Article 16 of the 1789 French “Declaration of the Rights of Man and of the Citizen” says that “[a] society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”
This sentence clearly encapsulates the modern understanding of what a constitution should do.
In addition to containing many flaws in its treatment of the separation of powers and the establishment of proper checks and balances, Taiwan’s Constitution also contains many issues concerning the guarantee of human rights that have been waiting for many years to be addressed.
To be more specific, the Constitution is quite specific when it comes to the first generation of basic human rights — civil and political rights — but when it comes to the second-generation human rights — economic, social and cultural rights — it is out of step with the times.
Furthermore, the Constitution has nothing at all to say when it comes to the third generation of human rights that have been added since the 1970s — generally described as collective rights — or the establishment of a national human rights commission.
In addition to these rights, there are also such rights as the inviolability of human dignity, due legal process, privacy rights, the right of access to the media and the right to health.
These are all basic human rights that the Constitution does not address directly but they have been incidentally addressed by the Council of Grand Justices in its constitutional interpretations over the past dozen years.
Although these interpretations represent a great improvement, the fact that the Constitution has failed to adapt to changing times has meant that these precious human rights advances have not been included in the document.
On the contrary, people are forced to assemble a protection of these rights from examining parts of the Council of Grand Justices’ constitutional interpretations.
Such a backward legal system is not only a hindrance to building a public understanding and awareness of constitutional law, it also has a negative impact on the universal spread of human rights education.
To bring the level of human rights protection in the Constitution into line with international human rights instruments so that Taiwan can reach the same level as advanced democracies around the world, it is necessary to carry out a major amendment of the Constitution to deal with the shortfall of human rights in it.
On Tuesday last week, President Ma Ying-jeou (馬英九), referring to an opinion poll by the National Development Council, said that mainstream public opinion did not agree with amending the Constitution.
However, a closer look at the 20 questions in the poll shows that the only question that was related to the human rights issue was the question of whether or not the age limit for the right to vote should be lowered from 20 to 18 years.
It is highly regrettable that the president would use an official poll lacking in credibility as a basis for an all out rejection of the possibility of expanding the list of human rights included in the Constitution.
Is the government’s policy pledge to “respect, protect and fulfill human rights” nothing but a political slogan aimed at deceiving the public?
Lo Cheng-chung is assistant professor in the Institute of Financial and Economic Law at Southern Taiwan University of Science and Technology.
Translated by Perry Svensson
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