Mon, May 29, 2017 - Page 6 News List


Constitution trumps majority

The Constitution supersedes majority rule. This might sound strange in a democracy, but it is true. A constitution is intended to enshrine rights which are natural and expected among the people governed by it. In Taiwan, Article 173 of the Constitution provides that the Judicial Yuan interprets the Constitution.

Most constitutions cannot be amended lightly, and not unless there is a qualified majority — in the case of the US, by three-fourth of the state legislatures voting on an amendment proposed by two-thirds of the US House of Representatives and Senate.

In Taiwan, the requirements for amendment of the Constitution are similar, requiring more than a simple majority in the assembly to approve a resolution: one-fifth of the members of the Legislative Yuan need to recommend a resolution, and then three-fourths of the members present need to vote in favor, with a quorum of at least two-thirds voting.

Alternatively, a referendum could be proposed by one-fourth of the assembly and approved three-fourths of the members present, with a quorum of three-fourths voting. These requirements are laid out in Article 174 of the Constitution.

Why is a simple majority insufficient? Is democracy not ordinarily a system based on majority votes?

Yes, but the Constitution enshrines principles that, among other things, protect the rights of the people against the majority, preventing such fundamental principles from being amended too lightly when popular opinion demands it.

If this were not the case, the basic fabric of life under such a constitution would sway with the political winds each time an administration changed.

Principles such as freedom of speech, freedom of religion, due process and equal protection are so ingrained in a democratic society that they all transcend majority rule and should be able to withstand political turmoil.

Anger against the Council of Grand Justices’ ruling that legalization of same-sex marriage was required by the Constitution was typified by what Happiness of the Next Generation Alliance convener Yu Hsin-yi (游信義) said.

“The interpretation represents the elite of the nation’s judiciary system bullying the majority opinion of the public,” he said, adding that it is wrong for the “lawmaking body to interfere with justice.”

First, the Council of Grand Justices is not a lawmaking body. It is, among other things, Taiwan’s Constitutional Court and in that capacity it is the sole body charged with interpreting the Constitution. Its interpretations do not interfere with justice, but rather define justice.

In China, justice is defined as whatever the Chinese Communist Party says it is. Taiwan is far more enlightened.

Whether one agrees or disagrees with the decision on same-sex marriage, people on the street must understand the sacred and higher nature of the Constitution — something that is intended to be eternal and transcendent — and that interpretation of constitutional principles — in this case, equal protection under the law — outweighs the majority’s view, absent the overwhelming super-majority needed to change those fundamental principles.

It is true that interpretations of a constitution (by the grand justices in Taiwan and, for instance, the Supreme Court in the US) may change with changes in the composition of the court over time, though hopefully not altering the nature of the those fundamental principles, but continuing to interpret them in light of the evolution of society.

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