Wed, Oct 11, 2017 - Page 8 News List

Vote on self-rule decided by political realities

By Wu Ching-chin 吳景欽

The governments of the semi-autonomous Kurdistan region of Iraq and the Catalonia region of Spain have both held controversial independence referendums in recent weeks. Although the two regions have yet to receive international recognition as sovereign states following the votes, it begs the question whether Taiwan would be able to hold a similar independence referendum — and if it were officially held by government, would it be legal?

First, if the government were to hold an independence referendum, would it fall foul of Article 100 of the Criminal Code on civil disturbance?

This clause was originally intended to be used against people intending to destroy the state and separatist groups attempting to break up the nation.

However, in 1991, a postgraduate student reading group studying Su Beng’s (史明) Taiwan’s 400-Year History were arrested by the Ministry of Justice’s Investigation Bureau for advocating Taiwanese independence, which was interpreted as civil disturbance.

The arrest sparked a protest by academics who demanded that the government remove Article 100 from the Criminal Code.

The following year, lawmakers amended the law and while the charge of sedition was removed, the offense of civil disturbance was retained. The offense was also limited to acts involving violence or coercion.

From that moment on, subversive argument or thought was no longer a criminal offense in Taiwan.

Since holding an independence referendum — or conversely a referendum on unification with China — can neither be classified as an act of violence or coercion, holding a plebiscite could not be classified as a civil disturbance.

A more important question is whether an independence referendum would be legally binding, according to the provisions of the Referendum Act (公民投票法). The act does not clearly prohibit a referendum on independence, but as it is tied to the Republic of China Constitution, the legality of such a referendum cannot be judged by referring to this act alone.

The legitimacy of any independence referendum in any part of the world cannot be based solely upon the domestic laws of that region and can therefore only be derived from international law.

After World War I, then-US president Woodrow Wilson proposed the principle of self-determination. In 1945 the right of people to self-determination was written into the UN Charter.

In 2009, the Legislative Yuan passed two UN covenants on human rights, of which the International Covenant on Economic, Social and Cultural Rights clearly states that: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The covenant provides the foundation for a referendum on independence.

However, although the legal basis for an independence referendum can be derived from international human rights law, peoples and regions of nations that express a desire for autonomy have to start from a position of weakness within the international community.

As such, they inevitably face strong resistance, which can sometimes end in a bloody suppression.

Ultimately, whether an independence referendum can take place in Taiwan will not be decided by law, but by the realities of international politics.

Wu Ching-chin is an associate professor in Aletheia University’s law department.

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