Wed, May 08, 2013 - Page 8 News List

Grand justices too timid in review

By Huang Cheng-yi 黃丞儀

On April 26, the Council of Grand Justices issued its long-awaited Interpretation No. 709, in which it declared parts of the Urban Renewal Act (都市更新條例) unconstitutional.

Compared with other new democracies, Taiwan has been rather late in tackling controversies over property rights and housing rights arising from forced demolition and removals. The Council of Grand Justices has handled this controversy in a way that concentrates on the procedural aspect of administrative justice, while fearing to touch on values-based arguments that arise when there are conflicts between different kinds of rights.

Their interpretation does not really resolve the problems arising in connection with urban renewal, and the principle of “due process of administration” that the interpretation proclaims has the unintentional effect of strengthening the weakest element of the Administrative Procedure Act (行政程序法). “Some losses and some gains” would be an apt description of their interpretation.

On the surface, Interpretation No. 709 has two main characteristics. The first is that this is the first constitutional interpretation made by the grand justices that cites a UN human rights covenant — the International Covenant on Economic, Social and Cultural Rights (ICESCR). Second, it is the first interpretation to propose the concept of “due process of administration.” Unfortunately, however, neither of these lines of argument makes this case an exemplar of rights protection.

Although the grand justices cited the ICESCR to explain the right to adequate housing, they have not clarified whether the right to adequate housing is a basic right protected by the Constitution. Although the ICESCR has been adopted as a domestic law through the passage of an act governing the implementation of the ICESCR and the International Covenant on Civil and Political Rights, it remains unclear whether this makes the rights that the two covenants seek to safeguard tantamount to the rights guaranteed by the Constitution.

A further question is whether the establishment of a principle of “due process of administration” implies that, apart from statutory requirements of the Administrative Procedure Act, there are other, still more important, procedural obligations that must be followed. The grand justices have also not clarified what kinds of procedural obligation are applicable to which procedures.

Closer reading reveals that, in citing the ICESCR’s references to the right to adequate housing, the grand justices did not justify the positions advocated by victims of urban renewal. On the contrary, they used it to confirm the constitutionality of Taiwan’s urban renewal policies.

As for the rights of victims of urban renewal, the grand justices did not depart from the relatively conservative standpoint of property rights, with regard to which they were of the opinion that Article 23 of the Constitution should limit it.

However, urban renewal is not purely a matter of conflicts between different people’s or parties’ property rights. It also has to do with the way all residents of the area in question plan their lives, and with safeguarding the integrity of human dignity. This is also why the controversy over urban renewal needs to be elevated to the level of the right to adequate housing, because the existence of socioeconomic rights such as the right to adequate housing imposes certain policy obligations on any government. It is not just a matter of resolving disputes over private rights.

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