The Referendum Review Committe’s recent rejection of the Taiwan Solidarity Union’s (TSU) proposal for a referendum on the Economic Cooperation Framework Agreement (ECFA) has been much debated by academics and social activists. The debate has focused on the logic of the TSU’s proposal and the legality of its rejection by the committee and just how much discretion the Referendum Act (公投法) gives the committee.
Are the committee members there to help with the implementation of referendums or are they, in fact, just there to block proposals? Furthermore, what were legislators trying to achieve when they formulated the Referendum Act in the first place?
The government says it does not oppose the idea of public referendums, but it’s not altogether clear where it stands on the issue. Was the decision to reject the TSU’s ECFA referendum proposal taken with the best interests of the public at heart, or was it done for purely partisan reasons? There is always the possibility, of course, that it was rejected because Beijing simply didn’t want a referendum to be held. We have here a great opportunity, amidst all the anti-referendum discourse to look into the problems behind referendums in Taiwan.
First, the legislation is the product of a compromise reached between pro-referendum and anti-referendum factions in the legislature. The stipulation outlawing consultative referendums was a direct result of this conflict. Take, for example, the fuss made over the recent local opinion poll in Pingtung County’s Chaojhou Township (潮洲), which included a question on the ECFA. Penghu Island could hold a referendum on whether to allow casinos, why was Chaojhou not allowed to put the ECFA to a vote? Of course, if the wording is not in line with the Referendum Law, any further discussion on whether a consultative referendum would be of any benefit to democracy becomes moot.
In a similar vein, the committee, by going beyond its legal jurisdiction as defined in the Referendum Act and reviewing the actual content of ECFA referendums, has been able to reject proposal after proposal. That would be a good thing if anything productive came from it, like new wording for the proposal that the committee would find acceptable.
Instead, the whole thing has descended into opposing factions taking sides. The committee was biased from the start. The chairman of the committee may actually welcome debate as a way of distracting attention from the causes of the controversy. Years from now we will look back on what the committee and its members did and see this period as a seminal moment in the development of Taiwanese democracy.
The most fundamentally anti-democratic part of the Referendum Act is the high threshold that must be overcome before a poll can be called. In addition to the requirement for two public petitions, a referendum needs to be supported by 50 percent of the public. If we look back at the last few failed referendum proposals, it is clear that the problem lies not in the fact that more people voted against than for, but that not enough people voted either way. The assumption that a failure to vote should be interpreted as a vote against the proposal is the most pernicious and reactionary aspect of the whole thing.
This is exactly why the Referendum Act has come to be known as “birdcage” legislation, and why the flawed rationale behind the TSU’s proposal is no threat to Taiwan’s democracy. On the contrary, the frustration building in society because of this stifling “birdcage” legislation is causing a crisis in representative democracy in its present form.
Bad legislation may nevertheless be logical and rational. After all, the government had rational grounds for instigating martial law decades ago. However, those who defended and abetted the government at the time have since been judged by history in that they have been forgotten.
Hsu Yung-ming is an assistant professor of political science at Soochow University.
TRANSLATED BY PAUL COOPER
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