law is a special law because it has a superior status; other laws and regulations need to be interpreted or applied in conformity with its stipulations. In a sense, the Basic Law therefore serves as a type of ‘constitutional law’ that occupies a paramount rank in the legal hierarchy and, as a framework law, forms the backbone of further legal regulation.Footnote 185 The Basic Law safeguards a number of indigenous rights. Among others, it compels the government to promote and implement indigenous self-government through the enactment of laws and the granting of financial assistance.Footnote 186 It also protects some core rights to ‘indigenous lands’ (原住民族土地; yuanzhuminzu tudi).Footnote 187
Nevertheless, the Basic Law does not set up any institutions or allocate any power to indigenous peoples and does not have the symbolic value of a constitution. Other shortcomings of the Basic Law are that it does not recognize indigenous peoples’ sovereignty and does not oblige the return of lands to indigenous peoples. It also attributes few rights directly to indigenous peoples. Instead, it instructs the state to respect indigenous peoples’ rights and to undertake legislative action; many provisions are similar to the constitutional policy directives.Footnote 188 Moreover, it is an ordinary law that can easily be amended; in other words, the rights of indigenous peoples can be modified through an ordinary procedure, which makes them vulnerable to shifting power balances and views on indigenous rights. This is different from constitutional guarantees, as explained in Part IV.A above.Footnote 189 Lastly, as noted above, the Basic Law requires the streamlining and enactment of laws and regulations to elaborate its provisions. However, almost 15 years after the Basic Law's enactment, many laws and regulations are not yet amended.Footnote 190 Similarly, so far only the Indigenous Traditional Intellectual Creations Protection Act (原住民族傳統智慧創作保護條例; Yuanzhuminzu chuantong zhihui chuangzuo baohu tiaoli) and the Indigenous Languages Development Act (原住民族語言發展法; Yuanzhuminzu yuyan fazhan fa) have been adopted in 2015 and 2017, respectively, to give effect to the Basic Law's provisions.Footnote 191 Laws and regulations on indigenous peoples’ lands, among others, have not been enacted yet.Footnote 192 For these reasons, the Basic Law cannot address the flaws of the ROC Constitution.
The incorporation of a number of international human rights treaties in Taiwan's legal order is another legal development that should be mentioned. Most international human rights treaties are only open to UN Member States for ratification, and Taiwan is not a UN Member State.Footnote 193 Consequently, Taiwan's efforts to officially ratify UN human rights treaties all failed.Footnote 194 Taiwan has therefore adopted specific Enforcement and Implementation Acts to give domestic legal effect to five international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),Footnote 195 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),Footnote 196 the Convention on the Rights of the Child (CRC),Footnote 197 and the Convention on the Rights of Persons with Disabilities (CRPD).Footnote 198 The purpose of these Acts is to implement the provisions of these treaties, and they therefore declare that the treaties have the same effect as domestic laws.Footnote 199 The treaties’ provisions are binding upon all state bodies.Footnote 200 The incorporation of these treaties is an important development promoting double transition. In particular, the ICCPR and the ICESCR contain provisions that are relevant to the establishment and functioning of a democratic system and the protection of indigenous rights. For instance, the ICCPR safeguards freedom of thought and the right to peaceful assembly,Footnote 201 and guarantees indigenous peoples a number of rights.Footnote 202 The ICESCR principally protects indigenous peoples’ cultural rights.Footnote 203 The treaties enjoy a superior status in the Taiwanese domestic legal order;Footnote 204 laws, regulations, directives, and administrative measures need to be in conformity with the treaty standards.Footnote 205 This implies that Taiwan is to guarantee indigenous peoples a wide range of rights, including rights to land and (internal) self-government. Importantly, the Acts set up a reporting mechanism that promotes indigenous peoples’ agency. The reporting mechanism obliges the government to compile a national report every four or five years, and to invite international experts and NGOs to review this report. Indigenous peoples actively participate in the reporting mechanism by submitting shadow reports.Footnote 206 They make oral statements at the review meetingFootnote 207 and interact with the international experts and government officials. They also become more familiar with international human rights standards that they use to shape their demands and challenge the ROC government.Footnote 208
Finally, incumbent President Tsai has initiated a transitional justice program. One of Tsai's first steps was to issue a widely publicized official apology on behalf of her government for the historical mistreatment of indigenous peoples.Footnote 209 She has also set up the Indigenous Historical Justice and Transitional Justice Committee (原住民族歷史正義與轉型正義委員會; Yuanzhuminzu lishi zhengyi yu zhuanxing zhengyi weiyuanhui), which consists of indigenous representatives and is in charge of coordinating transitional and historical justice initiatives.Footnote 210 A comprehensive law on transitional justice adopted in 2017, ie the Act on Promoting Transitional Justice (促進轉型正義條例; Cujin zhuanxing zhengyi tiaoli) does not, however, specifically address indigenous peoples. No such specific law has been adopted yet, and indigenous activists lament the lack of concrete progress, especially regarding the demarcation of indigenous peoples’ lands.Footnote 211
The Implementation Acts, as well as Tsai's transitional and historical justice efforts are legal developments outside the ROC Constitution which, to some extent, promote double transition, in particular internal decolonization. Given the small chance of future constitutional amendment, legal reforms outside the constitutional framework are more likely to promote double transition. The ROC Constitution, although flawed, at least provides some foundation for such legal measures through the policy objectives, and so does the Basic Law. It is therefore suggested that, given the minimal possibility of constitutional modification in the near future, the Basic Law should be strengthened. This could be done through amendments that explicitly recognize indigenous peoples’ sovereignty and their status as peoples with distinctive rights, especially to land, and incorporate indigenous values and concepts such as ‘gaya’.Footnote 212 This would enhance the Basic Law's status and its significance to double transition.Footnote 213
V. CONCLUSION
This article finds that the ROC Constitution has limited meaning to Taiwan's indigenous peoples and the process of double transition. It has incorporated indigenous peoples and grants them democratic rights, but it preserves a relationship of dominance between the government and the indigenous peoples, and is based on cultural pluralism rather than internal decolonization. In the process of constitutional reform, indigenous peoples were only indirectly involved through political representatives and few of their demands for constitutional reforms were accepted. Further constitutional amendment is nevertheless unlikely to take place because of the complex legal procedure and pressure from the PRC. Moreover, indigenous self-government and land rights are controversial issues in Taiwan. Some progress on double transition has taken place outside of the ROC Constitution framework with the creation of the CIP and the enactment of the Basic Law, which guarantees a set of indigenous rights.
The case study of Taiwan's constitutional development shows that democratic transition and internal decolonization do not necessarily take place simultaneously. In Taiwan, the strong constitutional protection of democratic rights and the political participation of indigenous peoples have given indigenous peoples some tools to challenge the state, but they have not resulted in constitutional provisions on indigenous peoples that wholly promote the process of internal decolonization. The case study also demonstrates that including indigenous peoples in processes of constitutional change and the constitution is very complicated. The case study also shows that the circumstances surrounding democratic transition and broader issues of national identity influence the choices that are made on indigenous peoples’ participation in constitutional reform and their incorporation in the constitution; the context and model for indigenous peoples’ participation influence the link between democratic rights and the constitutional protection of indigenous rights. These insights contribute to developing constitutional theory on indigenous peoples.
In sum, this article forms a strong foundation for further research that refines its theoretical framework and compares its findings with case studies in other states. In this way, more insights, models, and best practices of including indigenous peoples in constitutions can be collected. Setting a constitutional framework for indigenous peoples is a challenge but also an opportunity to give them a voice with which to undo their historical oppression and rebuild their cultures.
