Mab Huang
This paper is a brief account of the initiative of the human
rights NGOs to draft a bill for a national human rights commission that will
meet the needs of Taiwan for the new millennium. It will deal with the background,
the composition of the drafting committee, and the debates that took place when
the drafting was going on, both within the working group and among the NGOs.
And it will close with a preliminary assessment of the potential effects of
this endeavor
In a period of six months, i.e. from January to June 2000, during which the draft was being prepared, record has been kept of the meetings. Nevertheless, part of the narrative and analysis could not but draw upon my personal recollections and reflection.
I.
In October 1997, I was invited by the Institute for National Policy Research
to meet with a visiting delegation from the Council of Europe. I was asked to
brief them on the human rights situation in Taiwan. In my presentation, I proposed,
after a survey of the political change and its impact on the human rights record,
that it was time Taiwan returns to upholding international human rights standards
and set up a national human rights commission to coordinate the endeavors. Mr.
Peter Huang, who had been newly elected to the position of the President of
the Taiwan Association for Human Rights, found this simple idea appealing. He
translated my piece from English into Chinese language and circulated among
the human rights NGOs for discussion.
For quite some time, nothing much happened. It was not until the end of 1999,
that there was a stir in the air. It is not easy to explain why this was so.
Perhaps it had something to do with the presidential elections. For it could
be assumed that given the historical background of the Democratic Progressive
Party as an opposition suffering from long decades of persecution, human rights
protection should be a campaign issue. Anyhow, the NGOs set out to mobilize
the public opinion, with the Taiwan Human Rights Association taking the lead.
Some of us were assigned to write essays for the newspapers. For example, Mr.
Peter Huang chose to write for the China Times and the Liberty Times 1,
so did Dr. Fort Fu Te Liao 2, and I submitting articles
to the United Daily. The first article of this group appeared in the United
Daily on December 6 3. And a few of us appeared on television
network programs as well.
On December 6, a meeting of some 22 NGOs was convened, including human rights organizations, lawyers associations, women's organizations, and social welfare groups, among others. In that meeting a coalition for the promotion of a national human rights commission was organized. The coalition immediately proceeded with a press conference on December 9. Many members of the coalition spoke, dealing with different issues relating to the national human rights commission. It would seem that by that time many important principles concerning the organization of the commission had been subscribed to. It was stated that the "Paris Principles" and the experiences of other countries would be consulted in designing a national human rights commission and that its functions would include investigation of violation of human rights, making and revising laws to confirm with international standards, as well as promotion of human rights education. Of course, no detailed instructions were given. Nevertheless, the guiding ideas of independence, effectiveness and fully reflecting the diversity of the society were affirmed. 4 A month later, two working groups were created. 5
One group was led by Mr. Peter Huang, and charged with the task of persuading the presidential candidates to endorse our goal. First the nominee of the Nationalist Party, Mr. Lien Chan adopted it as part of his reform agenda 6. Mr. Chen Shui-bian, the nominee of the Progressive Democratic Party and Mr. Hsu Hsin-liang, the independent candidate, followed him. After Mr. Chen was elected to the presidency on March 18, Mr. Huang's group persisted, and managed to persuade him to openly commit himself in his inaugural address on May 20. In this speech, which apparently caught the international community by surprise and was given a good press, President Chen pledged to uphold international human rights standards, making them the foundation of the legal system in Taiwan, especially the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Declaration and Action Program of the 1993 Vienna Conference on Human Rights. The new government would do three things, he said: first, request the Legislative Yuan ratify the international bill of human rights, turning it into a genuine Taiwanese bill of human rights; second, create an independent national human rights commission; and third, invite the Amnesty International and the International Commission of Jurists to give advice as to the implementation of his policy. In August last year, he proceeded to set up an advisory committee on human rights affairs chaired by his Vice President. When the President introduced the twenty some commissioners to the press on October 24, he again reiterated his commitment to create a national human rights commission.7
II
The other working group created in December last year and chaired by me was charged with completing a bill for a national human rights commission. I was determined was that this initiative should be a NGO effort and the process should be as democratic and open as we could manage. Of course, I sensed that I might be taking on more than I can handle. Yet I saw no viable alternative. At that time, the presidential campaign was moving into high gears. And the approaching holiday season gave it a feeling of expectation and excitement. The drafting group decided not to rush but to meet after the Chinese New Year holidays. It met for the first time on February 22, with seven persons taking part. Thereafter, the process settled down quickly and four of us attended every meeting for the following four months, with additional coalition members attending different meetings from time to time. The regular four are Mr. Su You cheng, the veteran lawyer known for his defense of the Su Chien-ho et al, the cause celebre of the decade; Dr. Fort Fu Te Liao, the newly minted PHD in international human rights law from Oxford, Mr. Chen Jin-hung, an instructor in my department and a long time research associate of mine, and me. Mr. Peter Huang, Dr. Chen Long-chih, professor of international law at New York Law School, and Mr. Lin Feng-jeng, a competent young lawyer and successor to Peter Huang as President of the Taiwan Association for Human Rights, attended the drafting sessions frequently. Dr. Chen had attended the meetings regularly until the presidential elections of March 18. After that date he was pressed for time as he had been the principal writer of the President's foreign policy white paper. Mr. Peter Huang was also engaged in the political transition, in his usual low- key manners; he attended our sessions as much as he could manage his busy schedule. As for Mr. Lin, he attended the sessions fairly regularly since March, as it became clear that he would have to assume the role of defending the draft legislation publicly. Other coalition members, such as Professor He De-fen, well known for her role as the president of an advocate group for press responsibility, and Mr. Ken H.C.Chiu, a human rights lawyer dedicated to defend the most outrageous and disadvantaged groups, attended the sessions occasionally. Through the six months, three sophomore students from my class on human rights in Soochow University, Misses Chi Pei-jun, Ting Yun-ping and Melena Lin, served faithfully as the recorders.
Altogether the drafting group met ten times. The sessions tended to be informal, with much give and take and exceedingly conscious of the constraint of time. They usually started at 6:00 or 6:30 p. m. Monday, although late into the process, the drafting group occasionally met on Sunday. The ritual of eating a simple meal together was adhered to faithfully, and the work began punctually half an hour after the meal. I had decided from the very beginning that I must be firm, if not ruthless in presiding over the discussion. I had in mind the vivid image of Dr. Charles Malik chairing the Third Committee of the General Assembly when the Universal Declaration of Human Rights was debated article by article in the fall of 1948. There was a division of labor though. Mr. Su the lawyer always came prepared with a draft, which was most helpful. We all relied on him to do the groundwork. As for the laws and experiences of other countries we naturally turned to Dr. Liao. My young colleague Mr. Chen Jin-hung turned out to be an excellent writer; many statements of the drafting group as well as the coalition came from his pen. I was left with the easy task of pointing out my skepticism and concerns. I rarely insisted on my positions. Professor Chen Long-chih, when he came to meetings, was used as an arbiter given his learning and experience. Mr. Peter Huang was a thoughtful and careful commentator on the draft, exceptionally familiar with international documents and literature and a meticulous user of English words. Professor He De-fen was sharp in her comments and decisive in her recommendations. All other participants contributed their knowledge and skills unselfishly in their own ways.
III
To a very large degree, the Paris Principles and AI recommendations were relied
upon as guides. The handbook on national human rights institutions published
by the U.N. was a must read for all members of the working group. The experiences
of a number of countries, such as Thailand, Indonesia, Canada, and Australia
were carefully analyzed for lessons to be learned. But more importantly, we
were all aware that for the national human rights commission to be workable,
what can be done at the present time and in the near future politically must
be taken into account. In the meeting of February 22, 2000, it was decided that
as the experience of constitutional amendments in the previous decades had been
so disastrous, falling far short of the expectations of the academic community
and the society as a whole, the national human rights commission should be located
in the Presidential Office. Of course, it was stipulated that it must be independent,
effective, non-partisan and easy to operate. There was hardly any disagreement
as to the autonomy and independence of the commission, both in terms of personnel
and budget 8 . The serious controversy relating to the
investigatory powers of the commission was not raised until later.
Agreement was also reached relating to the scope and domain of the commission.
Both in the meeting of February 22 9 and that of March
6, 2000 10, I argued for a wider scope and domain of the
commission, i.e. the commission should not be only concerned with civil and
political rights; economic, social and cultural rights should be a substantial
part of the work of the commission, especially the improvement of the position
and status of the more disadvantaged groups. It is true that the protection
of civil and political rights in Taiwan still left something to be desired,
as witness the case of Su Chien-ho referred to above. Nevertheless, with the
disintegration of the authoritarian regime, and the rise of new social movements
since then, economic, social and cultural rights issues apparently had become
urgent. For example, women's organizations have been active in raising the consciousness
of women and in promoting women's rights, including revision of family laws.
Similarly, the anti-nuclear movement turned out to be the most militant part
of the environmental protection movement, attacking the Taiwan Power Company
and the government frontally. It was the position of the drafting group that
these emerging issues simply could not be evaded any longer.
The first serious dispute within the drafting group was related to the issue
of investigatory power of the commission. In a draft of the relevant articles
proposed by Mr. Su in January 2000, the commission was granted wide range of
powers, almost identical to that of the Control Yuan. I took strong exception
to this recommendation for two reasons. First, I did not think that the commission
needed such powers; the Control Yuan, after all, is primarily concerned with
the conduct of the government bureaucracy, while the commission, in my judgement,
should focus on larger societal issues. Secondly, the commission should not
be engaged in a jurisdictional dispute with the Control Yuan, for such a dispute
would definitely be detrimental to the chances of the bill being adopted by
the Legislative Yuan. At first, Mr. Su and Dr. Liao were opposed to my position,
citing the needs for speedy actions in protecting individual rights due to the
weak performance of the court system and bureaucracy paper works. Fortunately,
with the support of Professor Chen, my position of self-restraint prevailed.
It was agreed that the national human rights commission would only investigate
"serious," "significant" and "important" cases
of violations of human rights 11. For indeed, at that
time, quite a few members of the Control Yuan were opposed to the creation of
a national human rights commission as redundant; and a few legal experts gave
them support 12. And almost at the same time, the President
of the Control Yuan, clearly with the proposal for a national human rights commission
in mind, instructed his colleagues to set up a human rights protection committee
in the Control Yuan.
As for how the investigation should be conducted, Mr. Su and Dr. Liao at first
took the position that it should be modeled on the investigatory procedures
of the Control Yuan. I was opposed to that. In the meeting of May 8, Mr. Lin
Feng Jeng expressed his concern with abuse of power by the commission. A deadlock
seems to be in the making. In the meeting of May 22, it was decided that the
articles relating to the investigatory power should be entrusted to a three-
member committee for resolution. They are Dr. Liao, Mr. Lin and Mr. Jin-hung
Chen 13. This controversy seems to have been disturbing
to many organizations and individuals in and out of the coalition, and might
again play a part in the debates in the Legislative Yuan in the months to come.
The working group quickly agreed that the commissioners should be of three categories of persons, namely human rights scholars and professors, legal experts and NGO personnel. The insistence on the recruitment from the NGO community clearly demonstrated the conviction that Taiwan need to face up to the many faceted issues of economic, social, cultural and environmental rights. Without the participation of persons who have for long years engaged in fighting for the disadvantaged groups, the promotion and protection of human rights could only remain empty promises. There was, however, quite a bit of discussion as to the number of commissioners to be elected by the Legislative Yuan and those to be appointed by the President. In the end a compromised solution was adopted: the Legislative Yuan would elect seven commissioners, while the President would appoint eight. And they would serve for six years, and could be reelected or reappointed for a second term. But for preserving the continuity in personnel and policy, three members of each of the two groups would be elected or appointed to a three- year term the first time around.
The drafting group also quickly agreed that we would not need a bloated bureaucracy; rather, a few selected assistants for each of the commissioner should be the optimum. By assistants we had clearly in mind young lawyers dedicated to the promotion of human rights. Professor He de-fen was the first to propose a lean commission, and the drafting group unanimously adopted her idea.
IV
If the drafting committee quickly settled down to a routine in its work and
became a fairly coherent group, the NGO coalition tended to act as a very loosely
coordinated consortium. In part it had a great deal to do with the different
concerns and interests of the members; in part it was clearly due to the lack
in communication and interactions. It is true that when the coalition was organized
in December 1999, a consensus on the goals and the fundamental principles guiding
the future national human rights commission seemed to have been reached. Yet
when it came to the details governing the structure and functioning of the commission,
diverse opinions and positions soon emerged. In a meeting convened by Mr. Lin
Feng Jeng on June 7, 2000, three days after the press conference of June 4,
to report back and to seek advice and suggestions from the coalition, it quickly
turned into a not so polite confrontation. A member of the coalition who is
known for his leadership role in educational reforms first argued that he could
well image as a legislator that the commission was assuming far too much power;
or from a different angle, would not the blueprint for the commission be favoring
the enlargement of power by the President 14? To be fair
to him, he did make it clear that he was probing the drafting committee so that
it could better defend itself. Indeed as a response to our draft legislation,
the Liberty Times in its editorial came close to condemn the coalition for setting
up a super organ in the name of protecting human rights.15
I immediately replied to clarify our position, pointing out that the idea of
streamlining the government bureaucracy should not be taken to mean that no
reform measures were permissible. Redundant and ineffective government organs
indeed should be abolished; but to meet with new problems, new government units
need not be disallowed. Moreover, to argue that the commission could usurp so
much power as to threaten the autonomy of the judiciary or the executive branch
is nothing less than a malicious lie. 16
In the meeting of September 8, the composition of the commission was challenged.
An influential scholar and social activist judged that it gave the advantage
to the President and countered with a complicated scheme of nomination and election
by the Legislative body. Mr Lin defended the draft provisions as the best under
the circumstances. The issue of duplication of functions with the Control Yuan
was again raised. To my surprise, a lawyer representing a well-know women's
organization gave the impression that the commission might not be needed because
it duplicates the functions performed by the Control Yuan. Then there is the
case of an organization that had pioneered the reforms of the judicial system
taking the position that the commission should be a private foundation. This
proposal met with strong disapproval of many participants, especially Mr. Lin,
Mr. Ching-feng Hsueh of the Taipei City Lawyers Association, and Mr. Lin Liang-long,
representing the Labor Front.17
The work of the drafting committee came to an end with the tenth meeting of
the drafting group on June 28, 2000. In that meeting, as I had done through
the summer months, I took the opportunity to argue that the draft legislation
was not in any way unconstitutional and that as we could well anticipate compromises
to be made when the bill is debated in the Legislative body, to make concessions
now is to give up without a struggle.
By early October, agreements were reached by the coalition that a white paper
giving general explanation of the draft legislation should be prepared to go
along the text. My young colleague was primarily responsible for preparing that
document. The scene of action as well struggle, it is clear, would be moving
toward the Legislative Yuan
V
The future of the draft legislation is difficult to predict. Efforts have been
made to approach a few members of the Legislative Yuan, with emphasis placed
on members of the Democratic Progressive Party. Ms.Wang Shih-shi, Executive
Secretary of the Judicial Reform Council, was put in charge of coordinate lobbying
the members of the Legislative Yuan 18. The new government,
in the person of the President, had indeed given the coalition encouragement
and support. Yet the executive branch of the government has not so far taken
any concrete actions in promoting the creation of a national commission. Now
with the political deadlock between the Democratic Progressive Party and the
opposition in the legislative body, which in the opinion of many observers,
had degenerated into emotional wrangles, relating in particular the building
of the nuclear power plant, hardly any reasonable compromise could be expected.
The draft legislation could very well become a victim of this war of nerves.
Indeed, the situation in the Legislative Yuan seems to be fairly confusing.
Legislator Shiau Wan-yu of the Nationalist Party had proposed a bill for a national
human rights commission. It had the support of her Party and was tabled for
debate; nevertheless; but it was withdrawn a few weeks ago. It is not known
what has prompted this change 19. In a longer- term perspective,
nevertheless, it would seem that a national human rights commission is waiting
to be born.
Compared with the not so bright prospects of the draft legislation in the near future, the efforts of the NGOs could be said to have begun the painfully slow process of educating the public regarding the idea of human rights and the need for an independent commission. The mobilization of public opinion by the coalition, the debate pro and con in the press as well as in seminars and conferences, definitely help induce the public to pay some attention.
Nevertheless, it should be realized that the idea of individual rights is still
kind of alien to many people, and it will take much to make a little progress.
Education is needed not only in schools and universities and colleges; it is
absolutely indispensable in the families and for many professional groups, including
the judges, lawyers, prosecutors, police officers, social workers and the press,
to name a few. This arduous task has barely begun in Taiwan.
If we turn to the wider impact of this endeavor of the NGOs, it could be legitimately asked whether it could have any influence on the actions by the government and/or the intellectual and professional classes in China? And beyond that on the international community? There was no much discussion by the drafting group or the coalition. The consensus would seem to be that it would be unrealistic to expect much; after all, Taiwan is not a member of the U.N.; nor is it recognized by many nations. The most important concern of the NGOs, and the raison d'etre of its efforts in promoting a national human rights commission, is nothing less than the securing and enjoyment of rights and freedoms by the people living here, especially the more disadvantaged groups. If the creation and operation of the commission help promote Taiwan's position and visibility in the world community, and contribute to the security of the island against outside pressures and attack, so much the better. And if the commission by its excellent work, inspires intellectual and professional classes in China to think more boldly and act more firmly, and thus putting pressures on the government to relax its control on the mind and body of its citizens, it is a achievement beyond our dream.