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.
Equally regrettable is the way the departments in charge conducted the hearing. Their handling of the hearing procedure exposed their anti-legalistic attitude and disdain for the principle of government in accordance with the law. This can best be seen in two aspects. First, Article 57 of the Administrative Procedure Act (行政程序法) stipulates that “a hearing shall be presided over by the head officer of the administrative authority or an officer appointed by him for that purpose.” However, Chao Yung-mau (趙永茂), who presided over the Referendum Review Committee hearing, is not “the head officer of the administrative authority.” Furthermore, he had previously taken part in administrative litigation by arguing in defense of the Central Election Commission. Having done so, Chao can hardly be said to be impartial. To comply with Article 32 of the Administrative Procedure Act, Chao should not even have attended the hearing, still less chaired it. Even more absurdly, Chao himself admitted that the conduct of the hearing and the issues discussed were such that it did not come to a decision through a proper lawful process, but that the participants simply decided among themselves as they saw fit. If even a chairperson of the Referendum Review Committee presiding over a hearing can have such a lack of regard for proper lawful procedure, it is hardly surprising that such unseemly scenes as Cabinet representatives stealthily passing scribbled notes to the chairperson to guide him through the procedure was played out for all to see during the hearing.
Sad to say, both the positions expressed by representatives of the Ministry of the Interior and the Central Election Commission at the hearing and Chao’s unlawful handling of the procedure have seriously eroded the principle of government in accordance with the law. As head of the Cabinet, Premier Sean Chen (陳冲) must explain to the public whether his Cabinet still has any respect for the principle of government in accordance with the law. If not, he might as well announce that Taiwan is going back to the kind of system we had under Martial Law, where the executive branch of government was in charge and the other branches had to do whatever it said.
Liu Ching-yi is a professor of law in the Graduate Institute of National Development at National Taiwan University. Hsu Wei-chun is an assistant professor of law at Chung Yuan Christian University.
Translated by Julian Clegg
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