Despite its historic achievement, the Taiwanese same-sex marriage law passed in 2019 did not provide full legal equality. One glaring omission is the right of all transnational same-sex couples to lawfully marry.
We are the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) and, as the leading legal aid organization for LGBTI rights in Taiwan, started raising awareness and campaigning for the rights of transnational same-sex couples back in 2017. We also represented several clients to initiate relevant litigation in 2019.
Same-sex couples in which one partner is Taiwanese and the other is a foreign national of a country that does not yet recognize same-sex marriage are not permitted to marry, as per Article 46 of Taiwan’s “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements” which is currently interpreted as prohibiting such marriages in Taiwan. We believe that this interpretation is illegal and unjust, and transnational same-sex couples have finally won two court cases this year! Nevertheless, the government still refuses to promptly modify its interpretation or to amend relevant laws and regulations. The Judicial Yuan has prepared a draft amendment of Article 46 of Taiwan’s “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements” and sent it to the cabinet (Executive Yuan) back in January 2021, but the cabinet has not yet sent the bill to the Legislative Yuan (our parliament).
The threat of COVID-19 has made the situation of transnational same-sex partners even more precarious than usual. We need more people to stand with us in this fight for true marriage equality!
The Taiwan Alliance to Promote Civil Partnership Rights ("TAPCPR") was founded in 2009, and registered with the Ministry of the Interior in August 2012. We drafted three bills for “diverse family formation” in 2012, which laid the foundation for future legislation. In 2017, we represented Chi Chia-Wei and won the same-sex marriage case (“Judicial Yuan Interpretation No. 748”), making Taiwan the first country in Asia to legalize same-sex marriage in May 2019.
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【有關司法機構被官營媒體攻擊的聲明】
《人民日報》於2020年12月27日發表一篇抨擊香港法院在一宗涉及知名人士的案件中批准被告人保釋的評論文章,而文章發表的時候該獲准保釋的決定已進入上訴程序,我們就此表示嚴重關注。文章攻擊法院的判決,並形容《蘋果日報》創辦人黎智英「惡名昭彰,極度危險」,以及是「亂港禍首」。該報斷言在黎智英案中,不准保釋須是前設的常規,並要求司法機構「作出正確選擇」。文章又認為已經有足夠證據顯示黎智英已觸犯國安法第55條,該條訂明某些案件可以移交中國大陸審訊。當上訴委員會將於2020年12月31日就政府申請上訴許可召開聆訊,由國家政權控制和營運的報章刊登該篇評論文章,令人尤其擔心及被視為是試圖干預我們獨立的司法機關的程序公義。
作為致力守護長久以來珍而重之的法治和司法獨立的法律執業者,我們認為有責任提出以下關注,並以個人名義僅此聲明:
1、 官營媒體對司法機關毫無基礎的攻擊應當停止
在數位親建制人士及官方控制和營運的媒體 - 包括《文匯報》及《大公報》- 要求「司法改革」及嘲諷「黃官」的日益壓力下,出現上述評論文章,我們深表憂慮。我們注意到司法機構自今年9月以來,已就對其日趨激烈的攻擊發表了四份聲明。
誠然,公眾有權討論及評論法院的裁決及其根據的事實及法律,惟討論不應流於憑空論斷、政治抹黑,或企圖向法院就某些案件的裁決施加壓力,否則公眾對司法機構的聲譽、專業和獨立勢必受到嚴重破壞。特別是《人民日報》刊登的評論文章,會被視為明顯地向法院將要審理的案件施加壓力,此舉可以是違反審理中的案件不應評論的原則,以及有損公平審訊。這些攻擊應當立即停止。
我們亦呼籲律政司採取行動,維護司法機構免受官方控制或營運的媒體作出毫無基礎和不實指控。正如高浩文法官在其判詞中指出,「在普通法司法管轄區,例如香港,傳統上法官和司法機構是不會公開地就針對其裁決和個人而作出的不公平和不適當的批評為自己辯護,而傳統上負責律政的官員則有責任反駁錯誤的指控,以維護司法機構和個別法官。」
2、 公平審訊及無罪假定
不論如何解讀,香港特區政府有法律責任保護每一位香港居民的基本權利不受侵犯,包括公平審訊的權利。我們質疑一旦涉嫌觸犯國安法第55條下,該等權利是否仍然受到保障。理由有兩方面:第一,我們質疑中國大陸在刑事審訊的程序中,對公平審訊是否有足夠的保障,那是由於中國尚未落實《公民與政治權利國際公約》,這亦是長久以來為人詬病。第二,12名香港居民於2020年12月28日在深圳鹽田法院受審的案件,沒有公開審訊,他們亦沒有權選擇他們委託的法律代表,令人質疑香港特區政府有否履行其法律責任。
上述關注,反映國安法無法為被告人提供足夠的基本人權保障,並在法律上存在很多不確定性。正如英國最高法院院長賓漢(Lord Bingham)在其著作《The Rule of Law》中說明,法治的核心是在一個地方裡,所有不論屬公共或私人的個人和機構,都必須受法律的約束及保障,而法律必須是公開和預先頒佈,以及由法院公開執行。因此,我們促請有關當局嚴格遵守法治原則,自我約束,以及謹慎運用國安法賦予的權力。
帝理邁
林洋鋐
彭皓昕
蔡頴德
黃耀初
2020年12月30日
【Statement on Continuous Attacks on the Judiciary and
Art. 55 of the National Security Law】
We note with grave concern that on 27 December 2020, l the People’s Daily published anr editorial piece criticizing a decision in respect of a bail application that is currently subject to an ongoing appeal. In attacking the judicial decisions in Apple Daily founder, Mr Jimmy Lai Chee-yin’s case, the People’s Daily has labelled him as a “notorious and extremely dangerous” and an “insurgent”. It added that the presumption against bail should be the norm in cases such as Lai’s and urged the judiciary to “make the right decision”. The commentary further claimed that there were sufficient grounds in Mr Lai’s case for invoking Article 55 of the National Security Law (NSL) - which allows certain cases to be transferred to Mainland China for trial. This type of commentary appearing in a newspaper run/controlled by the Central Government, when the Appeals Committee would soon be hearing the Hong Kong Government’s application for leave to appeal on 31 December 2020, is particularly worrying and borders on an attempt to interfere with the due administration of justice by Hong Kong’s independent judiciary.
We, the undersigned, in our personal capacity and as lawyers committed to safeguarding the Rule of Law and the independence of judiciary, we feel duty bound to draw attention to the following matters:
(1) Unfounded attacks against the judiciary by state-run/controlled media should cease
The above-mentioned commentary was made amid intensifying calls for “judicial reform” and deriding “yellow judges” from various pro-establishment figures and state-run/controlled media, including Wen Wei Po and Tai Kung Po. To that end, we note that the judiciary has had to issue a total of four statements since September this year, in light of the intensifying attacks mounted against it.
Whilst members of the public have the right to discuss and comment on court rulings for reasons grounded on fact or law, such discussion should not cross into bare assertions, imputations of political bias, or attempts to put pressure on the Judiciary to decide specific cases in a particular manner. Otherwise, public confidence in the integrity, professionalism and independence of the judiciary would be seriously undermined. Notably, the commentary published by People’s Daily, could be perceived as putting pressure on the judiciary to decide a pending case in a particular manner, which breaches the sub judice rule and could prejudice the accused’s right to a fair trial. These attacks should cease immediately.
We also call on the Secretary of Justice to take action to defend the Judiciary against unwarranted accusations led by state-run/controlled media. As Judge Russell Coleman noted in his judgment, “it has been the traditional view that Judges and the Judiciary do not speak out in defence of their decisions or to defend themselves against unfair and inappropriate criticism [...] in common law jurisdictions like Hong Kong, it was the tradition that the minister responsible for the administration of justice has the duty of defending the Judiciary or individual Judges against wrong accusations”.
(2) Concerns about fair trial and presumption of innocence
The Hong Kong Government has the legal obligation to protect any Hong Kong residents, whose rendition is sought, from violation of his/her fundamental and non-derogable rights, including the right to fair trial. We question whether such rights can be guaranteed upon invoking of Article 55 of the NSL. The reason is two-folded. First, we question whether China has adequate protection on the right to fair trial during the criminal process, as mainland China has not ratified the International Convention on Civil and Political Rights (ICCPR) and has been long criticised on such. Second, the fact that the 12 Hong Kong residents who stood trial at Shenzhen Yantian People’s Court on 28 December 2020 were denied the right to open trial and the right to appoint lawyers of their choice, casts considerable doubt on whether the Hong Kong Government can fulfil its legal obligation.
These concerns reflect that the NSL lacks adequate protections to safeguard an accused’s fundamental human rights and lacks legal certainty. As Lord Bingham wrote in his book, The Rule of Law, at the core of the rule of law is the notion “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. Accordingly, we urge the authorities to uphold strict adherence to the rule of law and exercise restraint and caution in invoking its power under the NSL.
Mark Daly
Michelle Tsoi Wing Tak
Kenneth Lam
Davyd Wong
Janet Pang Ho Yan
Dated this 30 December 2020
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Opinion|The Police is duty-bound to enforce the law resolutely
HK Current
2020.10.06 11:05
By Athena Kung
According to the statement made by the US Department of State on 3rd of October 2020 (local time), the arrests made by the Hong Kong Police on 1st of October 2020 were criticized by the Department as malicious ones. It has been alleged by the US Department of State that the Hong Kong Police merely enforces the law for the aim of achieving political goals, which amounts to serious violation of Hong Kong's rule of law and thus strongly attack individual's human rights as well as Hong Kong people's freedom of expression, procession and assembly. The Central Government was commented by the US Department of State as being given up the undertaking of "One country, Two systems" completely. Obviously, such allegations against both the Central Government and HKSAR made by US Government were very serious. To examine whether such comments were fair ones, we have to carefully consider if the allegations really have any valid legal basis or foundation.
According to both the Hong Kong Bill of Rights Ordinance, Cap. 383, Laws of Hong Kong (hereinafter referred to as "the BORO“) and and the International Covenant on Civil and Political Rights (hereinafter referred to as the "ICCPR "), the freedoms of expression, procession and assembly were not absolute, and might be subject to restrictions as prescribed by law. Article 16 and 17 of the BORO relates to the freedom of opinion and expression and right of peaceful assembly which can be enjoyed by Hong Kong people:
"Article 16
Freedom of opinion and expression
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—
(a) for respect of the rights or reputations of others; or
(b) for the protection of national security or of public order (ordre public), or of public health or morals.
[cf. ICCPR Art. 19]
Article 17
Right of peaceful assembly
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
[cf. ICCPR Art. 21]"
Thus, freedom of expression, procession and assembly in Hong Kong are not absolute. On the other hand, such rights are subject to restrictions as prescribed by law in the interests of public order, public safety and the interests of others, and so on.
Besides, Section 10(a) to (e) of the Police Force Ordinance, Cap 232, Laws of Hong Kong has clearly stated inter alia that:
"10. The duties of the police force shall be to take lawful measures for—
(a) preserving the public peace;
(b) preventing and detecting crimes and offences;
(c) preventing injury to life and property;
(d) apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;
(e) regulating processions and assemblies in public places or places of public resort;
…………"
What has really occurred in Hong Kong in various districts on 1st of October 2020?
(1) At around 1400 hours, a group of people gathered and yelled along Great George Street in Causeway Bay, which might have constituted offences related to unauthorised assemblies under the Public Order Ordinance, Cap 245, Laws of Hong Kong and offences related to prohibited group gatherings under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G, Laws of Hong Kong. Even though the Police had given multiple warnings at the scene and raised the blue flag requesting participants to leave the scene, at around 1500 hours, a large group of protesters still remained at the same place. Some of them even commenced to chant the slogan “Liberate Hong Kong, Revolution of Our Times” over and over again. Thus, they were suspected of inciting or abetting others to commit acts of secession, which might constitute relevant offences under the HKSAR National Security Law. Afterwards, some protesters even spilled onto the road and breached public peace.
(2) At around 1500 hours, 2 men in the vicinity of Tin Ma Court in Wong Tai Sin hurled some petrol bombs and large objects at Lung Cheung Road. Having attended the scene, the police noticed that traces of the road being charred, as well as fences and traffic cones left on it. After investigation, the Police found that even though a large amount of vehicles were travelling along the road at the time of the incident, fortunately, no vehicle was hit by the petrol bombs and objects successfully. In any event, the rioters’ such heinous acts had severely endangered road users and breached public peace.
(3) The Police intercepted a man at Stewart Road in Wanchai at about 1600 hours and found him in possession of a foldable sharp knife which was at the same size of a business card. The 23-year-old man was subsequently arrested on suspicion of possession of an offensive weapon, as there stood a strong likelihood that he might intend to use the said item to injure members of the public or police officers.
(4) At around 1500 hours, the Police set up a roadblock along a section of the Tuen Mun Road near Summit Terrace in Tsuen Wan to intercept suspicious vehicles, and found extendable sticks, a helmet, face masks and a large amount of promotional leaflets inside a private car with an expired vehicle licence. Some of the leaflets contained slogans suspected of calling for “Hong Kong independence” written on them. The 35-year-old male driver of the car was arrested on suspicion of various offences including “Possession of Instrument Fit for Unlawful Purpose”, “Driving an Unlicenced Vehicle” and “Driving Without Third Party Insurance”.
(5) At around 1630 hours, the Police stopped and searched a man in the vicinity of Tonnochy Road and Lockhart Road in Causeway Bay, and found items including a cutter, a spanner, plastic straps and a pair of gloves in his backpack. The 20-year-old man was subsequently arrested on suspicion of possession of offensive weapons.
(6) After nightfall, protesters continued to gather in different districts. To ensure public safety, the Police have enforced the law resolutely according to the situations arising in different districts. At 2200 hours, not less than 86 persons have been arrested in multiple districts. Among them, 74 persons including four District Councillors were arrested on suspicion of taking part in unauthorised assemblies in Causeway Bay, while the rest were arrested on suspicion of committing offences including possession of offensive weapon, failing to produce proof of identity, possession of forged identity card, disorderly conduct in a public place and driving an unlicenced vehicle. Besides, 20 persons were given fixed penalty notices for suspectedly breaching the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation.
Actually, the Police is duty-bound to enforce the law resolutely. On the facts, all arrests taken place on 1st of October 2020 were absolutely lawful and necessary to maintain law and order in the society and protect the life and property of all Hong Kong residents. Undoubtedly, the US officials have all along been adopting "double standards" in expressing utterly irresponsible remarks on law enforcement actions in the HKSAR. Everyone is equal before the law. So long as there is evidence supporting that someone has violated the law, no matter what his or her status or background is, he or she must face the legal consequence. Being a law enforcement agency, the Police must take action whenever they come across any unlawful acts in strict accordance with the laws in force. All cases must be handled in a fair, just and impartial manner by the Police in accordance with the law, which is the only and real reason as to why the Police arrested the 86 odd people on 1st of October 2020. To conclude, all criticizms made by the US towards the Hong Kong Police, HKSAR Government and Central Government were all unfair without any legal or concrete support at all.
It appears that the US government has always been refusing to accept the truth that the HKSAR is an inalienable part of the People's Republic of China (hereinafter referred to as "the PRC") and a local administrative region which enjoys a high degree of autonomy, as contrary to absolute autonomy, and comes directly under the Central People's Government. Hong Kong affairs are internal matters of the PRC. The system in Hong Kong is not "Two countries, Two systems". Hong Kong will never be an independent country with a pro-American government formed by the Opposition Camp in Hong Kong. Any foreign governments like the US must at once stop scaremongering and interfering in any form in Hong Kong's affairs. The "Colour Revolution" promoted by the US in Hong Kong should be terminated in no time.
The author is Barrister-at-law.
The views don't necessarily reflect those of Orange News.
責編: CK Li
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