I. Summary of the parties' statements
Applicants Le-Tao Lai-You and Wu-Mei Lai-You, are two sisters (hereinafter referred to collectively as Petitioner One) who state: Their father, Chen Tian-Lu, was the son of Ms. Yang Lai-You, who held indigenous status, and Mr. Chen Jin-Tang, a non-indigenous person, and both Chen Tian-Lu and Applicant One took their father's surname. Before the implementation of the Indigenous Peoples Status Act, Chen Tian-Lu passed away without having acquired indigenous status. In 2013, based on the provisions of Article 8 of the Indigenous Peoples Status Act as amended on December 3, 2008, Applicant One applied for and acquired indigenous status. Their application was initially approved by the responsible household registration office but was later revoked and corrected, erasing the original approval for indigenous status registration. Dissatisfied, Applicant One went through administrative appeals and litigation, ultimately being rejected by the Supreme Administrative Court in decisions 106-Pan-305 (2017) and 106-Pan-306 (2017) (hereinafter referred to as the Final Judgment One). The decisions stated following reasons: Chen Tian-Lu, being born to an indigenous and a non-indigenous parent, did not take the surname or the traditional name of the indigenous mother, thereby not meeting the requirement of Article 4, Paragraph 2 of the Indigenous Peoples Status Act: "Children born to marriages between indigenous and non-indigenous people shall acquire indigenous status if they take the surname or traditional name of the indigenous parent." (Hereinafter referred to as the Disputed Provision One, on January 27, 2021, Article 4 of the Indigenous Peoples Status Act was amended by removing only Paragraph 3 but not amending Disputed Provision One). Therefore, based on Disputed Provision One and the provisions of Article 8 of the Indigenous Peoples Status Act: "(Paragraph 1) Those who should hold indigenous status according to this Act but have lost or not obtained it before the implementation of this Act due to marriage, adoption, voluntary renunciation, or other reasons, may apply for the restoration or acquisition of indigenous status with sufficient documentary proof of indigenous identity. (Paragraph 2) If the person mentioned in the preceding paragraph is deceased, their legitimate children may apply the provisions of Paragraph 2 of Article 4 and Article 7." (Hereinafter referred to as the Disputed Provision Two), Applicant One were not entitled to obtain indigenous status, etc. Applicant One believes that the application of Disputed Provisions One and Two in the Final Judgement One infringes on their right to a name and right to personality protected by Article 22 of the Constitution and contradicts the constitutional intent of protecting the right of equality enshrined in Article 7 of the Constitution. In 2018, they requested a declaration of unconstitutionality for Disputed Provision One and Two under Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (1993) (hereinafter referred to as the CCPA (1993)).
Petitioner Wu Ruo-Shao (hereinafter referred to as Petitioner Two) claimed that her mother, Cheng Chuan-Ju, is an indigenous person, while her father, Wu Hsin-Yang, does not have indigenous status. After the birth of Petitioner Two, both parents agreed to have her carry the father's surname and applied for indigenous status registration at the household registration office, which was refused. After appealing, they filed a lawsuit. The Taipei High Administrative Court dismissed their case in its decision 106-Yuan-Su-2 (2017). Petitioner Two appealed, but the Supreme Administrative Court dismissed the appeal on the grounds that it was without merit in its decision 106-Pan-752 (2017) (hereinafter referred to as the Final Judgment Two). Petitioner Two argued that the Disputed Provision One applied in the Final Judgment Two, which restricts the condition for children born to marriages between indigenous and non-indigenous people to obtain indigenous status to "taking the surname or traditional indigenous name from the parent with indigenous status," infringes on her right to personality protected by Article 22 of the Constitution and violates the constitutional intent to protect the right to equality enshrined in Article 7 of the Constitution and the principle of self-identification for indigenous peoples. In 2018, pursuant to Article 5, Paragraph 1, Subparagraph 2 of the CCPA (1993), she requested a declaration that Disputed Provision One is unconstitutional.
II. [The Court deems] the petitions concerning Disputed Provision One and [Disputed Provision] Two both meet the requirements for acceptance and should be accepted, and they are also eligible for consolidated consideration and decision. [Furthermore,] the amendment and publication on January 27, 2021, of Article 8 of the Indigenous Peoples Status Act, applying the provisions of Article 4, Paragraph 2, are significantly related to Disputed Provision One and should also be included in the consideration and decision. The rest of the petitions, being unlawful, should not be accepted.
A. Disputed Provision One and [Disputed Provision] Two
In both cases, the petitioners have exhausted all legal procedures and remedies through the court system. The petitioners all argue that Disputed Provision One applied in the Final Judgement One and Final Judgement Two, as well as Disputed Provision Two claimed by Petitioner One, infringe upon their basic rights protected by the Constitution. They have specifically articulated the reasons why Disputed Provision One and Disputed Provision Two are unconstitutional. Upon review, their petitions meet the applicable requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the CCPA (1993). Consequently, the full bench of grand justices decided during 2021 to accept and consolidate these cases for review.
Additionally, Disputed Provision Two was amended and published on January 27, 2021, as follows: "(Paragraph 1) Those who meet the requirements for obtaining indigenous status in accordance with Articles 2, 4, 5, or 6, but died before applying for indigenous status, their children are subject to the provisions of Article 4, Paragraph 2, Article 6, and the preceding article. (Paragraph 2) Those who are eligible to apply for a change of surname or to adopt an indigenous traditional name to obtain indigenous status in accordance with Article 4 or Article 6 but died before the amendment of this Act is implemented on December 31, 2020, their children, within 2 years after the amendment's implementation, are subject to the provisions of Article 4, Paragraph 2, Article 6, and the preceding article, and may adopt an indigenous traditional name to obtain indigenous status." (Hereinafter referred to as Disputed Provision Three). This part concerning the requirements for children born to marriages between indigenous and non-indigenous people to obtain indigenous status still mandates adherence to the provisions of Article 4, Paragraph 2. In this regard, it shares the same purpose as Disputed Provision Two and has a significant connection with Disputed Provision One, necessitating the inclusion of Disputed Provision Three in this court's consideration and judgment.
Furthermore, the Constitutional Court Procedure Act (hereinafter the CCPA) came into effect on January 4, 2022. Accordingly, this court continues the proceedings in accordance with the provisions of Article 90 of the said Act. The court also held an oral argument on January 17, 2022, at 10:30 AM. In addition to notifying the petitioners and the related agency, the Council of Indigenous Peoples, an invitation was extended to the National Human Rights Commission of the Control Yuan to present their views in court. The main points of the arguments presented by the petitioners and the related agency during the oral argument are as follows:
Petitioner Le-Tao Lai-You stated: “Disputed Provision One and [Disputed Provision] Two originate from historical stereotypes, imposing conditions on children born to indigenous women and non-indigenous men when obtaining indigenous status, which unjustly restrict the indigenous people's innate right to identity, the constitutional right to human dignity in determining one's identity, and the rights protected by the Constitution regarding name, personality, status, gender equality, and racial equality. These should be subject to the strictest standard of review. Disputed Provision One and [Disputed Provision] Two do not comply with the principle of proportionality under Article 23 of the Constitution and are unconstitutional.” Petitioner Wu-Mei Lai-You stated: “Disputed Provision One and Disputed Provision Two, in targeting children born to indigenous women married to non-indigenous men through the use of the mother's surname or traditional names to enhance cultural identity, excessively restrict the cultural rights, right to work, right to live, right to self-determination, right to vote, right to a name, and equality rights of indigenous peoples who cannot obtain legal indigenous status. This constitutes gender and racial discrimination and should be subjected to strict or stricter scrutiny standards. Disputed Provision One and [Disputed Provision] Two violate the constitutional principles of equality and proportionality.”
Petitioner Two in brief stated: “(1) Disputed Provision One, concerning children born to marriages between indigenous and non-indigenous people, restricts the acquisition of indigenous status to those who ‘carry the surname of the parent with indigenous status’ or ‘carry a traditional indigenous name.’ This unjustly limits indigenous women from passing on their indigenous status to their children, contravening the principle of gender equality under Article 7 of the Constitution, which states that all people are equal under the law regardless of gender. And [it also violates the constitutional] intent of eliminating gender discrimination under Article 10, Paragraph 6 of the Additional Articles of the Constitution. (2) Disputed Provision One unjustly restricts indigenous people’s personal rights such as the right to a name and the rights to identity. It also unjustly restricts their right to autonomy and cultural rights, infringing upon human dignity and conflicting with the principle of self-identification for indigenous peoples. This violates the intent of protecting personal rights under Article 22 of the Constitution, and violates the principle of proportionality under Article 23.”
The Council of Indigenous Peoples, the relevant agency, in brief stated: “(1) Disputed Provision One and [Disputed Provision] Two do not involve restrictions on gender equality and do not constitute indirect discrimination based on gender; (2) [Regarding the issue raised on] restrictions on basic rights, such as personal rights, in Disputed Provision One and [Disputed Provision] Two, [these regulations] do not adopt a pure bloodline theory. Instead, they combine bloodline theory with identity recognition theory. The differential treatment between children born to marriages between indigenous people and those born to marriages between indigenous and non-indigenous people aims to respect and acknowledge the self-identification of indigenous people. This approach, which employs surnames or traditional names as a means, is substantially related to the intended objectives of stabilizing identity relations and clarifying resource distribution. Therefore, it can pass the applicable stricter (moderate) scrutiny standard without violating the principles of equality or proportionality.”
B. The rest of the petition
Regarding the part where Petitioner One points out the unconstitutionality of Article 2, Paragraph 1 of the Indigenous Peoples Status Act, [the Court deems this part should not be accepted since] Petitioner One is a mountain indigenous person, not a plains indigenous person, and this provision was not the key legal basis used to dismiss Petitioner One's appeal in Final Judgment One. [Furthermore] Petitioner Two argued the unconstitutionality of the Council of Indigenous Peoples, Executive Yuan (which has been reorganized as the Council of Indigenous Peoples) Administrative Interpretation Yuan-Chi-1010035265, issued on June 28, 2012. This interpretation was also not applied in Final Judgment Two. Therefore, [the Court deems] these parts of the petitions do not meet the requirements for acceptance under Article 5, Paragraph 1, Item 2 of the CCPA (1993) (refer to Article 90, Paragraph 1 of the CCPA) and should not be accepted.
III. The substantive reasons for this court's decision
A. Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One violate the principle of proportionality, infringe upon the right to indigenous identity recognition, [therefore] are unconstitutional.
(a) The constitutional right under review: the right to Indigenous identity recognition
Maintaining human dignity and respecting the freedom of personality development are the core values of a liberal democratic constitutional order. The right to personality, as the foundation of individual character, is an indispensable basic right, guaranteed under Article 22 of the Constitution as one of the fundamental human rights (refer to J.Y. Interpretations Nos. 399, 587, 603, and 664); the right to personality protects a specific person's identity, qualifications, and capacities, along with many social interest inseparable from the person. Additionally, a person's lineage is a natural fact that exists prior to the Constitution and laws, closely related to an individual's and their group's identity. Furthermore, Articles 10, Paragraphs 11 and 12 of the Additional Articles of the Constitution protect the diversity of indigenous cultures, their status, and their political participation. The cultural rights of indigenous peoples are also part of the fundamental rights guaranteed by Article 22 of the Constitution, as interpreted in J.Y. Interpretation No. 803; indicating that indigenous status is somewhat special, primarily based on the principle of self-identification. Therefore, the right to identity recognition for indigenous people should be highly protected under Article 22 of the Constitution, [since it] constitutes a special right to personality for indigenous peoples; The right to identity recognition is also closely related to the collective development of indigenous peoples. In this respect, [it] is an important fundamental right that should be protected by the Constitution (refer to J.Y. Interpretation No. 803).
(b) Disputed Provision One, and Disputed Provision Two and Disputed Provision Three, which apply part of Disputed Provision One, constitute a restriction on fundamental rights that are highly protected by the Constitution. [Therefore] This case should be subject to strict scrutiny.
The state is not prohibited from restricting the fundamental rights of the people by law; however, such restrictions must comply with the principle of proportionality as stipulated in Article 23 of the Constitution. In cases involving restrictions on fundamental rights that are highly protected by the Constitution, a strict standard should be adopted to review whether the legal norms comply with the principle of proportionality. This means that the purpose of the restrictions should be to protect particularly important public interests, the means should be suitable and necessary, there should be no less intrusive alternatives available, and the restrictions must pass the scrutiny of the narrow proportionality principle.
Article 1, Paragraph 1 of the Indigenous Peoples Status Act states: “This Act is enacted to recognize the status of indigenous peoples and to protect their rights and interests.” Accordingly, the Indigenous Peoples Status Act serves as the legal norm for obtaining indigenous status, with the purpose aimed at protecting the rights and interests of indigenous peoples (Note 1).
The Indigenous Peoples Status Act stipulates that in addition to the requirement for registration (refer to Article 11 of the Act) for the acquisition of indigenous status, the principle is based on bloodline theory or presumed bloodline theory (refer to Articles 2, Article 4, Paragraph 1, and Article 5 of the same Act) and the principle of self-identification (refer to the Disputed Provision Two). However, Disputed Provision One and Articles 6, Paragraph 2 and 3 of the same Act add requirements for cultural identification beyond bloodline theory, such as “adopting a surname from an indigenous parent or a traditional indigenous name.” For children born to marriages between indigenous and non-indigenous people who do not meet these additional requirements, despite their indigenous bloodline and the right to indigenous status through self-identification, their indigenous status is being denied as the result of adding these requirements in the Disputed Provision One. Thus, Disputed Provision One restricts the significant right to identity recognition that should be acknowledged for children born to marriages between indigenous and non-indigenous people.
In summary, the provisions of Disputed Provision One involve restrictions on the right to indigenous identity recognition, which is protected by the Constitution, and are related to Article 22 of the Constitution and Article 10, Paragraphs 11 and 12 of the Additional Articles of the Constitution. Consequently, this Court deems that whether Disputed Provision One complies with the principle of proportionality should be subject to strict scrutiny. The same applies to the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One.
(c) Disputed Provision One, and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, are not in accordance with the principle of proportionality and contradict the intent of the Constitution to protect the right to indigenous identity recognition, thus are unconstitutional.
(i) Review of the Objective
It could be argued that the Indigenous Peoples Status Act is not about addressing ethnic identity issues, but rather about defining the scope of state benefits administration (refer to the letter Yuan-Min-Zhon-1080011749 from the Council of Indigenous Peoples to the Judicial Yuan, dated March 11, 2019; Legislative Yuan Gazette 89 (28), page 334, record of the committee; argument submission from the relevant authority). Alternatively, it could be said that it aims to balance bloodline and cultural factors, adopting a bloodline theory supplemented by cultural identity theory (refer to the aforementioned letter from March 11, 2019; Legislative Yuan Bill-Related Documents, Yuan-Tzung-1722, Government Proposal No. 7348; Legislative Yuan Gazette 90(5), Plenary Meeting Record, page 451; refer to the argument submission from the relevant authority). These two normative purposes are markedly different.
Regarding the former purpose mentioned above: It is a natural fact that the blood lineage of people, including indigenous people, exists prior to the Constitution and laws, [therefore it] should be highly protected by the Constitution. Upon examining the entire text of the Indigenous Peoples Status Act, there is no article that specifically mentions the concrete content of state benefits administration. The essence of such administration is to provide advantages to people who meet the conditions for benefits, which involves the distribution of state resources. Comparing this purpose with the restriction of the constitutionally protected fundamental rights, such as the right to indigenous identity recognition involved in this case, it is in principle difficult to consider it as a particularly important public interest. Regarding the latter purpose: Considering the special historical status of indigenous peoples in our country and the special protections provided by the Additional Articles of the Constitution, the pursuit of cultural identity should be recognized as a particularly important public interest.
(ii) Relationship between the restrictive measures and the regulatory objectives
The Disputed Provision One, and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, require that for a child to obtain indigenous status, they must have a surname from a parent of indigenous identity or a traditional indigenous name. While the part about "using a traditional indigenous name" undoubtedly helps promote identification, the effectiveness of the part requiring a child to take the surname from a parent of indigenous identity in promoting identification is questionable. In the context of Taiwan's indigenous peoples, there traditionally is no concept or tradition of surnames. Different naming systems are adopted [by Taiwan’s indigenous people], such as "parent-child joint names," "parent-child linked house names," and "naming after the child's characteristics." [The provision] Requires a child to take their parent's Han surname, it will be a Chinese surname, not a name that is part of the indigenous cultural tradition. Therefore, it is doubtful whether it truly helps in promoting cultural identification with indigenous heritage, when the Disputed Provision One, and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, as a restrictive measure, require that for a child to obtain indigenous status, they must have a Chinese surname from a parent of indigenous identity.
Secondly, there are many methods to promote indigenous identity, with names being just one of them, and a rather formalistic means. Without a genuine process of upbringing, merely adopting a surname from an indigenous father or mother or a traditional name may not necessarily reflect true identification with indigenous culture. This is because the formation and continuation of identity require relevant upbringing, learning, or living processes. Furthermore, under the current legal system, indigenous status and ethnic affiliation must be registered before they can be acquired. Compared to the use of names, the requirement in the Disputed Provision One for parents to register their children as indigenous is in itself sufficient to demonstrate their identification. Compared to the approach of "first recognizing their status, then requiring the cultivation of identification," the restrictive method required by Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, which demand "first adopting a surname or name, and then granting status," is clearly not the least invasive measure.
To put it conservatively, even if one believes [it can] promote identification with indigenous culture, compared with the criteria added in the Disputed Provision One, and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, there still exist less intrusive methods. For instance, alongside a Han Chinese surname or Chinese name from a non-indigenous father or mother, one could also list a name with traditional significance to the person's indigenous group. [The relevant authorities] should not deny someone’s indigenous status for not meeting the additional criteria set out in Disputed Provision One and those parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One. This would be a less invasive way for individuals to objectively express identification with their indigenous culture.
(iii) Summary
In summary, [this Court deems] Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, regarding the acquisition of indigenous status by children born of marriages between indigenous and non-indigenous people, impose additional criteria that limit the right to identity recognition for those with indigenous ancestry. While the purpose of these restrictions may be to protect a particularly important public interest in cultural identification, the means are not suitable, necessary, nor the least intrusive measures. Consequently, these restrictions do not comply with the proportionality principle outlined in Article 23 of the Constitution, rendering Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One unconstitutional.
B. Disputed Provision One, as well as Disputed Provision Two and Disputed Provision Three which apply Disputed Provision One, violate the constitutional guarantee of racial equality under Article 7 of the Constitution and are therefore unconstitutional.
(a) The constitutional rights under review and the standards of review
According to Article 7 of the Constitution, all citizens of the Republic of China are equal before the law, regardless of race. Article 7 guarantees the right to equality and does not inherently prohibit the state from implementing differential treatment. Whether such differential treatment under the law meets the requirements for equality protection depends on whether the purpose of the differential treatment is constitutional and whether there is a certain degree of relevance between the classification adopted for differential treatment and the achievement of its regulatory purpose (refer to J.Y. Interpretations Nos. 682, 722, 745, 750, 791, and 802). If legal norms adopt racial classification for differential treatment, or if the differential treatment involves significant fundamental rights related to personal development and human dignity, this Court must apply a heightened scrutiny and use a strict standard to determine its constitutionality.
The constitutional right restricted in this case is the right to indigenous identity recognition, which is a special personal right of indigenous peoples protected by the Constitution. [This right] relates to the personal development of indigenous individuals, among other things, as an important fundamental right, as previously mentioned.
Secondly, the result of adding aforementioned criteria through Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One directly leads to differential treatment between “children born to marriages between two indigenous people” and “those born to marriages between indigenous and non-indigenous people.” This difference is based on whether they meet the additional criteria (for example, even if both have Han surnames and names, the former automatically obtain indigenous status under Article 4, Paragraph 1 of the Indigenous Peoples Status Act, whereas the latter do not automatically qualify under Disputed Provision One). This differential treatment classifies individuals with indigenous ancestry based on whether one or both of their parents are of indigenous status, imposing an additional requirement of naming for those with only one indigenous parent. This classification is based on race or ethnic group and involves the significant fundamental right of identity recognition for indigenous status, which should be subject to a strict scrutiny standard. This means that its purpose must serve a particularly important public interest, and its means must be absolutely necessary and irreplaceable.
(b) Disputed Provision One, along with the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, incorporate means that are subject to above-mentioned conditions, which are not absolutely necessary and irreplaceable, thus violating the constitutional guarantee of racial equality under Article 7 of the Constitution.
(i) Review of the Objective
As previously mentioned, with regard to the objective of promoting indigenous cultural identity, it is considered a particularly important public interest and is constitutional.
(ii) Relevance between restrictive measures and regulatory objectives
Upon examination of the names adopted by children, it can be observed that the children born to marriages between indigenous and non-indigenous people, as regulated by the aforementioned Disputed Provision One, and “those born to marriages between two indigenous people,” as regulated by Article 4, Paragraph 1 of the Indigenous Peoples Status Act, may have similar Han surnames and names from an external appearance. However, according to the legal regulations, the two groups differ in the outcome of whether they obtain indigenous status. This discrepancy raises doubts about the necessity of the relationship between the method of classification based on the names adopted by children and the objective of promoting cultural identification.
Furthermore, regarding the connection between indigenous ancestry and identity or blood quantum and identity, children born to marriages between indigenous people and those born to marriages between indigenous and non-indigenous people both possess a certain percentage of indigenous bloodline. The latter can have up to 50%, whereas the former may have a percentage that is higher than, equal to, or less than 50%, showing that the indigenous blood quantum of children born to indigenous and non-indigenous people is not necessarily lower than that of children born to indigenous couples. Even if the indigenous blood quantum of the former is lower (for example, if both indigenous parents only have 25% indigenous blood, the children would also have a 25% blood quantum), they automatically obtain indigenous status. Conversely, children born to marriages between indigenous and non-indigenous people (for example, children born to 100% indigenous and 100% Han parents should have 50% indigenous bloodline) might have a higher blood quantum than the aforementioned indigenous couples' children but do not automatically receive indigenous status and must meet additional name adoption requirements. Why do children born to marriages between indigenous and non-indigenous people, potentially having a higher indigenous blood quantum, need to demonstrate a stronger and more apparent identification to gain indigenous status than those possibly having a lower blood quantum born to indigenous couples? Such legislative differential treatment seemingly assumes that children born to indigenous couples inherently possess sufficient indigenous identification, thus not requiring further demonstration of identification, whereas children born to marriages between indigenous and non-indigenous people are presumed to lack sufficient indigenous cultural identification, hence the different treatment. Moreover, if it is believed that children born to indigenous couples can obtain indigenous status through registration, and such registration is sufficient to demonstrate their identification, why is the same registration for children born to marriages between indigenous and non-indigenous people not considered adequate to show their identification, necessitating an additional name requirement? The differential treatment defined by Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One is thus unfounded and clearly arbitrary.
In summary, the means of adding aforementioned conditions through Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One, along with their objectives, cannot be considered absolutely necessary and irreplaceable, making it difficult to pass strict scrutiny. Therefore, Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One violate the spirit of racial equality protected by Article 7 of the Constitution, rendering them unconstitutional.
Additionally, Article 7 of the Constitution also stipulates that all citizens of the Republic of China, regardless of gender, are equal before the law. Due to the long-standing custom in our country of children adopting their father's surname (Note 2), the application of Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One indeed results in differences in whether children obtain indigenous status based on whether it is the father or mother who is indigenous (children whose fathers are indigenous obtain indigenous status following the custom of taking the father's surname; those whose mothers are indigenous do not obtain indigenous status if they follow the father's surname custom). Therefore, Petitioner One and [Petitioner] Two argue that Disputed Provision One and the parts of Disputed Provisions Two that apply Disputed Provision One also constitute a constitutional issue of substantive gender inequality (Note 3). [This Court finds the aforementioned argument] not evidently unfounded.
C. Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One are all unconstitutional and should all be deemed to lose effectiveness at a set date.
In summary, [this Court deems] Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One violate the constitutional intent to protect the right to indigenous identity recognition enshrined in Article 22 and the right to racial equality enshrined in Article 7 of the Constitution, and are therefore unconstitutional. Relevant authorities are required to amend these provisions in accordance with the intent of this judgment within two years from the date of this ruling. Should the amendments not be completed within the specified timeframe, Disputed Provision One and the parts of Disputed Provision Two and [Disputed Provision] Three that apply Disputed Provision One will lose effectiveness, and children born to marriages between indigenous and non-indigenous people will obtain indigenous status and may proceed with the registration of their indigenous status and ethnicity. In the event that the relevant authorities complete the amendments after the full two years from the date of this ruling as per the intent of this judgment, the new laws, as amended, shall apply. The implementation of the new law will not affect the rights and obligations of those who have registered in accordance with the intent of this judgment, which is naturally expected.
Regarding the part pertaining to Disputed Provision Two, it has become ineffective due to the amendment and promulgation of Disputed Provision Three. Therefore, there is no separate declaration of ineffectiveness for the parts of Disputed Provision Two that apply Disputed Provision One.
D. And [the Court] hereby state
Acquiring indigenous status and the preferential measures enjoyed by indigenous peoples are not inherently equivalent; legislators have discretion in establishing preferential measures for indigenous peoples, but they should still appropriately differentiate between indigenous status and the preferential measures enjoyed by Indigenous Peoples, based on the nature of these preferential measures. Moreover, the objective expressions of indigenous ethnic cultural identity are inherently diverse. At the time of legislating the Indigenous Peoples Status Act, the decision to use surnames or traditional indigenous names under Disputed Provision One was at best only one of the many ways to signify identity recognition. [It is] not the sole method. Given the special status of indigenous peoples and considering the Constitution's intent to protect indigenous cultural traditions, the identity markers required for obtaining indigenous status should respect the autonomous decisions of each indigenous group. Regarding the degree of identification, although it may vary from person to person, there is no necessary correlation with the difference between both parents being indigenous or only one. [This Court finds it] remains within the scope of legislative discretion if the relevant authorities, considering the reasonable allocation of limited resources, wish to use the intensity of ethnic cultural identification as a criterion for determining who should be considered of indigenous ancestry and thus enjoy various preferential measures for indigenous people. However, in accordance with the constitutional intent to protect the right to equality enshrined in Article 7 of the Constitution, whether both parents are indigenous or only one is indigenous shall not be a criterion for differentiation. All of which is clarified herein.
Note 1: Please refer to the general explanation of the proposal by the Executive Yuan when the Indigenous Peoples Status Act was enacted in 2001: “Considering the identification of indigenous identity involves people's rights, [relative regulation] should be established by law. The current ‘Standards for the Identification of Indigenous Identity’ indeed need to be elevated to the status of law. Hence, taking into account the actual needs of the evolving indigenous communities, a draft of the "Indigenous Peoples Identity Recognition Act" is proposed... .” (Legislative Yuan Bill-Related Documents, Yuan-Tzung-1722, Government Proposal No. 7348; page 77) Furthermore, the Deputy Chairperson of the Council of Indigenous Peoples at the Executive Yuan (before the restructuring), during the legislative review, pointed out the legislative rationale for the Disputed Provision One: “As far as we know, after an indigenous woman marries a Han man from the plains, whether it is the overall family atmosphere or economic conditions, in all aspects, they are much higher than the average indigenous family, and some even believe they are the same as the average plains residents. Therefore, our council hopes to place some ‘cultural conditions’ restrictions within the legal provisions, hence restricting through ‘adopting maternal surnames or reverting to traditional indigenous names,’ aiming to consider both cultural and bloodline factors.” (Legislative Yuan Gazette 89(28), committee records, refer to page 334.)
The explanation of the [legislative] proposal by the Legislator Zhang Ren-Xiang and others points out: "Our country is a multi-ethnic nation. Since the restoration [from Japanese occupation], the ethnic attributes of the citizens have been divided into two categories of indigenous and non-indigenous people, as a basis for the government to promote the construction of indigenous societies; and because the language, culture, and history of the indigenous people are different from those of the general citizens, and they are in a disadvantaged position in terms of education, economy, and social structure, the current legal system always has provisions that grant special rights to those with indigenous identity, in hopes of narrowing the gap between indigenous people and the general citizens." (Legislative Yuan Gazette 90(5), Plenary Session Records, refer to pages 449 to 450) The explanation of the [legislative] proposal by Legislator Yang Ren-Fu and others states: "The identity of the indigenous people must first be recognized in order to enjoy the rights granted by Article 10 of the Additional Articles of the Constitution. The current 'Standards for the Identification of Indigenous Identity' have unfair and unreasonable aspects, therefore, depriving many indigenous people of their rights. Moreover, some of the provisions not only do not conform to the current principles of public international law but also lead to different identification results due to gender differences. To make the identification of indigenous identity more fair, reasonable, and in accordance with principles of public international law, this law is enacted." (Legislative Yuan Gazette 90(5), Plenary Session Records, refer to page 450.)
Note 2: According to the statistics from the Ministry of the Interior, from 2015 to October 2019, among newborn babies, the proportion of those taking their father's surname reached 95.21%, while those taking their mother's surname was 4.74% (Department of Statistics, Ministry of the Interior, Statistics on Newborn Babies' Surnames, Ministry of the Interior Statistical Bulletin, Week 47 of 2019, November 23, 2019).
Note 3: According to the statistical data in Appendix 1 of the argumentative documents submitted by the relevant agency, the Council of Indigenous Peoples, for children whose fathers are indigenous and mothers are non-indigenous or unknown, only 3.4% did not acquire indigenous status. Conversely, for children whose mothers are indigenous and fathers are non-indigenous or unknown, the proportion not obtaining indigenous status was 35.16%. Based on the census data of 2010, the research conducted by Liu Chien-Chia and Chang Ying-Hwa pointed out that after 2000, among children in families of mixed indigenous and Han marriages, those with indigenous fathers and Han mothers who were recognized as indigenous amounted to 88.9%, whereas those with indigenous mothers and Han fathers recognized as indigenous were only 42.1% (see Liu Chien-Chia and Chang Ying-Hwa, "Ethnic Status Inheritance in Aboriginal-Han Marriages and Families: Inference of Gender and Quantity of Offspring," in Journal of Social Sciences and Philosophy, Vol. 32, No. 1, March 2020, pp. 1, 19, Table 5).