Taiwan's Referendum Act, Explained: What Can We Expect on Nov. 24?

Taiwan's Referendum Act, Explained: What Can We Expect on Nov. 24?
Credit: Reuters / Tyrone Siu
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Taiwanese voters will decide on 10 referendum questions on Nov. 24. Here's how it all works.

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Referendum is defined as a proposed public measure subject to popular vote by the electorate. The root word alone, refer, captures the meaning of a decision being referred to the general public rather than their elected representatives.

Taiwan’s Referendum Act (公民投票法) allows for voters to make decisions on issues such as gay marriage and nuclear power. On this year’s Election Day, Nov. 24, Taiwanese voters will face no fewer than ten such questions. This is an unusually large number. The reasons for it come down to a few very recent events.

How does the Referendum Act work following its reform in 2017?

Taiwan’s original Referendum Act, passed in 2003, included hurdles that were very difficult to surmount. Most notably, it stipulated that any provision could only pass if the number of participating voters was at least 50 percent of the electorate in the last presidential election (hereafter termed “the electorate”).

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Credit: Studio Incendo / CC BY 2.0
Taiwan's 2016 presidential election sparked civic participation you just can't expect in a non-presidential year.

Needless to say, in a non-presidential election year, getting this number to the polls would be an immense challenge. Even so, there was no assurance that enough voters would vote on a referendum at all. While the minimum number could show up to vote for candidates, many could simply skip the referendum question altogether, making any results invalid.

But there were procedural obstacles as well. Organizers had to obtain signatures from at least 0.5 percent of the electorate to have a proposal sent to a Referendum Review Commission, which was made up of nominees from the executive branch of government. Once approval here was granted, the second round of signatures had to reach at least 5 percent of the electorate.

These difficulties led to reform in Dec. 2017. Now, a referendum is considered passed when the yes votes simply outnumber the no votes, provided those voting in the affirmative consist of more than 25 percent of the electorate.

In the initial stage, only 0.01 percent of the electorate is needed to sign a proposal. This will send it to the Central Election Commission (CEC) which has replaced the Referendum Review Commission as the gatekeeper. In the second stage, signatures are needed from at least 1.5 percent of the electorate.

What exactly is on the Nov. 24, 2018 ballot?

As already mentioned, there are ten initiatives on the referendum ballot for the 2018 election. Among them, same-sex marriage has emerged as a major issue with a total of four competing proposals.

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Credit: Reuters / Tyrone Siu
Same-sex marriage advocates worked tirelessly to collect signatures before submitting a referendum proposal to the Central Election Commission.

The reason for this can be dated back to 2017. At that time, the High Court of Taiwan handed down a landmark ruling which directed the legislature to make some provision for same-sex partnerships within two years. Since then, opponents have rallied against amending the Civil Code, which would define same-sex unions as marriage. Instead, they want a separate law legislating same-sex partnerships, something gay rights activists denounce as discriminatory in a ‘separate but equal’ sense.

But what led to the referendum drive are delays from the legislature. Political forces have refused to vote on a final decision, despite the impending deadline issued by the court. The general perception in Taiwan is that the ruling Democratic Progressive Party (DPP) does not consider it politically expedient to move on the matter before midterm elections. Now, the logic goes, the party can use any referendum results as political cover for a final decision.

Specifically, there are two proposals submitted by groups against same-sex marriage. One asks voters if they want to keep the Civil Code wording of ‘man and woman’ unchanged. Another proposal essentially calls for a separate law codifying same sex partnerships.

Same-sex activists have responded with their own competing proposal which calls for the Civil Code to include same-sex couples in the definition of marriage.

Moreover, there are two competing proposals from the same two camps regarding education. One asks voters if they agree that homosexual content should not be taught in schools, at least for elementary and junior high school levels. The other asks: “Do you agree that gender equity education as defined in ‘the Gender Equity Education Act’ should be taught at all stages of the national curriculum and that such education should cover courses on emotional education, sex education and gay and lesbian education?”

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Credit: Reuters / Tyrone Siu
Demonstrators take part in a protest in Taipei against nuclear power on the 7th anniversary of Japan's Fukushima nuclear disaster, Mar. 11, 2018.

Nuclear power has also returned to the fore with this year’s referendum ballot. A proposal calls for reversal of the current administration’s anti-nuclear policy.

While the ruling DPP has legislated that Taiwan must be nuclear-free by 2025, it has not been without controversy. A nuclear-free Taiwan would obviously require other energy sources. As such, the administration supported expansion of a major coal-fired power plant. But then they reversed course under pressure from environmental groups. Local critics have thus labeled the administration’s policy as uncertain and poorly planned, thus threatening the stability of Taiwan’s electricity supply and its overall economy.

What outcomes can we expect from the Nov. 24 vote?

Against this backdrop, one possible outcome is that a set of referendums pass which give definite policy direction on contentious issues. In this scenario, the general public may view referendums as a vehicle for stability or a refuge from the shifting winds of politics.

Another possibility is that this year or in the future, two or more conflicting proposals pass on the same ballot. This could create a crisis of governance. Taiwan does not have provisions for such a scenario.

In the future, one might be modeled after examples such as California, which mandates that in the event of conflicting referendums passing, “only the provisions of the measure receiving the highest number of affirmative votes be enforced.” But for now, there is no legislated solution.

In fact, there are questions within Taiwan as to whether or not approved referendums would even be enforceable. While the law mandates deadlines on which the legislature or executive branch must act in response to an approved referendum, there is no enforcement body. In some cases, the exact nature of action is not specified.

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Credit: Team Taiwan Facebook
Boxes of petition books submitted to the Central Election Commission by the Team Taiwan campaign. Read More: OPINION: Time to Say Goodbye to 'Chinese Taipei'

One can particularly imagine this problem with another proposal on this year’s ballot. It requires sports bodies to apply for competition under the name “Taiwan” rather than the internationally recognized “Chinese Taipei.” Obviously, the government would claim that it took steps to honor the referendum if it passes. But such moves could be deliberately superficial, especially since the International Olympic Committee (IOC) has already announced that failure to abide by previous agreements on Taiwan’s name would result in its teams being barred from competition.

In these latter situations, it would be in line with past rhetoric for Beijing to maintain that referendums illustrate the chaotic nature of democracy. A significant percentage of the local populace in Taiwan might have similar sentiments. Consequently, Taiwan could experience a dampening interest in referendums. Further tinkering with the Referendum Act could also be in the offing.

Taiwan’s Referendum Act has been called revolutionary for democracy. It is certainly testing new methods of direct democratic participation – but no test runs perfectly. Taiwan’s may be headed for significant hiccups.

Read Next: Has the DPP Unwittingly Opened the Door to Chinese Election Interference?

Editor: Nick Aspinwall (@Nick1Aspinwall)

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