Jerome A. Cohen and Yu-Jie Chen. Taiwan’s Incorporation of the ICCPR and ICESCR into Domestic Law. SCMP (South China Morning Post)

May 28, 2009 

On May 14, Taiwanese President Ma Ying-jeou fulfilled a campaign pledge by signing the ratification instruments of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The legislature had, shortly before, incorporated the content of the two covenants into Taiwan’s domestic law. These significant acts deserve greater appreciation than they have received.

Mr Ma’s predecessor, Chen Shui-bian, and his Democratic Progressive Party had several times tried to ratify the covenants, but Kuomintang legislators had refused to co-operate. Their rejection reflected, at least in part, a fear that the Chen administration would invoke the two covenants’ endorsement of the right of self-determination to support a referendum on Taiwan’s independence, thereby creating a crisis with the mainland. That fear dissipated once Mr Ma and the KMT took charge and relaxed cross-strait tensions. This cleared the way for approving both covenants and focusing attention on their protection of the rights of individuals.

In 1967, the Republic of China had been among the first signers of the covenants. That was part of Chiang Kai-shek’s attempt to convince the world that his dictatorial regime in Taiwan was actually “Free China”, in contrast to Mao Zedong’s China, which was then convulsed by the Cultural Revolution. The ROC failed to ratify either covenant before its loss of China’s seat in the United Nations in 1971. Since then, Taiwan’s government has been excluded from UN human rights arrangements, although this does not preclude it from implementing their content.

Of course, it was total hypocrisy for the brutal KMT of the Chiang era to sign onto ICCPR human rights standards. But the end of martial law in 1987 initiated the long and still unfinished struggle for legislative and administrative reforms. Because of this impressive progress, Taiwan’s implementation of the ICCPR does not confront the huge obstacles that discourage Beijing from ratifying the ICCPR, which it signed in 1998. Although the mainland ratified the ICESCR in 2001 and its recent Human Rights Action Plan lists ICCPR ratification as one of its goals for this year or next, its leaders merely speak of working “to create the conditions” for ratification.

To be sure, implementation requires Taiwan to address many detailed issues. The most immediate and difficult concern is criminal justice, particularly the right of a suspect or defendant to be released from detention pending conclusion of his trial and the related right to freely consult defence counsel. The ongoing prosecution of former president Chen has brought both these basic rights into the spotlight.

The relevant provisions of the ICCPR are deceptively simple. Pre-trial detention must be the exception, not the rule. Every accused must have adequate time to prepare his defence, consult counsel and interview witnesses. Even the UN Human Rights Committee, the ICCPR’s monitoring body, does not offer clear-cut interpretations. Yet these principles reinforce the push for reform.

Meaningful implementation requires not only detailed revision of many laws and regulations but also training for officials, education for the public, a time frame and benchmarks for evaluating progress, and an impartial monitoring body.

The Ministry of Justice, many other agencies, the bar associations, scholarly organisations, the Judicial Reform Foundation and other civic and human rights groups must work with the legislature to make the most of the two years the legislature has given them to apply the ICCPR to contemporary, democratic Taiwan. Perhaps their example will stimulate the mainland to follow.

This article is published in the South China Morning Post (Hong Kong) for May 28, 2009.