Advisory referendums have become a hot topic. Compared with initiatives or referendums, this kind of vote seems to be soft and harmless. They therefore suit the needs of some politicians. But could it be a Pandora's box?
Putting aside political concerns and the wrangling they give rise to, let's first clarify what an advisory referendum is. Its original name is volkesbefragung in German, which roughly means "general public opinion survey." In other words, the government conducts a public opinion poll itself. In addition to initiatives and referendums, it is another way of carrying out a plebiscite. It is different from initiatives and referendums in that the results are not legally binding, and is therefore called an "advisory
referendum."
Those who support advisory referendums maintain that our laws can only be enacted and passed by the Legislative Yuan, not by the people. But this only involves a purely formal procedure so a general public opinion survey held before legislation does not contravene that legislation. Despite this, the reality created by advisory referendums can hardly be neglected by lawmakers, even though they could. That's because under the massive media pressure and the hope for re-election, they are unlikely go against the result -- the most direct expression of the public will.
Plausible as these arguments sound, I'd like to point out a few myths surrounding advisory referendums.
First, although advisory referendums are merely a reflection of public opinion, which does not carry binding force or impinge on the legislature's freedom in decision-making, it opens the door to public participation in the formation of the nation's will and ways to exert power at state organizations.
Such strong political pressure can have a decisive effect, making the legislature, which embodies public opinion, unwilling to make any decision that ignores public opinion. This phenomenon is incompatible with the principle of representative democracy and rule of law. On the other hand, once the legislature makes a decision different from the outcome of an advisory referendum, such a conclusion will seriously shake one of the functions of democracy -- trust.
Second, all advisory referendums organized by state organizations carry the implication of an order. In constitutional theory, such an order is not permissible because, in terms of political ethics, it generates a force that is almost indistinguishable from that of the Constitution. Obviously, the Constitution excludes such deviant interpretations of the regulations. Especially, such interpretations cannot emerge merely under the pretext that they are compatible with modern constitutional concepts.
Third, for the voters, one important need in the formation of any political decision is in the political influence on values and dissemination by political opinion leaders. This is one of the primary roles that political parties should play in democratic politics.
But advisory referendums prevent any influence in the process of forming opinions. Besides, advisory referendums can be easily mixed up with questionnaires designed to gain support.
Such a mix-up can change the nature of the referendum. The danger is that the questionnaire's design may contain questions that prompt certain specific answers, but in the end the ruling party does not need to apologize and take political responsibility [in case of policy failure] because it can easily shirk responsibility by saying a majority asked for such a result in an advisory referendum.
This kind of irresponsible politics would devastate the checks and balances in the constitutional order of a country built on the rule of law, and contravenes the requirement of a constitutional division of power.
Fourth, people who vote in an advisory referendum must answer to the entire public as lawmakers do. The guideline here is not personal interests but the common interest. A merely advisory referendum can easily cause partici-pants to get mired in an expression of incidental interests and split from the political responsibility they should shoulder.
If voters are not aware of public interest, as was the case in the recent advisory referendum held in Taipei County's Pinglin township, the opinion survey is nothing but another tool for advocating one's self-interests. It is very likely to create endless controversies under the supreme banner of public opinion.
In France, even the Constitutional Council is unwilling to touch the concrete results obtained outside standard procedures. When democratic politics develop to this stage, it deviates from its original design, which should have been able to properly resolve collective behavior.
Finally, advisory referendums on demands that are already very clear -- for example those involving the interests of women, consumers, workers, students and juveniles -- are not to be prohibited under the rule that sovereignty rests with the people. But they do not represent the voice of the entire public. The outcome of the Pinglin advisory referendum would be very different if the voters were a larger group consisting of residents in Taipei, Taipei County and Ilan County.
Referendums are merely a tool for settling public affairs in democratic politics. They are neither a trend nor an appropriate or rational way to resolve national affairs in a society lacking basic consensus, where ethnic groups are not quite interacting harmoniously and where an identity crisis emerges frequently (such as the Call Taiwan Taiwan movement versus the Safeguard the Republic of China movement).
Referendums are not a reliable way to solve national issues. Quantified data cannot resolve problems in people's minds. Although advisory referendums are only for government refer-ence, they disturb political order and professional judgment to a considerable extent. When passing judgment and making decisions, politicians should consider not only the ethics of conviction mentioned by sociologist Max Weber, but also the ethics of responsi-bility, which is what Taiwan lacks.
Chen Ying-chung is an associate professor of law at the Center of General Education of Chang Gung University.
Translated by Francis Huang and Jennie Shih
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