The legislature failed to pass a referendum law (公投法) during its recent extraordinary session. So the Cabinet decided to sidestep the legislature and announced that it will, on the basis of an administrative order, conduct a referendum alongside next year's presidential election. It is a clear and basic right of the people to hold referendums. Doing so on the basis of an administrative order, however, would be wrong.
First, the exercise of direct democracy is a basic right of the people in a democracy and the Constitution states that the people have the right to initiate referendums. However, according to the Central Legal Standards Law (中央法規標準法), items relating to the rights and duties of the people must be grounded in law. The results of a referendum would not only be binding on the Cabinet, but would also limit and conflict with the representative democracy of the legislature and have an enormous influence on the rights and duties of all the people. So failing to ground it in the law and merely defining its scope with an administrative order runs counter to legal principle.
Second, referendums should be the tool of last resort for settling disputes on national issues. Given the political upheavals over the proposed referendum law, just think of the chaos that would ensue if the legislature refused to accept the outcome of a referendum that was held on the basis of an administrative order. If the government only plans to hold consultative referendums, they will merely be high-priced opinion polls and will be of no help in resolving problems.
Third, even if the Cabinet decides to appropriate money from the secondary reserve fund to cover the costs of a referendum, this plan will have to be sent to the legislature for review. According to the Budget Law (預算法), any Cabinet-proposed project that requires allocation of over NT$50 million from the secondary reserve fund must be "supervised," ie, approved, by the legislature. It is hard to envision the legislature agreeing to such a move.
In 1994, then Taipei County commissioner You Ching (尤清) held a referendum on construction of the controversial Fourth Nuclear Power Plant in Kungliao Township. Although up to 96 percent of local residents voted against the construction, the referendum not only had no legal standing, its results were basically ignored. To this day the Taipei County Council has not passed a budget to pay for You's referendum. President Chen Shui-bian (陳水扁), when he was Taipei mayor, held a referendum on the same issue in 1995. More than half of the city's residents said "no" to the construction. Chen's opinion poll had as little effect on the government, the legislature or the power plant as its predecessor.
These examples show that the results of a referendum are not a cure-all for major disputes. They are not binding unless the referendum is carried out through a legal process acknowledged by all sides.
The Chen administration is trying hard to fulfill its campaign promises to former DPP chairman and hardline anti-nuclear activist Lin I-hsiung (林義雄) before next year's presidential election. It also wants to create a buzz for Chen's re-election bid through the referendum issue. But these matters are the DPP's self interests and should not form the basis of government policy.
The government's attempt to hold referendums on the basis of an administrative order is not acceptable. The ruling and opposition camps have reached a basic consensus on a proposed referendum law. They should allow the legislators to vote on the bill in the next legislative session to ensure the people's right to referendums has proper legal grounding.