Legislative attempts

國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

policy enumerated in the white paper is just that – it is policy, not draft legislation. It clearly states: “The questions of content, legislative process, and the Basic Law’s articulation with the effects on the broader legal system still require further debate and deliberation.”

4.2.3. Legislative attempts

Various human rights bills were prepared under Chen Shui-bian’s administration. The first of which was the Draft Basic Law on the Protection of Human Rights, prepared by the Justice Ministry in mid-2001. This law does not, however, seem to have made it past the Executive level nor appear to have ever been deliberated by the Legislative Yuan during the remainder of its term. Later in the year, elections took place to decide the composition of the next Legislative Yuan. In December 2001, the DPP became the largest party in the legislature but still lacked an overall majority, even alongside its Pan-Green allies.¹⁶ With opposition parties still holding control, albeit by a reduced margin, would the legislative passage of Chen’s human rights agenda be made any easier?

In 2003, the Presidential Human Rights Advisory Group released its proposal, the Draft Basic Law on Human Rights and it is this overarching bill that is seen as Chen’s major attempt to implement international human rights standards in his first term. Lu Bing-Han, in his article, A Review of the Draft Basic Law on Human Rights states that the contents of this bill were more substantial and complex that the Justice Ministry’s draft law¹⁷ and called for political parties and legislators to adopt a serious attitude towards implementing the human rights protections contained in the basic law. The draft law was a comprehensive document that contained 54 articles and purported to implement the ICCPR and ICESCR but it was not without controversy.

Chen’s motivation for ratifying these international documents and implementing them domestically was clearly outlined in the White Paper. Ridding Taiwan of its

authoritarian legacy and consolidating Taiwan’s democracy were obvious motivating factors. Other key reasons included a stated attempt to bring Taiwan back into the

16 Hammond-Chambers, R.J. 2001. Analysis of Taiwan’s December 1, 2001, Elections. US-Taiwan Business Council Fact Sheet [Online] www.us-taiwan.org [Accessed: 24 March 2010]

17 Han, 2004. p. 2

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

international human rights fold. Implementing human rights developments could also serve other political motives and help combat Taiwan’s diplomatic isolation and show the international community Taiwan’s commitment to global standards.

With these motivations in light, the draft law was an all-encompassing bill that

attempted not just to bring Taiwan into line with international human rights trends but also be a trendsetter in the progressive introduction of new, so-called

‘third-generation’ human rights. Article 26 of the draft law concerned the right to marry and form a family and specifically states homosexual men and women have the right to form a family and legally adopt children.¹⁸ This would have been a first for an Asian country and guarantee rights that many Western countries had still not accepted.

Furthermore, Article 5 purported to abolish the death penalty under the right to life, going beyond the requirements of the ICCPR, which commit states that have not yet abolished the death penalty, to only impose it ‘for the most serious of crimes’.¹⁹ Perhaps its most unpalatable article though, especially for the many KMT legislators whose votes were necessary for its passages, was Article 2 on the right to

self-determination. As stated above and found in both the ICCPR and ICESCR as the first article in each, the right to self-determination in any circumstances other than

Taiwan’s would generally not be controversial, however; given Taiwan’s international position and fears of Chen’s pro-independence bias, this article, ostentatiously positioned as Article 2 of the draft law, did not make its passage through the legislature any easier, in fact, the opposite was more likely true.

Criticism of the draft law was forthcoming on various fronts. Opposition even came from Chen’s own party members. DPP Legislator, Hou Shui-sheng, decrying the extent of the proposals, went as far to say that if homosexual marriage was legalised

‘Taiwan would perish’.²⁰ The draft law also drew criticisms in academic circles. Chen and Lin opined that the draft law would create rights ‘on paper’ only and lack effect in practice.²¹ Without improved constitutional and human rights awareness, they stated: “If the Basic Law on Human Rights becomes law, we fear it will only serve as

18 Draft Basic Law on Human Rights, 2003.

19 Article 6 (2) ICCPR

20 Chang, Y.-K. 2006. Out of the Closet and into the Political Arena: Can the internet become a location for queer movements? Journal of Cyber Culture and Information Society, 10 165-204. p. 185.

21 Chen, L.-T. and Lin, C.-S. 2007. A Critique of the Taiwanese Basic Law of Human Rights in Light of the International Bill of Human Rights. (In Chinese) Journal of Humanities and Social Sciences 3:6.

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

a ‘dead letter’ or as a tool for the declaration of policy and believe it will not have any real benefit in protecting human rights in Taiwan.”²² They also stated their concern that without follow-up legislation the draft law would be ineffective and create judicial uncertainty, and cited the example of marriage rights, which would require changes to the Civil Code and other laws to have any impact for the gay community.

It must also be mentioned that there are various express rights and guarantees contained in the Constitution of the ROC. Chapter Two enumerates the rights and duties of the people, as the chapter is so called. Rights to equality before the law, personal freedom, the non-trial of civilians in military courts, freedoms of speech, religion and assembly and the right to privacy of correspondence as well as the right to elections and referenda among others are specifically mentioned therein.²³ These, however, have been largely ignored and sidelined for much of the ROC’s history on Taiwan and could be easily be referred to as the ‘dead letter’ that Chen and Lin feared the Human Rights Basic Law could have been. Direct abrogation in the past and the catch-all Article 23, which provides that these constitutional rights can be restricted by law in rather generous terms,²⁴ have meant that these constitutional provisions offer limited legal protections (if any) for Taiwanese. As stated above, although perhaps preferable to amend the constitution and place human rights protections in the

‘supreme law’, politically this was not possible. Referring to the fears of what could happen if constitutional changes were mooted with Chen in the presidency, Kennedy states: “The will to open what many view as a Pandora’s box is just not there.”²⁵

In October 2003, Chen announced: “Taiwan wants to be founded on the basis of human rights. I hope that Taiwan's human-rights standards can catch up with those of the world as soon as possible.”²⁶ In public, Chen was widely supporting the passage of the Basic Law on Human Rights through the Legislative Yuan. Yet behind the scenes, the draft law’s support was fading. Huang cites political and social battles in the legislature and general stalemate as problems the bill faced.²⁷ With presidential

22 Chen and Lin, 2007. p. 17 (translated from Chinese)

23 Constitution of the Republic of China, Chapter II, Articles 7-18

24 Article 23 states that these rights can be restricted by law to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.

25 Kennedy, B. 2002. Taiwan Raises the Bar of Human Rights Higher. Taiwan Journal, 26:20.

26 President Vows to Put an End to the Death Penalty. 2003. Taipei Times, 3 October, p.4 [Online]

www.taipeitimes.com [Accessed: 17 May 2010]

27 Huang, 2008. p. 184

‧

elections approaching in the following year, the draft law failed to make it onto the Legislative Yuan’s agenda and disappointingly was neither debated nor voted on during Chen’s first term.