Written by Aaron Chen.
In May 2021, Taiwan’s Constitutional Court considered a high-profile case concerning indigenous hunting rights. First opened in 2013, the Bunun man, Tama Talum, had been convicted for violating the Wildlife Conservation Act, which limited indigenous poaching to solely ceremonial activities. He was also prosecuted under the Controlling Guns, Ammunition and Knives Act, legislation that only allowed indigenous peoples to hunt using homemade weapons, whilst Tama Talum did otherwise.
Being an integral part of indigenous culture, Tama Talum has consistently reiterated his innocence and insisted that his conviction could pose a severe threat to the preservation of indigenous culture. However, during his eight-year legal battle, activists had continually raised questions regarding the validity of the Indigenous People’s Basic Law. This was a piece of legislation that supposedly protects indigenous customs and, in the case of Tama Talum, could have prevented him from being prosecuted under the duality of convictions. Why wasn’t he offered this legal safeguard? Why haven’t Taiwan’s courts upheld the values of the Basic Law? Have Taiwan’s courts established a hierarchy of laws?
The Plight of Taiwan’s Indigenous Rights Movement
Taiwan had experienced successive colonial regimes since the 17th century, and with the establishment of each regime, the indigenous peoples of Taiwan became subjected to increased state-sponsored marginalisation and oppression. Furthermore, the infamous doctrine of discovery and proclamation of Taiwan as terra nullius had effectively caused the indigenous peoples to be denied access to law, leaving their existence unprotected and rendering the historical indigenous experience with the law as one of constant exclusion and oppression.
Following the launch of Taiwan’s very own indigenous rights movement after the lifting of martial law in 1987, indigenous rights activists were able to celebrate numerous achievements from their official recognition at the constitutional level to the creation of the Council of Indigenous Peoples, where indigenous interests could be represented at a ministerial level of the central government.
The enactment of the Indigenous People’s Basic Law in 2005 represented one of the tremendous victories for Taiwan’s indigenous rights movement. It had been viewed as out of step with the bulk of Taiwanese law. However, it was a piece of legislation solely applicable to Taiwan’s indigenous groups and had enshrined indigenous rights, culture, and customs into Taiwan’s legal system. At its core, it promised indigenous self-determination and autonomy.
Similarly, in 2016, after the inauguration of President Tsai Ing-wen, she had presented the indigenous peoples with a national apology, acknowledging their historical oppression and inciting a national reinvigoration of indigenous rights. She had also established the Indigenous Historical Justice and Transitional Justice Committee, which ultimately represented the start of a promising future and a renewed sense of hopefulness in Taiwan’s legal system.
However, despite the traction of the indigenous rights movement, Taiwan’s legal system and subsequent court cases have failed to reflect this attitude. They have hindered efforts to restore the pre-colonial autonomy of its indigenous peoples, leaving them in a continued state of oppression and bound relentlessly by the shackles of internal colonisation.
For ex-colonies, it is often the case that decolonisation rarely encompassed indigenous peoples. To declare independence and establish a robust decolonisation framework had only proven to be most beneficial to the states that continued to sustain the boundaries established by the colonial powers. As a result, the colonial scars remain heavily entrenched in the postcolonial legal system. Especially for indigenous peoples, since colonial powers rid them of their right to exist as a sovereign state, decolonisation could not provide the independence that the indigenous peoples were entitled to, and it is safe to say that Taiwan’s case is no exception.
The Basic Law in Operation
Whilst the Basic Law was viewed as a milestone accomplishment for Taiwan’s indigenous rights movement, in reality, it has only served to reflect Taiwan’s inept decolonisation process. It shows a continuance of the colonial hostility and indifference to rectifying indigenous issues. The Basic Law compels the Taiwanese government to assert and promote the agenda for indigenous self-government by enacting relevant laws. Moreover, at the time of writing, Taiwan’s legal system has taken very minimal steps to realise the values of the Basic Law. This has unfortunately been attributed to the public apathy towards indigenous rights in Taiwan and a legal unwillingness to modify the status quo, where the dominating Han Taiwanese stand at the top of the food chain.
As a piece of legislation that relies on other laws, it can be argued that a glass wall stands between indigenous peoples and the Basic Law as its accessibility has been severely limited and given an inferior status by courts. The law has been tested numerous times since its initial enactment. Yet, it has repeatedly disappointed the indigenous defendant and has only served to reinforce the colonial oppression of indigenous peoples in the present day.
A prime example of its futility reveals itself in the case of the Taitung Miramar Bay Resort, where the issue arose from a government agreement to build a hotel-resort facility on traditional indigenous land belonging to the Amis tribe. The government support for the project became a worrying sign of a continuation of the colonial tendency to appropriate indigenous lands without consultation or consent. This right is granted under the Basic Law.
The development of the case coincided with environmental concerns for the project as questions were raised as to whether it had adequately passed the relevant ecological assessments. Courts had eventually forced construction to come to a halt, and although it may have appeared as a victory for both environmental and indigenous activists, given the facts of this case, it had become clear that it was solely a victory for the former group. Furthermore, neither the Basic Law nor concern for the appropriation of indigenous lands were cited as part of the reasoning for the court’s decision.
In interviews carried out by Yi-chen Huang and Leslie Mabon, the local Amis people were only informed of consultation shortly before construction was set to commence. Above all, they were only held in Mandarin, subjecting the aged population to greater vulnerability. This raises questions as to whether there was an intention to seek opinions truthfully and bears an uncanny resemblance to the assimilationist ideals of colonial Taiwan.
To add, the refusal to acknowledge indigenous title before the colonisation of Taiwan leaves demarcated indigenous territory vulnerable to exploitation as the enactment or amendment of other laws to bring the principles of the Basic Law into legal effect are yet to be realised. Not to mention having indigenous issues deciphered by non-indigenous court personnel, indigenous peoples have been brought under the domain of the dominating group. At its core, the Basic Law has refused to allow indigenous peoples to take ownership of their essential rights. Ultimately, it stands subordinate to the bulk of Taiwan’s civil law.
At the time of writing, the incomplete resort buildings stand derelict, dilapidated and abandoned. Despite persistent calls for demolition, they continue to represent the silencing of indigenous voices, their lack of sufficient legal safeguards and ultimately, their oppression.
The future of the Basic Law
The recent legal developments have painted a very bleak future for the Basic Law in Taiwan. Allowing indigenous hunting practices to be severely curtailed has indicated a significant setback in Taiwan’s indigenous rights movement. Although the Basic Law is supposedly the primary legal safeguard for protecting indigenous customs, courts refuse to uphold its values. This has become an indication for indigenous peoples that Taiwan’s courts are willing to establish a hierarchy of laws, where they are not offered a level playing field.
Today, Taiwan’s indigenous population is one of the most impoverished. They remain on the lowest rungs of legal and socio-economic ladders due to deep-rooted prejudices and an absence of anti-discrimination discourse. While the Basic Law aimed to encourage a reinvigoration of indigenous rights in Taiwan, it has willingly exposed them to poverty and victimisation. Moreover, it has played an indispensable role in reproducing colonial discriminatory practices against indigenous peoples.
As the centrepiece legislation of Taiwan’s indigenous legal system, its inability to act as a self-executing clause and serve its primary purpose of protecting indigenous rights has reaffirmed Taiwan’s inability to redress its colonial past. The Basic Law will only continue to endorse colonial rhetoric and act as a tool of oppression until laws are enacted to bring the Basic Law’s potential to reality.
Aaron Chen is a graduate of BA Law and Chinese at SOAS University of London. He is currently pursuing an LLM Master of Laws in Chinese Law at the University of Hong Kong and is particularly interested in the legal history of Taiwan, Taiwan’s indigenous legal system and Cross-Strait relations.