Now we are into our final subsection. Now, thinking back, you probably feel that in Taiwan we are very much advanced in constitutional protection of rights. There are certain rights protected in the constitution and these rights are enforced, implemented, guaranteed through constitutional interpretations in the court. Even if they are rights that are not protected in the constitution there are also ways in which courts can rely on international human rights instruments or like in our previous subsection, in the case of environmental rights, these rights can be protected through statues, through the court. You probably feel, wow, it's easy to have the rights protected in the constitution and then to have the rights enforced by the court but that's not the entirety of the story. If you look carefully enough, you realize every time I discuss about these interpretations I discussed about these rights, often time I will mention about NGOs, environmentalists, environmental NGOs, movements in free speech, I mentioned about White Strawberry Movements, student movements, I also mentioned about sunflower movements. So in our last subsection I'm going to discuss with you and inviting you to look the connections between the rights enshrined in the constitution and politics of rights, social movements, political movements, women's movements, gay movements. They take all the efforts to move along their rights implementations and how these rights guaranteed in the constitution have much to do with social movements, political movements, women's movements, gay movements as well as civil society. Let's look back, recall that, prior to 1987 Taiwan was still under a authoritarian government. After 1987 Martial law decree was lifted and constitutional reform demolizations were put in place. During this period there are a lot of movements most importantly was the Wild Lily Student Movement in 1990. The student movement was undertaken at the time when Taiwanese people were not permitted to vote for their national legislature when the first national representative elected in China served for more than 40 years. When the RC constitution enacted in 1947 apply to Taiwan were not permitted to be amended for so many years. The movement took at the time when constitutional reform, political reform were seen as impossible. Students took onto the street and make many demands. The court responded so in Interpretation No.261 that was the very first important decision by the constitutional court, responding to political movements by the students, responding to the students movements demanding for political reform. The court replied, the term of office of members of respected congressional bodies are expressly provided in the constitution. The First Congress should have been served only for three years, six years and there should have been re-election. It was necessary given the previous situation, all members of the First Congress continue to exercise their powers. However, periodical election of the members of Congress is important to reflect the will of the people and to implement constitutional democracy. So in this decision, the court responded that demands made by the student movement, they order those members of the First Congress who have not been reacted shall cease exercising their powers no later than December 31, 1991. This was the decision responding to student's movement requests on street but implement and making it into part of the constitution and to move along the constitutional progress. Not only this, in the 1980s, in Taiwan economic progress has also led to many society sectors progress. Women's movement began In the very early 1980s. The very first women organization Taipei Awakening Association was founded in 1994 and they promoted many agendas, most importantly equality between men and women. And back then there are a lot of provisions in the Civil Code regarding to family, regarding to inheritance, regarding too many rights between men and women that were not equal between men and women. Mostly often time they would say when father and mother have different agreements, have different views then father should have the say rather than mother will have to say. Taipei Awakening Association was the first among many organizations to voice their concerns to advocate for sex and gender equality. Again, so their voices were heard by the court and the court responded with J.Y Interpretation No.365. The issue in that case was about whether article of the Civil Code granted the father rather than the mother, parental rights over minors over their children in other words, when fathers and mothers have different opinions, father's voice would be respected rather than mother's voice. And back then there are many provisions like this in Civil Code, and then the core was requested to ask whether these kind of father privileges will be constitutional or not. Was it a violation of sex and gender equality between men and women and the court responded yes, it was a violation, and so in Interpretation No 365 the court that the Article 7 of the Constitution guaranteed the equality between Men and women, all citizens of the republic of China, irrespective of sex, irrespective of men or women shall be equal before the law. And then the civil core provisions always privileging father rather than mother was a violation of the sex and gender equality. And the core further argues that different treatment in law based on sex is only allowed by the constitution in exceptional situations. Where it is grounded on actual real biological difference between men and women, or differences in social function of gender roles. And so these are important advancement of the constitutional protection of sex and gender equality. And if you only read the law, if you only read the constitutional provision, if you only read constitutional interpretations. You would think these are all the efforts by the court, but they are not, or at least they are not only by the court. These court interpretations are very often responses to the social and political demands. Again, I would like you to reflect to what extent political social movements are essential, even indispensable to the realization of constitutional rights. If we do not have all these political movements, women's rights organizations, can we have these rights implemented? Can we have these rights enforced even though they are written in the constitution, in other rules, even you have the your rights written beautiful in the constitution. If you don't have any NGOs. If you don't have any human rights lawyers, if you don't have any movements. If you don't have any women organizations with these rights being implemented at all. So, these are something for you to reflect another area. You see interactions between social movements and constitutional interpretation of rights. Constitutional guarantee of those rights is in the area of judicial reform. Again, prior to 1987, Taiwan was under authoritarian control. Judiciary judges, prosecutors, lawyers are not as free and as independent as of today. So in the beginning of 1990s, Judicial Reform Foundation was formed and pledging to make many, many efforts to reform Taiwan's judicial system. And to give rise to a clear, independent, a clean independent judiciary and implementation of due process and fair trial. Judicial Reform Foundation also worked to advocate for judicial reform and engage in innocence project and fighting against wrongful convictions. This is a very important, particularly in Taiwan, that penalty still being kept. So when you have wrongful convictions and then the defendant was sentenced to death and if due process has not been guaranteed. If the entire process was not based upon correct evidence and what's being lost will be one life or many, many lives. So it's not only about clean an independent judiciary, but it's also about the guarantee of life, even that is life for criminal defendant. And these reform measures these reform demands again have been responded by constitutional core. The very first one in interpretation number 392 in 1995. And this is also very much close link to our earlier discussion in Article eight of Taiwan's constitution. As we mentioned previously, Article eight has a very elaborate protection of physical personal freedom. And giving all people the right to resort to the court whenever they are physical freedoms are confined. And in this interpretation, the issue of detention was discussed and the division of labor between the prosecutors, and judges were discussed. Whether or not prosecutors will have the power to detain criminal suspects or criminal defendants, or it should be up to the judges to decide. And the court responded that according to Article eight, no person shall be tried or punished otherwise then by a law court. In accordance with the procedure prescribed by law, even though prosecutors in Taiwan are also legally trained and often time they are as eligible as judges. Still given the protection by Article eight of the constitution detention must be decided by the court. And so the Constitutional Court interpretation number 3 90 to argue that based upon the protection of human rights. Whether the disposition is legal or necessary should always be reviewed by independent tribunal in accordance with procedural law. So that's the response from the Constitutional Court to the demands of judicial reform commendation. Another instance where you also see the dynamics between the judicial reform movement and the Constitutional Court is in interpretation number 582, decided in 2004. It it involves whether it is a universal and fundamental right of accuse to examine a witness precisely in many cases of death penalty. A lot of times this role defendant, they face the other co accused, their witness there convictions without the opportunity to confront with them. And whether it is their fundamental right and freedom to have the opportunity to confront with their co accused will be the issue here and here again. The Constitutional Court pay so much attention to Article eight and due process. And decided that a defendant's right to examine witness is not only the right to defend himself or herself in a legal action brought against him or her. But more importantly, a right guarantee under constitutional due process of law. A criminal co defendants situation is this only for reasons like economy of lawsuit. And other situations. But these considerations should not be an excuse preventing them from enjoying their fundamental rights to confront their co defendant. The respective defendants and the fast related to their respective crimes, exist independently of each other. And so they should have nevertheless, the opportunity to confront with their co-defendant, in order to ensure their own individual rights in constitutional due process. You see again the interactions between the social movements, the judicial reform foundations, claims demands and the judicial responses to the social demands in the implementation of constitutional rights. The last example, we would like to examine the dynamic interactions between social movement and constitutional guarantee of those fundamental freedom and rights is the same sex marriage case. And recall that in Taiwan, the Constitutional Bill of Rights is very concise and brief. It does not guarantee the right of marriage, nor it guarantee any equality between gay and lesbians. So how come then the Constitutional Court can decide the same sex marriage case in 2017? Again, it's through the dynamic interactions between the LGBT Rights Movement and the Constitutional Court. So the interpretation was brought by two parties. One most important party of the petitioner's was the man CHI Chia-Wei who was the first open gay In Taiwan already in 1980s, when Taiwan was still under authoritarian control. Nevertheless, CHI Chia-Wei was already opened out of the closet and then together with many other activists demanding for equal marriage rights. He had petitioned to the court to other government entities many, many, many times already in 1980s, so he didn't started to do this In 201, no he has been doing this for decades. And in 2003, the first Taiwan LGBT Pride was held in Taipei. Both CHI Chia-Wei and many, many other gay and lesbian group participated in the parade and then participated in many, many movements throughout the years. Only until this interpretation, both CHI Chia-Wei together with many other gay and lesbian lawyers, rights groups and Taipei City government, they filed petitions to the Constitutional Court for affirming equal right of marriage for same sex marriage couples. And so the core responded finally, I would like to use finally, because CHI Chia-Wei has petitioned to the Constitutional Court for many, many, many times, as I said earlier already in 1980s. But this time in 2017 the court responded his request, but certainly not just his request, but the request of all gay and lesbian movements and lawyers in Taiwan. So the court responded affirmatively arguing that the freedom of marriage for two persons of same sex once legally recognized, will constitute the bedrock of a stable society together with opposite sex marriage. The need, capability, willingness, and loaning in both physical and psychological senses for creating such a permanent unions of internet exclusive nature are equally essential to both heterosexual and homosexuals given the importance of freedom of marriage to all human beings. Both types of union heterosexual, homosexual shall be protected by the freedom of marriage under Article 22 of the Constitution. Now you recall Article 22 is a general clause of the Constitution, by which the court interpret many, many unenumerated rights to the list. So right of marriage was not on the list, the court added through Article 22 in the list. Now the court also extend right to marriage, from heterosexual couples to homosexual couples, in order for them to create a permanent union of Internet and exclusive nature for the purpose of living a common life. Which is both essential for all of us, heterosexual, homosexual alike. The reason for the court to affirm this, is the following. The court for the very first time recognized that in Taiwan, homosexuals were once denied by social tradition and custom in the past. As a result, they have long been locked in the closet and suffered various forms of defector or the juror exclusion or discrimination. Homosexuals, because of the population structure, they are the sexual minority and they have been a discreet and insulate minority in the society impacted by stereotype and many, many ongoing discriminations. And for the court, these homosexual people, they have been among those lacking political power for a long time, unable to overturn they're legally disadvantaged status through ordinary democratic processes. And it is because of this, the court needs to take their action to guarantee the same sex marriage equality. And in order to do that also in this case, the court for the very first time, sort of heightened the standard of review to look into the legislative or mission for not providing same sex marriage equality. And of course that to determine the constitutionality of different treatment based upon sexual orientation, which means heterosexual, homosexual. A heightened standard should be applied. In other words, the court will look more closely to the legitimation or non legitimation of the law in order to provide or not provide same sex marriage. The court examined the underlying reasons to do that, and then find that reproduction, the argument that same sex marriage couples will not be able to have, Baby will not be able to have reproduction for the court is obviously not an essential element to marriage. The fact that two persons of the same sex are incapable of natural procreation is the same as the result of the two opposite sex person's inability. In other words, reproduction is obviously not an essential element to marriage. The fact that two persons of the same sex are incapable of natural procreation is the same as the result of two opposite sex person's inability. For the court, this is not a legitimate ground under which same sex couples marriage equality can be discriminated against. Assuming that marriage expected to safeguard the basic ethical orders is also not a legitimate grounds on which same sex couples equal marriage rights can be discriminated. The basic ethical orders built upon the existing institution of opposite sex marriage will remain unaffected. Even if two persons of the same sex are allowed to enter into a legally recognized marriage, person went to the persisting provision. Eventually, the court ordered that the government should amend or in at the laws as appropriate, in accordance with the ruling of the interpretation in two years. And so eventually, the decision was made in 2017 and 2 years, that's 2019, May 2019, Taiwan became the first country in Asia to legally recognize same sex marriage. Again, from the story, from the explanation so far, we have course, certainly are important in implementing this right. But I would say Chi Chia-Wei and the LGBT groups and the movements are also important in the process. If without their movements, without their efforts, without their pushing agenda to the society and also through the legal process so that the court respond these rights are not and will not be implemented, be guaranteed by the court. Not to mention the right of marriage is not listed in the R.O.C. constitution. For those rights that are already listed also requires social movements to dialogue to the court for the court to respond. With those rights that are not listed in the constitution is even more important to have the social movements to have the human rights lawyers to have those activists to advocate these rights and then to litigate these rights through the process to the court. So the court will eventually recognize these rights and implement and enforce these rights. For further readings of this case, you can take on the references and I also like you to reflect in what ways constitutional rights, laws, and regulations and NGO citizens, administrative agencies, all relevant actors. In what ways they can work together for better constitutional democracy. And why we would need to have a vibrant civil society in the discussion in the implementation of rights. Why they are so essential? Why they are so indispensable? That's for you to further reflect
