The Referendum Review Committee has already rejected two public plebiscites championed by the Taiwan Solidarity Union (TSU). The reason: The referendum would make no difference even if it were passed because the TSU versed the yes/no question in affirmative terms despite the fact it was opposed to the thing referred to.
Therefore, it was declared to be redundant because a yes vote would still not require the institution involved to take any action whatsoever to change the current situation. By doggedly holding on to its misinterpretation of the legislation, the committee has come to a conclusion that has nothing to do with the Referendum Act (公投法).
Anyone with even the most basic understanding of law knows that legislation must be read beyond the purely literal interpretation of each clause. Clauses should be understood within the context of the legislation as a whole, the systematic interpretation and in terms of the final goal or intent of the law — the teleological interpretation.
The issue must be seen in the context of the referendum system. Despite the superficial distinction between referendums on laws and on major policies, they are both concerned with what the government is doing, and as such provide the public with the opportunity and wherewithal to protest and rein in the government’s actions.
As a result, the individual or entity that proposes the referendum, irrespective of whether it is aimed at a law or a major policy, is therefore opposed to a law or policy that is about to be, or has already been, passed. If that individual or entity agreed with the law or policy, there would have been no need to propose a referendum in the first place.
There are basically three possible outcomes to a referendum within this system. The first is where the number of voters falls short of a legally determined threshold; the second where the threshold is met and the number of votes in favor of the proposal exceed 50 percent; and the third where the threshold is met, but the number of votes in favor is less than 50 percent.
In the first situation the result is declared void; that is, it has no legal validity. The latter two are both considered valid, but differ as follows: Given that the proposal opposes a law or policy, as argued above, the second situation constitutes a rejection of said law or policy, while the third is an approval of it, since the referendum has not been passed by a majority of voters.
The point is to consider the goals and inherent logic of the referendum system. The text of the Referendum Act is not particularly laden with abstruse legal terminology, but in the interests of clarity, when it says “agree” in the first section of Article 30, it is referring to the second situation mentioned above.
That is, the public rejects (does not agree) with the soon-to-be-passed or already passed law or policy in question. When the second paragraph of Article 30 talks of the proposal being “vetoed,” it is referring to the first and second situations mentioned above, in which the result is considered to be either invalid or an indication of the public’s consent for the law or policy being referred to.
People have voted for or against the proposal in response to how it was versed, irrespective of whether it was in positive or negative terms. Nowhere in the act does it define how the wording of the question is to be versed.
The effective practice of democracy relies not on intellectual concepts or slavish adherence to literal readings, it is about people’s unshakeable commitment to, and belief in, the rule of law and their ability to make independent choices in a truly free environment. It is easy for the individual to feel trapped and constrained in a system in which majority decision-making has come to represent democracy, and they may feel impotent in the face of the system.
It is therefore important for each individual to be able, at the very least, to have the chance to say “no” when it comes to fundamental issues they feel have a direct impact on their personal safety and their national identity. This, after all, addresses in some way the inherent shortcomings of the democratic system. It acts as a pressure valve. As such, it might be the only thing preventing the democratic system from collapsing around us.
Lee Chien-liang is a research professor at Academia Sinica’s Institutum Iurisprudentiae.
TRANSLATED BY PAUL COOPER
I came to Taiwan to pursue my degree thinking that Taiwanese are “friendly,” but I was welcomed by Taiwanese classmates laughing at my friend’s name, Maria (瑪莉亞). At the time, I could not understand why they were mocking the name of Jesus’ mother. Later, I learned that “Maria” had become a stereotype — a shorthand for Filipino migrant workers. That was because many Filipino women in Taiwan, especially those who became house helpers, happen to have that name. With the rapidly increasing number of foreigners coming to Taiwan to work or study, more Taiwanese are interacting, socializing and forming relationships with
Whether in terms of market commonality or resource similarity, South Korea’s Samsung Electronics Co is the biggest competitor of Taiwan Semiconductor Manufacturing Co (TSMC). The two companies have agreed to set up factories in the US and are also recipients of subsidies from the US CHIPS and Science Act, which was signed into law by former US president Joe Biden. However, changes in the market competitiveness of the two companies clearly reveal the context behind TSMC’s investments in the US. As US semiconductor giant Intel Corp has faced continuous delays developing its advanced processes, the world’s two major wafer foundries, TSMC and
We are witnessing a sea change in the government’s approach to China, from one of reasonable, low-key reluctance at rocking the boat to a collapse of pretense over and patience in Beijing’s willful intransigence. Finally, we are seeing a more common sense approach in the face of active shows of hostility from a foreign power. According to Article 2 of the 2020 Anti-Infiltration Act (反滲透法), a “foreign hostile force” is defined as “countries, political entities or groups that are at war with or are engaged in a military standoff with the Republic of China [ROC]. The same stipulation applies to
The following case, which I experienced as an interpreter, illustrates that many issues in Taiwan’s legal system originate from law enforcement personnel. The problem stems not so much from their education and training, but their personal attitude — characterized by excessive self-confidence paired with a lack of accountability. One day at 10:30am, I was called to a police station in New Taipei City for an emergency. I arrived an hour later. A man was tied to a chair, having been arrested at the airport due to an outstanding arrest warrant. It quickly became apparent that the case was related to
RSS