Abstract
Taiwan is generally considered to be a good example of how gender equality can be widely respected and implemented. But from time to time when women’s rights to equality encounter some deeply embedded traditions, there are still struggles in the society and in the constitutional process to fully implement the rights to gender equality. The 2015 case of J.Y. Interpretation No. 728 involves a typical gender equality issue, i.e., women continuously prevented from serving as members or successors of “ancestor worship guilds/associations” for traditional reasons. In this case, the protection of women’s human rights and the need to protect the long-established traditions and the freedom of contract should be properly balanced. This chapter argues that protection of the tradition of systemically discriminating against women’s ancestor-worship status and the rights and freedoms associated with such discrimination are of minimal constitutional value. Women’s right to equal protection should be prioritized because of the seriousness and the systemic and structural nature of such discrimination. The Constitutional Court should have declared the law unconstitutional. Although the Constitutional Court failed to declare the challenged law to be unconstitutional, the legislative body still has a chance to correct the discriminatory situation by requiring equal status for female offspring, at least for the successions that are to occur after the new legislation.
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Notes
- 1.
United Nations Human Rights Office of the High Commissioner (2017).
- 2.
Department of Civil Affairs, Ministry of Interior (R.O.C.), Ji Si Gong Ye Ji Shen Ming Hui [祭祀公業及神明會] (Ancestor Worship Guilds/Associations) (2017).
- 3.
Si Fa Yuan Da Fa Guan Jie Shi Shizi Di 728 Hao [Justices of the Constitutional Court, Judicial Yuan, Interpretation No. 728] (20 Mar 2015) (R.O.C.) [hereinafter J.Y. Interpretation No. 728]. The English translation of the summary of the case background is quoted from the official website of the Judicial Yuan. It can be found at http://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=728. Accessed 19 Dec 2017.
- 4.
Si Fa Yuan Da Fa Guan Shen Li An Jian Fa (Constitutional Interpretation Procedure Act) (1993). The English translation of the law can be found at: http://www.judicial.gov.tw/constitutionalcourt/en/p07_2.asp?lawno=73. Accessed 19 Dec 2017).
- 5.
J.Y. Interpretation No. 728. The English translation of this interpretation is quoted from the Judicial Yuan’s official website. It can be found at http://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=728. Accessed 19 Dec 2017.
- 6.
Lo Chang-fa Da Fa Guan Shizi Di 728 Hao Jie Shi Bu Tong Yi Jian Shu [羅昌發大法官釋字第728 號解釋不同意見書] (Justice Chang-fa Lo’s dissenting opinion in Justices of the Constitutional Court, Interpretation No. 728) (20 Mar 2015) (R.O.C.) (in Chinese).
- 7.
Zhonghua Minguo Xianfa (Constitution of the Republic of China), Art. 15 reads: “The right of existence, the right of work, and the right of property shall be guaranteed to the people.” The right to property inheritance falls within the scope of the constitutional protection of property rights.
- 8.
Zhonghua Minguo Xianfa (Constitution of the Republic of China), Art. 14 reads: “The people shall have freedom of assembly and association.”
References
Department of Civil Affairs, Ministry of the Interior (R.O.C.), Ji Si Gong Ye Ji Shen Ming Hui [祭祀公業及神明會] (Ancestor Worship Guilds/Associations) (2017) https://www.moi.gov.tw/dca/02sacrifices_001.aspx. Accessed 19 Dec 2017
United Nations Human Rights Office of the High Commissioner (2017) Women’s Human Rights and Gender Equality. http://www.ohchr.org/EN/Issues/Women/WRGS/Pages/WRGSIndex.aspx. Accessed 19 Dec 2017
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Lo, Cf. (2019). When Women’s Human Rights Encounter Tradition in Taiwan. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_32
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DOI: https://doi.org/10.1007/978-981-13-0350-0_32
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