Taiwan’s Highest Court Deepens Democratic Principles through Judge-Made Rights

By Michael Reingold

Taiwan’s constitution has undergone several “rounds of constitutional reform since the 1990s,” and these changes reflect the need to make political representation “no longer based on the Chinese Mainland, but in Taiwan itself and the needs of the Taiwanese people.”[1] Some of these changes include the popular election of the president and moving from a parliamentary system to a semi-presidential system.[2] Changing the methods for how people participate in their government and how their leaders operate through a more distinct separation of powers has informed and influenced the growth of fundamental rights and freedoms within Taiwan.[3]

As a “third wave” democracy, Taiwan has avoided democratic breakdown and erosion while completing, deepening, and organizing democracy.[4] This democratic foundation-building creates the cement for building and improving rights not explicitly enumerated in a country’s constitution.[5] However, recognizing implicit rights requires judicial or legislative confidence.[6] There must be stability in the constitution to discover rights that are so fundamental and substantial to a democracy that they are implicitly found in the original constitutional framework.[7]   

Taiwan’s constitutional reforms and democratization show how Taiwan was able to legalize same-sex marriage and cement other fundamental rights into its democratic foundations. Much of Taiwan’s development of fundamental rights and freedoms have been through so-called “judge-made rights,” marking a change and diversion away from maintaining a “brief list of rights and freedoms explicitly mentioned in the Constitution.”[8] This emergence of a “common-law” like existence in Taiwan has enabled the Judicial Yuan, the highest court in Taiwan, to articulate “such enumerated rights as the right to marry, the right to privacy, freedom of contract, the right to reputation, sexual freedoms,” and other common law rights.[9] It is not surprising that the Judicial Yuan has decided to open its doors to more judicially created rights because the supreme judicial body has begun to be “known for its judicial assertiveness” through its interpretations and orders, and has “the Legislative Yuan . . . legislate whatever the Court has decided.”[10]

The Judicial Yuan (above) has become the foremost and most significant source of change in the fundamental rights of the Taiwanese people. Courtesy George Tsorng/Taipei Times.

For instance, in Judicial Yuan Interpretation No. 748 (“Interpretation”), the Judicial Yuan instructs and mandates that “the authorities concerned shall amend or enact the laws as appropriate in accordance with the ruling of this Interpretation within two years from the date of announcement of this Interpretation.”[11] In response, the Legislative Yuan enacted the Act for Implementation of J.Y. Interpretation No. 748 in 2019 to meet the judicially-imposed request to legalize same-sex marriage.[12] If the unicameral Legislative Yuan had not acted within those two years, then the Judicial Interpretation would have stood in as the law across Taiwan.[13] Judicial mandates on the legislature in Taiwan show the Judicial Yuan’s strength to improve and cement the fundamental rights of Taiwanese citizens through the immense power that the Judicial Yuan possesses through common law.[14]

The Judicial Yuan has become the foremost and most significant source of change in the fundamental rights of the Taiwanese people; thus, it comes as no surprise that the Judicial Yuan was the source and catalyst of same-sex marriage legalization in Taiwan.[15] However, while same-sex couples in Taiwan “may marry under the 2019 legislation” passed by the Legislative Yuan, same-sex couples are still technically not allowed to marry “under the Civil Code [of the Marriage Chapter], which is reserved to opposite-sex couples.”[16] This is because the Legislative Yuan only passed the Legislative Act legalizing same-sex marriage as a supplemental law but did not modify the existing Code, leaving those provisions intact.[17] Taiwan decided to leave the Civil Code unmodified while adopting the new same-sex legalization provision for political reasons.[18]

It is unclear if the Legislative Yuan will update the Civil Code to reflect the new law or if the legislation passed legalizing same-sex marriage is an implied pre-emption of the existing code.[19] The Judicial Yuan appears to have been more comfortable relying on the Legislative Yuan to pass laws outside of the Civil Code that would adhere to its judicial interpretation than amending the existing Civil Code.[20] Taiwan’s legalization of same-sex marriage is a prime example of how Taiwan is moving away from a pure civil law system into a hybrid system — at least when it concerns implied fundamental rights in the Constitution.[21] The Judicial Yuan and Legislative Yuan’s actions show a broadening and deepening of democratic principles in securing substantive rights of citizens outside strict adherence to the civil code and creating mandates on international democratic ideals.[22]

Previous Judicial Yuan interpretations served as the starting point for crafting the Interpretation and paving the way for legalizing same-sex marriage.[23] Before this historic Interpretation, Taiwan lacked same-sex marriage protections in the law, and the Judicial Yuan had “not made any Interpretation on the issue of whether two persons of the same sex are allowed to marry each other.”[24] However, compared to other countries that have legalized same-sex marriage, Taiwan’s journey to marriage equality has been “perfectly ‘normal.’”[25]

Prior to the legalization of same-sex marriage, “same-sex sexual activity was legal, employment discrimination based on sexual orientation was prohibited, and some local governments had introduced forms of registration . . . for same-sex couples.”[26] The evolution and strengthening of protections for same-sex activities were key in building up to enacting same-marriage legislation and followed patterns set up in other democracies, such as the United States.[27] Those actions from foreign jurisdictions informed the drafting of the Judicial Yuan’s Interpretation to legalize same-sex marriage and how to craft legislation to cement the fundamental right to marry in Taiwan’s modified civil law-based society.[28]

[1] Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis 1, 9 (2016).

[2] See id. at 8-9.

[3] See id.

[4] See Yun-han Chu & Hyug Baeg Im, The Two Turnovers in South Korea and Taiwan, in Democracy in East Asia: A New Century 105, 105 (Larry Diamond et al. eds., 2013). Third wave democracies are a category of democracies that grew from the 1970s to the 1990s. Yun-han Chu & Doh Chull Shin, The Quality of Democracy in South Korea and Taiwan: Subjective Assessments from the Perspectives of Ordinary Citizens, in Assessing the Quality of Democracy 188, 188 (Larry Diamond et. al. eds., 2005). Third wave democracies began in the late 1970s in Latin America, in the 1980s in Asian Pacific countries (including Taiwan and South Korea), in the late 1980s and early 1990s in Eastern Europe, and the early 1990s in Sub-Saharan Africa. Id.

[5] See id.

[6] See id.

[7] See id.

[8] Yeh, supra note 1, at 9-10.

[9] Id. at 9.

[10] David K.C. Huang, The Court and the Legalisation of Same-Sex Marriage: A Critical Analysis of the Judicial Yuan Interpretation No. 748 [2017], 14 U. Pa. Asian L. Rev. 63, 64 (2019).

[11] Judicial Yuan Interpretation No. 748, 2017 Sifayuan Dafaguan Jieshi 748, 1, 1 (Council of Grand Justices: Constitutional Court May 24, 2017) (Taiwan, Republic of China).

[12] See Act for Implementation of J.Y. Interpretation No. 748, Fawubu Fagui Ziliaoku (2019); Article 972 of the Civil Code still provides that “[a]n agreement to marry shall be made by the male and the female parties in their own [con]cord.” Fawubu Fagui Ziliaoku part IV, ch. II, § 1, art. 972. The rest of “Chapter II Marriage” refers to the two spouses as “huband” and “wife.” Fawubu Fagui Ziliaoku part IV, ch. II.

[13] See id. A unicameral legislature is a single-body legislative chamber. See Unicameral, Merriam-Webster.com Dictionary (last visited Nov. 28, 2021), https://www.merriam-webster.com/dictionary/unicameral. For example, Nebraska has a unicameral legislature. History of the Nebraska Unicameral, Neb. Legislature, https://nebraskalegislature.gov/about/history_unicameral.php.

[14] See Huang, supra note 10.

[15] See id.; Yeh, supra note 1, at 14.

[16] Robert Wintemute, Beyond 748: Same Sex Marriage and Family Symposium (II): Global Trends in Legal Recognition of Same-Sex Couples: Cohabitation Rights, Registered Partnership, Marriage, and Joint Parenting, 15 Nat’l Taiwan U.L. Rev. 131, 148-49 (2020).

[17] See id.

[18] See id.

[19] See id.

[20] See id.

[21] See Yeh, supra note 1, at 9.

[22] See Chu & Shin, supra note 4.

[23] See Judicial Yuan Interpretation No. 748, 2017 Sifayuan Dafaguan Jieshi at 13; Judicial Yuan Interpretation No. 362, 1994 Sifayuan Dafaguan Jieshi 362.

[24] Judicial Yuan Interpretation No. 748, 2017 Sifayuan Dafaguan Jieshi at 11; Wintemute, supra note 16 at 148.

[25] Wintemute, supra note 16 at 148.

[26] Id.

[27] See e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (holding bans on homosexual behavior are unconstitutional); United States v. Windsor, 570 U.S. 744 (2013) (holding that the federal government cannot deny the federal recognition of same-sex marriage); Obergefell v. Hodges, 576 U.S. 644 (2015) (holding that the fundamental right to marry is guaranteed to same-sex couples); Baker v. State, 170 A.2d 864 (Vt. 1999) (holding that the Vt. Constitution provides same-sex couples with the same treatment as opposite-sex couples); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (holding that the Mass. Constitution requires the state to legally recognize same-sex marriage); Griego v. Oliver, 316 P.3d 865 (N.M. 2013) (holding that the N.M. Constitution does not bar same-sex marriage); Harris v. Millennium Hotel, 330 P.3d 330 (Alaska 2014) (holding that the Alaska Constitution provides same-sex couples with the same treatment as opposite-sex couples). But cf. Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that bans on homosexual behavior are constitutional), overruled by Lawrence v. Texas, 539 U.S. 558 (2003); Unlike Taiwan, the United States did not federally prohibit employment discrimination until after same-sex marriage legalization. See Bostock v. Clayton Cnty. 140 S.Ct. 1731 (2020).

[28] See id.; Judicial Yuan Interpretation No. 748, 2017 Sifayuan Dafaguan Jieshi 748.