|
Referendums support democracy
By Lee Chien-liang 李建良
Thursday, Sep 23, 2010, Page 8
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.
|
