Grand justices too timid in review

By Huang Cheng-yi 黃丞儀  / 

Wed, May 08, 2013 - Page 8

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.

Among the world’s new democracies, South Africa is perhaps the most devoted to safeguarding socioeconomic rights. In its judgement on the famous Grootboom case, South Africa’s Constitutional Court held that the right to housing was not purely a matter of quantitative satisfaction, but also had to do with “qualitative questions.” It said that providing a living environment in keeping with human dignity was a major obligation imposed on the government by South Africa’s constitution. In their recent interpretation, the Council of Grand Justices only considered the question of the threshold for property owners’ agreement to urban renewal projects. They have missed the wood for the trees.

When urban renewal projects are being drawn up, is it not possible to find an orientation that is in keeping with human dignity and that can satisfy demands for a good living environment, to avoid sacrificing the rights of minorities by putting the single value of economic interests above everything else?

This is an area that is beyond the reach of lines of argument about property rights, and it is precisely the area in which the right to adequate housing could come into play. It is, therefore, highly regrettable that the grand justices chose not to venture into this area.

Nevertheless, in their interpretation, the grand justices criticize the practice that is seen in most administrative procedures of using public hearings as a way of actually getting around giving the various parties a proper hearing. They say that, since all kinds of complicated interests and specialist considerations are involved, public hearings should be held when urban renewal projects are being appraised, and that such projects should only be decided upon after weighing up all the minutes from these public hearings, with records of the reasoning behind the decision appended.

One aspect of the Administrative Procedure Act that has come in for a lot of criticism is that its language regarding public hearings is very rudimentary.

When the procedure is not fair, it will detract from the public’s sense of trust in administrative decisions, and it will make nonsense of “due process of administration.” Public distrust of the government and interminable disputes between interest groups — is this not quite an accurate description of the way the government runs this country these days?

The Council of Grand Justices does indeed deserve praise when it is willing to take on major issues of public concern, but Interpretation No. 709 is by no means a victory for those campaigning against the forced removals involved in urban renewal projects.

The Urban Renewal Act requires a threshold of agreement by 50 percent of owners of property in a renewal area for urban renewal projects to go ahead.

The grand justices’ interpretation finds this threshold to be constitutional, based on the principle of proportionality, and this finding lays a fuse that is likely to ignite many more urban renewal disputes in future.

Because the grand justices have been too timid to engage in lines of argument based on substantive justification to resolve conflicts of interest, their interpretation does not achieve as much as it otherwise might have done.

One can only hope that governments will in future pay more attention to the basic demand for human dignity when carrying out urban renewal. All we can do is hope.

Huang Cheng-yi is an assistant research professor in the Institutum Iurisprudentiae of the Academia Sinica and an executive committee member of the Taiwan Association for Human Rights.

Translated by Julian Clegg