Legal experts debate referendum law

As both the opposition and ruling parties are eager to ratify an initiative on holding referendums, constitutional experts have said that such legislation would require a sophisticated design for the law's implementation.

Referendums held over "national orientation" issues, such as the nation's territory, formal title and national anthem, should not usurp other things, they concluded, saying that any law would be trumped by the Constitution.

It is true that Article 17 of the Constitution has granted the rights of initiative and referendum to the nation's citizens, stating that the people shall have a right to elections, to recall corrupt and immoral leaders and to hold referendums, but the government has failed to constitute any law for such rights' exercises in the past nine decades.

"The law is a double-edged sword. It could provide for the direct exercise of civil rights, but it could also create a lot of uncertainties" in that they have the potential to alter crucial policies of the country, said KMT legislator Huang The-fu (黃德福).

The citizenry have a general feeling that both the legislative and executive branches of the government are incapable of solving controversial issues, taking the establishment of the Fourth Nuclear Power Plant, legalization of gambling in the Penghu archipelago and the ins and outs of a proposed Meinung Dam as prime examples. Many are saying that makes it all the more crucial for the draft to be ratified.

Independent Legislator Sisy Chen (陳文茜), meanwhile, maintained her position against the law because, she said, it lacks clarity on the issues over which referendums are allowable. She argues that the country would be totally shut down if this proposal becomes law, since citizens would be entitled to hold referenda over any construction project or energy bill which they disliked.

Her opponents say what she really means is that she is afraid that direct democracy would instigate the ire of China if a "national orientation" referendum were held, but that remains a matter of question since such a referendum could result in unconstitutional legislation.

Under the Executive Yuan's design, the Ministry of the Interior would be entitled to set up a committee to review referendum applications, to the exclusion of diplomatic, military, national security, budget and social welfare policies.

Decisions on public construction projects that have been made through a referendum are not allowed to be changed by another referendum until the project has been in process for eight years.

Liu Wen-shih (劉文仕), who drafted the Executive Yuan's proposal of the law when he was director of the ministry's Civil Affairs department, explained that controversial issues like establishment of a nuclear power plant and legalizing gambling would be considered "national issues," which means referendum would be held nationwide and local citizens who dislike construction projects launched in their neighborhoods would constitute a small interest group. The greater good of the nation takes precedence over such interest groups.

"A committee of objective academics, government officials and legislators would be appointed to make a decision over which issues could warrant a referendum," Liu said.

Liao Yi-ching (廖益興), research fellow of the National Policy Foundation, argued that the law might entitle the majority to damage the minority's interests through referendums.

Legislator Huang, meanwhile, worried that the impact of the law's implementation could be much more serious than the government thinks, and citizens might want to hold a referendum over all kinds of issues once introduced.

He suggests that the law should be implemented from the local level and that citizens would require proper education as to the gravity of referenda so that they would learn how to exercise the right without abusing it.

The worries of possible changes on the nation's territory, formal title and national anthem are the main obstructions to the draft's ratification. Its similarity to the so-called referendum law is another issue for the both legislative and administrative departments not to push for the law's legislation.