The justiciability of ICESCR by Taiwan Alliance of Anti Forced Eviction
TAAFE is going to emphasize the problem of application and justiciability of Covenants in domestic judicature, and taking issues of housing rights as the example. Please refer to Paragraph 210 in the Shadow Report. We believe that the judicial practice of the right to housing violates the spirit of Paragraph 3 and Paragraph 10 under General Comment No.3 of the ICESCR, General Comment No. 4, Paragraph 13 and Paragraph 15 of General Comment No. 7, Paragraph 11 and Paragraph 15 of General Comment No. 9, and also the Paragraph 14-16 of Concluding Observations and Comments of 2013. As a result, Taiwan’s legal system is incomprehensive regarding the prevention of evictions, and people are helpless when being forced-evicted.
In the first State Review in 2013, experts once pointed out in Concluding Observation no.47 that the eviction of Huaguang Community violated international human rights standards, and in no.49 “forced evictions be stopped unless alternative housing is provided in line with General Comments 4 and 7 of the UN Committee on Economic, Social and Cultural Rights, ensuring that the residents do not become homeless.”It’ a pity that the residents of Huaguang Community were evicted right in the same month after the review. After the eviction, the residents tried to file lawsuit to administrative court against the government for violating Covenants. Since they all are residents of informal settlements, the right to housing is the only legal right they can claim. However, both the judgment of first and second trial rejected their claim. The court didn’t recognize housing rights as the claim ground.
The court adopted the resolution of the first Chief Judge Meeting in August 2014, and considered housing rights as declarative regulation which is not eligible to be the claim ground. this resolution, which serve as the guidelines for judges, claimed that “Regulations in Covenants without clarity could not be the claim ground”. If we view all 64 categories in the ICESCR by the criteria and examples in this resolution, four fifth of them are unable to claim judicial remedy.
Though there are still some judges applied the covenants to protect the tenure of the informal settlements, such as Zun Su No. 393 Civil Judgment(2015) of the Taiwan Taoyuan District Court and Su No. 260 Civil Judgment(2014) of the Taiwan Taipei District Court, we still hope that experts can concern this issue again. Otherwise not only the housing rights can’t be protected, but also the impact of ICESCR will be limited seriously.
The part of genuine consultation
The understanding toward homelessness of the government is staying at the stage of “research”, and the homelessness policy has no actually breakthrough. When the government formulate policies and measures related to homelessness, they don’t invite homelessness to join the decision making procedure. Instead, the government often take the lead to expel homelessness in the reasons of Urban Development and the demand for clearing up the appearance of a city.
Nation Land Clean-up
The decision of how to use national land is made by Inter-ministerial group, which has no people’s participation. Moreover, there are mostly informal settlements without ownership on the land, which are regarded as occupying national land by the government. So there’s no any measures of sincere negotiation or any resettlement plan. Even, we people cannot be protected by judicial procedures.
Urban Land Consolidation
Urban land consolidation conducted by public agencies has no notification to residents before it is approved; the one conducted by private agencies needs only both people and land accounting over 50% to submit approval of authorities. This low-standards majority system has gravely infringe on the rights of small landowners. Moreover, there’s no any resettlement measures for the residents, and the compensation doesn’t make the residents affordable of buying houses that leads to virtual forced eviction. As for the threshold to amend the plan, it is too high. Moreover, there’s no people’s participation in the review procedure. So we can say that there’s no any sincere negotiation procedure in urban land consolidation.
Article 22 of the Urban Renewal Act sets agreement of landowners with at least 75 percent of the existing land area and floor area as the standard for approval of an urban renewal business plan, Article 36 regulates forced removals or relocation, these make the people who don’t want to leave their home easily to suffer forced eviction. Although there is public hearings and professional committees, and after Judicial Yuan Interpretation 709(year 2013) urban renewal case should have hearing process, but the practice of hearing do not feature pluralistic debate, it is just like public process. Therefore, whether public hearings, professional committees or hearings, the stakeholders can hardly influence the design of government project.
Expropriation at present are carried out without clear and precise standards for assessing the public interest or necessity. This results in unnecessary and excessive expropriation. Usually the planning and examination of expropriation is executed by a committee which did not clarify what the public interest or necessity is, such as “The Underground Railway Project in Tainan”.
The “Land Expropriation Act” was revised at 2012. In this revision, controversial cases which include specific agricultural areas are asked to hold hearing process so that stakeholders can have better process involvement. Unfortunately the hearing process is not properly designed, and the argument points are not clarified during the hearing. Take the Taoyuan Aerotropolis project as an example, the zone expropriation plan does not change at all after the hearing.
This also indicate another problem : the current process only allow resident to participate at very late stage. The timing of people’s participation should be set forward to when the government’s business-setting-up plan is in planing.
We can see that the case of homelessness, nation land clean-up and urban land consolidation lack of the process for stakeholders to participate when decision is making, so these case don’t have facilitating genuine consultations.
In the case which have public hearing or hearing, the argument of people still have no influential upon the design of projects or government decisions, the protection of the right of housing of the stakeholders is still not improved, so these case still didn’t meet ICESCR’s target of genuine consultations.
In the end, many case is that the people’s participate timing is after the project approval. The timing is too late, although there is public participate process, the project is already hardly or even can’t be change. So the timing of public participate process should be earlier.
Respond to Points 13: from the Perspective of Housing Rights
We’d like to respond to points 13 from the perspective of Housing rights. Particularly, we’d like to respond to points 47 to 51 of the Concluding Observations and Recommendations. In general, the government has not stopped forced eviction since the review of 2013. It does not review either the Urban renewal Act or the regulations concerning informal settlements on the basis of housing rights protection. Not to mention other related regulations. In short, the government did not carry out the recommendation from the first review.
The most problematical case is the Huaguang Community, whose residents were all evicted by August in 2013 despite its appearance on the concluding observations. The President of the Executive Yuan at the time, Mr. Jiang Yi-huah, even dare to state that the informal settlements do not have housing rights since they do not have property rights. The residents of Huaguang community are still being demanded to pay the compensation to the Ministry of Justice, which is unbearable for them. Except Huaguang, many other communities are facing the threat of eviction as well.
The root of the problem lies in the deficiency of the institution. The five major institutions mentioned in our shadow report and this morning does not consider the protection of housing rights. These institutions are land expropriation, urban land consolidation, urban renewal, informal settlement clearance, and the homeless. In implementation, the informal settlers and tenants who do not have property rights are the most easily evicted. They do not have any security of tenure. The administrative agencies do not have the duty to have genuine consultation with them before eviction. Even in some cases where negotiation is underway, such as the Shaoxing community, there is no legal protection of the residents. They may be rendered homeless once the goodwill of the administrative agency is gone.
In terms of the homeless, the government fails to carry out necessary policies to improve the situation of them. The accommodation is still seriously lacking, the mechanism to help them find jobs is insufficient. The government cannot even accurately calculate the total number of the homeless until now. This is because the government has not followed the recommendations of the last review, to centralize the administration of the homeless to transcend the welfare localism, or to cooperate with local civil organizations.