Because the Legislative Yuan has delayed the passage of a plebiscite law or an "initiative and referendum" law for a long time, the Executive Yuan has decided to formulate a set of guidelines for nationwide referendums to serve as a basis for holding referendums by executive order under the condition that they are "constitutional and not illegal."
"Executive orders can be formulated without authorization by law when it comes to bringing benefit and welfare to the people," some administration officials have said.
Article 17 of the Constitution clearly stipulates, "The people shall have the right of election, recall, initiative and referendum." Therefore, initiative and referendum are the basic rights of our citizens.
But Article 136 of the Constitution also stipulates, "The exercise of the rights of initiative and referendum shall be prescribed by law." Therefore, creating an initiative and referendum law is the Legislative Yuan's job. Because the passage of such a law has been delayed for so long, the Legislative Yuan can hardly avoid criticism of dereliction. However, does this delay give the Executive Yuan the right to formulate executive orders on referendums?
I would only like to raise one question: Does a referendum involve the people's rights and responsibilities? According to Article 5 of the Central Legal Standards Law (中央法規標準法), matters should be regulated by legislation if such regulation is required by the Constitution or other laws, or if they involve the people's rights and responsibilities. Article 6 of the same law also stipulates that matters that should be regulated by law shall not be handled by executive order.
Therefore, it goes without saying that initiatives and referendums should be regulated by legislation. Even if referendums involve the people's rights and responsibilities, they should still be regulated by legislation (unless they involve issues that are above the Constitutional level, such as national territory and sovereignty issues). It is not appropriate for the Executive Yuan to exceed its remit and do the work on behalf of others. This could unsettle the core values of the constitutional division of power.
Besides, if the Executive Yuan formulates referendum guidelines of its own accord, that will also be incompatible with articles related to "rules and decrees" (from Article 150 onwards) in the Administrative Procedure Law (行政程序法).
Further, even if the Executive Yuan formulates the guidelines of its own accord, it will still need to send them to the Legislative Yuan for "review" under the related articles (from Article 60 onwards) in the Law Governing the Legislature's Exercise of Power (立法院職權行使法). In the future, budgets needed for holding referendums will have to be passed by the Legislative Yuan.
Therefore, no matter how vicious the parents-in-law are, the ugly daughter-in-law will still have to meet them in the spirit of the Constitution. After all, the ruling authorities, who have insisted on operating a minority government, cannot escape the Legislative Yuan's checks and balances, or even obstructionism.
To formulate an executive order that involves the people's rights and responsibilities without authorization by law -- on the grounds of "legislative dereliction" or "bringing benefit and welfare to the people" -- is a line frequently used by populist dictators. This indeed should not happen in a democratic Taiwan. Otherwise, we would have to redefine "constitutionalism" and "governance in accordance with the law."
Instead of taking such an inappropriate course, instead of pushing stubbornly to get their ideas and political platforms implemented, the authorities in the minority government should perhaps do their best to persuade the Legislative Yuan, through sincere partisan negotiations, to pass a referendum law as soon as possible.
When more and more people throughout the country are com-ing to understand the significance of referendums, and when the political parties are reaching an increasingly higher level of consensus on the matter, I believe the obstacles facing the referendum bill in the legislature will de-crease, as will the suspicions regarding a law that will allow the people to express their opinions on controversial public policies. The passage of related laws can then be expected soon.
The opposition parties, which control a majority in the legislature, should also reflect on their attitude toward the referendum issue. If they really say one thing and yet do another, they will eventually have to pay a political price in future elections.
The Executive Yuan's shocking and rather creative move may be only a tactic for prodding the legislature into doing its job. But I believe it will definitely create political pressure on the opposition parties. What we are more concerned about is that the shape of the Leviathan overshadowing Taiwan is becoming more and more distinct, while the vilified supervisory powers are becoming weaker and weaker.
Wang Yeh-lih is a professor of political science at Tunghai University.
Translated by Francis Huang
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