| Summary: | 碩士 === 臺灣大學 === 法律學研究所 === 98 === The objective of my thesis is to review the arguments in Taiwan which oppose gender quota of legislative representatives. I try to reconstruct the relations between this measure, substantial equality and participantory democracy under the Taiwan constitution.
Recently, the international society regards the phenomenon of under-representative of women in legislator as the consequence of discrimination and exclusion, and thinks this means the inadequacy of equality and democracy. Many governments take positive measures to change the situation, and until now, there are over 100 countries and political parties have gender quota for legislative representatives. Although British court and French Constitutional Council announced this type of affirmative action invalid, the opinion of the judges brought about the amendments of British law and French Constitution to allow this measure and solved the related disputations.
The gender quota of legislative representatives has been part of our constitution since the establishment, but this truth does not end the discussion of the measure. Political scholars and organizations pursuing for gender equality in non-governmental circles advocate that the truth that the proportion of our female legislators has outnumbered the gender quota in the law and constitution means this measure cannot have its effect now, and therefore this measure should be improved. On the contrary, in the latest 15 years, law scholars argued against gender quota of legislative representatives.
There are three reasons for the abolishment of gender quota of legislative representatives. The first is about the understanding of the truth. The law scholars think that there is no gender inequality in Taiwan, and under-representative of female legislators is not the result of systematic discrimination. The second reason is that law scholars think that this type of affirmative action violate the principle of gender equality in the constitution. They think the principle of gender equality in the constitution does not include the fulfillment of social equality, and just pursue the equality of individual opportunities. Gender quota of legislative representatives aims at seeking for de facto, group, and result equality, and is not in the scope of constitution prorection. The third reasons is that law scholars think that the principle of democracy in the constitution means equal vote and majority, and gender quota of legislative representatives does not conform to this kind of democracy.
Althought the science of law belongs normative study, the tradition of jurisprudence in Taiwan usually ignores the understanding of the reality. Therefore my thesis tries to contend through empirical data to prove that the gender structure of Taiwan society is still highly imbalanced, and this causes under-representaive of female legislators. The systematic discrimination transcends individuals, and we need to overcome this systematic discrimination via prudent institutional design to get on for a more equal society.
Facing social discrimination, formal equality views equality as the same treatment, and views different treatments as discriminatory. However, substantial equality criticizes that formal equality neglects that the same treatment in an unequal society only perserves the status quo of the privileged, and does not challenge the unjust power structure. Our constitution stands for substantial equality from the beginning. Our constitution asks our nation to recognize the unequal reality, and to take affirmative action to eliminate discrimination to make sure that our people could enjoy genuine respect and dignity which our constitution declares that everyone deserves. Even if we accept that our constitution aims at the equality of individual opportunities, the process of the development and the text of our constitution indicate that our constitution thinks that gender quota of legislative representatives is suitable for the fulfillment of this kind of equality.
Besides equal vote and majority, the content of democracy includes diviversity and participation. In terms of deliberative democracy, the deepening of democracy lies in the process of gaining the legitimacy of political decision through deliberation and speculation. If we want genuine deliberation and speculation, pluralistic perspectives in our society must be heard and taken in to consideration in the process of political decision. Hence, we should redesign the institutional mechanism to include the excluded social group and let them be able to voice for themselves equally in the political arena. The adequate measure is the turning point leading us to a society in which social equality and political equality could reinforce each other. We can infer from the regulations relating to democracy in our constitution that diversity and participation play an important role in the understanding of democracy in our constitution. Our empirical data shows that the presence of female representatives has changed the agenda of the Congress. Identifying with other women in the same unequal gender power structure, the female legislators have made significant contributions during the formulation of gender-related acts. The story of the hardworking and colleberation of female legislators manifest the theory of the politics of presence of Anne Phillips and the theory of perspective representation of Iris Young, and achieve the goal of reinforcing social equality and political equality of the two theories.
In Fact, substantial equality and participantory democracy are not independent concepts under our constitution. They both indicate that our constitution is concerned with social inequality, and hopes to resolve this kind of discrimination and exclusion through law. The vicious circle between social inequality and political inequality is one of the main issue that our constitutiton takes seriously and want to take positive measure to smooth away. Gender quota of legislative representatives is the intersectional consequence of the approach of substantial equality and participatory democracy under Taiwan constitution.
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