Last week, Taiwan became the first Asian nation to legalize same-sex marriage after lawmakers passed the Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748 (司法院釋字第748號解釋施行法). The legislation’s enactment is a huge stride forward for human rights in Taiwan, especially considering the controversy that surrounded the same-sex marriage referendum in November last year.
However, enactment of the law does not mean that same-sex marriage is irrevocable.
Buoyed by the support of groups opposed to same-sex marriage — which receive generous funding from religious communities — as well as intolerant older voters and the support of many lawmakers, Chinese Nationalist Party (KMT) Legislator Lai Shyh-bao (賴士葆) has stated that if the electorate votes for a majority Legislative Yuan opposed to same-sex marriage in next year’s presidential election, the law would be repealed.
A counter-attack during next year’s elections must be anticipated.
This was taken up by Bloomberg, which ran an article headlined “Taiwan leader stakes career on landmark gay marriage vote” on the day the law was passed, saying that President Tsai Ing-wen (蔡英文) has taken a significant political gamble by pushing forward with the legalization of same-sex marriage.
While the law does not exist to pander to prejudices, those responsible for drafting laws must nevertheless ensure that they carry the public with them. Good law establishes a basic set of rules that people are able to abide by.
This principle is directly opposed by KMT Legislator Kung Wen-chi (孔文吉), who is on record as saying: “Taiwan is a country where God exercises ultimate power.”
Kung is wrong. Democracy and human rights are always the highest guiding principles of a truly democratic nation.
Nevertheless, in a democracy there is always a gap between expectation and reality. In reality, the Democratic Progressive Party (DPP) must hold on to power at next year’s elections, including their majority in the legislature. Otherwise, all that Tsai and her party are working so hard to protect, including Taiwan’s sovereignty and same-sex marriage rights, could be overturned by the KMT.
Writing in the Washington Post on March 28, columnist Josh Rogin cited Mainland Affairs Council Minister Chen Ming-tong (陳明通) as saying that “next year’s election might be the last meaningful election in Taiwan” if Beijing is successful in its efforts to help the KMT regain power.
Not only would this mean the beginning of the process of unification, but all the rights that the DPP has helped Taiwanese to fight for and win — including same-sex marriage — could also begin to be unpicked. It would be a critical inflection point for Taiwan’s democracy.
With the passing of the act, same-sex marriage has been enshrined into law. Even though some compromises were made to get the act through the legislature, which might not have met everyone’s expectations, the government quite properly took into account the differing viewpoints of the public while drafting the legislation.
Taiwanese must now redouble their efforts to defend their values: Only then will the rainbow continue to arc across the sky.
Never forget that the defense of democratic rights is an ongoing struggle. There still exist many threats in and outside of Taiwan that jeopardize the hard-won values of its young democracy. Taiwanese must keep up the fight.
Chen Kuan-fu is a research student at National Taipei University’s Department of Law.
Translated by Edward Jones
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