• By Guy Charlton,
  Avi Charlton and Jennifer Min

Australia and Taiwan both have ongoing challenges relating to historical reconciliation and justice. Moreover, any of the issues confronting indigenous communities such as lack of policy inputs, discrimination and self-determination are similar. More importantly and practically, a “Taiwanese indigenous voice” would provide a symbolic and practical mechanism where indigenous peoples can have a say over important policy and legal decisions that affect them without needing to resolve or preclude the recognition of indigenous sovereignty which continues to be debated.

In May 2017, more than 250 Aboriginal and Torres Strait Islanders issued the Uluru Statement from the Heart. The statement sought to create a better future for all of Australia and included a proposal for an “Aboriginal and Torres Strait Islander Voice” in the Australian constitution. The Uluru Statement arose out of a decade-long process which considered various legal and policy mechanisms that could recognize the First Peoples of Australia and better address their practical needs, as they continue to be disadvantaged across a range of socioeconomic indicators.

The proposed Australian Voice is a constitutional innovation which, if enacted, would establish an independent Aboriginal and Torres Strait Islander institution. It is envisioned to provide a symbolic acknowledgment and institutional expression of Aboriginal and Torres Strait Islanders’ presence as First Peoples of Australia as well as an indigenous perspective over proposed legislation and regulations “on matters relating to Aboriginal and Torres Strait Islander peoples.” It would also be tasked with providing an aboriginal perspective on policy implementation by the Australian executive branch. The proposed constitutional language does not outline the particular structure of the Voice, but leaves the particular structure to parliament that would be enacted once approved. It involves both symbolic recognition of indigenous peoples as the First Peoples of the Australian continent and a practical effort to incorporate indigenous perspectives into policy.

The Voice mechanism is not without its critics. There has been strong opposition based on equality considerations and a normative commitment to a non-racialist “color-blind polity.” These critics argue that a constitutionally entrenched institution that provides rights to Aboriginal and Torres Strait Islanders would entrench racial differences which detract from the constitutional commitment to equality. There is also concern about the impact of the Voice on the separation of powers and the potential to infringe upon parliamentary sovereignty (ie, whether the proposed constitutional language would provide room for judicial review, potentially limiting parliament’s power to enact policy over Aboriginal and Torres Strait islanders) in light of the proposal.

These arguments carry political currency in the ongoing Voice Referendum debates prior to the Oct. 14 vote, but fall apart upon scrutiny. The equality arguments, reminiscent of arguments related to affirmative action and racial discrimination in the US, seeking to counter deep-rooted cultural and economic disadvantages based on race through legal doctrinal purity and misplaced historicism, are difficult to square to the continued disadvantage of Australian indigenous peoples. Moreover, they are incompatible with the flexible understanding of “equal rights” proffered by the High Court of Australia. As such, the constitutional entrenchment of an indigenous presence in law and policymaking is a reach toward a more genuine egalitarianism than has been accorded indigenous citizens in Australia.

At the same time, the notion that an institutionalized Voice either extend judicial review or invite judicial “lawmaking” or limit parliamentary authority is similarly questionable. A consensus of legal experts view the language as creating a mere advisory body. It is unlikely to affect parliament’s paramount authority, as the proposed language does not include veto powers, but rather secures a place at the policymaking table for indigenous Australians. More likely, it would be impacted by the precedent of the various human rights statutes and Australian federal laws such as the Human Rights (Parliamentary Scrutiny) Act 2011. In these acts, the legislature is alerted to implications of proposed legislation, but failure to either follow the human rights statutes or procedure has no impact on the validity of subsequently enacted law. As such, human rights infringement provides no basis for judicial review. As one of the chief architects of the Uluru statement, professor Megan Davis has stated that the institutional Voice would be focused on ensuring “Aboriginal participation in the democratic life of the state.”

Earlier representative bodies, such as the Aboriginal and Torres Strait Islander Commission (1990–2005) have been criticized because, as statutorily created bodies, they were subject to the whims of government polities and politics. Supporters argue that the entrenchment of the Voice in the constitution would provide a level of institutional and financial continuity while ensuring a constitutional right to provide an indigenous perspective in the lawmaking and policy process. In addition, it is argued that constitutional entrenchment would increase the likelihood that government actually listens to indigenous perspectives.

The current Taiwanese historical reconciliation process, underscored by President Tsai Ing-wen’s (蔡英文) 2016 official apology, also seeks to achieve historical justice through symbolic and practical measures. Like Australia, numerous Taiwanese indigenous groups have distinct cultures and languages occupying all ecosystems across the nation, as well as unique histories of colonial encounters. This very diversity creates challenges for state policymakers and advocates, as state policies and the historical justice process are more easily geared toward the sentiments and interests of larger tribes or unique emblematic historical episodes that may or may not be the historical experience of all tribes. Diversity also tends to create an “archetype” indigenous person, which tends to blur historical and cultural differences as a heuristic and political shortcut, making challenges of indigeneity less “hard” for policymakers. In Taiwan, such a process is evident in legislation that prescribes the use of handmade guns as “traditional” weapons to hunt, despite the more widespread use of methods such as snares and traps by most tribes.

It is clear that current measures providing space for the acknowledgement and consideration of indigenous perspectives and interests are falling short of aspirations.

First, efforts to bring indigenous perspective and representation into the lawmaking process have been inadequate. Since 1972, Taiwan has set aside only six reserved seats for indigenous peoples. Members from these districts are elected from two nationwide districts — one highland and one lowland — and have remained a feature of the reserved seat system since 1980. These reserved seats tend to represent the interests of larger tribal groups due to the use of the single nontransferable voting system which lowers the required number of votes. Indigenous candidates can typically secure their election with 20,000 votes, in contrast with general candidates who require move than 50,000 votes. The lower threshold favors candidates and political positions of larger indigenous groups. Of course, indigenous people can run in one of the 73 district seats or as legislators-at-large. Yet in 2020, the number of individuals who were elected in a district or as a legislator-at-large was low. Additionally, the “representative” function of these indigenous members can be questioned. While elected indigenous candidates tend to speak more often on issues of concern to indigenous peoples, most of them continue to be bound to party agendas and rules, which limit representation to those areas within a main party agenda.

Of course, these allocated seats suggest that constitutional objections based on equality or separation of powers have less traction in Taiwan’s constitutional environment. Taiwan’s constitutional structure does not depend upon the separation of powers as a mechanism to maintain and protect constitutional and minority rights to the same extent as the Australian constitution. Rather separation of powers in Taiwan is fortified by an extensive enumeration of entrenched human rights and notions of substantive equality. A series of national laws and regulations have been passed to protect and promote indigenous peoples’ rights. These include: the Status Act for Indigenous Peoples (原住民身分法), the Indigenous Peoples Employment Rights Protection Act (原住民族工作權保障法), Name Act (姓名條例), Education Act for Indigenous Peoples (原住民族教育法), Indigenous Peoples Basic Act (原住民族基本法) and the constitutional amendments (2005) on indigenous representation in the Legislative Yuan, protection of language and culture and political participation. Moreover, Taiwanese courts have been more willing than Australian courts to carve out remedies which seek to counter discriminatory policies under this constitutional and legislative framework. For example, in the 2022 “111-Hsien-Pan-4” judgement, Taiwan’s Constitutional Court affirmed that an individual’s indigenous status is related to their identity or personality due to the constitutional rights to personal identity and equal protection.

Second, the main institutions of indigenous policy within the government are insufficiently independent in policymaking and it is inappropriate to view them as “representing” indigenous interests. The Council of Indigenous Peoples, while tasked with being a central interface between indigenous groups and the government, continues to be subject to government direction and channels indigenous commentary due to organizational norms -— an appropriate situation in a democratic state. The policymaking formulation can be diverted away from the aspirations of indigenous peoples due to bureaucratic inertia, government policy direction and closed or limited consultative procedures for simply being “too hard.” An independent Voice could provide a mechanism where internal and political processes are expanded or challenged at the policy formulation and implementation stage in a way that bureaucratic institutions are unlikely to do.

Finally, a Taiwanese Voice would significantly expand the symbolic aspects of historical justice and reconciliation which have been less salient in recent years. Historical reconciliation is the dominant society directed against individuals or groups in the past. It is characterized by distinctive institutions and practices including official apologies, truth and reconciliation commissions, reparations and compensation, public memorialization, judicial innovation in favor of indigenous groups and policies aimed to address present day disadvantages traceable to historical injustice. This reconciliation is bound up in Taiwanese democratic politics, which in turn constitutes a major distinction between Taiwan and China. Recognition and protection of indigenous peoples has become part of Taiwanese “indigeneity” vis-a-vis China. While Tsai’s 2016 official apology and the initiation of subsequent policies aimed at addressing continue aspirations of indigenous peoples to self-determination and preservation of traditional lands, Taiwanese policy lacks the appropriate institutional expression for this process.

These reasons, as well as the importance of Taiwanese democracy’s continued vibrancy, suggest that a Voice mechanism should be considered.

Guy Charlton is an associate professor at the University of New England and a visiting professor at National Chengchi University. He teaches comparative indigenous law. Avi Charlton and Jennifer Min are law students at National Chengchi University.