Taiwan's Experience Implementing the International Covenant on Civil and Political Rights: One Example of Transnational Constitutionalism*

• Publication year: 2015
• Author: By Judge Chen-Chou Hsu** and M. Bob Kao***

Taiwan's Experience Implementing the International Covenant on Civil and Political Rights: One Example of Transnational Constitutionalism*

By Judge Chen-Chou Hsu** and M. Bob Kao***

The phenomenon of transnational constitutionalism— the general concept of international laws and treaties, as well as supranational regimes and organizations, "assuming institutional as well as dialectical functions within, between, and beyond nation-states"—has spread in recent years around the world.¹ Transnational constitutions are being complied with, transnational judicial dialogues are taking place, and the convergence of national constitutions is occurring.² Examples of this include the success of supranational institutions such as the European Union and the World Trade Organization, the referencing of international law by Justice Kennedy in Lawrence v. Texas,³ and the South African Constitution requiring judicial decisions to be consistent with international law.⁴

Interestingly, Taiwan, officially the Republic of China (R.O.C.), a country that in many respects has been shunned by the international community, has been at the forefront of transnational constitutionalism. This article examines an example of that phenomenon in Taiwan as reflected in its recent adoption of the International Covenant on Civil and Political Rights ("ICCPR"). The article will examine important questions about how this process has unfolded within the Taiwanese legal framework. Specifically, how and when the judiciary has invoked the ICCPR in deciding domestic cases, what has happened when there is a perceived conflict between international and domestic law, and the methods by which that conflict has been resolved.

Examining criminal cases dealing with the death penalty and defamation where the ICCPR has been invoked, the article notes the emergence of three trends: (i) courts invoking the ICCPR to make new laws ("judicial lawmaking"); (ii) courts invoking the ICCPR as specific guidance within traditional areas of judicial discretion; and (iii) courts invoking the ICCPR to revise judicial interpretation of existing laws. Through this process, ordinary courts in Taiwan also may have gained new powers of constitutional interpretation, which could cause tension since this power is currently the exclusive province of the Grand Justices of the Constitutional Court.⁵

Taiwan's particular experience with transnational constitutionalism demonstrates that even states excluded from the international community may find reason to adopt transnational laws, and that once the initial legislative adoption of an international law takes effect, such adoption can begin to transform the domestic legal framework in important ways. What may have initially been an expedient political move to adopt an international covenant may ultimately turn into a deeper commitment to adopt new legal norms.

I. OVERVIEW OF THE ICCPR

The ICCPR is a human rights covenant adopted by the United Nations in 1966 that came into force ten years later when it was ratified by the requisite number of countries. It is considered one of the most important human rights treaties due to the number of rights it includes, its number of signatories, its lack of geographic limitation, its application to all classes of persons, and the amount of jurisprudence interpreting it.⁶ The substantive rights protected by the ICCPR include the right of self-determination;⁷ the right to life;⁸ the right to freedom from torture, inhuman and degrading treatment, and punishment;⁹ the right to freedom from slavery, servitude, and forced labor;¹⁰ the right to liberty and security of the person;¹¹ and the right of detained persons to humane treatment,¹² among others.¹³

The ICCPR was designed to protect human rights through a monitoring system overseen by the Human Rights Committee (the "Committee"). The ICCPR and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) were advocated by some states to be one covenant, but others felt that the rights protected by each covenant were fundamentally different and therefore the two covenants should be adopted separately.¹⁴ Those latter nations, mostly western ones, felt that only civil and political rights, and not economic, social, or cultural rights, were justiciable by the courts.¹⁵

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The First Optional Protocol of the ICCPR, which came into force in 1976 established a human rights complaint mechanism through which individuals in ratifying states can file petitions against the state to be heard by the Committee, whereas the Second Optional Protocol, which came into force in 1991, called for the abolition of capital punishment. Today, 168 states are parties to the ICCPR.

II. BACKGROUND AND INCORPORATION OF THE ICCPR IN TAIWAN

Taiwan's assent in recent years to international human rights covenants, including the ICCPR, is a response to, and an example of, the global trend of transnational constitutionalism.¹⁶ The incorporation of the ICCPR and the ICESCR by Taiwan in 2009 has had a profound influence on the Taiwanese judicial system and serves as a special case study of the interaction between domestic and international law given Taiwan's tenuous international status.¹⁷

While still a member of the United Nations, Taiwan signed the ICCPR and ICESCR ("the Covenants") on May 5, 1967.¹⁸ However, the Covenants were not ratified by the government before Taiwan's seat in the United Nations was replaced by the People's Republic of China in 1971.¹⁹ In 2002, President Chen Shui-bian pushed for passage of the law implementing the treaties in the Legislative Yuan, Taiwan's legislature, but the bill stalled due to disagreements on whether to make a reservation on the right to life.²⁰Subsequently, President Ma Ying-jeou, during his campaign for the 2008 presidential election, pledged to ratify the treaties if he were elected.²¹ True to his promise, the Covenants were ratified on March 31, 2009, and then signed into law on May 14, 2009.²²

Because Taiwan is not a member of the United Nations, there was reason to believe that the United Nations would not accept Taiwan's deposit of the treaties as a formal sign of consent by Taiwan to be bound by them. This concern, in turn, raised doubts as to how binding the Covenants would be in Taiwan.²³ Anticipating this issue, the Legislative Yuan passed domestic legislation, the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights ("Implementation Act"), as the mechanism to give domestic effect to the provisions of the Covenants. As predicted, the deposit of the treaties was rejected by the U.N.'s Secretary-General citing General Assembly Resolution 2758, which states that "the representatives of the Government of the People's Republic of China are the only lawful representatives of China to the United Nations."²⁴ However, because of the Implementation Act, the Covenants nonetheless became domestic law. Using this special mechanism, Taiwan was able to bind itself to the Covenants despite not being a member of the United Nations.²⁵

The Implementation Act wholly incorporated the Covenants into domestic law.²⁶ When applying the Covenants, the Implementation Act mandates that reference shall be made to the Covenants' legislative purposes and the interpretations by the Human Rights Committee.²⁷ The General Comments issued by the Human Rights Committee offer a useful guide to the normative substance of international human rights obligations, and this provision eliminates doubt as to whether the instruments made by the Committee have binding force when applying the Covenants in Taiwan.

The Implementation Act also obliges all government agencies to respect, protect and fulfill the protection of human rights. Article 4 of the Act stipulates that "whenever they exercise their functions, all levels of governmental institutions and agencies²⁸ should conform to human rights protection provisions in the two Covenants, avoid violating human rights, protect the people from infringement by others, and positively promote realization of human rights."²⁹ In view of the impact of the Covenants on the domestic legal order, the Implementation Act also required all levels of governmental institutions and agencies, within two years of the Implementation Act's entry into force, to review laws, regulations, directives and administrative measures within their purview, and to amend or abolish those incompatible with the Covenants.³⁰

The Implementation Act consists of only nine articles and remains silent on several important issues that need further clarification. Namely, since the human rights protection provisions in the Covenants are vested with domestic legal status, the issue of whether they are superior to other domestic laws when incompatibility exists is particularly pressing. For example, when deciding a case, it is unclear how a judge who finds domestic legislation incompatible with the Covenants should proceed. Are the courts empowered by the Implementation Act to rewrite domestic legislation to conform it to provisions of the Covenants without limitation? If they are so empowered, by what process can judges engage with the Covenants through the Implementation Act?³¹ In the years that have passed since the Implementation Act went into effect on December 10, 2009, Taiwanese courts have developed various techniques and methods to interpret statutes in ways compatible with the Covenants, especially in the criminal courts.

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III. THE USE OF THE ICCPR BY CRIMINAL COURTS

The following section examines criminal cases in Taiwan to demonstrate how judges work to seek the most compatible interpretation of domestic legislation under the human rights protection provisions incorporated by the Implementation Act when there exist potential conflicts between domestic law and the ICCPR. The authors' analysis of approximately one thousand criminal cases invoking the ICCPR has...