TSU Referendum on ECFA Seriously Flawed
China Times editorial (Taipei, Taiwan, ROC)
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.