On Feb. 16, every major newspaper published a full-page statement by 1,000 academics and other experts who called on the public to support the referendum on March 20. Many of them are colleagues and friends of mine who I respect. Their initiative was quite surprising. Although President Chen Shui-bian (陳水扁) has condemned those who oppose the referendum as "communist China's fellow travelers," his remarks were mere election rhetoric and not worth discussing. Today, many erudite academics have stood up to support the referendum, a matter of unique significance. But I want to express a different view.
The dispute over the referendum has been going on for a long time, and both camps have adopted a number of offensive and defensive strategies. But non-aligned voters only care about these three questions: First, will the referendum make Taiwan more democratic? Second, will it help society progress? And third, is it legitimate?
The joint statement answered "yes" to all three questions. But I have reservations. In fact, I believe that the referendum is illegal, and have decided not to cast my ballot to express my position, regardless of whether or not it's Taiwan's first such poll.
First, will the referendum make Taiwan more democratic? The joint statement said that "the core value of referendums lies in democratic participation, which allows citizens to take part in major public policy-making, and in divergent opinions being fully expressed during the process of open discussion." This statement is true but somewhat incomplete. According to democratic political theory, participation is only one of the values that democratic politics intends to highlight or accomplish; other key values include freedom, equality, justice, the rule of law and so on.
Supporters of different modes of democracy share the hope that the "democratic process" will promote values to which they attach considerable importance. For example, liberals hope that democracy will protect freedom and consolidate a system of constitutional law. Socialists see democracy as a means to achieve fairness and justice. Those who see participation as the core value believe in "participatory democracy." A democracy that excessively stresses the public's will and violates personal rights and constitutional structures in order to mobilize participation can only be called a "populist democracy."
Taiwan often praises itself
as a constitutional democracy. However, its election culture is awash with populism. Some academics have advocated "deliberative democracy" in recent years, hoping to correct the flaws of "populist democracy" by expanding the space for rational discussion.
But the emergence of the "referendum democracy" has pushed this ideal to the side. This is a result of the fact that voters can only express themselves in a referendum by saying "yes" or "no," while the complex circumstances, conditionalities, compromises and adjustments that accompany the issues at hand can be reflected in neither the brief statements of referendum questions nor in the mobilization of voters.
Take this referendum, for example. The two questions were completely the product of the Presidential Office, and the public has simply been mobilized to express its support or opposition. Not only do we not see citizens participating in discussion of major policy, but we also do not know how the Taiwanese people are able to take the "leading role" in the process, nor do we know how a referendum launched by the executive can develop a "critical public force," as the joint statement assured us. Such a referendum may not necessarily make the nation more democratic.
But will the referendum guarantee more reform and other progress? The joint statement said the referendum has a reform function, and that we would also be able to similarly push for legislative, constitutional and civic reforms in the future. Such reforms are indeed what we expect. But these referendum "progressives" have ignored
the fact that referendums are a double-edged sword, through which the government appeals directly to voters without a guarantee that it will not harm itself. In other words, voters may support reforms advocated by intellectuals or else plans that are considered conservative, reactionary and even corrosive of
social justice in the eyes of those same intellectuals.
Haven't we seen that many countries produced dictators or restricted the freedom of speech of dissidents through referendums? Is this seen to be a problem that affects others but not Taiwan?
The joint statement also mentioned some other potential referendum topics. But it failed to mention controversial issues like education reform, the construction of the Fourth Nuclear Power Plant, annual pensions for the elderly, compulsory military service, legalization of illegally-constructed buildings or the construction of the Suao-Hualien Freeway.
Perhaps the statement's authors already sensed that the results of referendums on these topics may not be advantageous to the overall direction of reform.
From this perspective, we should not place greater expectations on direct democracy than representative democracy. The five referendum topics relating to people's livelihoods suggested by the Chinese Nationalist Party (KMT)-People First Party (PFP) alliance are just as worrying as those in the March 20 referendum.
Although referendums do not necessarily promote democracy or lead to reform, I do not oppose them entirely because they represent one way that people can express their opinions.
However, I am compelled to oppose the March 20 referendum, because it clearly violates the Referendum Law (
In fact, the biggest flaw of the referendum does not lie in whether its two questions are nonsensical, or whether the questions should be first reviewed by the Referendum Review Committee.
The problem is this: the referendum has been proposed as a "defensive referendum," but it does not conform to the premises and purposes of Article 17 of the Referendum Law.
This law allows the president to initiate a defensive referendum in the face of an external threat that may threaten the nation's sovereignty.
Those with good memories will recall that the green camp was deeply frustrated when the Referendum Law was passed
by the Legislative Yuan in late November because it believed that it would be unable to call referendums this year. That is, the government knew all along that Taiwan was not in an "emergency situation" and gave no thought to launching a defensive referendum at that time.
But when Chen suddenly called the defensive referendum, the government waited excitedly for the referendum questions, which were slowly drawn up to
fit today's "emergency situation."
No matter how Chen may explain himself, this referendum does not conform to Article 17's stipulations. But because of the president's distortions and the government's promotional efforts, the whole issue has, surprisingly, been reduced to one of whether we should support Taiwan's first-ever referendum itself.
I do not support the March 20 referendum because it is illegal. After six amendments, constitutional order and the principle of "rule of law" have become extremely fragile.
Holding the referendum illegally will further erode the foundations of constitutional law. If we sit back and watch
this happen, then when a power transition takes place next time, I do not know what basis intellectuals will be able to fall back on to criticize a KMT-PFP government if it arbitrarily damages the constitutional system or blocks civic reforms by holding similar "democracy-deepening" referendums.
Although this illegally proposed referendum is now unavoidable, those who uphold the principle of constitutional law can still choose not to become accomplices. In the words of Socrates at the conclusion of The Apology, "The hour of departure has arrived, and we go our ways. Which is better, God only knows."
Jiang Yi-huah is a professor in the political science department at National Taiwan University.
TRANSLATED BY EDDY CHANG
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