Taiwan’s referendums binding, but may not be enforceable: experts

Taipei, Taiwanese voters will vote on at least nine legally binding referendums next month, but authorities have the leeway to keep the results from ever being implemented, legal experts said recently.

The record number of referendums up for consideration on the same day as local elections on Nov. 24 stems from an amendment to the Referendum Act in December 2017 that significantly lowered the thresholds for bringing a referendum question to a vote.

The questions cover a broad range of issues, from the definition of marriage in the Civil Code and a ban on food imports from areas in Japan affected by the Fukushima nuclear disaster to whether Taiwan should apply to compete in the 2020 Tokyo Olympic Games and other big sporting events using the name "Taiwan."

In the past, half of eligible voters had to vote on a referendum topic for the result to be valid, a standard not met in referendum questions voted on in 2004 and 2008.

But this year, a referendum's result will be valid if one quarter of eligible voters approve it, increasing the likelihood of referendums passing. Whether such votes will actually bring about change, however, is another question.

CEC spokesperson Chen Chiao-chien (???) told CNA on Oct. 15 that if a referendum passes, its result will be legally binding as stated in Article 30 of the Referendum Act, rather than being of an advisory nature.

That can take one of three forms. Voters can cast ballots on whether to overturn a law, on principles for a new law or on initiating or changing a policy.

According to the law, if people vote to repeal a law, the law will lose its efficacy on the third day after the result is officially declared by the CEC.

If a referendum votes for a new law, the government must submit a proposal no later than three months after the vote and the Legislature shall complete its review before breaking for the next summer or winter break.

If the result of a referendum requires a change in policy, the president or relevant authority must take steps to put the result into practice, according to the Referendum Act.

That may be what the law says, but when asked how to ensure that the results are acted upon, Chen declined to answer, saying that "implementing the results does not fall within the responsibility of the CEC."

In fact, implementing the results may not be anybody's responsibility, according to legal experts, because the Referendum Act does not have compulsory enforcement clauses.

Because of that and other factors, the experts had doubts about whether authorities will follow through if any of the questions pass.

"Changes will not necessarily ensue from a referendum if it passes," cautioned Bruce Liao (???), an associate professor of law at National Chengchi University.

"The Referendum Act does not contain 'self-executing effects,'" Liao said, unless voters decide to repeal a law.

In the other two types of referendums, the Referendum Act does not give people the power to directly pass a law without action by the Legislature, and on votes on policy, the government is obliged to carry out the will of the electorate, but little can be done if government agencies fail to see the measure through, Liao said.

The complexities of the issues involved could also complicate implementing the results of the votes, particularly those involving same-sex marriage and changing the name under which Taiwan's athletes compete at international sporting events.

On the same-sex marriage issue, there have been two proposals made by anti-gay rights groups and one by gay rights activists, and if they all passed, the government would have to carry out contradictory directives.

The anti-gay rights groups' questions ask if people agree that marriage should be restricted to being between a man and a woman as described under the Civil Code and if the protection of rights of same-sex couples should be provided for in ways other than those stated in the marriage regulations in the Civil Code.

Gay rights advocates asked if people agree that the marriage regulations in the Civil Code should be used to guarantee the rights of same-sex couples to get married.

Taiwan's Constitutional Court in May 2017 struck down the Civil Code's marriage regulations as unconstitutional because the provisions do not allow same-sex couples to create permanent unions and thus violate people's freedom of marriage and rights to equality.

The CEC determined, however, that the questions posed by anti-gay rights groups did not conflict with that ruling, and it therefore approved the proposals, but its position is "in dispute," said Chiou Wen-tsong (???), an associate research fellow at Academia Sinica.

If the two proposals advocated by anti-gay rights groups are passed, they would not affect the constitutional ruling because of the supremacy of the Constitution, but it would complicate the process of legalizing same-sex marriage, Chiou said.

The Constitutional Court gave the authorities a time frame of two years to address the discrimination based on sexual orientation and to achieve equal protection for marriage freedom and marriage quality.

Anti-gay rights activists have advocated passing a special law to meet the Constitutional Court's order rather than amending the Civil Code, which gay rights groups say is discriminatory.

If the anti-gay rights initiatives pass, those seeing a special law as discriminatory would have to seek another constitutional interpretation on the subject, Chiou said.

On the proposal that would require sports bodies to apply to compete in sporting events under the name "Taiwan" rather than the currently used name of "Chinese Taipei," the government could take into account possible reactions from China in deciding on how to honor the referendum result should it pass.

In July, China used the proposed name change initiative, which at the time was still collecting signatures and had yet to be approved as a referendum question, as an excuse to press the East Asian Olympic Committees to strip Taichung of its right to host the first East Asian Youth Games in 2019.

The "Chinese Taipei" name used in international sporting events stems from an agreement signed in 1981 between the Chinese Taipei Olympic Committee (CTOC) and the International Olympic Committee (IOC) in Lausanne, Switzerland.

It was a compromise to allow both the People's Republic of China (Beijing) and the Republic of China (Taipei) to compete in the Olympic Games.

The CTOC has argued that failing to follow the agreement will result in the deprivation of Taiwan's rights to participate in the games, an argument that referendum supporters do not accept because the Olympic Charter has no rules barring a name change.

Chiou suggested that if the referendum passes the government should try to renegotiate the agreement with the IOC in accordance with the people's mandate, even if the IOC nixed the idea earlier this year when the idea of a name change was suggested.

Liao said the government might be criticized for violating the Referendum Act or be censured by the Control Yuan if it did not try to renegotiate the agreement should the referendum pass, but that doesn't mean it will follow through on the result at all costs.

It's likely the government might just go through the motions if it felt a referendum result was not viable because it can deal with such matters at its discretion and failure to act would not result in any legal consequences, he said.

Source: Focus Taiwan News Channel