Thu, Jul 26, 2012 - Page 8 News List

Misreading the letters of the law

By Liu Ching-yi and Hsu Wei-chun 劉靜怡,徐偉群

In 2010, more than 100,000 people signed a proposal to hold a referendum on the Economic Cooperation Framework Agreement (ECFA) which was signed by Taiwan and China in June of that year. However, the Cabinet’s Referendum Review Committee turned down the proposal on spurious grounds.

The main reason given for rejecting the proposal was that the referendum initiated by members of the public could only comply with the intended purpose of the Referendum Act (公民投票法) if it called for a change in the existing state of affairs. Thanks to the joint efforts of academics and lawyers who care about the constitutionally protected right of direct democracy, in June the Supreme Administrative Court’s judgement No. 514 finally declared the Referendum Review Committee’s rejection of the ECFA referendum proposal was unlawful, and must be annulled.

The judgement further calls on the Central Election Commission to handle the referendum proposal in accordance with the legal interpretation.

According to Article 216 of the Code of Administrative Procedure (行政訴訟法), a judgement of the Supreme Administrative Court is binding on any department with regard to erroneous interpretations and applications of the law and it is also binding on other administrative departments. The article states the future handling of similar cases by any administrative department must not conflict with the Supreme Administrative Court’s interpretation.

In its judgement, the Supreme Administrative Court said the Referendum Act does not limit referendum proposals related to major policies to those seeking to alter the existing state of affairs.

The judgement says that whether a referendum proposal is expressed in an affirmative or negative way, it is only a question of how the referendum proposal is phrased, and so, except where regulations listed in Article 14, Paragraph 1 of the Referendum Act are involved, a referendum proposal cannot be rejected on the grounds that it does not seek to change the existing state of affairs. The Supreme Administrative Court being Taiwan’s final court of administrative appeal, its interpretation is naturally binding on all administrative departments.

The incredible thing is that, when the Referendum Review Committee held a hearing on Thursday last week, the representatives of the Ministry of the Interior and Central Election Commission who were at the hearing made no attempt to apply the aforementioned legal interpretation made by the Supreme Administrative Court in its judgement. Instead, asserting that the Ministry of the Interior is the competent authority in relation to the Referendum Act, and the Central Election Commission is its enforcement authority, they again parroted the old argument that a referendum proposal must be expressed in a negative way. The disdain they showed for the principle of government in accordance with the law and for the principle that the judgements and interpretations of administrative courts are binding on administrative departments seems to indicate a return to the days of Martial Law. In the 25 years that have passed since that era, Taiwan has gradually made progress in implementing the principle of government according to the law, but now it looks as though all the progress made has been eliminated in an instant. The government would have us believe that the administrative courts constitute an administrative litigation system that provides effective recourse for appellants, but the attitude of the bureaucrats at last week’s hearing turns this claim into the biggest joke in the development of Taiwan’s legal system in the 21st century.

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