Last week, Premier Sean Chen (陳冲) said separating foreign workers’ wages from the minimum wage requirement was not possible according to the current Taiwanese legal system and international conventions, although it might be possible by creating “virtual offshore” areas.
Chen’s idea might sound outlandish, but perhaps it will wake people up to the fact that the legal structure pertaining to immigrants and foreign migrant workers has long been based on dubious logic. There are currently more than 400,000 immigrant spouses and more than 400,000 blue-collar foreign workers living in Taiwan. They are all physically located in Taiwan, yet they are all treated as if they are “offshore.”
These migrants are not protected by the Republic of China (ROC) Constitution, local laws and human rights covenants, or by government personnel. I would say “virtual offshore” zones already exist in Taiwan. This is the only way to explain why equality, personal freedoms, contract rights, rights of families to live together and numerous other rights and freedoms guaranteed by the Constitution make a detour when they encounter immigrant spouses and migrant workers.
The Constitution clearly stipulates that personal freedoms can only be restricted through the judicial process, yet all that is required to hold a foreigner in detention is an administrative order from the National Immigration Agency. The International Covenant on Economic, Social and Cultural Rights protects the right of equal pay for equal work, but the most that blue-collar foreign workers in Taiwan can expect to earn is the legal minimum wage.
The members of the Council of Grand Justices say that family life is a right guaranteed by the Constitution, but the Ministry of Foreign Affairs can append a note to the visa of a Taiwanese’s foreign mother saying that she must leave Taiwan once every few months. The Constitution also protects the right to use your own given and family names, yet the Ministry of the Interior insists that foreign citizens who apply to be naturalized as Taiwanese adopt strange names whose sound and meaning are completely different from their original names.
According to the wording of the Constitution and the human rights covenants, the protections they bestow do not differ depending on a person’s status, but are equally applicable on every inch of Taiwan. However, migrants only receive second-rate protections.
Why is this?
As Chen said, this dual-tract state of affairs cannot be reconciled with Taiwanese laws. The only possible justification is to treat the space occupied by each and every “outsider” as being “virtually offshore,” and use that as an excuse for not granting them their rights. By having laws along these lines, Taiwan can satisfy its standards of democracy, human rights and equality for all, while at the same time being able to “pragmatically” discriminate against 800,000 people without having a guilty conscience.
The logic of making an exception for some groups of people is similar to the attitudes that prevailed in the US in the days of slavery. How could it be that the Puritans, who were always talking about how all men are created equal, could allow such a clearly inhumane system to be used? It was because slave owners did not regard black people as human. Since black slaves, in their view, were not people, but rather property, their status was little different from that of farm animals. This mentality allowed slave owners to feel at ease with themselves; so they could hold a Bible in one hand and drive slaves with the other.
Taiwan’s system of managing foreign workers, both in law and in practice, allows employers to make foreign workers work all year with no days off, retain their passports and make those employed to care for the elderly and infirm cook, wash clothes, mop the floor, walk the dog and go shopping as well.
This kind of quasi-slavery should not to be permissible under a legal system that values human rights, so it can only be understood in the context of the idea that these migrants are “virtually offshore.” Even though they are physically in Taiwan and working in Taiwanese homes or factories, they are not treated at all as residents of Taiwan.
However, those who comply with this “virtual offshore” logic are fooling no one but themselves. Foreign workers and immigrant spouses are clearly non-citizen residents who are living in Taiwan together with everyone else. If migrants are expected to abide by Taiwanese laws, pay Taiwanese taxes and to be judged by Taiwanese courts if they are accused of breaking the law, then why should they be treated as if they are “offshore” when it comes to their rights?
The US military establishment applied a similar twisted logic when it said that its military base in Guantanamo Bay, Cuba, was not US territory, so prisoners locked up there could not apply to US courts for a writ of habeas corpus as allowed by the US Constitution. However, the US Supreme Court found this policy to be unconstitutional and overturned it. In the court’s view, wherever the nation’s power extends, the rule of law and human rights must follow.
The ROC Constitution should be interpreted in the same way. Let us hope that what Chen said last week was just a joke, albeit not a very funny one. Otherwise, if his suggestion is ever put into practice, Taiwan can expect to once again be reprimanded in the US government’s annual report on human smuggling — the Trafficking in Persons Report.
Bruce Liao is an associate professor of law at National Chengchi University and a member of the Presidential Human Rights Advisory Committee.
Translated by Julian Clegg
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