Petitioner Kuan-Lu Wang (hereinafter referred to as “Petitioner One”), was convicted of violating the Controlling Guns, Ammunition and Knives Act (hereinafter referred to as the "Guns and Ammunition Act") and other offenses. He claimed that the Taiwan High Court Hualien Branch criminal judgment 103-Yuan-Su-17 (2015) (hereinafter referred to as “Final Judgment One”) applied Article 20, Paragraph 1 of the Guns and Ammunition Act concerning self-made hunting guns (hereinafter referred to as "Disputed Regulation One"), Article 2, Subparagraph 3 of the Regulations Governing Permission and Management of Guns, Ammunition, Knives and Weapons (hereinafter referred to as "Disputed Regulation Two") enacted in accordance with the authorization of Article 20, Paragraph 3 of the Guns and Ammunition Act, the Wildlife Conservation Act (hereinafter referred to as the "WCA") Article 21-1, Paragraph 1 (hereinafter referred to as "Disputed Regulation Three"), and Article 21-1, Paragraph 2, First Sentence (hereinafter referred to as "Disputed Regulation Four"), the Regulations on the Management of Hunting, Slaughtering and Utilization of Wild Animals by Indigenous Peoples for Traditional Cultural and Ritual Needs (hereinafter referred to as the "Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples") Article 4, Paragraph 3 (hereinafter referred to as "Disputed Regulation Five") and Paragraph 4, Subparagraph 4 (hereinafter referred to as "Disputed Regulation Six"). The provisions regarding: (1) indigenous people who possess guns for the purpose of using them as tools for daily life are only exempt from penal regulations if the guns are "self-made hunting guns"; (2) Disputed Regulations Three to [Disputed Regulations] Six restricting indigenous people’s cultural right to hunt, violate Article 15, the right to survive, Article 22, the protection of indigenous peoples' cultural right to hunt, Article 23, the principle of proportionality of the Constitution, and Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution, which affirm the value of diverse cultures and promote the development of traditional cultures of indigenous peoples. Additionally, Disputed Regulation Two, which defines self-made hunting guns as "tools for daily life in traditional customs of indigenous peoples dedicated to hunting for survival " and "its structure and performance must be filled with black powder from the muzzle and ignited by striking the primer or other methods, shooting out the filling" and other situations, adds restrictions that are beyond the law. It exceeds the law's authorization, hence raising doubts of violating the Constitution. Therefore, Petitioner One requests a constitutional interpretation.
Petitioner Zhi-Qiang Pan (hereinafter referred to as “Petitioner Two”), was found guilty of violating the WCA. He claimed the Taiwan High Court Hualien Branch criminal judgment 104-Yuan-Shang-1 (2015) (hereinafter referred to as “Final Judgment Two”) applied Disputed Regulations Three to [Disputed Regulations] Six. The provisions regarding: (1) indigenous peoples’ cultural right to hunt is a basic right protected by Article 22 of the Constitution, and Disputed Regulations Three to [Disputed Regulations] Six prohibit or restrict the hunting of protected wildlife by indigenous peoples, thereby infringing upon their cultural right to hunt protected by Article 22 of the Constitution; (2) Whether or not Disputed Regulation Three is limited to "traditional culture and rituals" not including "self-use", and whether or not it is limited to "general wildlife" not including "protected wildlife", is not clearly regulated, violating the principle of legal clarity. Furthermore, Disputed Regulation Three does not explicitly include the hunting of wildlife by indigenous peoples for "self-use", which violates Article 19 of the Indigenous Peoples Basic Law (hereinafter referred to as the “Basic Law); (3) Related applications specified in Disputed Regulations Five and [Disputed Regulations] Six which restrict the hunting activities of indigenous peoples , and conflict with indigenous hunting culture, raise doubts of violating Articles 22 and 23 of the Constitution, and Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution. Therefore, [Petitioner Two] requests a constitutional interpretation.
Petitioner Huai-En Zhou (hereinafter referred to as “Petitioner Three”), was found guilty of violating the Guns and Ammunition Act. He claimed the Taiwan High Court criminal judgment 105-Yuan-Su-53 (2018) (hereinafter referred to as “Final Judgment Three”), which applied Disputed Regulation One, limits the decriminalization of indigenous people possessing guns as tools for daily life to self-made hunting rifles, fishing rifles and certain types and forms of firearms, thereby restricting indigenous people from using safer, modern, standardized hunting rifles, air guns, or other hunting guns according to their existing hunting lifestyle and cultural tradition. This violates the constitutional principle of proportionality under Article 23 of the Constitution and Article 10, Paragraphs 11 and 12 of the Additional Articles of the Constitution. Hence, [Petitioner Three] requests a constitutional interpretation.
Petitioner Shao-Yi Chen (hereinafter referred to as “Petitioner Four”) was found guilty of violating the Guns and Ammunitions Act. He claimed that Disputed Regulation One used in the Taiwan High Court Hualien Branch criminal judgment 107-Yuan-Su-1 (2018) (hereinafter referred to as “Final Judgment Four”), violates the principle of proportionality of Article 22 and 23 of the Constitution, and the intent of Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution. Therefore, [Petitioner Four] requests a constitutional interpretation.
[This Court] finds Disputed Regulation One, Disputed Regulation Three, or Disputed Regulation Four for which Petitioner One to Petitioner Four request interpretation respectively apply to each final judgment. However, with regards to Disputed Regulation Two for which interpretation is requested, Final Judgment One clearly indicates that the court is not bound by it and is was not applied to the final and binding judgment. But [this Court deems Disputed Regulation Two] highly relevant for Disputed Regulation One regarding the interpretation of self-made hunting guns, wherefore it is subject to review by this Court. Furthermore, although each final judgment did not apply Disputed Regulation Five and Disputed Regulation Six, they are highly relevant for the interpretation of Disputed Regulation Three and Disputed Regulation Four, therefore, this Court may also take them into consideration. The aforementioned requests are admissible under the requirements specified in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (hereinafter referred to as the “CCPA”).
The petitioner, the Criminal 7th Division of the Supreme Court (hereinafter referred to as “Petitioner Five”), was tasked with handling the extraordinary appeal case of 106-Tai-Fei-1 (2021) in which the defendant (Petitioner One) was charged with violating the Guns and Ammunitions Act. Petitioner Five claimed that the applicable Disputed Regulation One may be unconstitutional and sought a constitutional interpretation from this Court. The petitioner's request was briefly as follows: The defendant was a Bunun indigenous and, in July of 2013, found and appropriated a long clay gun that had been lost by an unknown person. In August of the same year, he hunted a wild goat and a long-maned goat for his family's consumption without permission of the competent authority. [He was] accused by the prosecutor of the Taiwan Taitung District Court's Prosecutors Office, and was subsequently found guilty in Taiwan Taitung District Court criminal judgment 102-Yuan-Su-61 (2014) of the crime of illegal possession of a firearm capable of firing bullets with lethality. The defendant appealed, and Final Judgment One was confirmed. The defendant appealed again, and the case became binding after the Taiwan Supreme Court rejected the appeal in its criminal judgment 104-Tai-Shang 3280 (2015). Subsequently, the Chief Prosecutor of the Supreme Prosecutors Office filed an extraordinary appeal to the Supreme Court on the grounds that the original judgment was contrary to the law. After being accepted and heard by the Supreme Court, it was recognized that applicable Disputed Regulation One regarding only "indigenous people who possess self-made hunting guns for use as tools for daily life without permission" can be decriminalized, violates Article 23 of the Constitution, notably the principle of proportionality and the principle of legal clarity, and moreover exceeds the normative intent of Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution, thus resulting in constitutional doubts. [Petitioner Five] requests a constitutional interpretation.
The petitioner, the Criminal Division 4 of the Taiwan Taoyuan District Court (hereinafter referred to as “Petitioner Six”), when reviewing case 108-Yuan-Su-45 (2021) of the same court concerning a violation of the Guns and Ammunitions Act, claimed that the applicable Disputed Regulation One violates Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution, and raises doubts about violating the principles of legal clarity and proportionality. Therefore, [Petitioner Six] requests a constitutional interpretation. The petitioner's request was briefly as follows: The defendant, who is an indigenous, in December of 2018, purchased one long air rifle with lethal power, possessed it without permission and was later seized by the police during a search. The case was prosecuted by the prosecutor. Petitioner Six argues that the meaning of "hunting gun" in Disputed Regulation One to be applied in the trial is unclear, causing uncertainty for those subject to the regulation and hence violating the principle of legal clarity. Since indigenous people’s hunting culture is protected by the Constitution, it is obvious that Disputed Regulation One which restricts indigenous people to use only permitted self-made hunting guns violates the principle of proportionality. Also, it lacks legitimacy. [Petitioner Six] therefore requests a constitutional interpretation.
In the two cases of petitions made by judges mentioned above, the courts ruled to halt the litigation process, and they requested constitutional interpretation to this Court based on concrete reasons in an objective sense that the law is unconstitutional. It should be accepted as it conforms to the requirements for judge's petition for constitutional interpretation as explained in this Court's Interpretation Nos. 371, 572, and 590.
The six cases mentioned above have in common that they all petition for interpretation of the disputed regulations and are therefore consolidated for review (The cross-reference table for the pronouns of the subject matters under constitutional review is as attached).
After the announcement of oral debate by this Court, Petitioner One, Petitioner Two, Petitioner Five, Petitioner Six and relevant agencies including the Ministry of the Interior, National Police Agency, Council of Agriculture (hereinafter referred to as the “COA”), and Council of Indigenous Peoples (hereinafter referred to as the “CIP”) were notified to participate in oral debate in the morning of 9 March 2021 at the Constitutional Court in accordance with Article 13, Paragraph 1 of the CCPA. (Petitioner Three and Petitioner Four were not notified to participate in the oral argument as they were accepted by this Court after the announcement of the oral argument date. Petitioner Five did not participate in the oral debate.) Furthermore, this Court invited experts and the National Human Rights Commission of the Control Yuan, a friend of the court, to present their opinions in court.
The following are the key points of statements made by the petitioners and relevant agencies on the date of oral debate:
Petitioner One and Petitioner Two claim that Disputed Regulation One and Disputed Regulation Three to Disputed Regulation Six are unconstitutional. The reasons are briefly as follows: (1) Indigenous people’s cultural right to hunt is protected by the Constitution, and it is a compounded fundamental right which includes both individual rights and collective rights. However, the Guns and Ammunitions Act and related regulations have already infringed the cultural right to hunt, personal freedom, and the property rights of indigenous people, all of which are unconstitutional. (2) The disputed regulations in this case all infringe on basic rights, such as indigenous people’s cultural right to hunt. Its impact extends to all indigenous people and they are also a rare minority in our country. Therefore, a strict review should be given. (3) Hunters are those who guard the hunting grounds. Indigenous hunters have long been protecting the habitats of wild animals, maintaining biodiversity, and ensuring the survival of wild animal populations by guarding the hunting grounds. However, long-term stigmatization by mainstream society has made indigenous people bear the blame for the extinction of wildlife. However, related research data show that habitat destruction is the real cause of the extinction of wildlife. (4) In indigenous hunting culture, the prey is considered a gift from heaven. The law which requires hunters to announce [kind and quantity of prey they are going to capture] beforehand violates taboos and directly infringes on the core beliefs of indigenous hunters. This is why hunters are unwilling to proactively apply [for hunting activities] beforehand, leading to the result that administrative agencies are not able to achieve their management goals. In addition, there are other relatively less intrusive means, such as through a post-reporting mechanism, combined with autonomous tribal management, which can take ecological conservation, hunter beliefs, and the autonomy of indigenous people in managing natural resources into account. Therefore, Disputed Regulations Four and Disputed Regulation Five which adopts a prior permission system violate the principle of proportionality and should be unconstitutional. (5) Regardless of the system adopted, when constructing the relevant laws and regulations related to indigenous people, the state should comply with the provisions of the Basic Law, implement consultation and agreement procedures, co-management mechanisms, and communicate and consult with indigenous people on an equal footing. Only then can it put into practice the intent of Article 10, Paragraph 11 and Paragraph 12, First Sentence of the Additional Articles of the Constitution, and protect the constitutional commandments of protecting indigenous culture and autonomy. (6) Hunting is a traditional culture of indigenous people, but self-made hunting guns are not part of [their] traditional culture. The so-called self-made hunting guns are merely a manifestation of mainstream society imposing their imagination on indigenous people. The legislative rationale is based on obviously erroneous facts. Self-made hunting guns have a simple structure and are difficult to control in terms of safety, leading to an increase in dangerous incidents such as firearm explosions. News of indigenous hunters being injured or killed due to firearm explosions is not uncommon. Greater attention must be paid to the safety and effectiveness of hunting guns, and indigenous people should no longer be allowed to use unsafe hunting guns. Disputed Regulation One which restricts indigenous people to use only self-made hunting guns violates the principle of legal clarity and the principle of proportionality.
Petitioner Six claimed that the provision in Disputed Regulation One regarding self-made hunting guns is unconstitutional. The reasons are briefly as follows: The provision is an essential element of punishment, directly affecting the outcome of whether a person is guilty or not. The wording of this essential element must be very clear and precise enough to pass a more stringent review. The Guns and Ammunitions Act itself does not define the essential element of self-made hunting guns, and the wording of the regulation itself can easily mislead people to view "hunting guns" as guns used for hunting purposes. For example, in the underlying case at hand, the defendant possessed a very long gun appearing to be an air gun [with] wooden handle and single-shot firing mechanism, due to insufficient clarity of legal norms, he falsely believed that his possession of an air gun was legal, yet he had to accept a sentence of more than 3 years imprisonment. Hence, [the provision in Disputed Regulation One] violates the principle of proportionality.
The relevant agencies, the Ministry of the Interior and the National Police Agency, claimed that the regulation in Disputed Regulation One regarding self-made hunting guns and the regulatory framework meet both constitutional requirements and the intentions of Grand Justices’ interpretations, and are therefore constitutional. The reasons are briefly as follows: (1) The current national policy on firearm control adopts a general principle of prohibition. Violators will be punished. However, an exception is made based on the constitution’s institutional protection of indigenous people’s traditional culture, rituals, and potential livelihood needs, which recognizes the possession of self-made hunting guns by indigenous people to practice their culture and hunting needs. However, the right to hunt and hunting tools are ultimately different [concepts], and our country does not have a constitutional “right to bear arms". The current framework for firearm control is in accordance with the Constitution. (2) The provision of “other items of compliances” in Article 20, Paragraph 3 of the Guns and Ammunitions Act, already entails the authority for competent authorities to regulate the structure, specifications, and used fillings for self-made hunting guns for purposes of compliance, it conforms to the requirement of specific authorization [by a statue]. The regulations on self-made hunting guns are not created by the competent authorities themselves, but the result of delegations sent by the competent authorities that visited indigenous people in the year of 1997. At that time, hunting guns were indeed primarily front-loading guns. Moreover, relevant regulations on self-made hunting guns were further revised in 2011 and 2014, striving to keep pace with the times. The meaning of self-made should be predictable for the general public. The authorization and definition of self-made hunting guns can be observed from the overall relationship of Articles 4, 8, and 20 of the Guns and Ammunitions Act. It complies with the requirement for legal clarity. (3) The competent authorities restrict hunting tools, they do not restrict the right to hunt (culture). There is a significant correlation between the legislative purpose and means in providing indigenous people with hunting guns that are low in public safety hazard but effective in hunting performance, and the balance between public interests and private interests has not been lost. Therefore, limiting self-made hunting guns to front-loading guns conforms to the principle of proportionality. (4) The Ministry [of Interior] is in the process of drafting the "Regulations on the Permission and Management of Indigenous Self-made Hunting Guns and Fishing Guns" (draft), and is coordinating with the Ministry of National Defense to provide the main components of safe self-made hunting guns for the use of indigenous people, so that the structure of hunting guns can keep up with the times, enhance the safety of self-made hunting guns, and protect the development of indigenous hunting culture.
The COA, a relevant agency, provided following explanations: (1) The Council recognizes the hunting culture of indigenous people and believes that indigenous hunting culture is not in opposition to wildlife conservation, but rather they are interdependent and complement each other. Based on indigenous traditional wisdom and supported by appropriate national legislation, the Council hopes not only to sustain wildlife resources but also to promote the preservation of indigenous hunting culture. (2) The Council has already drafted a revision to Article 51-1 of the WCA, incorporating penalties for hunting and capturing protected wildlife. Apart from balancing the original regulation that only imposed penalties on general wildlife but not protected wildlife, it allows indigenous people to hunt and capture both general and protected wildlife without penalty, regardless of the target species. (3) Regarding Disputed Regulation Three and Disputed Regulation Four, which only pertained to hunting, slaughtering, or utilizing wildlife for two factors: traditional culture and rituals. [We] have already made a joint announcement with the CIP on June 8, 2017 to incorporate provisions for personal use in accordance with Article 19 of the Basic Law, so there will also be a clear definition for personal use. At the same time, [the agency] is also reviewing the existing pre-review system to make it more aligned with the traditional hunting practices of indigenous people. For example, [we have] already started to comprehensively promote indigenous hunting self-management pilot projects all over Taiwan in recent years. [By doing so, we] hope to carry out more appropriate management using an organizational self-governance or reporting system, monitored by academic units.
The CIP, a relevant agency, provided following explanations: (1) The Constitution of our country already clearly protects the cultural rights of indigenous peoples, which of course includes indigenous hunting culture because hunting is a very important cultural element in the educational and cultural knowledge system such as traditional languages, ceremonies, and beliefs of various indigenous peoples. Indigenous people’s cultural right to hunt is not only the collective right of various indigenous peoples, but also a basic right of individual indigenous persons. (2) According to the investigation made by scholars commissioned by this Council, it is the joint opinion of elders and hunters of various ethnic groups that the core value of indigenous hunting culture is sustainable use and ecological balance. Thus, hunting activities practiced under traditional regulations can achieve a mutually balanced environment and ecology. (3) From the constitutional perspective to protect the development of indigenous people’s culture, the state has a constitutional duty to protect diverse cultures and promote the development of indigenous cultures. When we explain the provisions in Disputed Regulation One, indigenous people should be allowed to enjoy safe and scientifically advanced hunting guns in accordance with relevant regulations implementing the two Covenants [International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights].
This Court considered the petitions for constitutional interpretation, all arguments, the expert opinions and the amicus curiae briefs, and made this interpretation for the following reasons:
I. The protection of cultural rights of indigenous peoples to engage in hunting activities and the protection of the environment and ecology should be given equal importance
Maintaining human dignity and respecting personal freedom and development are the core values of a free and democratic constitutional order (refer to the J.Y. Interpretation No. 603). Article 10, Paragraph 11 of the Additional Articles of the Constitution states: “The State affirms cultural pluralism and shall actively preserve and foster the development of indigenous languages and cultures.” The first sentence of Paragraph 12 of the same article provides: “The State shall, in accordance with the will of the ethnic groups, safeguard the status of the indigenous peoples…and shall also guarantee, assist and promote their growth in their education and culture….” This is the explicit recognition of indigenous culture by the Constitution, and the State has the duty to protect, assist and promote their development (refer to Interpretation No. 719 of this Court). As to individual aboriginals who are members of indigenous tribes, their right to identify with and follow traditional cultural life is not explicitly stated in the Constitution. However, with the Constitution's recognition of the value of cultural diversity and the development of a multicultural society, and in line with trends of contemporary democratic countries to respect the development of minority groups (note 1), and to maintain the human dignity of indigenous people, cultural identity, personal cultural subjectivity, and to fully realize personal freedom and development, and thus to preserve, practice, and pass on their unique traditional culture, and to ensure the sustainable development of indigenous cultures, indigenous people should have the right to choose to live according to their traditional culture based on Article 22 of the Constitution, Article 10, Paragraph 11, and Paragraph 12, First Sentence of the Additional Articles of the Constitution. This cultural right should be respected and protected by the State and is one aspect of the basic rights protected by the Constitution for individual indigenous people.
Hunting is one of the ways in which indigenous people use natural resources, it has been an important tradition for indigenous people for a long time. It is also an important part of traditional rituals and community education and is a significant foundation of individual indigenous people’s identification with their cultural heritage. Through hunting activities, indigenous individuals can not only learn and accumulate their experiences, life skills, and traditional knowledge about animals, mountains, forests, and the ecosystem, but also shape their own identity and sense of belonging to their tribe. Hunting also allows for the participation, practice, and preservation of their collective culture, which plays a crucial role in forming and transmitting the indigenous culture. Hunting as an activity carried out by indigenous people in accordance with their cultural heritage is an important aspect of the aforementioned indigenous cultural rights, and should be protected by the Constitution.
The natural ecological environment is the foundation for human survival and sustainable development. It is also essential for people’s life, health and well-being. Therefore, the protection of the natural ecological environment is one of the important tasks of the State and a long-standing goal of shared efforts of the international community (note 2). Article 10, Paragraph 2 of the Additional Articles of the Constitution provides that "Environmental and ecological protection shall be given equal consideration with economic and technological development." Accordingly, the Constitution not only recognizes the important value of environmental and ecological protection, but also imposes on the State the obligation to actively protect the environment and ecology. The conservation of wildlife is indispensable for the protection of biodiversity and achieving a balanced natural ecosystem. Hence, it is an important aspect of the state's obligation to protect the environment and ecology. Based on the protection of various important values and legal interests recognized by the Constitution, the State shall strive to balance environmental and ecological protection, including wildlife conservation, when promoting various legislation and policies.
Accordingly, indigenous people’s cultural right to engage in hunting activities is protected by the Constitution, only for the sake of protecting wildlife may appropriate restrictions be imposed by laws or regulations specifically authorized by a statute. Given that the cultural right of indigenous peoples to engage in hunting activities and the protection of wildlife are both important values upheld by the Constitution, we apply an intermediate standard to review whether or not the relevant restriction is constitutional or not: If its purpose is to pursue important public interests, and the applied restrictive measure is substantively related to the achievement of its purpose and not excessive, it does not violate the principle of proportionality set forth in Article 23 of the Constitution.
II. Regarding indigenous people using self-made hunting guns as tools for daily life
(I) Disputed Regulation One does not violate the constitutional principle of proportionality
The Guns and Ammunitions Act was enacted for the purpose of maintaining social order and protecting the life and property of the people (refer to Article 1 of the Guns and Ammunitions Act). With regard to firearms and ammunition, all kinds of firearms that can fire metal or bullets with lethal power, as well as its ammunition, are comprehensively regulated under this act. They may not be manufactured, sold, transported, transferred, rented, lent, possessed, stored, or displayed without the approval of the national competent authority. Those who act without permission shall be subject to penalties as stipulated in the regulation according to the type of firearms, ammunition, and behavior involved (refer to Articles 5, 5-1, 7 to 13 of the Guns and Ammunitions Act).
When the Guns and Ammunitions Act was enacted, with regards to hunting guns manufactured, transported, or possessed by indigenous people for use as tools for daily life, the lawmakers took into consideration the special nature of traditional living habits of the indigenous people. It was explicitly stated that "the management regulation of hunting guns and fishing guns, which are designed as tools for daily life by citizens with special living habits, shall be determined by the national competent authority" (refer to Article 14 of the Guns and Ammunitions Act, enacted and published on June 27th, 1983). However, for those citizens with special lifestyle habits who manufacture, transport, or possess hunting guns for use as tools for daily life without permission, the provisions of punishment and penalties under the Guns and Ammunitions Act shall still apply without exception. Article 20, Paragraph 1 of the Guns and Ammunitions Act, which was fully amended and published on November 24th, 1997, states that: "Indigenous people who manufacture, transport, display or possess self-made hunting guns as tools for daily life without approval shall have their punishment reduced or be exempted….” The main consideration for this amendment is that self-made hunting guns of indigenous people are tools for daily life designed for hunting and sustaining their livelihood, and their structure, performance and lethality are far inferior to standard hunting guns. For fear that indigenous people might accidentally break the law and face overly harsh punishments as provided in Article 8, the amendment included a provision allowing for reduction or exemption from punishment (refer to Legislative Yuan Gazette 86(48):85). Based on this, lawmakers still adopt a legislative policy of using penal sanctions to punish the behavior of indigenous people who without approval manufacture, transport, or possess self-made hunting guns for use as tools for daily life, but explicitly specifying that the punishment should be reduced or waived.
Until November 14, 2001, the amended and published provisions of Article 20, Paragraph 1 of the Guns and Ammunitions Act originally stated: "Indigenous people who manufacture, transport, or possess self-made hunting guns …, as tools for daily life without approval shall be sentenced to a fine of no more than NT$20,000. Other punishments prescribed in this Act shall not apply." The purpose of amending it is briefly as follows: "First, it belongs to the use as tools for daily life and cultural purposes, without the intention of being used as criminal tools. Second, those without permission should be corrected through administrative penalties and procedures authorized under Paragraph 3 of this article. Third, this is to implement the Additional Articles of the Constitution and conform to the policy goals and normative intentions of multiculturalism under this act" (refer to the Legislative Yuan Gazette, 90(53): 360, 1st Vol.) This provision was amended on June 2, 2004, and again amended and published on January 26, 2005, becoming Disputed Regulation One which stipulates: "Indigenous people who manufacture, transport, or possess self-made hunting guns…, to be used as tools for daily life without approval shall be sentenced to a fine of no less than NT$2,000 and no more than NT$20,000…” (When the same provision was amended and published on June 10, 2020, only the wording of Disputed Regulation One was partially adjusted, the regulatory intention was the same). Based on this, lawmakers seek to respect indigenous people's way of life based on their cultural heritage by decriminalizing the act of manufacturing, transporting, or possessing self-made hunting guns that indigenous people need for their livelihoods and work, and instead subjecting them to administrative penalties only. In terms of punishment for illegal behavior, lawmakers generally have discretion to choose between criminal punishment and administrative punishment. Given that criminal penalties are a significant restriction on the personal freedom guaranteed by Article 8 of the Constitution, lawmakers should consider the specific circumstances of the illegal act in Disputed Regulation One and differentiate it from general criminal acts, and opt for decriminalization and administrative punishment only. This legislative decision, apart from lying within the reasonable scope of legislative discretion, also by nature eases the constraints on personal freedom. Within this scope, there is no infringement of personal freedom. Lawmakers only decriminalize the behavior of indigenous people in relation to self-made hunting guns (spear guns), but not for hunting guns (spear guns) that are not self-made or other types of guns (such as air guns). The lawmakers take into account the reasonable scope of indigenous people using guns as tools for daily life, and that self-made hunting guns of indigenous people have structures, performance, and lethality that are usually lower than standard hunting guns, as well as the possible impact on social order and other relevant factors when choosing legislative policies. This does not raise any doubts about violating the Constitution. To sum up, Disputed Regulation One setting the scope of decriminalization does not violate the constitutional principle of proportionality.
(II) Disputed Regulation One does not violate the principle of legal clarity
The requirement of legal clarity does not mean that the legal meaning must be concretely detailed without room or necessity for interpretation. When lawmakers enact a law, they may take into consideration the complexity of facts of life regulated by the law and the appropriateness of applying the law to individual cases, and choose appropriate legal concepts and terms, including the proper use of uncertain legal concepts for corresponding provisions. If the meaning of a legal provision can be understood from the perspective of the legislative purpose and the overall relationship within the legal system, and the facts of individual cases that fall or do not fall within the scope the law wants to regulate are foreseeable for a general person subject to that regulation and can be confirmed and determined by the court, it does not violate the principle of legal clarity (refer to J.Y. Interpretation Nos. 432, 521, 594, 602, 690, 794, and 799).
Disputed Regulation One clearly states that indigenous people who without permission manufacture, transport, or possess self-made hunting guns for use as a tools for daily life shall only be fined and not be subject to relevant penal provisions. The term "self-made hunting guns" is not a rare or difficult-to-understand word for average persons, and the court may clarify its meaning and application based on methods of legal interpretation such as textual interpretation, historical interpretation, systematic interpretation, etc., in accordance with its meaning and legislative purpose. Hence, the term "self-made hunting guns" in Disputed Regulation One does not contravene the principle of legal clarity.
(III) Disputed Regulation Two is inadequate in regulating self-made guns and does not meet the requirements for allowing indigenous people to safely engage in lawful hunting activities. In this regard, it contravenes the purpose of the Constitution to protect the right to life, physical integrity, and cultural rights of indigenous peoples to engage in hunting activities
The right to life and physical integrity are fundamental rights protected by the Constitution (refer to J.Y. Interpretations Nos. 689, 780, and 792). Additionally, the engagement of indigenous peoples in hunting activities is an important aspect of their cultural rights and protected by the Constitution. Since the State allows indigenous peoples to possess self-made hunting guns and to go hunting in accordance with the law, it is responsible for ensuring that indigenous peoples can safely engage in legal hunting activities, in order to facilitate the exercise of their cultural rights to engage in hunting activities. Self-made hunting guns are one of the legitimate tools used by indigenous people for hunting, and if their specifications and production processes are regulated in legal terms, the State should fulfill its obligation so that indigenous people can safely engage in legal hunting activities. In addition to ensuring a certain level of hunting performance, the State should also at the same time consider the life and safety of hunters and third parties during the production and usage of hunting guns, in order to protect the cultural rights of indigenous peoples to engage in hunting activities, as well as the right to life and bodily integrity of indigenous people and third parties.
According to the authorization granted by Article 20, Paragraph 3 of the of the Guns and Ammunitions Act, the Ministry of the Interior revised and published Article 2, Subparagraph 3 of the “Regulations Governing Permission and Management of Guns, Ammunition, Knives and Weapons” (hereinafter referred to as Disputed Regulation Two) on June 10, 2014, which stipulates that a self-made hunting rifle is “a tool used in daily life by indigenous people for traditional customs and culture, produced by the applicant alone or in collaboration with other indigenous people who are not [doing it] for profit purposes, at a location approved by the police department, in accordance with the following regulations: (1) The filling material must be loaded into the gun barrel one at a time with black powder through the gun mouth, either to strike the primer or to ignite it by other means, or to use rimfire cartridges with a caliber of 0.27 inches or less to ignite the empty cartridge with a primer. (2) The filling must be placed in the self-made hunting rifle barrel for firing, consisting of glass fragments or lead pellets that are smaller than the diameter of the barrel, but does not include conventional bullets or other similar loaded ammunition, projectiles, primers, and gunpowder. (3) The total length of the gun body (including the barrel) must be 38 inches (approximately 96.5 cm) or more." These specifications and production processes of self-made hunting rifles should conform to the legal requirements that allow indigenous people to safely engage in lawful hunting activities as previously stated.
Disputed Regulation Two explicitly impose restrictions on the method of shooting and detonating the filling material, as well as the specifications of the filling material and the overall length of the gun body. [This Court] finds the legislative intent [of Disputed Regulation Two] was to maintain public security and to protect wildlife. In strictly limiting the structure and performance of self-made hunting guns, it can avoid excessive harm caused by self-made hunting guns, such as endangering the survival and reproduction of wild animals, as well as threatening social order. [Hence this Court finds the intention of Disputed Regulation Two] is justifiable. However, Disputed Regulation Two only restricts self-made hunting guns to single-shot muzzle-loading guns that use black powder and edge-bottom igniting hollow-shell bullets (also known as industrial bottom ignition, commonly known as hilti-bolt), and the filling material is limited to non-standard bullets and the structure is still rough. Also, due to the legal specifications and limitations of indigenous people's ability to make their own guns, it is difficult to have appropriate safety designs. In addition, if self-made hunting guns are not verified and tested for chamber pressure after production, it may cause incidents such as chamber explosion, accidental firing, or misfire resulting in casualties, especially when the gun is poorly made (refer to Legislative Yuan Gazette 110(17): 207, committee meeting records). This can result in harm to indigenous people or even third parties. Furthermore, Disputed Regulation Two limits the manufacture of self-made hunting guns to the applicant's own efforts or cooperation with indigenous people who are not [doing it] for profit, without considering safety and stability, and without establishing a complete safety verification system and safety training mechanism for hunting guns self-made by indigenous people. In conclusion, the regulation of self-made hunting guns in Disputed Regulation Two is inadequate and does not meet the requirements for indigenous people to safely engage in lawful hunting activities. To this extent, it is inconsistent with the purpose of protecting people’s right to life, bodily integrity, and indigenous people’s cultural rights to engage in hunting activities as guaranteed by the Constitution. The relevant authorities should review and revise the regulations as soon as possible, with a deadline of two years from the date of publication of this interpretation, and establish definitional regulations for self-made hunting guns that are consistent with the constitutional protection for indigenous people to safely engage in lawful hunting activities.
III. Regarding the hunting, killing, or utilization of wild animals by indigenous people
(I) The term "traditional culture" referred to in Disputed Regulation Three includes non-commercial, self-use scenarios
Article 21-1, Paragraph 1 of the WCA provides that “Taiwan's indigenous people who in accordance with their traditional culture and rituals, need to hunt, slaughter, or use wild animals, are not subject to the restrictions of Article 17, Paragraph 1, Article 18, Paragraph 1, and Article 19, Paragraph 1.” Paragraph 2 of the same Article further provides that "The hunting, slaughter, or use of wild animals mentioned in the preceding paragraph shall be approved by the competent authority. The application procedures, hunting methods, types and quantity of animals to be hunted or captured, hunting period, area, and other matters that should be followed shall be determined by the national competent authority in conjunction with the national authority responsible for indigenous peoples." Thus, the lawmakers have separately established a special control procedure for indigenous people who need to hunt, slaughter, or utilize wild animals based on their traditional culture and rituals. This procedure is distinct from the control procedure set forth in Article 17 of the WCA for hunting general wildlife, the control procedure set forth in Article 18 of the same Act for hunting protected wildlife, and the control procedure set forth in Article 19 of the same Act regarding the methods of hunting wildlife. Moreover, it is explicitly provided that the restrictions of aforementioned control provisions do not apply. Thus, it can be inferred that the legislative intention of Disputed Regulation Three is to respect the traditional hunting culture of indigenous people and to implement and guarantee the cultural rights of indigenous peoples to engage in hunting activities. Hence, the purpose [of Disputed Regulation Three] is legitimate.
Disputed Regulation Three and Paragraph 2 of the same Article established special control procedures for indigenous people who need to hunt, kill or utilize wild animals based on their traditional culture and rituals in order to respect their traditional hunting culture, which shall therefore not be restricted by the provisions of Article 17, Paragraph 1, Article 18, Paragraph 1, and Article 19, Paragraph 1 of the WCA. However, as they are part of the same regulatory system as the WCA, they are still subject to the legislative intent of Article 1 of the said Act and must take into account the conservation of wild animals, the preservation of species diversity, and the balance of natural ecosystems. , Since the lawmakers sought to respect the traditional culture of indigenous people and to balance the important values of environmental and ecological protection enshrined in the Constitution, everything has been taken into consideration in Disputed Regulation Three. From a big-picture perspective, there is no obvious imbalance, and this Court should therefore respect it.
Regarding the meaning of the term "traditional culture" in Disputed Regulation Three, it should be understood in accordance with the constitutional protection of the cultural rights of indigenous people to engage in hunting activities. First, with regards to the term "traditional culture", although its meaning is difficult to exhaust, it undoubtedly should encompass all the values, norms, religions, ethics, systems, customs, beliefs, and habits that exist in the indigenous society which have been passed down from generation to generation until today, including not only spiritual ideas, values, beliefs, and etiquette norms, but also long-standing food acquisition methods, daily dietary habits, and material living styles. The cultural rights protected by the Constitution for the indigenous people include the right to choose to live according to their traditional culture, hence indigenous people should have the right to choose to live according to their traditional dietary habits and ways. Furthermore, considering that hunting is an important aspect of the constitutional cultural rights enjoyed by the indigenous people, it is within the permissible scope of Dispute Regulation Three for the indigenous people to engage in the act of hunting, slaughtering or utilizing wild animals based on their needs for self-consumption in accordance with their traditional dietary and living culture. Therefore, the term "traditional culture" in Disputed Regulation Three should include the dietary and lifestyle culture inherited by the indigenous people from their tribal communities. And the situation where wild animals are hunted and captured by indigenous people themselves for non-profit personal use, such as for their own consumption, their family's consumption, or for the consumption of their tribe's close friends and relatives, or for use as tools, is in line with the constitutional protection of the cultural rights of indigenous peoples to engage in hunting activities.
However, hunting, killing, or utilizing wildlife by indigenous people based on traditional dietary and cultural practices, even if limited to non-profit self-use, will still cause significant harm to wildlife, especially to protected wildlife (including endangered, precious and rare species, as well as other wildlife that should be protected due to the risk of extinction). Therefore, when lawmakers regulate the extent to which indigenous people may hunt, kill, or use wildlife for non-profit personal use based on their traditional dietary and living culture, except for special exceptions (such as the case where the population of wildlife exceeds the environmental carrying capacity), protected wildlife should not be included. In the event the competent authority is authorized to establish regulations on the control of indigenous hunting, killing, or use of wildlife, the competent authority shall carefully consider major public interests such as wildlife conservation, maintenance of species diversity, and natural ecological balance, and especially consider specific situations in terms of preciousness, rarity, and survival crisis of the wild animals. When indigenous people seek permission to hunt, slaughter, or use protected wildlife species for non-profit personal use based on their traditional dietary and lifestyle culture, the competent authority shall adopt a particularly strict regulatory approach and may only grant permission in exceptional cases (such as when the population of the wild animal exceeds the environmental carrying capacity) to balance the relevant constitutional values.
(II) Disputed Regulation Four does not contravene the constitutional principle of proportionality
Disputed Regulation Four provides that “Hunting, killing or utilizing wild animals mentioned above shall be subject to the approval of the competent authority.” In accordance with this, for the hunting, slaughtering or utilization of wild animals carried out by indigenous people based on their traditional culture and rituals, the lawmakers adopted prior application and review-and-approval control mechanism. Indigenous people shall obtain prior approval from the competent authority before engaging in such hunting activities. This kind of pre-approval regulatory provision does indeed limit the cultural rights of indigenous peoples to engage in hunting activities. However, if their desired goal is constitutional and legitimate, and if the restriction helps achieve the goal and there are no other equally effective means that cause less harm, and if the importance of the legal interest to be protected conforms to a proportional relationship [outweighs the harm caused by the restriction], then the restriction is in line with the principle of proportionality and does not violate the Constitution.
As wild animals are part of the natural ecosystem, apart from influencing their interdependence in terms of survival, reproduction and habitat, there is also a very close biological chain relationship among various species. The decline of wild animal species and populations not only directly impacts the survival and reproduction of related species but often disrupts the balance of the entire ecosystem. Hunting, killing, or utilizing wild animals not only ends the life of the hunted animal but can also endanger the survival and reproduction opportunities of the hunted species. It is a disruptive behavior of a human interference with the natural functioning of the natural ecosystem. If such interference is not properly controlled by human means, it will eventually harm the biological chain relationship [food chain] between wild animal species, causing the natural ecosystem to gradually become unbalanced and even leading to ecological disasters, thus affecting human survival and sustainable development. Furthermore, hunting tools, traps, or hunting guns used for hunting wild animals usually have a certain level of lethality and, if adequate protection measures are not taken, may cause injury or death to third parties in the hunting area. Based on the abovementioned reasons, the purpose of Disputed Regulation Four is to avoid excessive infringement of the survival of wild animals and disruption of the balance of the eco environment. By means of a pre-approval application process, public authorities can adequately review the wildlife hunting activities of indigenous people and impose necessary restriction on the approved activities. In addition, [public authorities] can designate in advance the hunting time, range, and area etc. It can also in advance require or adopt appropriate safety protection measures in accordance with the method and scale of the approved hunting activities to avoid endangering the personal safety of third parties. The legislative purpose [of Disputed Regulation Four] is to pursue important public interests enshrined in the Constitution, the applied control measures of prior application and approval are suitable for the achievement of its purpose.
Furthermore, in order to minimize the interference of human hunting on the functioning of the natural ecosystem, the competent authority must make a decision on the rejection of the application in advance, based on the ecological conditions within the hunting area, the species and quantity of wild animals, their reproduction situation, and the current state of resources. And when the application is approved in advance, whether it is a one-time or general approval, the competent authority may add appropriate attachments to the approval as necessary to effectively restrict hunting activities within an appropriate range. If there are no prior application and approval control measures for hunting wild animals, the ecological damage that may result is often difficult to remedy afterwards. Therefore, there are no other equally effective and less harmful means to prevent indigenous hunting activities from excessively infringing on wildlife survival and interfering with ecological balance, and to ensure the personal safety of third parties, except for the prior application and approval control measures specified in Disputed Regulation Four. Hence, the measures specified in Dispute Regulation Four are necessary.
Additionally, Disputed Regulation Four is primarily aimed at protecting the important legal interests of environmental and ecological conservation as stipulated in the Constitution, as well as the legal interest of personal safety. When weighing the importance of these interests against the disadvantageous limitations imposed on the cultural rights of indigenous peoples to engage in hunting activities, it is still balanced. In conclusion, Disputed Regulation Four does not violate the constitutional principle of proportionality.
(III) The application deadline and procedural regulations for non-periodic hunting activities under Disputed Regulations Five lack reasonable flexibility and excessively limit the cultural rights of indigenous peoples in engaging in hunting activities. Within this scope, it violates the constitutional principle of proportionality
The provisions in Disputed Regulation Four which governs the hunting, killing, or utilization of wild animals by indigenous people based on their traditional culture and rituals through the means of prior approval control mechanism is in accordance with the principle of proportionality. However, the prior approval mechanism imposes a certain restriction on the cultural rights of indigenous peoples to engage in hunting activities. Thus, the formation of specific control measures, including the application and review process, and regulations regarding hunting methods, periods, regions, targets, and scope as well as other related matters, shall be in accordance with the goals of preserving wildlife and protecting the eco-environment and third-party personal safety while avoiding excessive restrictions on the cultural rights of indigenous peoples to engage in hunting activities. Therefore, the specific control measures under the prior approval system should have substantial relevance to the achievement of the legislative purposes sought by Disputed Regulation Four, and shall limit the restriction on the cultural rights of indigenous peoples to engage in hunting activities to the minimal necessary extent, taking into account the reasonable expectations of indigenous peoples in terms of the limits they can bear, in order to meet the requirements of the constitutional principle of proportionality.
On June 9th, 2015, the COA and the CIP, in accordance with the authorization provided in Article 21-1, Paragraph 2, Second Sentence of the WCA, revised and published Article 4, Paragraph 3 of the Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples (also known as Disputed Regulation Five), which stipulates that: "The applicant shall fill out an application form ... and apply for approval from the competent authority of the directly-administered city or county where the hunting activity takes place 20 days before the hunting activity. But applications for hunting activities that are not of a periodic nature shall be submitted 5 days before the hunting activity ...” Paragraph 4, Subparagraph 4 of the same Article (also known as Disputed Regulation Six) stipulates that: "The application form mentioned in the preceding paragraph shall indicate the following: ... (4) Types and quantity of animals to be hunted or captured ...” Therefore, indigenous people, tribes, or relevant indigenous groups wishing to engage in hunting activities based on their traditional culture and ritual needs, shall fill out an application form and submit it with relevant documents attached. For ritual events that are of a periodic nature, the application should be made 20 days before the hunting activity; for those that are not of a periodic nature, the application should be made 5 days before the hunting activity. Furthermore, the application form should indicate the name of the traditional culture and ritual, as well as the types and quantity of animals to be hunted or captured.
With regards to the provisions under Disputed Regulation Five regarding the application deadline and procedures, periodic indigenous rituals and activities usually have been carried out for many years and can be pre-planned and typically involve group activities with many people participating . [Those activities] have a greater impact on the ecology of related wild animals. The establishment of hunting safety protection measures (refer to Article 10 of the aforementioned regulation) also requires a certain amount of time. Therefore, the restriction requires that applications be submitted 20 days before the start of the hunting activity and requires the competent authority to complete the review 7 days before the start of the hunting activity (refer to the first sentence of Article 5 of the aforementioned management regulation). [This Court finds this regulation] is justifiable and reasonable. In contrast, non-periodic hunting needs usually generated by individual or small groups of indigenous people based on their beliefs or customs passed down by traditional culture (Note 3), occur under certain conditions and may not be anticipated in advance, such as those of a sudden nature. With regards to these non-periodic hunting activities, Disputed Regulation Five uniformly requires that applications be submitted 5 days before the start of the hunting activity, without other corresponding diverse flexible measures (for example, under the premise of public safety, specific cases may allow applications to be reported in advance to tribal organizations with management authority, not subject to the 5-day deadline, and require that they be reported to the competent authority after hunting together with the hunting results, or different deadlines may be set by distinguishing the proposed hunting methods). For indigenous people who cannot submit timely applications due to special reasons, it is equivalent to depriving them of the opportunity to legally engage in hunting activities based on their traditional beliefs or customs. Within this scope, the restriction on the cultural rights of indigenous peoples to engage in hunting activities exceeds the necessary limit. For indigenous people whose hunting demands are based on beliefs or customs inherited from traditional culture, if they fail to apply for permission in compliance with restrictions, they will face the dilemma of having to give up their cultural rights to engage in hunting activities or be punished for exercising their cultural rights to hunt. Compared to the interests intended to be protected by restrictive regulations that uniformly require applications to be submitted 5 days before the start of non-periodic hunting activities, this goes beyond what can reasonably be expected of indigenous people and violates the requirements of the constitutional principle of proportionality.
Hence, Disputed Regulation Five stipulating application deadlines and procedures for spontaneous and unpredictable non-scheduled hunting activities based on beliefs or traditions inherited from traditional culture, lacks reasonable flexibility, and constitutes an excessive restriction on the cultural rights of indigenous peoples to engage in hunting activities. To this extent, it violates the constitutional principle of proportionality and shall no longer be applicable from the date of publication of this interpretation. Before the relevant regulations are revised and announced, the competent authorities should in line with the intent of this interpretation adopt diverse flexible measures for concrete cases in response to hunting applications submitted by indigenous people for the aforementioned non-periodic hunting activities, without being restricted by the requirement to apply 5 days in advance.
(IV) Disputed Regulation Six, which requires the application form to specify the types and quantity of animals to be hunted or captured, violates the constitutional principle of proportionality
With regard to Disputed Regulation Six, the "types and quantity of animals to be hunted or captured" referred to therein are mandatory items to be recorded in the application form. Indigenous people, tribes, or indigenous organizations who apply to engage in hunting activities in accordance with the law, regardless whether they are periodic or non-periodic activities, shall indicate them in the application form in accordance with this regulation. However, indigenous hunting activities are closely linked to their traditional cultural ideologies and beliefs . Each ethnic group has various hunting taboos that are passed down from generation to generation based on their traditional beliefs. As for the taboos before going out hunting, indigenous people have always considered hunted animals to be gifts from the gods of the mountains and forests, therefore each ethnic group generally considers pre-determining the types and quantity of animals to be hunted or captured a taboo because it shows disrespect to the gods of the mountains and forests (Note 4). Therefore, when indigenous people or tribes wish to apply for hunting activities in accordance with the law, they may be forced to violate the cultural beliefs and ideologies inherited from their traditional culture because of the requirements of Disputed Regulation Six. Based on this, Disputed Regulation Six imposes a certain degree of restrictions on the cultural rights of indigenous peoples to engage in hunting activities, which are not merely minimal interferences. Thus, such restrictions shall meet the requirements of the constitutional principle of proportionality.
When carefully studying the normative intent of Disputed Regulation Six, which requires the applicant to estimate the results of hunted and captured animals prior to the hunting activities, as evidence for review and approval by the competent authority, it does serve the legislative purpose sought in Disputed Regulation Four, especially the achievement of the purpose of protecting wildlife. However, there are many factors that affect the actual results of hunting activities, apart from human factors it depends even more on natural factors beyond human control such as weather conditions and natural environment. Hence, the actual results of hunting cannot be clearly determined at the time of application. Thus, the information recorded by the applicant in accordance with the requirements of Disputed Regulation Six is merely a subjective expectation of the species and quantities to be hunted. These subjective expectations or speculations of applicants regarding the hunting results before the start of hunting activities is of limited benefit in terms of achieving the purpose. Furthermore, if the competent authority intends to effectively control the damage caused by indigenous hunting activities on wildlife ecology, it can use general and abstract regulations to limit the species and quantity of hunted or captured animals, restrict the species and quantity of animals allowed to be hunted in the disposal, or add appropriate provisions in the approval decision (such as imposing specific obligations during hunting, setting limits on the types and quantity of animals allowed to be hunted, or establishing conditions that would invalidate the approval decision). There is no need to require the applicant to estimate the types and quantity of animals to be hunted or captured in advance. Disputed Regulation Six, requiring a declaration of the types and quantity of animals to be hunted in the application form and restricting the cultural rights of indigenous peoples to engage in hunting activities has exceeded the necessary limit. Furthermore, considering that predicting the hunted species and quantity before going out to hunt is difficult to reconcile with the beliefs and ideologies passed on by traditional indigenous culture, the requirement in Disputed Regulation Six is deemed unreasonable and beyond what can be expected of indigenous peoples or tribes to comply with. Therefore, Disputed Regulation Six, requiring a declaration of the types and quantity of animals to be hunted or captured in the application form, violates the constitutional principle of proportionality and shall no longer be applicable from the date of publication of this interpretation.
IV. Inadmissible part
Petitioner One argues that the provisions of Article 18, Paragraph 1, Subparagraph 2 and Article 41, Paragraph 1, Subparagraph 2 of the Wildlife Conservation Act, as well as the Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples and its appendix are unconstitutional. The above-mentioned articles and regulations were not applied in Final Judgement One and can therefore not be the subject matter of this petition for interpretation. Furthermore, his petition for interpretation of the provisions of Article 8, Paragraph 4 and Article 12, Paragraph 4 of the Guns and Ammunitions Act and the provisions of Article 18, Paragraph 1, Subparagraph 1 of the Wildlife Conservation Act did not specifically point out how these provisions violate the constitution in an objective manner. Petitioner Two argues that the provisions of Article 51-1 of the Wildlife Conservation Act and the provisions of Article 4 of the Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples are unconstitutional, [this Court finds] these regulations were not applied in Final Judgment Two and cannot the subject matter of this petition for interpretation. Furthermore, his petition for interpretation of the provisions of Article 18, Paragraph 1, Subparagraph 1 and Article 41, Paragraph 1, Subparagraph 1 of the Wildlife Conservation Act, as well as the provisions of Article 6 and the appendix of the Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples did not specifically point out how these provision violate the constitution in an objective manner. Hence, the above claims are not in accordance with Article 5, Paragraph 1, Subparagraph 2 of CCPA and inadmissible according to Paragraph 3 of the same article. Petitioner Five argues that the provisions of Article 18 and Article 41, Paragraph 1 of the Wildlife Conservation Act are unconstitutional. Upon examination of the evidence presented, [the Court finds] the issue involves the interpretation and application of individual laws and should not be accepted.
Notes:
Note 1: Article 27 of the International Covenant on Civil and Political Rights provides that "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." The United Nations Human Rights Committee has made the following General Comment No. 23 on this covenant, paragraph 7: "With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them." And Article 15, Paragraph 1 of the International Covenant on Economic, Social and Cultural Rights states: “1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." Reference should be made to these provisions.
Note 2: Since the mid-20th century, the international community has been promoting various international environmental conventions aimed at protecting the natural ecological environment. See the Convention on International Trade in Endangered Species of Wild Fauna and Flora (also known as the Washington Convention), which took effect in 1975; the Convention of Wetlands of International Importance especially as Waterfowl Habitat (also known as the Ramsar Convention), which took effect in 1975; the Convention on the Conservation of European Wildlife and Natural Habitats, which took effect in 1982; the Convention on the Conservation of Migratory Species of Wild Animals, which took effect in 1983; and the Convention on Biological Diversity, which took effect in 1993, among others.
Note 3: Examples of life customs include dream divination, bird divination, birth of a baby or taking off mourning clothes (removing plain clothes). For dream divination, reference can be made to "Investigations of the High-Land Indigenous Peoples Tribe, Overview of the Fan Society" edited by the Institute of Ethnology, Academia Sinica, from the original work of the Taiwan Governor-General's Police Bureau Indigenous Peoples Management Division, published in 2011, pages 635 to 647; “Report on Customs and Habits of the Indigenous Peoples, Volume I, Atayal Tribe,” compiled by the Institute of Ethnology, Academia Sinica, from the original work of the Temporary Taiwan Traditional Customs Survey Committee of the Taiwan Governor-General’s Office, published in 1996, pages 55-58. For bird divination, reference can be made to "Report on Customs and Habits of the Indigenous Peoples, Volume V, Paiwan Tribe, Book III" edited by the Institute of Ethnology, Academia Sinica, from the original work of the Temporary Taiwan Traditional Survey Committee of the Taiwan Governor-General’s Office, published in 2004, page 143. For birth of a baby, mourning, and other life customs., reference can be made to the attachment to Article 6 of the Regulations on the Management of Utilization of Wild Animals by Indigenous Peoples.
Note 4: Due to the tribal characteristics of traditional culture of indigenous peoples, the practice and taboos of traditional beliefs in daily life are mainly transmitted by word of mouth through the elders and people of the tribe. However, the Temporary Taiwan Traditional Customs Survey Committee of the Taiwan Governor-General's Office recorded in detail various tribes' rituals, prayers, and customs based on their spiritual beliefs conducted before and after hunting on page 62 of the 1996 publication mentioned above in note 3 (if someone is asked where they are going or what they are doing while going out hunting or setting traps, it is believed that their efforts will be fruitless, hence it is taboo). Additionally, various survey records related to hunting, rituals, and taboos show that indigenous peoples often consider their hunting prey as gifts from the spirits. Hunters, their families, and tribes must treat them with reverence and must not predict their hunting, otherwise it is disrespectful to the spirits (cited from: Zhong-Yong Pu, "Original Reversals in the Mountains and Seas - A Study of Hunting and Fishing Cultures of Taiwan's Indigenous Peoples", pages 67, 105, 141, 170 and appendices, 2018). Furthermore, reference can be made to the original work of the Taiwan Governor-General's Police Bureau's Indigenous Peoples Management Division, mentioned above in Note 3, page 613 of 2011 (the Atayal tribe: when hunting, it is taboo to say "I hope the hunting is abundant" in order to avoid catching nothing), page 617 (the Bunun tribe: animal names are not called directly, but instead a code language is used to avoid the prey escaping), and page 618 (the Tsou tribe: before going out hunting, it is taboo to let others know about the hunting activities and talking about hunting matters is forbidden), among others. Additionally, “A Survey on the Current Status of the Use of Wild Animals in the Indigenous People's Annual Rituals in and around the Yushan National Park” commissioned by the Yushan National Park Management Office, page 4, published in 2020.
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*Translated by Chuan-Ju CHENG