從「王光祿釋憲案」論原住民族狩獵文化權利的憲法保障

Reasoning on the Constitutional Protection of Indigenous Hunting Cultural Rights: Study on the Judicial Review of Tama Talum’s Case

歷時六年餘的「王光祿狩獵案」，司法院大法官於2021年5月7日在憲法法庭宣示釋字第803號。雖言釋字第803號解釋的結果未盡符合原住民族社群的期待，猶可見及兩項憲法肯認原住民族權利的顯著意義。其一，本號解釋明文承認原住民族狩獵文化權利的憲法保障。其二，本號解釋確認憲法保障原住民族享有選擇依其傳統文化、習慣、社會與經濟組織、資源利用與土地管理制度而生活之權利。此外，在相對少數的大法官所提出不同意見書的內容中，我們仍然可以看到原住民族權利發展可能性的一絲曙光。
有鑑於《原住民族基本法》與《野生動物保育法》、《森林法》，均承認了乙項新興的「傳統」原住民族權利──原住民族傳統領域權，該項權利類型與內涵與現行其他相關自然資源治理的公法性質法律（如：森林法）間，在法律適用與位階的討論，始終存在各說各話的對立狀況而難以解決，此亦即係「王光祿釋憲案」的核心爭點所在。本文以為，植基在文化差異、民族自決與自治之原住民族權利主張，在我國法政發展上的論辯，自2005年《原住民族基本法》的立法完成後，匯集了更為厚實的理據與社會力量。原住民族傳統習慣與文化權之憲法保障議題，也必須肯認此一權利主張所立基之路徑。

“Tama Talum’s hunting case” was decided on October 15, 2014 by Taiwan Taitung District Court. But, the court’s decision was at odds with recent judicial opinions. Indigenous and human rights organizations severely criticized court’s cultural bias and discrimination against indigenous peoples. In addition, Tama Talum was hunting for his mother and was reported by the media as a “filial hunter”, which made this usual hunting case had become a major indigenous human rights incident.
After more than 6 years, the Taiwan Constitutional Court (TCC) was finally formed to hear the constitutional interpretation request. TCC held an oral argument with live streaming to the public in real time on March 9, 2021, and after about two months’ deliberation the TCC released its decision as Interpretation No. 803 on May 7, 2021. Interpretation No. 803 was concluded that Articles 20, paragraph 1 of the Controlling Guns, Ammunition and Knives Act; Article 21-1, paragraph 2 of the Wildlife Conservation Act are consistent with the constitutional requirements stipulating indigenous hunting cultural rights. Nevertheless, the implementing laws of the aforementioned Acts, i.e. Regulations Governing Permission and Management of Guns, Ammunition, Knives and Weapons; Regulations Governing Management of Indigenous Cultural and Ritual Hunting, Butchering and Utilizing Wildlife, are inconsistent with constitutional protections of indigenous hunting cultural rights.
Although Interpretation No. 803 is not satisfactory with indigenous expectation, there are two significant constitutional affirmations of indigenous rights. One is the constitutional recognition of indigenous hunting cultures. Another is the affirmation of indigenous rights to life style, customs, social and economic institutions, resource utilization and land tenure systems are consistent with constitutional values. Further, we can still see a glimmer of light that minority views show the possibility of indigenous rights development.
In view of the fact that Indigenous Peoples Basic Law, the Wildlife Conservation Act, and the Forestry Act have recognized a new “traditional” indigenous people’s right, i.e. Indigenous traditional territorial right. However, there is always a situation of antagonism between indigenous laws and aforementioned Acts on the concurrent applications of indigenous hunting and gathering cultural practices. This is also the core issue of the “Tama Talum’s Constitutional Interpretation Case”. This paper argues indigenous sui generis right is based upon cultural difference, self-determination and self-government, which is embedded within the R.O.C. (Taiwan) constitutional regime and further entrenched the Indigenous Peoples Basic Law.