Wed, Oct 15, 2003 - Page 8 News List

Beware of a wolf in sheep's clothing

By Chen Ying-chung 陳英宗

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


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.

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