TSU Referendum on ECFA Seriously Flawed

TSU Referendum on ECFA Seriously Flawed
China Times editorial (Taipei, Taiwan, ROC)
A Translation
May 27, 2010

Perhaps no one has noticed. But the Taiwan Solidarity Union has proposed a referendum on ECFA that is currently under review by the Referendum Commission. The referendum asks "Do you agree with the government's plan to sign a "Cross-Strait Economic Cooperation Framework Agreement" with the mainland? The sponsor of the referendum has characterized it as a major policy issue. The Referendum Commission meanwhile, must review this referendum proposal to determine whether it meets the requirements of the law, and therefore whether it should be approved or struck down.

Ever since the Republic of China introduced its "Referendum Law," referenda that could serve as case studies have been rare. There are many reasons for this, including at least two major problems. One problem is that the provisions of the Referendum Law are not sufficiently stringent. On the one hand, the law includes difficult to surmount ballot proposition thresholds and procedural red tape. On the other hand, the classification scheme for referendum proposals is inadequate, and can easily lead to voter confusion. Voters often find it impossible to understand the content of referendum proposals. As a result interest is not high. Voters are also likely to misunderstand the content and potential impact of the referendum proposals, leaving them adrift.

Another problem is that past referendum proposals often showed clear markings of electioneering strategy. The taint of political manipulation overwhelmed the possibility that its sponsors were promoting deliberative democracy. This made it impossible for the public to resolve public policy disputes by engaging in rational debate. The result was a decline in the credibility of the referendum process. Although referendum proposals are not uncommon, it is increasingly difficult to rally public attention or interest. The TSU proposal for a referendum on ECFA is no exception.

Leave aside the question of whether the current proposal for a referendum on ECFA advances democracy. The proposal itself is riddled with flaws. This is enough to conclude that the positive impact of the current referendum proposal will be limited. It will not help resolve the social divisions that have arisen over whether to sign ECFA.

The Referendum Law basically divides ballot proposals on major national policy issues into two categories: initiatives and referenda. Initiatives set forth important policy proposals that do not already exist. If an initiative passes a public vote, the government must attempt to incorporate it into government policy. A referendum addresses an existing government policy. The purpose of a referendum is to repudiate an existing government policy. If the referendum passes, the government must abandon its policy. The current proposal for a referendum on ECFA can be considered a major policy issue. Its sponsor hopes to prevent the government from signing an ECFA agreement. But this apparently simple proposal contains a number of serious flaws.

First of all, initiatives create new policy. The language of an initiative should read: "approve of the policy." Those who approve of the policy, cast votes in favor of the initiative. Those who disapprove of the policy, cast votes opposing the initiative. A referendum, on the other hand, expresses disapproval of the government's existing policy. The language of a referendum should read: "disapprove of the policy." Those who support the referendum cast votes opposing the government's policy. Those who oppose the referendum cast votes supporting the government's policy. The TSU says it opposes an ECFA agreement. Yet the wording of its proposal is a question. It asks voters "Do you approve of or disapprove of" an ECFA agreement? It is impossible to tell from the language alone whether the sponsors of the referendum approve of or disapprove of an ECFA agreement. Such language could deceive supporters of ECFA into unwittingly casting votes against an ECFA agreement. It could easily create voter confusion. Superficially the sponsors of the referendum could look more like supporters of ECFA, rather than opponents of ECFA. Clearly the sponsor's language for the referendum is at odds with the sponsor's intentions. The language of the referendum is more like the language of an initiative, and not a referendum. It is seriously flawed.

Another problem is that the referendum process applies only to policies whose content is already clear, and not to policies whose content have yet to be determined. ECFA is an agreement whose contents are still uncertain. Before the contents of ECFA have been agreed upon, it is not considered settled. Therefore it does not even warrant a referendum. To propose a referendum over a policy whose content has yet to be settled, is pointless. A majority of voters support referenda. But because the content of ECFA remains undetermined, the government could sign an agreement under a different name, and would no longer be constrained by the result of the referendum. If the purpose of the referendum is to pass final judgment on ECFA, it must be conducted after it is signed, not before. If it is, then the government will be constrained by the results, and must comply. If it is, then the referendum will not be in vain and meaningless.

The Taiwan Solidarity Union has proposed a referendum on ECFA. This is something that should have been subjected to rational debate by a deliberative democracy. Now however, it is merely a proposal whose language is unclear, whose justifications are self-contradictory, and which has been trotted out too early. The results of a referendum whose meaning is unclear will be meaningless. Referendum Commission Members should rule the proposed referendum in violation of the Referendum Law, and strike it down. Only this is consistent with the essence of the referendum law.

台聯ECFA公投提案 存在嚴重瑕疵
2010-05-27
中國時報

也許乏人注意，但目前有一項由台聯提出的ＥＣＦＡ公投案，正由公投審議委員會進入審查程度。這項公投提案的主文是：「你是否同意政府與中國簽訂『兩岸經濟合作架構協議』？」提案者將此項提案定性為重大政策之複決。公投審議委員會，則要審查此一提案是否符合法定要件，以決定應予駁回或是進行後續程序。

台灣自有《公民投票法》以來，少有足以作為公民投票教材的正面案例，此中原因不一，至少存在兩個主要的問題。一個問題是現行《公民投票法》的立法不夠嚴謹，一方面給公民投票加設了許多不易通過的人數門檻以及程序機制；另一方面又對公投提案內容的分類界定不足，極易引起選民的混淆，不但常常使得選民無法瞭解提案的內容以致興趣不高，也容易造成選民誤會提案的內容與效果，以致無所適從。

另一個問題，則是以往公投案的提出，總是選舉策略斧鑿痕跡明顯，政治操弄的意味遠大過推動審議民主的目標，導致全民無從透過理性思辯解決公共政策爭議。其結果就是公民投票制度的公信力愈來愈薄弱。公投提案雖然並不鮮見，卻很難引起社會一般民眾的重視或共鳴。這次台聯提出的ＥＣＦＡ公投提案，同樣也不例外。

先不必研究此次ＥＣＦＡ公投提案，是否具有促進民主政治發展的價值，單從提案主文所呈現出來的瑕疵，就幾可斷言此一公投提案的正面意義有限，根本無從幫助台灣社會有效解決因為簽署ＥＣＦＡ協議政策所面臨的社會歧見。

《公民投票法》基本上將重大政策之全國性公民投票區分為創制與複決兩種。創制案是提出還不存在的重要政策，如果經過公民投票通過，政府即應設法將之納為政府施政的政策；複決案則是針對已經形成的重要政府政策，推動公民投票加以否定，如果經過公民投票通過，政府即應廢止既定的政府政策。此次所提出的ＥＣＦＡ公投案在定位上應算是重大政策的複決案，主文似是要阻止政府簽署兩岸ＥＣＦＡ協議。可是，看來簡單的提案，卻有著幾項嚴重的瑕疵。

首先，創制案是創造一項新的政策，提案主文應該以「同意……案」為投票內容，贊成者投同意票，反對者投不同意票。複決案則是反對一項既定的政策，提案主文應該是「反對……政策案」，支持提案者投票支持反對案，反對提案者投票否定反對票。台聯提案說是反對簽署ＥＣＦＡ協議，提案內容則是疑問句，詢問投票者「是否同意」簽署ＥＣＦＡ，根本看不出來提案者究竟是贊成還是反對ＥＣＦＡ；而且此種文句安排會使得投票支持者變成是同意簽署ＥＣＦＡ而不是反對簽署ＥＣＦＡ，極易形成選民的混洧。外觀上，提案者反而更像是支持簽署ＥＣＦＡ而非反對簽署ＥＣＦＡ，不但提案主文與理由顯然相互矛盾，提案主文也更像是創制提案而非複決提案，具有嚴重的瑕疵。

更進一步的問題，在於複決案必須是針對內容已經確定的政策，而不能是針對內容尚未確定的政策。簽署ＥＣＦＡ協議，現在正是一項內容不確定的政策，ＥＣＦＡ協議的內容在未加簽署之前，都不算定案，根本不具有可複決性。對於內容不確定的政策提出複決案，並無實質意義。即令多數選民支持複決，但是由於ＥＣＦＡ的內容未經簽署確定，政府改簽一項換個名稱的協議，也就完全不受拘束了。如果提案的內容是去複決一項政府「所」簽署的ＥＣＦＡ，也就是在ＥＣＦＡ簽署之後再進行複決，那麼政府所已簽署而內容確定的ＥＣＦＡ就要受到複決案的拘束而不得加以執行。公民投票也就不會徒勞無功而毫無價值。

台聯針對ＥＣＦＡ協議提出公共政策複決案進行公民投票，本來應該是個可以透過審議民主進行公共理性辯論的題目，現在卻只是一項主文不明；主文與理由相互矛盾，提出時機過早，而又複決客體不明確以致不具實質意義的提案，公投審議委員應該以之為違反公民投票法而加以否決，才能符合公民投票法制的真諦。