I. Purpose of the Application
The applicant, the Third Division of the Taipei High Administrative Court, in adjudicating its case number 107-Yuan-Su-Geng-1, concerning the Indigenous Peoples Status Act (referred to as the “case in question”), finds that the applicable provisions of Article 2 of the Indigenous Peoples Status Act providing that: “Indigenous Peoples referred to in this Act include Mountain Indigenous Peoples and Plains Indigenous Peoples. The recognition of their status, unless otherwise provided by this Act, shall be determined according to the following provisions: (1) Mountain Indigenous Peoples: Those whose ancestral home was located in mountainous administrative areas before Taiwan's retrocession and who are registered in the household registration books as Indigenous themselves or as direct lineal relatives. (2) Plains Indigenous Peoples: Those whose ancestral home was located in plain administrative areas before Taiwan's retrocession, who are registered in the household registration books as Indigenous themselves or as direct lineal relatives, and who have applied for registration as Plains Indigenous Peoples at the township (town, city, district) office where their household registration is located.” (referred to as the “disputed provisions”) raises constitutional doubts. After ordering the suspension of the litigation process, the court requested a constitutional interpretation based on J.Y. Interpretations Nos. 371, 572, and 590 during the 109th year of the Republic of China.
The applicant states that the disputed provisions limit “Plains Indigenous Peoples” to those “whose ancestral home was located in plain administrative areas before Taiwan's retrocession, who are registered in the household registration books as Indigenous themselves or as direct lineal relatives, and who have applied for registration as Plains Indigenous Peoples at the township (town, city, district) office where their household registration is located.” This causes individuals who also have ancestral homes in plain administrative areas before Taiwan's retrocession and are registered themselves or as direct lineal relatives as Indigenous in the household registration books to be unable to obtain “Plains Indigenous' status” solely because they failed to register as “Plains Indigenous People” within the period set by the government. Hence, the question arises as to whether the disputed provisions infringe upon the identity recognition rights of those with Indigenous lineage, violating the constitutional principle of equality and the provisions of Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution. The applicant reasonably believes that the disputed provisions contradict the intent of Articles 5, 7, and 22 of the Constitution, as well as the provisions of Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution.
II. Basis for Acceptance and Hearing Procedures
A. Basis for Acceptance
The disputed provisions are indeed the laws applicable to the applicant's case. The applicant has ordered the suspension of the litigation process and has clearly articulated specific reasons for believing that the disputed provisions are unconstitutional. Therefore, the application aligns with the requirements for judges to request constitutional interpretation as indicated in J.Y. Interpretations Nos. 371, 572, and 590, and should be accepted. The entire Constitutional Court resolved to accept the case in the 110th year. Furthermore, the Constitutional Court Procedure Act (2019) has been in effect since January 4, 2022; thus, in accordance with Article 90 of that law, this Court will continue to hear the case based on the provisions of that law
B. Hearing Procedures
This Court held an oral argument on June 28, 2022. In addition to notifying the applicant, the relevant authority, the Council of Indigenous Peoples (hereinafter referred to as the “CIP”), the Tainan City Government, and the parties involved in the original case, this Court also invited the National Human Rights Commission of the Control Yuan, as well as experts and scholars, to present their opinions. The main points of the oral arguments from the applicant and the relevant authorities are as follows:
(a) The petitioner asserts: (1) Before the massive migration of the Han people to Taiwan began in the 17th century, Austronesian ethnic groups, including the High Mountain and Pinpu [Plains] Indigenous Peoples, were already residing on the island. (2) The Indigenous Peoples referred to in Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution should include the Pinpu [Plains] Indigenous Peoples, who have significant social and cultural meaning. (3) During the 1950s and 1960s, the government allowed four periods of registration for Plains Indigenous Peoples. The purpose of this was merely to facilitate administrative agencies in clarifying the identity of Plains Indigenous Peoples and was not related to the essence of whether one possesses Indigenous status. Therefore, the disputed regulation, which uses whether an individual registered as a Plains Indigenous People during the aforementioned government-approved periods as the criterion for determining Indigenous status, does not constitute a reasonable differentiation based on the nature of the matter being regulated. This infringes upon the right to indigenous identity recognition protected under Article 22 of the Constitution for those with Indigenous ancestry and violates the principle of equality under Article 7 of the Constitution, as well as the intent of Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution.
(b) The respondent agency, the CIP, states: (1) The term “Indigenous Peoples” under the Constitution does not include the Pinpu [Plains] Indigenous Peoples or the Siraya people. (2) The disputed provisions relate to the policy choices and value decisions made by the Constitution on ethnic issues, which should be respected by the Constitutional Court and reviewed with a lenient standard. (3) The registration of Plains Indigenous Peoples in 1956 and 1957 predetermined the subjects and scope of affirmative action. Even if it is acknowledged that the registration of Plains Indigenous Peoples at that time was merely for administrative convenience, a value order has been shaped through the stability of the system over the years, the connection of identity relationships, and the intent of the Additional Articles of the Constitution. This should not be easily altered. (4) The disputed provisions follow the value determination preset by the Constitution, aiming to achieve clarity in preferential measures and to realize substantive equality while also considering personal identity recognition and the important value of enhancing the stability of identity relationships. (5) The time-limited registration method adopted by the disputed provisions has substantial relevance to the important constitutional purposes mentioned above and does not violate the constitutional principle of equality or infringe upon the right to indigenous identity recognition.
(c) The other relevant authority, the Tainan City Government, asserts: (1) The Siraya people are Indigenous People of Taiwan, and it is the duty of the State to properly recognize them. Based on the principles of equality and non-discrimination under the Constitution, the disputed provisions infringe upon the Tainan City Government's autonomous authority [Editorial note: 1]. (2) The disputed provisions involve the right to indigenous identity recognition, a significant fundamental right protected under Article 22 of the Constitution, and should be subject to strict scrutiny. (3) The disputed provisions add the requirement of time-limited registration for the sake of administrative convenience. (4) Self-identification to obtain state-recognized Indigenous status and the enjoyment of preferential measures are two separate matters. (5) Indigenous status is derived from bloodline, inherent by birth, and not a gift from the State. The disputed provisions severely infringe upon the personal rights of the Siraya people by solely considering administrative convenience and are therefore unconstitutional. (6) The disputed provisions require registration as a condition for obtaining Indigenous status, preventing unregistered Indigenous People and their descendants from acquiring Indigenous status. The disputed provisions have reached the level of identity lockdown and are therefore unconstitutional.
III. The legal opinion forming the basis of the judgment
A. Background facts of the case
a. Before the massive migration of the Han people, who now constitute the majority of Taiwan's population, various indigenous groups belonging to the Austronesian language family had already been living on this land for millennia. During the Japanese colonial period, for governance purposes and to facilitate separate management, assimilation and integration, a census process was conducted to categorize these Indigenous Peoples based on their geographical location (mountains or plains) and the degree of assimilation with the Han people. They were divided into two categories: (1) Mountain Indigenous Peoples (marked as “shēng ” [meaning “raw”] or “gāo shā”[meaning “high mountain”] in census records), and (2) Pinpu [Plains] Indigenous Peoples (marked as “shóu”[meaning “cooked”], “píng”[meaning “plains”] in census records).
After the Nationalist Government came to Taiwan, it generally adopted the Japanese colonial era's classification system. However, since the terms “sheng fán”[meaning “raw savages”] and “shú fán” [meaning “cooked savages”], were highly discriminatory, they were first replaced with Mountain Compatriots for Indigenous Peoples living in the mountains. Due to the urgent need for distinctions among Mountain Compatriots for local elections, the Taiwan Provincial Government issued Letter Fu-Min-Si-11197 on February 9, 1954, using the terms “shān dì shān bāo” [meaning “High Mountain Compatriots”] and “píng dì shān bāo”[meaning “Plains Mountain Compatriots”]. (the term “shān bāo” [meaning “Mountain Compatriots”] was later changed to “yuán zhù mín zú” [meaning “Indigenous Peoples”) after the third constitutional amendment in 1994). This Court finds that exceptions were made by the Taiwan Provincial Government, allowing Pinpu [Plains] Indigenous Peoples to register as Plains Indigenous Peoples in accordance with Letter Fu-Min-Yi-128663 on January 22, 1957, which stated: “Those who lived in plains administrative regions during the Japanese era, whose ethnicity was recorded as ‘shóu’[meaning “cooked”] in household registers, and who continued to reside in plains administrative regions after the restoration of Taiwan, could apply for registration as Plains Compatriots according to the ‘Standards for the Identification of Plains Compatriots’. Upon application for registration, approval may be granted for registration as ‘píng dì shān bāo’ [meaning “Plains Mountain Compatriots”],” and the Department of Civil Affairs of the Taiwan Provincial Government Telegram Min-Jia-01957 on March 11, 1957, which stated: “4. Those who lived in plains areas during the Japanese era and were recorded as ‘shóu’[meaning “cooked”], should be considered Plains Mountain Compatriots,” other government letters issued since 1954, including Taiwan Provincial Government Letter Fu-Min-Yi-109708 on October 3, 1956, Taiwan Provincial Government Letter Fu-Min-Yi-19021 on May 10, 1957, Taiwan Provincial Government Letter Fu-Min-Yi-29784 on April 7, 1959, and Taiwan Provincial Government Letter Fu-Min-Yi-60148 on August 21, 1963, consistently stated: “shān dì shān bāo” [meaning “High Mountain Compatriots”) and “píng dì shān bāo”[meaning “Plains Mountain Compatriots”] refer to individuals whose ancestral registration was in areas designated as “fán dì” ( savage lands) during the Japanese era and whose household registration recorded them or their direct blood relatives as “shēng”[meaning “raw”] or “gāo shā”[meaning “high mountain”]. These names generally referred only to the High Mountain Indigenous Peoples [Editorial Note: 2] of the Japanese era and did not include the Pinpu [Plains] Indigenous Peoples [Editorial Note: 4] during the Japanese era. This was maintained in Article 2, Paragraph 2 of the “Standards for the Identification of Mountain Compatriots” issued by Taiwan Provincial Government Letter Fu-Min-Si-30738 on April 8, 1980, and reiterated in the amended Article 2, Paragraph 2 of the “Standards for the Identification of Mountain Compatriots” issued by the Ministry of the Interior Letter-Nei-Min-8185501 on August 7, 1992.
c. The original text of the Constitution does not include the terms “High Mountain Compatriots,” “Plains Mountain Compatriots,” or Indigenous Peoples. The terms “High Mountain Compatriots” and “Plains Mountain Compatriots” first appeared in the 1991 first round of constitutional amendment (see Articles 1 and 2 of the 1991 Additional Articles of the Constitution). The term “Mountain Compatriots” was used in the 1992 second round of constitutional amendment (see Article 18 of the 1992 amended Additional Articles of the Constitution). In the 1994 third round of constitutional amendment, these terms were changed to “Mountain Indigenous People,” “Plains Indigenous People,” or “Indigenous People” (see Articles 1, 3, and 9 of the 1994 amended Additional Articles of the Constitution). Following further amendments on July 21, 1997, the term “Indigenous People” in Article 10 was revised to “Indigenous Peoples,” and the text was amended as reflected in the current Paragraphs 11 and 12 (see Article 10 Paragraphs 11 and 12 of the amended Additional Articles of the Constitution on July 21, 1997).
During the second and third constitutional amendments in 1992 and 1994, proposals were made to include a “Chapter on Indigenous Peoples” in the Additional Articles of the Constitution dedicated to the protection of Indigenous Peoples' rights. One of these proposals stated, “Taiwan's Indigenous Peoples include the Pinpu [Plains] Indigenous Peoples ...,” but none of these proposals were passed. (Note)
18. d. The Indigenous Peoples Status Act, enacted in 2001, states in its legislative rationale that, based on the terms “Mountain Indigenous People” and “Plains Indigenous People” as stipulated in Article 4 of the Additional Articles of the Constitution, and in continuation of the definitions used since 1954, the disputed provisions of the Act limit the definition of Indigenous Peoples to Mountain Indigenous People and Plains Indigenous People. Furthermore, it classifies Mountain Indigenous People and Plains Indigenous Peoples [Editorial Note: 3] based on their original administrative regions. Regardless of whether they are Mountain Indigenous People or Plains Indigenous People, the Act refers to those whose household registration during the Japanese era, before Taiwan's restoration, recorded them or their direct blood relatives as High Mountain Peoples (refer to the legislative rationale of the disputed provisions enacted in 2001; see related documents from the 10th session of the 90th meeting of the 1st Legislative Yuan, pages 83 to 85; and related documents from the 4th session of the 4th meeting of the 4th Legislative Yuan, pages 78 and 79). In other words, the Indigenous Peoples defined by the disputed provisions in principle do not include the Pinpu [Plains] Indigenous Peoples as referred to during the Japanese era.
B. Constitutional Right Under Review: The Right to Indigenous People(s)’ Identity Recognition.
Maintaining human dignity and respecting the free development of personality are core values of a liberal democratic constitutional order. Personal rights, as the foundation of individual personality, are indispensable fundamental rights protected under Article 22 of the Constitution, which includes the right to indigenous identity recognition (refer to TCC Judgment 111-Hsian-Pan-4 of 2022). Furthermore, according to Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution, the State shall actively preserve and promote the languages and cultures of Indigenous Peoples and provide appropriate protection and assistance in matters of education and culture. Thus, when overall considering Article 22 of the Constitution together with Article 10, Paragraphs 11 and 12, First Sentence, of the Additional Articles of the Constitution, [this Court deems that] the constitutionally protected right to indigenous identity recognition includes not only the identity recognition of individual Indigenous persons but also the collective identity recognition of all Indigenous Peoples.
C. The Review by This Court
a. Regarding the constitutional review of regulations, once this Court accepts a case, it is not necessarily bound by the petitioner’s claims (in this case, the petitioner primarily argues that the disputed provision, particularly the latter part of Subparagraph 2, is unconstitutional as it violates Article 7 of the Constitution). This Court believes that the key issue in this case is: What should be the meaning of “Indigenous People(s)” in the context of constitutional interpretation? Specifically, according to Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution, what should be the scope of “Indigenous Peoples” whose rights and interests the State is required to protect by law?
b. Based on the text of the Constitution and the intent of the constitutional amendments, the Constitution does not specifically limit the “Indigenous Peoples” it aims to protect to those defined as Mountain Indigenous Peoples and Plains Indigenous Peoples in the disputed provisions.
(i) [The Court finds that] the Constitution and its Additional Articles do not explicitly define “Indigenous People” or “Indigenous Peoples,” nor do they specify criteria for distinguishing Indigenous Peoples or limit them to only Plains Indigenous Peoples and Mountain Indigenous Peoples. In other words, the Constitution does not explicitly exclude other Taiwanese Indigenous Peoples, beyond those referred to as Mountain Indigenous Peoples and Plains Indigenous Peoples in the disputed provisions, from the protection provided in Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution.
(ii) Next, it is necessary to clarify whether the constitutional amendments intended to exclude other Taiwanese Indigenous Peoples, beyond those referred to as Mountain Indigenous Peoples and Plains Indigenous Peoples in the disputed provisions, from the scope of protection. It is true that proposals during the second and third constitutional amendments (one of which stated, “Taiwan's Indigenous Peoples include the Pinpu [Plains] Indigenous Peoples...”) were not passed. However, this fact alone is insufficient to conclude that the framers of the amendments intended to exclude other Taiwanese Indigenous Peoples, beyond those referred to as Mountain Indigenous Peoples and Plains Indigenous Peoples in the disputed provisions, from protection. The reasons are as follows:
(1) According to Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution, if an individual belongs to an Indigenous People, the State is obligated to actively protect their culture through legislation. Furthermore, unless the constitutional amendments explicitly exclude certain Indigenous People(s) from protection, relevant agencies cannot arbitrarily define the meaning of Indigenous Peoples and exclude some Taiwanese Indigenous Peoples from the protection the State is required to provide through legislation. [This Court holds that] in constitutional interpretation, to align with the intent of the aforementioned provisions to specially protect Indigenous cultures, the recognition of the meaning and scope of protection for Indigenous Peoples should avoid contradicting historical facts and international trends in the protection of Indigenous People(s). It should be interpreted broadly and leniently, meaning that exclusions from protection should be subject to an extremely strict and narrow principle, treated as exceptions.
(2) When interpreting the Constitution, Justices should keep pace with the times, respond to contemporary needs, and make interpretations that align with those needs. They should not be constrained by the literal wording of certain constitutional provisions or limited by fragments of the constitutional amendment process, as this could undermine the fundamental purpose of the Constitution in protecting human rights. It is true that during the second and third rounds of constitutional amendments, there were proposals to include the Pinpu [Plains] Indigenous Peoples as Indigenous Peoples, alongside the Mountain Indigenous People and Plains Indigenous People, and these proposals were not passed (see note). However, the terms “Mountain Indigenous People” and “Plains Indigenous People” in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution are not the same in wording or meaning as “Indigenous Peoples” in Paragraphs 11, and Paragraph 12, First Sentence, of Article 10. Moreover, the two proposals at that time primarily aimed to add a “Chapter on Indigenous Peoples” to the Additional Articles of the Constitution, with the inclusion of the Pinpu [Plains] Indigenous Peoples as one of its provisions. The fact that these proposals were not passed does not logically lead to the conclusion that the framers of the amendments intended to exclude other Taiwanese indigenous tribes from protection.
(3) The manner in which legislators are elected is a constitutional choice, and the special protection of Indigenous Peoples’ political participation rights follows the same principle. The protection of these rights, as stipulated in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution, and the legislative protection of Indigenous cultures, as required by Article 10, Paragraph 11, and Paragraph 12, First Sentence of the Additional Articles, address different subjects and serve different purposes. Moreover, our Constitution does not explicitly state that the two categories of “yuán zhù mín”[meaning “Indigenous Peoples”] (initially referred to as “shān bāo”[meaning “Mountain Compatriots”], and later changed to “yuán zhù mín” in the 1994 constitutional amendment), defined in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles included in the first constitutional amendment in 1991, must be identical to the “yuán zhù mín zú” [meaning “Indigenous Peoples”] mentioned in Article 10, Paragraph 11, and Paragraph 12, First Sentence, as revised in the fourth constitutional amendment in 1997.
29. (4) [This Court holds that] the existence of the aforementioned proposals during the constitutional amendment process, or the stipulations regarding political participation rights in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution, cannot be used to conclude that the framers of the amendments intended not to protect the cultural and other rights of Taiwanese Indigenous Peoples beyond the Mountain Indigenous Peoples and Plains Indigenous Peoples. Consequently, it cannot be inferred that the legislature has no obligation to specifically protect their rights to Indigenous People(s)’ identity recognition through legislation.
c. [The Court deems that,] in addition to the so-called “gāo shān(shā)zú” [meaning “High Mountain Peoples”], during the Japanese colonial period, there were also other Austronesian ethnic groups in Taiwan, as observed from the historical context.
In Taiwan's history, before the mass migration of Han Chinese that led them to become the majority population, many Indigenous People(s) belonging to the Austronesian language family were already scattered throughout various regions of the island. Each of these groups developed their own history, language, traditional culture, and customs. During the Japanese colonial period, for administrative purposes, those residing in mountainous areas were referred to as the “gāo shān (shā) zú” [meaning “High Mountain Peoples”], while those living in the plains were termed the píng pǔ zú (平埔族)[meaning “Pinpu [Plains] Indigenous Peoples”]. However, both groups belong to the Austronesian ethnic family in Taiwan. Thus, from a historical perspective, it is undisputed that Taiwan is home to other ethnic groups belonging to the Austronesian language family, in addition to the Mountain Indigenous Peoples and Plains Indigenous Peoples defined by the Japanese colonial administration as the “gāo shān (shā) zú” .
d. Objective Historical Records of Taiwan's Austronesian Ethnic Groups
Although Taiwan's Austronesian ethnic groups have resided in Taiwan and have been recognized as its Indigenous Peoples since before the Japanese colonial period, they constitute only a portion of Taiwan's population. How, then, can these Austronesian ethnic groups be distinguished within Taiwan's population?
During the Japanese colonial period, the government conducted a comprehensive household registration survey in Taiwan. The resulting official household registration records are recognized as objective and complete historical records of Taiwan. These household registration records have continued to be used by the current government as the legal basis for identifying Taiwan's Indigenous Peoples. Therefore, using the same household registration records from the Japanese colonial period as the standard for determining whether one belongs to Taiwan's Austronesian ethnic groups is consistent. This court thus considers it appropriate to use the criterion of whether an individual or their direct lineal ascendants are recorded as “shóu”(熟) [meaning “cooked”] or “píng” (平) [meaning “plains”] in the household registration records from the Japanese colonial period to determine whether they belong to Taiwan's Austronesian ethnic groups.
e. Judgement on whether other Austronesian ethnic groups in Taiwan fall within the protected scope of Article 10, Paragraphs 11, and 12, First Sentence, of the Additional Articles of the Constitution.
Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution respectively state: “The State shall affirm cultural diversity and actively preserve and develop the languages and cultures of Indigenous Peoples”; and “The State shall, in accordance with the will of the ethnic groups, ensure the status and political participation of Indigenous Peoples, and shall protect and assist their education, culture, transportation, water conservation, health and medical care, economic activities, land, and social welfare, and promote their development. The methods for doing so shall be stipulated by law.” According to this intent, the Constitution explicitly recognizes and protects the culture of Taiwan's Indigenous Peoples to preserve their still existing languages, customs, and traditional cultural characteristics, and further mandates the State to bear the responsibility of actively preserving and developing them (refer to J.Y. Interpretation No. 803). Thus, the “Indigenous Peoples” specifically protected by the Constitution should refer to those Indigenous Peoples existing in Taiwan who have not been entirely assimilated by other ethnic groups and whose ethnic languages, customs, and traditional cultural characteristics still persist and can be perpetuated to the next generation. [Conversely,] even if one has indigenous ancestry, if their ethnic group has been entirely assimilated by non-indigenous groups and has lost its original cultural characteristics, and there is no means or willingness to preserve, develop, and pass these on to the next generation, they no longer fall under the category of Indigenous Peoples that are generally considered to deserve special protection.
Additionally, the right to Indigenous People(s)’ identity protected under Article 22 of the Constitution primarily encompasses cultural identity. Only when individual indigenous persons possess cultural identity can the sustainable development of the culture and ethnicity to which they belong be ensured, warranting special protection under the Constitution (refer to J.Y. Interpretation No. 803). Therefore, members of an ethnic group should maintain their identification with their group, including the willingness to form and become members of a specific indigenous ethnic group.
f. In summary, observing Taiwan's historical context, [this Court deems that] the interpretation of Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution should be that the Indigenous Peoples whose cultural and other rights are to be specially protected by the State through legislation are not limited to those specified in the disputed provisions. They should include all Austronesian ethnic groups existing in Taiwan. In addition to the “Mountain Indigenous People” and “Plains Indigenous People” specified in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution, this should include other Austronesian ethnic groups in Taiwan, as long as their ethnic languages, customs, and traditional cultural characteristics still persist, their members maintain ethnic identity, have the willingness to form and become members of a specific indigenous people, and their status as Austronesian ethnic groups in Taiwan is supported by objective historical records (refer to the Control Yuan's Investigation Report 110-Nei-Diao-0045 of November 2021). [Hence], these Austronesian ethnic groups in Taiwan or their members should have the right to request recognition and legal determination of their ethnic status as Indigenous Peoples, and the competent authorities have the obligation to make such determinations according to the law. The criteria for recognizing these Indigenous Peoples, the identity requirements for their members, and the registration procedures should be explicitly defined and appropriately established by the relevant authorities. Aforementioned members who meet the statutory requirements and procedures should be able to obtain indigenous status, enjoy legal rights, and bear legal obligations.
D. The Judgment of This Court
a. The Indigenous Peoples protected under Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution should include all Austronesian ethnic groups existing in Taiwan. Apart from the “Mountain Indigenous People” and “Plains Indigenous People” specified in Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution, any other Austronesian ethnic groups in Taiwan, whose ethnic languages, customs, and traditional cultural characteristics still persist, whose members maintain ethnic identity, and whose status is supported by objective historical records, should also be able to apply for recognition as Indigenous Peoples according to their ethnic group's wishes. [And] members of these groups should be able to obtain indigenous status according to the law.
b. The definition of Indigenous Peoples in the disputed provisions refers only to Mountain Indigenous People and Plains Indigenous People, and does not include other Taiwanese Indigenous Peoples that meet the criteria. As a result, the Indigenous status of these groups who do not fit the criteria of [prior paragraph 40.] a. is not protected by national law. In this respect, [this Court deems] the provisions conflict with Article 22 of the Constitution, which protects the right to Indigenous People(s)’ identity, and with the intent of Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution, which protect indigenous cultures.
c. The relevant authorities shall, within three years from the date of the announcement of this judgment, amend the Indigenous Peoples Status Act or enact a special law in accordance with the intent of this judgment. This amendment or new law should clearly define the criteria for recognizing other Taiwanese indigenous ethnic groups of the Austronesian language family, the identity requirements for their members, and the registration procedures. If the amendment or legislation is not completed within the specified period, individuals or their direct lineal ancestors who are recorded as “shoú” (熟) or “píng”(平) in the household registration records from the Japanese colonial period, and who can demonstrate that their ethnic language, customs, and traditional cultural characteristics still persist, and that the members of their ethnic group still maintain ethnic identity, may apply to the central indigenous authority for recognition of their ethnic status in accordance with the intent of this judgment before the amendment or legislation is completed. Upon recognition of their ethnic status, they may apply for household registration as Indigenous Peoples and obtain indigenous status (refer to the intent of Article 11 of the Indigenous Peoples Status Act).
IV. It Is Hereby Specified
Other Taiwanese indigenous ethnic groups, being protected under Article 10, Paragraph 11, and Paragraph 12, First Sentence, of the Additional Articles of the Constitution, should have their languages and cultures actively preserved and developed by the State. The State should also provide appropriate protection and assistance for their education and cultural matters. Legislators should fully consider the historical development context and current situation of each indigenous ethnic group and its members in accordance with the intent of the constitutional protections mentioned above, and take into account the distribution of national resources when enacting relevant laws. As for the content and scope of these protections, legislators have discretion in their formulation, which falls beyond the scope of this judgment.
Note: The unapproved constitutional amendment proposals regarding the inclusion of the Pingpu [Plains] Indigenous Peoples within the scope of Indigenous Peoples were discussed during the second and third constitutional amendment sessions in 1992 and 1994. Since the fourth constitutional amendment session in 1997, there has been no further discussion or resolution on whether Indigenous Peoples should include the Pingpu [Plains] Indigenous Peoples. Refer to the second National Assembly's extraordinary session constitutional amendment proposals Nos. 34 and 88; the second National Assembly's fourth extraordinary session proceedings, page 452; and the third National Assembly's second meeting of the Constitutional Amendment Review Committee, fourth review group, second meeting transcript, pages 11, 12, 14, and 15."