The Constitution supersedes majority rule. This might sound strange in a democracy but it is true. A constitution is intended to enshrine fundamental 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.
Those who oppose same-sex marriage argue the Constitution should be amended to forbid it. I feel they do not understand the sanctity of the Constitution, or why it is sacrosanct.
Most constitutions cannot be amended lightly, and not amended except by a super majority, and in the case of the US, by 3/4 of the state legislatures voting on an amendment proposed by 2/3 of the U.S. House and Senate. In Taiwan, the requirements for amendment are similar, requiring more than a simple majority in the Assembly to approve a resolution (by the Assembly itself requiring one fifth of the members to recommend a resolution, and then three fourths of the members present approving with a quorum of at least two thirds voting) or by referendum proposed by one fourth of the Assembly and approved by resolution of three fourths of the Members present and voting at a meeting with three fourths present. Article 174 of the Constitution).
Why is a simple majority insufficient? Isn’t democracy ordinarily a system based on majority votes? Yes, but the Constitution enshrines principles that in fact among other things are rights of the people protected against the majority, preventing those fundamental principles from being amended lightly, simply by virtue of a majority of popular opinion (in which case that basic fabric of life under that Constitution would sway with the political winds each time an administration changes). These principles, like freedom of speech, freedom of religion, due process, equal protection are so ingrained in a democratic society they all transcend majority rule, and are intended to withstand political turmoil.
In the article entitled “Same-sex Marriage: Same-sex marriage decision sparks fury” on P. 3 of the May 25, 2017 paper, anger against the Grand Justices’ ruling holding legalization of same-sex marriage was required by the Constitution was typified by the following: “The interpretation represents “the elite of the nation’s judiciary system bullying the majority opinion of the public,” alliance convener Yu Hsin-yi (游信義) said, adding that it is wrong for the “lawmaking body to interfere with justice.””
First, the Judicial Yuan is not a lawmaking body, it is among other things the Constitutional Court in Taiwan and the sole body charged with interpreting the Constitution. Its interpretation is not interfering with justice but rather defining 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 the interpretation of Constitutional principles (in this case equal protection under the law under Article 7) outweighs the majority’s view, absent the overwhelming super-majority needed to change those fundamental principles.
It is true that interpretations of the Constitution (by the Grand Council of Justices in Taiwan and the US Supreme Court in the US) may change with the changes in the composition of the Court over time, though hopefully not altering the nature of those fundamental principles, but continuing to interpret them in light of the evolution of society. Whether or not the Constitution is an immutable document that is not 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 more than one or two hundred years ago, and so interpreters of the Constitutions are faced with assessing how those fundamental rights come into play with these changes in society. There is no better example of the wide range of judicial “tolerance” or “intolerance” of same-sex issues as have occurred in the news the past few days, where on one hand enlightened Taiwan has said its Constitution is tolerant and same sex couples should be allowed to get married, and in Indonesia, where a gay couple is not only not allowed to marry, but is not even allowed to exist, two individuals publicly beaten with canes more than eighty lashes 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. It is not surprising considering the origins of Taiwan’s Constitution (related to some extent to Abraham Lincoln’s Gettysburg Address (and the words “government of the people, by the people, for the people shall not perish from the Earth”), and the fact the United States Supreme Court in 2015 came to the same conclusion, also with 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 intended to endure.
Strait Talk by Lee Longhwa 