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
Could Asia be on the verge of a new wave of nuclear proliferation? A look back at the early history of the North Atlantic Treaty Organization (NATO), which recently celebrated its 75th anniversary, illuminates some reasons for concern in the Indo-Pacific today. US Secretary of Defense Lloyd Austin recently described NATO as “the most powerful and successful alliance in history,” but the organization’s early years were not without challenges. At its inception, the signing of the North Atlantic Treaty marked a sea change in American strategic thinking. The United States had been intent on withdrawing from Europe in the years following
My wife and I spent the week in the interior of Taiwan where Shuyuan spent her childhood. In that town there is a street that functions as an open farmer’s market. Walk along that street, as Shuyuan did yesterday, and it is next to impossible to come home empty-handed. Some mangoes that looked vaguely like others we had seen around here ended up on our table. Shuyuan told how she had bought them from a little old farmer woman from the countryside who said the mangoes were from a very old tree she had on her property. The big surprise
The issue of China’s overcapacity has drawn greater global attention recently, with US Secretary of the Treasury Janet Yellen urging Beijing to address its excess production in key industries during her visit to China last week. Meanwhile in Brussels, European Commission President Ursula von der Leyen last week said that Europe must have a tough talk with China on its perceived overcapacity and unfair trade practices. The remarks by Yellen and Von der Leyen come as China’s economy is undergoing a painful transition. Beijing is trying to steer the world’s second-largest economy out of a COVID-19 slump, the property crisis and
As former president Ma Ying-jeou (馬英九) wrapped up his visit to the People’s Republic of China, he received his share of attention. Certainly, the trip must be seen within the full context of Ma’s life, that is, his eight-year presidency, the Sunflower movement and his failed Economic Cooperation Framework Agreement, as well as his eight years as Taipei mayor with its posturing, accusations of money laundering, and ups and downs. Through all that, basic questions stand out: “What drives Ma? What is his end game?” Having observed and commented on Ma for decades, it is all ironically reminiscent of former US president Harry