Constitutional Court strikes down legal clause on Indigenous status

04/01/2022 09:30 PM
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Traditional clothing of Indigenous people in Taiwan. CNA file photo.
Traditional clothing of Indigenous people in Taiwan. CNA file photo.

Taipei, April 1 (CNA) A legal provision that grants Indigenous status to individuals with one Indigenous and one non-Indigenous parent based strictly on their name has been declared unconstitutional by Taiwan's Constitutional Court.

The court took aim at Article 4, Paragraph 2 of the Status Act for Indigenous Peoples, which states: "Children of intermarriages between Indigenous Peoples and non-Indigenous Peoples taking the surname of the indigenous father or mother, or using a traditional Indigenous Peoples name, shall acquire Indigenous Peoples status."

In a statement issued Friday, the court said it struck down the clause because it violated the Constitution's "intention" to protect Indigenous Peoples' right to personal identity and guarantee racial equality.

It ordered the government to amend the law within two years and stipulated that if the deadline was not met, people in such situations could automatically obtain Indigenous identity and register their Indigenous status.

An estimated 95,000 people in Taiwan would be eligible to declare Indigenous status under such circumstances.

The Constitutional Court took up the issue based on a case involving a 7-year-old girl surnamed Wu (吳) whose mother has Truku blood and whose father is non-Indigenous.

When the father tried to register his daughter's Indigenous status at the Nangang Household Registration Office, the request was rejected because the girl used the father's Chinese surname and therefore did not comply with the provision in question in the Status Act for Indigenous Peoples.

The family then lost an administrative appeal against the decision, but the case was heard by the Constitutional Court.

The statement issued Friday offered several justifications for the court's decisions, revolving generally around the right to equality and identity.

It argued, for example, that the clause violated Article 7 of the Constitution, which stipulates that all people in the Republic of China (Taiwan) are equal under the law, regardless of gender.

Because children in Taiwan generally take their father's surname, the court said, the clause in question means in practice that children of an Indigenous father can get Indigenous status while those with an Indigenous mother cannot -- different outcomes based on gender.

In terms of identity, the court argued that the provision's attempt to tie Indigenous identity to a parent's surname was flawed because the concept or tradition of a "surname" does not exist in Indigenous culture.

It also argued that forming an identity requires sustained development or a learning process and that relying on a "surname" was a relatively superficial way to establish identity.

The court hinted at a possible solution when it said that providing a name with a traditional Indigenous meaning in addition to the Chinese surname of a non-Indigenous parent and a given Chinese name would be more effective and be a less harmful approach.

The Council of Indigenous Peoples, which had argued that the law was constitutional because it gave people the choice to choose their identity, said it respected the court's decision and would consult with Indigenous groups before proposing legal provisions that would meet their needs and fulfill the court's requirements.

(By Lin Chang-shun and Luke Sabatier)

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