Taiwan’s Constitutional Court orders legalization of same sex marriage

Published on 27 May 2017 by Team

Taiwan’s Constitutional Court has deemed same sex marriage as valid by striking down the provisions of the Civil Code prohibiting the same.

The Court held that Chapter 2 of Part IV on Family in Taiwan’s Civil Code, which stipulates that an agreement to marry can only be made between a man and a woman, “violated” the Constitution’s guarantees of freedom of marriage and right to equality.

The decision was rendered by a Bench of fourteen judges, with two judges giving dissenting opinions.

The Court’s ruling came in an interpretation of the Civil Code – specifically, Chapter 2 of Part IV of the Code which deals with marriage.

The Court ruled that the provisions of the said chapter do not allow

“two persons of the same sex to create a permanent union of intimate and exclusive nature for the committed purpose of managing life together. The said provision to the extent of such failure are in violation f both people’s freedom of marriage as protected by Article 22 and people’s right to equality as guaranteed by article 7 of the Constitution.”

The Court has given the government two years to implement the judgment by enacting a new law or amending the existing law. If the required change is not made to the statute within two years, then same-sex couples would be entitled to register their marriage regardless.

Noting that the petitioner had been been appealing to the legislative, executive, and judicial departments for the right to same-sex marriage for more than three decades, the Court decided to step in. It held,

“…It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of people’s constitutional rights and the free democratic constitutional order…

…Unspoused persons eligible to marry shall have their freedom to marry, which includes the freedom to decide “whether to marry” and “whom to marry” (see J.Y. Interpretation No. 362). Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right to be protected by Article 22 of the Constitution…”

If implemented, Taiwan would be the first country in Asia to legalise same sex marriage.

News Source- Bar and Bench

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