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Reform the referendum system

Referendums are an important decision-making instrument in democratic societies. Not only can they be used to decide important policies, they can also show the collective will of the people, decide whether or not a country should join international organizations, ratify international treaties, draft or amend a constitution, push ahead the legislative agenda, reconcile political disputes and even confirm the legitimacy of a government.

The referendum has long since evolved beyond an instrument for consulting with the populace and has become a multi-purpose, democratic decision-making instrument. Its importance and influence continues to increase every day. There may still be people in Taiwan who, despite this trend, are opposed to referendums, or want to limit them, or want to use referendums to counter other referendums. But any unfair, unreasonable, or closed referendum system will not only not last long, it will also mislead the public in its understanding of democratic principles.

The setup of the Referendum Review Committee is a good example of such a flawed system. The committee is supposed to serve the public. But because its members are recommended by the various political parties, with seats appointed according to the parties' representation in the legislature, there are two fundamental mistakes in its design.

The first is that it essentially gives political parties the power to dominate referendums, placing the parties above the people. The second mistake is that the will of the legislature is allowed to extend into the process of proposing a referendum, which means indirect democracy outstrips direct democracy. These two mistakes violate the principle of sovereignty resting with the people and might even be unconstitutional.

In the short period that the committee has been in existence, there have already been cases of representatives of political parties who, in the process of reviewing proposals for referendums, thought little of using their party's majority to either boycott the proceedings or arbitrarily extend their powers in order to block a proposed referendum.

Take for example the recent proposal for a referendum on applying to join the UN under the name "Taiwan."

According to articles 2 and 33 of the Referendum Law (公民投票法), the committee is only supposed to establish whether the topic of a proposed referendum is a national issue, and whether it has previously been the subject of a referendum. However, some committee members instead reviewed the proposal from a political position. This is obviously an unauthorized expansion of the committee's powers.

Furthermore, the committee unscrupulously cited Article 14 of the law, which says that if "the content of the proposal is contradictory or obviously flawed to such an extent that the true intent of the proposal cannot be understood [it should be rejected]."

Thus, the pan-blue members used their numerical advantage to reject the proposal on the grounds that the use of the name "Taiwan" was flawed, thereby completely brushing aside the populace's right to propose a referendum. In fact, the power enshrined in Article 14 belongs to the Cabinet, not the committee. And as the Cabinet did not reject the proposal within 15 days of receiving it, as Article 15 gives it the power to do, the proposal was obviously not flawed as the committee claimed.

In other words, when the committee rejected the referendum proposal, it not only overstepped its authority, but as the time limit stipulated in Article 15 had already passed, what it did constituted unlawful behavior.

Perhaps it is inevitable that political parties will use referendums as a tool to contest issues between them. But, properly supported by legislation, referendums are a vital part of the democratic system.

Such legislation should be fair, in that it should not reject proposals from the government; it should be reasonable, in that it should not set unreasonable thresholds for the acceptance of referendum proposals; it should be open to all, in that it should not arbitrarily restrict subjects or block proposals; it should allow proposals to be properly reviewed, so that public debate is encouraged; and it should respect the opinions and rights of the minority.

The current referendum system is far from perfect. The Referendum Law needs to be improved and the Referendum Review Committee should be abolished.

Huang Yu-lin is a former member of the Cabinet's Referendum Review Committee.

Translated by Anna Stiggelbout
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