25 Fév 2019 J.Y. Interpretation No. 775: Unconstitutional to Increase Punishment for Recidivist Criminals in any Case & Cabinet Unveils Draft Bill on Gay Marriage
J.Y. Interpretation No. 775: Unconstitutional to Increase Punishment for Recidivist Criminals in any Case
On February 22, the judicial department issued J.Y. Interpretation No. 775, where the Grand Justices found regulation of the principal punishment for any kind of recidivism shall be increased up to one half under Article 47 of Criminal code has contradict to the Constitution because it violated personal liberty severely and the constitutional principle of proportionality excessively.
One of the KMT lawmakers, Zhi-yang Wu, thus claimd that the J.Y. Interpretation No. 775 is logical yet it injures the sense of justice as the public often condemn light sentence against the recidivists offenders. Wu also questioned whether the new J.Y. Interpretation will affect the calls for increasing punishment for drunk driving and child abuse recently. The Secretary-General of Judicial Yuan, Tai-long Lu gave out negative answer firmly.
Another legislator, Mei-Nu Yu, stated the J.Y. Interpretation No. 775 is very difficult to understand because of the existence of various legal terms. She suggested the Judicial Yuan go with the flow and publish for dummies propaganda or try online streaming in order to convey correct information to the general public, like the way Executive Yuan did to unveil “The Enforcement Act of Judicial Yuan Interpretation No. 748”
“The time period from the announcement of the constitutional interpretation to the press conference is very short, we will try our best to do it” Lu replied; he took some cases as an example to explain the Interpretation during the press conference held on February 22.
Lu emphasized that the Grand Justices believes that increasing punishment for those who intentionally commits an offense with a minimum punishment of imprisonment within five years after having served a sentence of imprisonment did not violate the principle of double jeopardy, hence it is constitutional. However, increasing punishment against recidivist under any circumstances on the basis of Article 47 of Criminal code, even if the recidivist is entitled to apply for Article 59, which stipulated that a punishment may be reduced at discretion if the circumstances of the commission of the offense are so pitiable that even the minimum punishment is considered too severe, has contradicted to the principle of proportionality and considered as a severe violation to personal liberty.
On top of that, Article 48, regulating that after the judgment has been finalized and an offender is found to be a recidivist, his punishment shall be increased in accordance with the provisions of the preceding article unless the fact is revealed after his sentence is fully served or his punishment is pardoned, violate another fundamental legal doctrine, ne bis in idem. It is a legal concept originating in Roman law that no legal action can be instituted twice for the same cause of action.
The Ministry of Justices shall revise the provision of the law within two years while the judges shall discrete on a case-by-case basis to decide whether to increase to punishment for recidivists violators, before the amendment to Article 47, according to the constitutional interpretation.
Cabinet Unveils Draft Bill on Gay Marriage
The Executive Yuan has examined and approved the draft bill of same-sex marriage on the 20th of February, officially titled “The Enforcement Act of Judicial Yuan Interpretation No. 748,”, in order to avoid causing disputes between supporters and opponents of same-sex marriage. This is the first bill named after a constitutional interpretation.
The draft bill, initiated by the Ministry of Justice, consists of 27 articles on same-sex unions designed to protect the rights of same-sex couples to pursue a common life and permanent, intimate relationship.
The bill first stipulates legislative purpose mentioned above and defines gay marriage, then restricts that both parties to same-sex unions must be at least 18 years old, while the civil code requires that the female party in a marriage need only be age 16 currently. Minister of Justice, Tsai Ching-hsiang, indicated that the specific part of the civil code would be altered to set the same legal marriage age for men and women. Article 4 to 18 regulated the requisite procedure, elements, and effect with regard to the establishment and termination of homosexual union respectively.
When asked by reporters at an Executive Yuan news conference why the law did not provide equal adoption rights for same-sex couples, said the topic of adoption was not covered under the high court’s interpretation, Tsai answered that, though adoption is not included in the scope of the judge’s interpretation of the constitution, as a practical concern, one same-sex partner might have biological children, so the Ministry wrote conditional adoption of a partner’s children in the bill. It is noteworthy that same-sex couples are still unable to adopt non-blood relatives so far. Moreover, the legal relationship to a partner’s relatives, or in-laws, is different from heterosexual couples under the civil code.
On the other hand, most of the regulations are similar to opposite-sex marriage guaranteed in the Civil Code. Provisions for the use of civil law general rules, obligation and other regulations other than civil law regarding spouses, or relationship built on spouse were written in Article 22 to 24. Therefore, like heterosexual marriage, polygamy, bestiality, and incestuous relationships are prohibited. Liability for criminal adultery may also be expanded to same-sex marriages in the future amendment.
Finally, in Article 26, there is a vague reference to “religious freedom” that the supporters of gay marriage fears may permit employment discrimination and it is yet to be discussed.
The draft bill has also received massive criticism from advocacy groups on both parties of the marriage equality debate. Without a doubt, the details of the bill will face stiff opposition in Legislative Yuan. There is a long road to marriage equality on the island.
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