【By Jonathan Chin】
The Constitutional Court yesterday heard oral arguments in a gender equality challenge to the Ancestor Worship Guild Act, which bars married women from becoming successors in some guilds.
An ancestor worship guild is a familial organization established to govern the affairs and assets utilized for worship. Successors are members who inherited their positions from its initiators, says the act, which was promulgated in 2008.
Article 4 of the act says that if a guild established before the law was promulgated does not have membership rules, successors should be designated among the men of the family’s patrilineal lineage, the family’s unmarried women or husbands matrilocally married into the family.
A woman can become a successor only if two-thirds of current successors or the entire body agrees, the article says.
The lawsuit was filed by the descendants of Chen Ao, a married woman who in 2014 was posthumously excluded from the successor list of the Ancestor Worship Guild of Lee Lu.
Chen’s descendants say the article breaches the principles of equal treatment before the law, freedom of assembly and association, and right to property as outlined in the Constitution.
The plaintiffs said the law also contravenes Article 22 of the Constitution, which states: "All other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution."
The article being contested could be traced to the principle of male privilege that had been enshrined in ancient Han Chinese law, National Taiwan University professor of law Wang Tay-sheng told the court.
Although jurors have upheld the patrilineal succession of such guilds from the Japanese colonial period, the legal principle is not compatible with modern understandings of gender equality, Wang said.
The legislative history of the act clearly shows that the government disregarded constitutional protections for gender equality and transformed the discrimination of women from custom into law, National Taipei University law professor Kuan Hsiao-wei said.
Women are excluded because they do not take part in the rites, not because of their gender, which means there is no discrimination, attorneys for the Ministry of the Interior said.
As guild assets are publicly owned, exclusion from management of a guild’s holdings cannot be said to constitute a deprivation of property rights, they said.
A ruling against the constitutionality of the act would result in the inclusion of successors into guilds in which they play no real role and difficulty in conducting ancestral rites, in addition to creating separate legal systems for guilds created before and after 2008, they said.
Striking out the successorship article would be a breach of customary law, as Taiwanese society deems married women to be members of their husband’s family for purposes of ancestral rites, they said, citing a ministry study on Taiwanese customs.
Changing the law would affect 3,555 certified guilds while imposing an unreasonable expectation that they must vet newly qualified successors with fragments of genealogy, they said.
The potential for controversy and litigation might result in administrative chaos for the ministry, compromise legal certainty and go against people’s convictions about ancestor worship, the lawyers said.
[Taipei Times, 2022-10-19]