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Reviews for referendums need to be
re-examined
By Chen Miao-fen 陳妙芬
Proposals for a referendum on the cross-strait Economic Cooperation Framework
Agreement (ECFA) have been turned down a record four times in a row, prompting
widespread demand for the Referendum Act (公民投票法) to be amended. As well as
lowering the thresholds for holding referendums in terms of the number of
proposers and the number of votes required for a referendum to pass, and
defining the effects of referendums more clearly, people are calling for the
abolition of the Referendum Review Commission (RRC, 公民投票審議委員會), which is such an
obstacle to holding referendums.
The RRC was set up under the Cabinet in accordance with the Referendum Act. Its
main function is to determine whether a referendum proposal is a national or
local matter. When doubts are raised about how Article 2 of the Referendum Act
is to be interpreted, the RRC has to make a correct and proper interpretation so
that a proposed referendum can go ahead smoothly. According to various laws
concerning government organization, and to Interpretation No. 645 of the
Constitutional Court, the RRC is not an independent agency but subordinate to
the Cabinet. The RRC differs from the Central Election Commission (CEC, 中央選舉委員會)
in its organization, purpose and powers, because the CEC is constituted as an
independent agency, and so should exercise its powers related to elections,
recall and referendums independently and in a non-partisan manner. The existing
Referendum Act has many shortcomings, but it is not hard to understand from it,
either literally or according to legal theory, the clear and limited scope of
the RRC’s powers.
The result of the ECFA referendum proposal review is questionable, because the
majority view of the commissioners and the reasons given for the decision do not
stand up to the test of basic legal theory. According to common sense and to the
experience of various countries, when reviewing referendum proposals, it is
enough for the wording of the proposal to be clear and comprehensible so that
voters can express their agreement or disagreement with a major policy or law.
The experience of Western countries in holding referendums shows that they
contribute to social participation and the formation of public opinion, no
matter whether they are passed or not. In the run-up to referendums, governments
are bound to review or even change their policies.
Although the RRC is not an independent agency, its members should still exercise
their powers independently and professionally. However, the reasons appended to
the judgments rejecting the ECFA referendum proposals are faulty in that
minority opinions were not included. Dissenting opinions should have been fully
respected and included in the written reasons published by the RRC, so that the
referendum’s proposers could be fully informed.
The existing mechanism for reviewing referendum proposals needs to be thoroughly
reconsidered. Besides, now that the ECFA has come into effect and referendum
proposals having been blocked by procedural obstacles, the government must
proceed cautiously with organizing the Cross-Strait Economic Cooperation
Committee and other bilateral mechanisms for negotiating and resolving disputes.
The government should not forget that the Referendum Act defines its purpose as
ensuring that citizens can exercise their civil rights directly. According to
the legal principle of a maiore ad minus it can be deduced that the government
should be subject to the same or stricter limitations when negotiating any kind
of agreement, or its powers will be hard to justify.
Chen Miao-fen is an associate professor of law at National
Taiwan University and a member of the Executive Yuan’s Referendum Review
Commission.
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