Proposals for a referendum on the cross-strait Economic Cooperation Framework Agreement (ECFA) have been turned down a record four times in a row, prompting widespread demand for the Referendum Act (公民投票法) to be amended. As well as lowering the thresholds for holding referendums in terms of the number of proposers and the number of votes required for a referendum to pass, and defining the effects of referendums more clearly, people are calling for the abolition of the Referendum Review Commission (RRC, 公民投票審議委員會), which is such an obstacle to holding referendums.
The RRC was set up under the Cabinet in accordance with the Referendum Act. Its main function is to determine whether a referendum proposal is a national or local matter. When doubts are raised about how Article 2 of the Referendum Act is to be interpreted, the RRC has to make a correct and proper interpretation so that a proposed referendum can go ahead smoothly. According to various laws concerning government organization, and to Interpretation No. 645 of the Constitutional Court, the RRC is not an independent agency but subordinate to the Cabinet. The RRC differs from the Central Election Commission (CEC, 中央選舉委員會) in its organization, purpose and powers, because the CEC is constituted as an independent agency, and so should exercise its powers related to elections, recall and referendums independently and in a non-partisan manner. The existing Referendum Act has many shortcomings, but it is not hard to understand from it, either literally or according to legal theory, the clear and limited scope of the RRC’s powers.
The result of the ECFA referendum proposal review is questionable, because the majority view of the commissioners and the reasons given for the decision do not stand up to the test of basic legal theory. According to common sense and to the experience of various countries, when reviewing referendum proposals, it is enough for the wording of the proposal to be clear and comprehensible so that voters can express their agreement or disagreement with a major policy or law. The experience of Western countries in holding referendums shows that they contribute to social participation and the formation of public opinion, no matter whether they are passed or not. In the run-up to referendums, governments are bound to review or even change their policies.
Although the RRC is not an independent agency, its members should still exercise their powers independently and professionally. However, the reasons appended to the judgments rejecting the ECFA referendum proposals are faulty in that minority opinions were not included. Dissenting opinions should have been fully respected and included in the written reasons published by the RRC, so that the referendum’s proposers could be fully informed.
The existing mechanism for reviewing referendum proposals needs to be thoroughly reconsidered. Besides, now that the ECFA has come into effect and referendum proposals having been blocked by procedural obstacles, the government must proceed cautiously with organizing the Cross-Strait Economic Cooperation Committee and other bilateral mechanisms for negotiating and resolving disputes. The government should not forget that the Referendum Act defines its purpose as ensuring that citizens can exercise their civil rights directly. According to the legal principle of a maiore ad minus it can be deduced that the government should be subject to the same or stricter limitations when negotiating any kind of agreement, or its powers will be hard to justify.
Chen Miao-fen is an associate professor of law at National Taiwan University and a member of the Executive Yuan’s Referendum Review Commission.
TRANSLATED BY JULIAN CLEGG
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