Written by Wei-Che Tsai; Translated by Yi-Yu Lai.
Image credit: People in traditional Taivoan clothing at an activity in Kaohsiung by Office of the President/ Wikimedia commons, license: CC BY 2.0.
In just one and a half years since 2021, Taiwan’s Constitutional Court has issued several landmark judgments on Indigenous affairs, including the cases of Indigenous rights to hunting, the government procurement on Indigenous employment subsidies, the Indigenous status for children born of Indigenous and Non-Indigenous marriage, and the Indigenous status for Siraya people (hereinafter referred to as the judgement).
Among these judgments, the case of Indigenous status for Siraya people has challenged Indigenous peoples’ composition and boundaries. Currently, around 580,000 Indigenous peoples are legally recognised in Taiwan. It is estimated that the population of the Pingpu peoples will increase the total number of Indigenous peoples to as high as 980,000 if the Act is declared unconstitutional, although this number may be inflated for political purposes by Taiwan’s Indigenous authorities. As a result, the authorities are worried about this judgement.
However, the Constitutional Court’s major concern is not political impact. The focus is instead on the interpretation of the Constitution and the protection of human rights. To clarify the implications of this judgement, this article examines the judgement’s background, the cause for the lawsuit, its primary substance and significance, and its influence and future prospects.
Before the arrival of the settlers, hundreds of nations and dozens of Indigenous peoples inhabited Taiwan. However, following the requirements of administrations, successive colonial regimes categorised these groups as “uncivilised savages” and “domesticated savages.” Whether it was the partition of the Qing dynasty due to border and tax concerns or the partition of the Japanese colonial regime due to the split of ordinary and mountain administrations, the divides were based on the demands of government rather than on the division of personal identity. In addition, the colonial regimes tended to employ the strategy of “ruling savages through savages” to lower the ruling cost. However, it resulted in damage and mistrust among Indigenous groups.
During the reign of the Japanese Empire, linguists and anthropologists classified Indigenous groups into over twenty distinct ethnic groups. More than ten of these groups were categorised as the “domesticated savages” and referred to as the Pingpu peoples.
After World War II, the Nationalist government inherited the Japanese Empire’s administrative structure. The once “uncivilised savages” who inhabited the mountainous areas are now governed by the highland administration and are classified as “mountain compatriots”, while those “uncivilised savages” who inhabited the lowland are further classified as “mountain compatriots in the lowland” due to where their ancestors inhabited.
Nonetheless, scholars observe that numerous “domesticated savages” still preserved their distinct identities in the 1940s and 1950s. They did neither consider themselves Han nor “uncivilised savages.” Most of them did not register as “mountain compatriots in the lowland” because the authorities did not inform them. Also, the government refused to let them register subsequently. As a result, the controversial issue of the judgement is whether the descendants of these peoples are the Indigenous peoples referred to in the Constitution?
Indigenous Activism in the Past
The Indigenous movement in Taiwan has been on the rise since the 1990s, and the Pingpu peoples have not been absent. Together with the other Indigenous groups, they fought for the rights of autonomy, the rectification of Indigenous names, and the restoration of ancestral lands. During subsequent constitutional amendments, the terms “yuanzhumin” and “Indigenous peoples” officially replaced “mountain compatriots” in the Constitutional provisions. However, since they were not recognised as Indigenous peoples, the Pingpu peoples brought different outcomes while fighting with other Indigenous groups. It is a deplorable mistake that such a history of Indigenous activism has not been handed down. Unfortunately, many Indigenous activists erroneously assume that the Pingpu peoples have never joined other Indigenous groups to fight for their rights on the streets in the past.
The Pingpu peoples do not give up the pursuit of their rights. To gain formal recognition as Indigenous peoples, they continue to lobby the Legislative Yuan, appeal to the Executive Yuan, and petition the Control Yuan. However, they often got nothing except ceaseless evasion from the authorities. Meanwhile, some of the Pingpu peoples continuously revived their own cultures and languages, so that they could maintain the practices of their identity.
Siraya people, one of the Pingpu groups, have shifted their attention to the court since 2010 after they realised that their prior efforts with other authorities had been fruitless. For the Siraya people, it is arduous to attain justice and dignity through the judicial system. In the early stage of litigation, they lost lawsuits successively. However, later on, more and more judges have understood the plight and suffering of the Pingpu peoples. As a result, the Taipei High Administrative Court eventually petitioned for constitutional interpretation, compelling the Constitutional Court to determine whether the Status Act for Indigenous peoples is unconstitutional.
The Meaning of the Constitutional Judgement
In November 2022, the Constitutional Court declared that the Status Act for Indigenous peoples not covering unrecognised Pingpu peoples is unconstitutional. They argued that Indigenous peoples referred to in the Constitution include all Austronesian-speaking peoples that have existed in Taiwan in the past. The current Status Act for Indigenous peoples is unconstitutional since it does not confer Indigenous status to the unrecognised Pingpu peoples. According to the judgement, the amendment of the Act must be completed within three years. Members of the unrecognised Pingpu peoples might register as official Indigenous peoples if the revision is not finished.
The judgement comprises two main points. First, this is the first time that the Constitution has recognised the “collective rights” of “Indigenous peoples” instead of their “individual rights.” Second, the judgement recognises the Austronesian peoples, including the aforementioned Pingpu peoples, who originally inhabited Taiwan as “Indigenous peoples” if they satisfy specific qualifications.
Combining the two preceding points, the most significant implication of the constitutional judgement is that the “constitutional rights” of the unrecognised Pingpu peoples and the “constitutional rights” of the officially recognised Indigenous peoples are equalised. As a result, they might collectively constitute a community with shared interests since expanding the constitutional rights for Indigenous peoples would benefit both groups. While there are ongoing discussions over the mutual exclusion of resources between the officially recognised Indigenous peoples and the unrecognised Pingpu peoples, this judgement may end the debates that have existed in Taiwanese society for several decades.
As mentioned above, the judgement requires that the authorities complete the status act amendment within three years. Based on what the Constitutional Court declared, the status recognition should be relatively less controversial. To what degree the authorities would offer entitlements to the currently unrecognised Indigenous groups, particularly the participation in the Legislative Yuan and local councils, should be highlighted. If the constitutional suffrage rights of those unrecognised ethnic groups, which include rights to vote and rights to stand for election, are rejected, the constitutional suffrage rights of the officially Indigenous peoples will also be denied. Regarding the most important legislative elections and local council elections, it is worth observing the trend of law amendments.
Wei-Che Tsai is an Associate Partner at Lin and Shih Attorneys-At-Law. His principal practice areas are in civil and commercial dispute resolution, and criminal defence. He received an M.A. degree in Economics and LL.B degree from Nation Taiwan University. He is a member of the Human Right Committee, Taipei Bar Association.
This article was published as part of a special issue on Indigenous Recognition for Siraya People.