Tue, Jun 23, 2015 page8

• Taiwan’s androcentric legal code

  • By Chen Yi-chien 陳宜倩
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  The legislature on June 12 confirmed President Ma Ying-jeou’s (馬英九) four nominees for the Council of Grand Justices. As crucial as grand justices are, they have given some quite remarkably unforgettable interpretations lately. One of the most shocking examples — handed out prior to the confirmation of the four new grand justices — is Judicial Yuan Interpretation No. 728, which basically implies that it is impossible to relinquish the androcentric code of heirship, a point of view that many people nowadays would hesitate to express.

  Taiwanese society witnessed a number of gender-related movements: The Civil Code is undergoing continuous amendments; the Gender Equality Employment Act (性別平等工作法) was passed in 2002; the Gender Equity Education Act (性別平等教育法) was passed in 2004; and the government has signed several international covenants, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, which was legislated into domestic law.

  The nation prides itself on having a heightened awareness of gender equality. The president does it, and so do political party leaders and the public. Everyone is pretending to be something they are not. People think that if they fake it long enough, they can make it a reality, but that kind of fantasy, which the nation has tried so hard to weave, has been shattered by the council’s Interpretation No. 728.

  There are two points of view that people have with regard to law in general. The first viewpoint says, in theory, that the legal system is constructed through reasoning and debate under the principle of rule of law, with the aim of pursuing justice and fairness, but has not been completely achieved in reality. The second viewpoint says that the legal system is designed to maintain the existing structure, reduce management costs and preserve the advantage of the vested interest group in the name of resolving conflicts and stabilizing law and order in society.

  When I first entered the college of law, I subscribed to the first viewpoint, believing that as long as there is a free and relatively fair space for debate, justice and fairness will ensue naturally. In my junior year, I studied the Civil Code and the Criminal Code, and gradually realized that this legal system is Han Chinese-centric, misogynist, xenophobic and homophobic.

  For example, in the Family Act of the Civil Code (民法親屬編), regulations concerning married couples’ property gives priority to the husband. In the Nationality Act (國籍法) and the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), the concept that a married daughter belongs to her husband’s family is upheld and practiced. The grand justices’ interpretations over the years attest to the fact that they are the gatekeepers of the patriarchal structure. If the legal definition of “person” is not deconstructed and reconstructed, it would be an overstatement to claim that the system is a fair and reasonable conflict resolution mechanism.

  “It conforms to the sense of right and wrong among most members of the ancestor worship guilds to worship the ancestors and carry on the bloodline through the male offspring, because it lives up to the ancestors’ expectations,” the grand justices say.

  Yet, where on Earth are these ancestors? Should the grand justices base their interpretations on ancestors’ expectations instead of the spirit of the Constitution?

  “Apparently, the perception that only male offspring can carry on the heirship and continue the bloodline is not a prejudice of one single family or clan, but a collective mainstream consensus,” Grand Justice Chen Hsin-min (陳新民) said.

  Or, perhaps a collective mainstream prejudice? Is it not the grand justices’ duty to protect the fundamental rights of the minority?

  Grand Justice Tang Te-tsung (湯德宗) said this was a tough call. The grand justices are the defenders of the Constitution; of course they have to constantly face the challenge that ancestors’ expectations, the convictions of contemporary society or the opinions of different ethnic groups might not see eye to eye.

  Grand Justice Chen Pi-yu (陳碧玉) is one who is reluctant to face reality and believes that to place responsibilities of the ancestor worship guilds on family members of the same surnames, instead of members of the same bloodline or members of the male sex, is not purely an issue about gender equality. The old Civil Code that for nearly 80 years demanded that children should assume their father’s surname? Is this not a matter of gender equality or the lack thereof?

  Interpretation No. 728 has sufficiently and completely dispelled my doubts. The grand justices’ attitude toward social reality, their knowledge of the Constitution, their perception of their roles, their reasoning methods, the cultivation, composition and nomination of the grand justices and so on, all in all, confirm that the second viewpoint is the one being upheld and practiced.

  The legislature’s review of the four grand justices’ nominations on June 12 once again reminded Taiwanese of the value of the defenders of the Constitution.

  Taiwan is facing many challenges in respect of fundamental rights, and there is an urgent need for grand justices who face their own prejudices, reflect on social structures and realize their roles in the Constitution. In other words, Taiwan needs grand justices who have nerve.

  Chen Yi-chien is chairperson of the Awakening Foundation and associate professor in the Graduate Institute for Gender Studies at Shih Hsin University.

  Translated by Ethan Zhan
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