Earlier this week, legislators proposed a bill that would make the language on marriage in the Civil Code gender neutral. President Tsai – whose Ministry of Justice has refused to support marriage equality and has instead proposed the idea of civil partnerships – is scheduled to release a public statement on same-sex marriage this week ahead of Saturday’s Gay Pride Parade in Taipei. Anything short of unequivocal support for the aforementioned bill would be disappointing, as Tsai, in an ad during her presidential campaign, proclaimed, ‘I support marriage equality’. While Tsai can claim that supporting marriage equality and actively seeking to legalize it are not the same, it would probably not be a shrewd move.
Former Taipei mayor Hau Lung-pin (郝龍斌) got a mention on The Late Show with Stephen Colbert at 1:20.
The apparent suicide of Jacques Picoux (畢安生), a Frenchman who had lived in Taiwan since 1979 and was in a relationship with his partner Zeng Jingchao (曾敬超) for 35 years before the latter’s death last year, has again pushed the issue of same-sex marriage in Taiwan to the forefront. Because they were not allowed to marry nor enter into a civil union, Picoux lacked the rights of a typical spouse while Zeng was receiving treatment in the hospital and after his death. Shockingly, The News Lens reports:
Zeng also planned to leave the apartment that the couple lived in to Picoux, Lee says. However, Zeng’s family and their lawyers changed his will, and the apartment was subsequently transferred to the family.
It’s unclear what happened here, and I have been unable to find Chinese-language reports with more detail. What can be said for sure, however, is that regardless of the content of Zeng’s will, Taiwanese law mandates that his family is entitled to inheritance.
First of all, Civil Code (民法) Article 1187 states:
A testator may freely dispose of his property by a will so far as it does not contravene the provisions in regard to compulsory portions.
The law allows the testator, the person writing the will, to ‘freely dispose of his property’ as long as the law on compulsory portions is met. So, how much freedom is there? Article 1223 on compulsory portions is as follows:
The compulsory portion of an heir is determined as follows:
(1) For a lineal descendant by blood, the compulsory portion is one half of his entitled portion;
(2) For a parent, the compulsory portion is one half of his entitled portion;
(3) For a spouse, the compulsory portion is one half of his entitled portion;
(4) For a brother or a sister, the compulsory portion is one-third of his or her entitled portion;
(5) For a grandparent, the compulsory portion is one-third of his entitled portion.
The question then is, what is the ‘entitled portion’? Article 1144 states:
Each spouse has the right to inherit the property of the other, and his or her entitled portion is determined according to the following Subparagraphs:
(1) Where the spouse inherits concurrently with heirs of the first order, as provided in Article 1138, his or her entitled portion is equal to the other heirs;
(2) Where the spouse inherits concurrently with heirs of the second or third order as provided in Article 1138, his or her entitled portion is one-half of the inheritance;
Let’s just look at heirs of the first, second and third orders to keep it simpler. The categories of the heirs are stipulated in Article 1138:
Heirs to property other than the spouse come in the following order:
(1) Lineal descendants by blood;
(3) Brothers and sisters;
Heirs of the first order, ‘lineal descendants by blood’, refers to children. In a situation where there is no will, by law, if a person with NT$1 million in assets dies and is survived by her or his spouse and 3 children, the spouse and each child receives NT$250,000. If a person with NT$1 million in assets dies and is survived by her or his spouse and parents, then the spouse gets NT$500,000 and the parents split the remainder. If a person with NT$1 million in assets dies and is survived by her or his spouse and a sibling, then each person receives $500,000. Each of these figures is the aforementioned ‘entitled portion’.
In a situation where there is a will, regardless of what the will says, the heirs will receive at least the compulsory amount, which is a percentage of the entitled portion. Per Article 1223, in the first scenario above, the spouse and each child would receive 1/2 of NT$250,000, which is NT$125,000. In the second scenario, the compulsory portion for the spouse is 1/2 of NT$500,000, so NT$250,000, and each parent would receive 1/2 of NT$250,000, so NT$125,000. In the third scenario, the sibling would get 1/3 of NT$500,000, which is NT$166,666.67, while the spouse still gets 1/2 of NT$500,000, NT$250,000. The testator is free to dispose of the remainder as she or he wishes.
Compulsory amounts must be given even if the heirs are deliberately left out of the will by the testator. The only way to completely disinherit these heirs is if one of the conditions in Article 1145 is met:
A person shall forfeit his right to inherit in any of the following events:
(1) Where he has been sentenced to criminal penalty for having intentionally caused or attempted the death of the deceased or of a person entitled to inherit;
(2) Where he has, by fraud or by duress, induced the deceased to make, withdraw or alter a will relating to inheritance;
(3) Where he has, by fraud or by duress, prevented the deceased from making, withdrawing or altering a will relating to inheritance;
(4) Where he has forged, altered, concealed or destroyed the deceased’s will relating to inheritance;
(5) Where he seriously ill-treated or insulted the deceased and has been forbidden to inherit by the deceased.
If, in the cases provided by Subparagraphs 2 to 4 of the preceding Paragraph, the deceased has forgiven the offender, his right to inherit is reassumed.
Now, because Picoux was not a surviving spouse, he has no entitled portions or compulsory portions as provided by the law. If Zeng had not left a will, everything would have gone to his parents, if they are still living, and if not, to his siblings. Even if Zeng’s will had left everything to Picoux, Zeng’s family would still be able to at least receive a portion of the inheritance per the provisions on compulsory portions.
Let’s assume that Zeng had NT$1 million in assets at his death, and his will stipulated that Picoux would inherit the entire amount. Let’s also assume he is survived by two siblings. As there is no spouse, the siblings would each be entitled to NT$500,000. The compulsory amount would be 1/3, NT$166,666,67, meaning NT$333,333.33 combined. The remainder of NT$666.666.67 would then go to Picoux. In this hypothetical, even though Zeng wanted his long-term partner to get NT$1 million, he would only get 2/3 of it per Taiwanese law.
The archaic inheritance provisions in the Civil Code is one of the reasons why marriage equality is important. As they were prohibited from being married, Picoux had no automatic right to inherit any part of the estate by law had Zeng died intestate. Being married would have provided Picoux with some protection. But even if Picoux and Zeng weree married, this may not solve the entire problem. Although Picoux would have been entitled to at least half of the estate, Taiwanese law still mandates that Zeng’s other heirs would still receive some of his property even if he expressly excluded them in his will. This seems to unduly restrict free will.
It appears that in addition to marriage equality, compulsory portions in the Civil Code, which affects everyone in Taiwan regardless of sexuality, may be an equally serious problem that needs to be examined, as it restricts freedom to divide up one’s property based on possibly outdated notions of family.
I spoke to Keith Menconi for ICRT’s Taiwan This Week about the Zain Dean case today. Dean won his appeal in Scotland recently as the court there found that he could not be extradited to Taiwan to serve the remainder of his sentence due to the poor prison conditions in Taipei. The show can be heard here. My segment starts at 32:20.
Last month, the Court of Criminal Appeal in Scotland found that the United Kingdom cannot extradite Zain Dean to Taiwan because its deplorable prison conditions contravene European Convention on Human Rights (ECHR) Article 3, which states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
A quick recap on the entire case can be found here. The opinion by Lady Paton, the dissent by Lord Drummond Young, and the concurrence by Lady Clark of Calton are available here. The Ministry of Justice has vowed to appeal and continue to pursue Dean’s extradition. Below are some excerpts of the judgment that were particularly interesting to me.
Lady Paton’s take on one of the experts from Taiwan:
 Professor Mong-Hwa Chin (aged 33; assistant professor at the University of Taiwan) stated that he had graduated in 2014. His professed expertise was criminal procedure and evidence, with a particular interest in wrongful convictions. He had a doctorate (the equivalent of a PhD) entitled “The decision-making process of trial judges in Taiwan”. He taught criminal law and procedure on a regular basis. He had published two legal articles. He was a member of a non-governmental organisation assisting persons claiming that they had been wrongfully convicted (the Taiwanese Association for Innocence, established in 2012). He helped with the association’s work by attending meetings and providing opinions. To date, the association had achieved one exoneration. Otherwise he was an academic lawyer who was not permitted to practice law. His limited experience of Taiwanese prisons came from a student Law Class tour, and from visits to clients in prison.
 Senior counsel for the appellant took an objection to the professor’s status as an expert. After a debate, it was accepted that the professor’s evidence should be allowed under reservation of competency and relevancy. Ultimately, in closing submissions, senior counsel submitted that little reliance could be placed upon the professor’s evidence: he was inexperienced; his professed expertise was criminal procedure and evidence; and when giving evidence, he showed a lack of the impartiality to be expected of a court expert, as he had consistently given answers supportive of the Taiwanese state/legal system/penal system (some of his answers being demonstrably inaccurate). Thus, it was submitted, the professor’s evidence could not be relied upon to satisfy the court that the Taiwanese assurances concerning the appellant’s prison conditions would be fulfilled. I consider that there is some force in those submissions. I shall therefore be discriminating in my approach when assessing what weight to give to parts of his evidence (a brief outline of which follows).
This was her conclusion:
 For all these reasons, even taking into account the guidance given in Ahmad v United Kingdom (2013) 56 EHRR 1 referred to by Lord Drummond Young in paragraph  below, I am satisfied that substantial grounds have been made out for believing that, even if all the undertakings and special conditions were to be fulfilled, there remains a real risk of treatment of the appellant incompatible with his human rights in terms of article 3 of the European Convention on Human Rights (cf Saadi v Italy (2009) 49 EHRR 30, paragraph 128, Aldhouse v Thailand  EWHC 2235). Accordingly the appellant’s extradition to serve his sentence in Taipei prison would not, in my opinion, be compatible with the Convention.
This is what Lord Drummond Young had to say about Professor Chin:
 The evidence of Professor Chin is summarized above at paragraphs -. I accept that his evidence was not wholly satisfactory, and that it revealed doubts about the availability of judicial remedies for mistreatment of prisoners in Taiwan. That would be a strong consideration against extradition in the absence of any assurances given by the Taiwanese government. In this case, however, the Taiwanese Ministry of Justice has given the assurance of 25 December 2015 to the effect that concerns raised by consular staff at the British Office would be responded to. The Memorandum of Understanding is an international agreement between states, having force in international law, and the assurances subsequently given by the Taiwanese government are supplemental to that agreement and similarly have force in international law. In matters concerning the treatment of one country’s citizens in another country, consular representations are the normal means of securing enforcement of any treaty or similar rights. In the present case, for reasons already discussed, I am of opinion that the court must treat the Taiwanese assurances as given in good faith, and that if there is any breach British consular staff can be expected to take action.
Lord Drummond Young’s conclusion:
 For all of the foregoing reasons I am of opinion that the appellant has failed to establish that there is any real risk of his being subject to treatment that infringes Article 3 of the Convention. It must be assumed by the court that the Taiwanese authorities will honour the assurances that they have given to the United Kingdom. Those assurances were designed to ensure compliance with the Convention, and thus to engage with European standards on prison conditions, and in my view they must be regarded in that light. The element of solitary confinement, which is the major criticism that can be made of those arrangements, is designed for the purpose of securing the appellant’s safety, a concern that he himself has raised. In such cases, solitary confinement is used in the United Kingdom, and it does not contravene the Convention, where the rights under Article 3 must be balanced against the right to life conferred by article 2 and the right to personal security conferred by article 5. Taiwan should not be held to a higher standard.
Lady Clark’s concurrence:
 As the evidence emerged about the general conditions in Taipei Prison which resulted in the findings by her Ladyship in the Chair, I had difficulty in understanding the position of the first respondent. I consider that the evidence demonstrated that it is blindingly obvious that the general conditions existing in Taipei Prison are shocking and non‑compliant with Article 3. There was never any concession by the first respondent reflecting that. Indeed at some point in oral submissions, the solicitor advocate for the first respondent submitted that this court was not entitled to form an opinion about the general conditions in Taipei Prison and should confine its consideration to the proposed regime for the appellant set out in the undertakings. In my opinion, this court is not only entitled but bound to consider the general conditions in the prison in which it is proposed that the appellant be confined. Consideration of the undertakings becomes relevant once it has been accepted or the court has found that the general prison conditions in the proposed prison are non‑compliant and the extent of that non‑compliance.
 Even in a jurisdiction, such as Scotland, where both the law and practice are imbued with the concept of giving practical effect to convention rights, problems have arisen and breaches of Article 3 have occurred. In the present case I consider that the problem is not limited to the serious nature of the systemic non‑compliance with Article 3. I am satisfied on the evidence that there exists a culture both at the political level and day to day decision making at management level indicating that Article 3 considerations are not given any priority in relation to the prison regime. The evidence of Professor Chin made it plain that the concept of prisoners’ rights was a very undeveloped jurisprudence in Taiwan with little support politically or in popular thinking.
Former Tainan City Council Speaker Lee Chuan-chiao (李全教), a KMT member, was convicted of vote buying in the city council election and the speakership election earlier this year. Lee became the speaker in 2014 after winning the vote 29 to 26 amongst the council members despite the KMT holding only 16 seats. It is still unclear which DPP members took bribes and voted for Lee because the voting was conducted by secret ballots per the law in effect at the time.
In response, the Legislative Yuan amended the Local Government Act (地方制度法) in May. Article 44 now states:
The councils of the special municipality and county/city councils shall have a speaker and a deputy speaker and the township/city councils shall have a chairperson and vice chairperson, who shall be elected or recalled by open ballot by the councilors of the special municipality, county/city councilors, and township/city representatives.
Due to the open ballot system, the vote distribution by party for the new speaker, the DPP’s Lai Mei-hui (賴美惠), who won the election on Monday, is public knowledge. According to Focus Taiwan:
Lai won 33 votes in the 55-member council, including 24 from DPP members, one from a Taiwan Solidarity Union representative and eight from independents. Members of the Kuomintang boycotted the vote.
With this amendment, vote buying will probably be harder to pull off and maintaining party discipline at the local government level will undoubtedly be much easier.
It should be clear by now that President Tsai Ing-wen has no interest in advocating for marriage equality in Taiwan. The Ministry of Justice has not expressed support for same-sex marriage and is instead looking at a civil partnership bill. Its support for the latter is not even unequivocal, as it is dragging its feet by commissioning another study to be conducted by law professors from National Tsing Hua University and National Taiwan University on a same-sex partnership law and its impact on Taiwanese society. This seems to be suspiciously similar to the ‘human rights requires social consensus’ ideology held by Ma Ying-jeou and his MOJ.
The researchers are holding four public meetings, the first of which was held in Taichung this past Sunday. Register here to attend upcoming meetings in Hualien, Kaohsiung, and Taipei to express your disappointment in a bill that, if passed, will undoubtedly give LGBTQ people and families more rights but at the same time institutionalize discrimination by denying the institution of marriage from them.