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.
Whether a nation’s Constitution is an immutable document, or is susceptible to changing interpretation, is a question plaguing many on both sides of the political spectrum.
The issue of same-sex rights is not something contemplated by constitutions written 100 or 200 years ago and so those who interpret such constitutions are faced with the challenge of assessing how fundamental rights are to be applied while taking into consideration changes in society.
No better example of the wide range of judicial stances on same-sex relationships, ranging from tolerance to intolerance,” than events in the news in the past few days:
While enlightened Taiwan said that its Constitution is tolerant and same sex couples should be allowed to get married, a gay couple in Indonesia was not even allowed to exist, and the two individuals publicly received more than 80 lashes with canes for having engaged in “criminal” homosexual activity.
On which side of the spectrum should Taiwan stand?
The Council of Grand Justices has decided that issue. The decision is not surprising considering the origins of Taiwan’s Constitution, which is related to some extent to then-US president Abraham Lincoln’s Gettysburg Address, when he uttered the words: “government of the people, by the people, for the people shall not perish from the Earth,” or considering the fact the US Supreme Court in 2015 came to the same conclusion, also not without great controversy, regarding same-sex marriage.
Whichever side of the case one stands on, the fundamental rights enshrined in the Constitution are broader than a single issue, are not subject to political whim, and are supposed to endure.
Lee Longhwa
Los Angeles, California
Words ring true
Graduating senior Shuping Yang was chosen by faculty and staff as a student speaker at the University of Maryland’s commencement ceremony.
Before arriving in the US five years ago, Yang could not speak English. Now, she is a graduate who majored in psychology and theater with a minor in German.
Sadly, her speech was roundly criticized online by mindless citizens from China, where free speech does not exist. Here is some of what she said in her very well-received speech in the free, democratic US.
‘’People always ask me: ‘Why did you come to the University of Maryland?’ I always answer: ‘fresh air,’” Yang said.
“Five years ago, as I stepped off the plane from China and left the terminal at Dulles airport, I was ready to put on one of my five face masks, but when I took my first breath of American air, I put my mask away,” she said.
“The air was so sweet and fresh and utterly luxurious. I was surprised by this. I grew up in a city in China where I had to wear a face mask every time I went outside, otherwise I might get sick. However, the moment I inhaled and exhaled outside the airport, I felt free,” she said.
“No more fog on my glasses, no more difficult breathing, no more suppression. Every breath was a delight. As I stand here today I cannot help but recall that feeling of freedom,” she said.
‘’Democracy and free speech should not be taken for granted. Democracy and freedom are the fresh air that is worth fighting for. Freedom is oxygen. Freedom is passion. Freedom is love. And as French philosopher John Paul Sartre once said, ‘freedom is a choice,’” she said.
Our future is dependent on the choices we make, today and tomorrow. We are all playwrights of the next chapters of our lives. Together we write the human history. My friends, enjoy the fresh air and never ever let it go,” she said.
US citizen (name withheld)
Taiwan
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