Excerpted from: Awi Mona (Chih-Wei Tsai), Conceptualizing Indigenous Historical Justice Toward a Mutual Reconciliation with State in Taiwan, 28 Washington International Law Journal 653 (July 2019)(93 Footnotes) (Full Document)
In the lead-up to her 2016 presidential victory in Taiwan, President Tsai Ing-wen made a campaign pledge to issue a national apology to indigenous peoples on behalf of the government. As her foundational indigenous policy, this pledge actually triggered a series of questions that were not so encouraging. Questions like: Who are the indigenous peoples? Why does Tsai want to apologize, and for what reasons? Did Tsai do anything bad to indigenous peoples?
Transitional justice has received considerable attention in recent years in Taiwan. According to the United Nations, transitional justice can be undetstood as "the full range of processes and mechanisms associated with a society's attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation." Traditionally the framework involves four types of approaches: truth-seeking, reparations, reform of laws and institutions, and reconciliation. In the past two decades, two successive ruling parties (i.e., the Nationalist Party, KMT, and Democratic Progressive Party, DPP) have shown parochialist positions towards the idea, extent, and scale of transitional justice legislation. Despite all this attention, transitional justice is an issue that remains incomplete without addressing the last piece of the jigsaw puzzle: justice for indigenous peoples. As Caldwell observed, the narrowness of the Act on Promoting Transitional Justice (cujin zhuanxing Zhengyi tiaoli, <>) had left many unresolved issues related to indigenous claims for transitional and historical justice. Historically, the non-recognition of indigenous political status and lack of legal entitlement to indigenous lands have gradually devastated indigenous communities and social structures. The most updated indigenous policy proposed by President Tsai Ing-wen has broken new ground in the government's relationship with indigenous peoples. That is, the national apology to indigenous peoples delivered by President Tsai on August 1, 2016, the Indigenous Peoples' Day of Taiwan. Nevertheless, compared to the two transitional justice legislations, Taiwan's history of law-making and policy implementation has caused significant bitterness and frustration for indigenous peoples. In addition to the institutional defects of the two transitional justice legislations, the prospect that indigenous peoples will find remedies for their problems under the existing transitional justice framework is not a promising one.
Can a state treat indigenous peoples differently from non-indigenous peoples in the context of transitional justice? Should indigenous peoples be treated differently from the general public for purposes of transitional and historical justice? As of today, the national law's answers to these and similar questions seem to be passive and negative. Taking the example of the scope and language of the Act on Promoting Transitional Justice, it purports to deal only with the period post-WWII up to the complete lifting of martial law in Kinmen and Matsu on November 6, 1992. However, indigenous peoples have argued that this temporal scope would preclude numerous indigenous claims sourced back to earlier times and that this may even erase the indigenous existence prior to that period.
As aforementioned, President Tsai fulfilled her pledge to deliver the national apology to indigenous peoples on behalf of the government. This apology officially commenced the project on indigenous transitional and historical justice. However, compared with the understanding of transitional justice during the authoritarian period, whether in civil society, governmental sectors, or academic circles, people seemed quite unconcerned with indigenous transitional justice. At best, the national apology merely denoted the dialogue between the government representative of the ruling party and the indigenous society. Furthermore, most media sources presented President Tsai's apology in a single news event. This limited news coverage might suggest that the public is indifferent to indigenous rights and may also weaken indigenous peoples' special relationship with state transitional and historical justice.
To illustrate the very different doctrinal contours of indigenous legal frameworks and the consequences of invoking indigenous justice claims, it is useful to reconsider President Tsai's official apology:
I know that even now, there are some around us who see no need to apologize. But that is the most important reason why I am representing the government to issue this apology today. To see what was unfair in the past as a matter of course, or to treat the pain of other ethnic peoples as an unavoidable part of human development, this is the first mindset that we, standing here today, resolve to change and overturn.
In order to construct a solid foundation for achieving indigenous transitional and historical justice, it is in the best interests of both indigenous peoples and the general public to explore the sources of indigenous justice. Until this issue is essentially resolved, the existing uncertainty about reconciliation with indigenous peoples will continue.
Based on the foregoing discussions, this paper aims to focus on the essential characteristics of indigenous justice against the successive alien regimes. This paper begins by introducing the historical origins between indigenous peoples and external forces in Taiwan. The historical non-recognition of indigenous sovereign status and the lack of legal entitlement to indigenous land both have gradually devastated indigenous peoples and social structures. Next, this paper examines the dominant relationship maneuvered by successive nation-states to gain control over indigenous peoples. Following this, the paper continues to discuss the influences brought by indigenous movements upon the national apology delivered on August 1, 2016. Despite the fact that the national apology may have broken new ground in the government's relationship with indigenous peoples, the common understanding of transitional justice has caused significant bitterness and frustration among indigenous peoples. Lastly, the paper dwells upon the core significance of indigenous justice, which differs from transitional justice in Taiwan.
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In this article, it is evidenced that Taiwan, Canada, and Australia have all positioned their relationship with indigenous peoples without regime transition. On the other hand, this paper also signifies that the roots of injustice experienced by Taiwan indigenous peoples are much deeper and their impact lasts much further compared to the general one under the Act on Promoting Transitional Justice. This paper attempts to call attention to the risk of marginalization on indigenous justice implementations, whether it is transitional or historical. While the cultural pluralism has been embedded within the R.O.C. constitutional regime, a jurisprudence of hybridity is yet to be established as a response to the implementation of indigenous transitional and historical justice. Among all other concerns, the key issue, this paper argues, lies in the knowledge gap on the nature of indigenous subjectivity. The majority views still reflect the notion that indigenous peoples are racial-minority disadvantaged groups, leading to the narrow vision of indigenous policy as subsidiary-oriented affirmative measures.
Thus far, the history of Taiwan is mostly written by the successive political sovereigns. Within these contexts, as this paper illustrated, indigenous peoples have gone through a series of colonial naming with political and legal implications, contributing to the racial projects for subordination. If we want to understand what transitional and historical justice can do for indigenous cultural survival, we should trace back the history of oppression and exploitation imposed upon indigenous peoples through colonization.
The Executive Yuan has already submitted Yuanzhuminzu lishizhengyi ji quanlihuifu tiaoli caoan (<>, Indigenous Peoples Historical Justice and Rights Restitution Bill) to the Legislative Yuan on May 10, 2018. The Bill restructured the justice framework, extending the scope far back to the first contact, broadening the issues to human rights violations against indigenous peoples, and setting up an independent land claims commission. A major shift is needed in thinking about the operation of transitional justice. This paper has demonstrated that it is of greatest importance that the indigenous justice claims are necessarily tied to the issue of recognition of indigenous jurisprudence.
Using this framework, Taiwan indigenous peoples can help redefine the way transitional and historical justice claims are viewed. Lastly, such changes will make it possible to address the complexity of indigenous justice demands and significantly enhance their chances in achieving mutual understandings and reconciliations in Taiwan.
Associate Professor of Law and Indigenous Studies, National Dong Hwa University, Taiwan; Director of the Research Center for Indigenous Education, National Academy of Educational Research, Taiwan
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