After its first year in existence, the National Human Rights Commission has been criticized for failing to conform with the requirements of the UN’s Principles Relating to the Status of National Institutions, also known as the Paris Principles.
The idea for setting up a national human rights institution based on the Paris Principles originated from civil society.
Since its transition from a martial law dictatorship to a full-fledged democracy, Taiwanese society has agitated for a series of political and democratic reforms. One of them was to hasten the nation’s pace in adhering to international human rights standards. Certainly, doing so would require a coordinated effort.
In 1997, professor Mab Huang (黃默) decided it was time to create a human rights commission when he briefed the Council of Europe on the human rights situation in Taiwan. Peter Huang (黃文雄), then-president of the Taiwan Association for Human Rights, was sympathetic to this proposal, and discussed it with non-governmental organizations.
Against this backdrop, civil society organizations took the initiative, yet the creation of a national human rights commission faced multifaceted and complicated obstacles, as well as apprehension from the political elites entangled in a tug of war among government branches during the administrations of former presidents Chen Shui-bian (陳水扁) and Ma Ying-jeou (馬英九).
After years of wrangling and political compromises, President Tsai Ing-wen’s (蔡英文) government in August last year established a national human rights commission in the Control Yuan, under the complex Organic Act of the Control Yuan National Human Rights Commission (監察院國家人權委員會組織法).
It stipulates that the 10-member commission is to be headed by the Control Yuan president and comprise seven Control Yuan members, with its other two members to be selected from candidates nominated by commission members and replaced annually.
One year after its founding, the commission has yet to explicitly clarify its role with a clear mission statement for Taiwanese. Many branches of government, the general public and even the Control Yuan do not understand the commission.
To be more precise, on the division of labor within the Control Yuan, the seven members charged with human rights duties were confused as to the roles of the 20 other traditional Control Yuan members.
The latter deals with civil servants who contravene the law, by initiating an impeachment to hold them accountable and forwarding their cases to the Judicial Yuan’s Public Functionary Disciplinary Sanction Commission to determine punishment.
Control Yuan members on the human rights commission aim to propose recommendations to the Legislative Yuan on amendments to laws or make policy suggestions to the Executive Yuan.
The mandate of the commission should cover private institutions, whether it is to eliminate discrimination, prevent torture or urge companies to implement policies to protect human rights.
In terms of legal competence, how its duties should be exercised also raised serious doubts in the Legislative Yuan and the Judicial Yuan. The commission has so far not gathered any momentum for effectively reforming Taiwan’s human rights laws and policies.
Given the current predicament, the commission needs to primarily address two issues.
One concerns its independence. It is essential that the government enact a “law governing the Control Yuan National Human Rights Commission’s power” (監察院國家人權委員會職權行使法), in line with the Paris Principles — and required for a national human rights commission vested with sufficient competence to promote and protect human rights as well as its composition, to ensure independence and pluralism. The Legislative Yuan must also amend the Organic Act of the Control Yuan National Human Rights Commission as well as the Organic Act of the Control Yuan (監察院組織法).
The other issue concerns strategy. It is imperative that the commission be assigned to supervise and investigate matters of human rights violations independently and systematically. The seven members in the commission should not continue functioning in a way that a traditional Control Yuan member does, such as rectifying and correcting the behavior of governmental agencies.
It is equally, if not more, important that the commission’s investigatory power be distinguished. To put it in a different context — such as in that of a criminal investigation, administrative inquiry and many other types of areas — the power has different meaning. For example, if the commission is entitled to investigate businesses for human rights abuses, a probe might involve collecting data from private enterprises and institutions. Should that be considered an investigatory power? Such considerations require clarification.
Only by clarifying its role and function can the commission meet its human rights responsibility.
Huang Yu-zhe is a student at National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies. Lee Ming-ju is a lawyer.
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