Since Taipei Mayor Ma Ying-jeou (馬英九) sounded the bugle call, the blue camp's city and county chiefs have joined forces to boycott the referendum plan on a technicality no matter what.
First, let's talk about the inappropriateness of their action from a legal perspective. National elections are tasks entrusted by central to local governments. Basically, the latter should carry out such tasks in accordance with the law, and should not boycott them on technicalities.
Second, the space for public servants to hesitate over the "per se illegality" of a law mainly occurs when the implementation of the law could result in irreparable damages to the people's rights. Even if the referendum is controversial, it will promote, rather than damage, the exercise of the people's basic rights. Why should blue-camp officials hesitate to implement it, if not for their political interests?
Third, the status of local autonomous administration is lower than that of central laws. But a referendum is a constitutional right. Public servants should certainly protect the exercise of the people's basic rights with all their strength. How can they interfere with or hamper the constitutional right with their low-level authority?
Fourth, legal experts from the blue camp often claim to uphold respect for the legislative major-ity. Although many articles of the Referendum Law (公民投票法) violate the Constitution, the bill was passed by the blue camp's law-makers. So why don't they amend it?
Fifth, the dispute could have been resolved by asking the Council of Grand Justices for a constitutional interpretation. Why didn't the blue camp do so? Is this because it's a dead end?
This also leads us to another issue: the grand justices were originally expected to have more comprehensive judicial power -- including "constitutional injunctions" -- through the enactment of and amendments to the three judicial reform bills. However, due to the blue camp's boycott of the three bills at the Legislative Yuan, a legal means of resolving major constitutional disputes failed to take shape.
Sixth, has the president interpreted the law inappropriately? Is his authority really unlimited? I pointed out long ago that the Constitution could hardly function after losing its fundamental principles. The expected "dual-leadership power-balancing mechanism" has never emerged, although it was strongly advocated by many strategists when the Constitution was amended in 1997. If the president has abused his power, isn't it a result of the blue camp's scheming and misuse of its legislative power by passing the authorization article?
When it comes to this point, the only course of action provided by the amended Constitution to the legislative majority is to put up a "no-confidence vote" against the Cabinet, thereby forcing the president to appoint a premier supported by the legislature.
If this succeeds, a power dispute over whether to hold the referendum may occur between the Cabinet and the president. But this would surely entail a number of a political risks, including the possible dissolution of the legislature and public criticism. Thus, there is still a power-balancing method. Apart from its cowardly harassments and boycotts, however, the legislative majority of the blue camp has never dared to abide by the Constitution.
The Chinese Nationalist Party (KMT) is really strange. It has always engaged in subversion unless it's in power. Whether the referendum is a historical farce or the creation of a whole new dimension in democratic politics, please respect the decision and judgement of the Taiwanese people, who don't need the KMT's political instructions.
Yen Chueh-an is a law professor at National Taiwan University.
TRANSLATED BY EDDY CHANG
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