ECFA Referendum: More Rationality, Less Politics

ECFA Referendum: More Rationality, Less Politics
China Times editorial (Taipei, Taiwan, ROC)
A Translation
June 7, 2010

Last week members of the the Executive Yuan Referendum Commission met for several hours. They voted 12 to four against the Taiwan Solidarity Union's proposed referendum, which asked "Do you agree or disagree with the government's intention to sign the Economic Framework Cooperation Agreement (ECFA)?" Green Camp members have expressed a great deal of dissatisfaction, leading to a high degree of controversy, and contributing to continued add more fuel to the political fires.

The Referendum Commission had two reasons for rejecting the Taiwan Solidarity Union's referendum proposal. One was that the wording of the referendum proposal contradicted its intent. The second reason was that the wording of the referendum proposal adopted an affirmative position by posing a question, when it was in fact taking a stand against ECFA. Even if the referendum were to pass, it would not change the status quo. Therefore it failed to qualify as a referendum on a major policy issue, and could not be approved.

In arriving at this decision, the Referendum Commission was 100% correct. We said so before. Now that the referendum proposal has been rejected, its sponsors are clearly not going to let the matter rest. They are certain to try again. In this connection we would like to offer several observations.

The sponsors of the referendum are saying that by rejecting its referendum proposal, the Referendum Commission is obstructing the referendum process. In fact anyone with any iota of political sense knows that is not the issue. Actually the Referendum Commission's decision has clarified a fuzzy aspect of the Referendum Law. The wording of the Taiwan Solidarity Union's referendum proposal may have been intentional or unintentional. Either way, if it had passed, it would have resulted in a self-contradiction. The sponsors were clearly opposed to the signing of an ECFA agreement. Yet they reversed their wording. They worded their referendum proposal to make it look like a question and an affirmation. The result would have been voter confusion over the content of the proposal. The result would have been a bizarre paradox. Even assuming a majority of the public expressed opposition to ECFA, they would be unable to stop ECFA. If this was political calculation, it was a carefully calculated. If this was merely an unintentional blunder, then its sponsors need only reword it. That should not be easy enough. Two issues should be considered. The first is the right way to word a referendum proposal. The other is the right time to make a referendum proposal.

The norm in a democracy is representative politics. The role of a public referendum is merely to address inadequacies in respresentative politics. If those who are asking for a referendum on ECFA are asking the government to promote ECFA, they should be asking for an initiative, not a referendum. Since the government is already promoting ECFA, there is no need to demand an initiative on this major policy issue. If those who are asking for a referendum on ECFA are asking the government to stop promoting ECFA, then it can be classified as a referendum on a major policy issue. In which case, the referendum should simply ask whether the voter "opposes" or "disapproves of" ECFA. There is no reason to mislead the voters or to use contradictory wording in the referendum. Otherwise, to accuse the Referendum Commission of obstructing the referendum process is unfounded hyperbole.

The key to referenda on major policy issues is timing. Since the referendum concerns major policy, any referendum proposal should of course be made only after the major policy has actually been formulated. Take ECFA for example. No agreement has yet to be reached on its content. That means the target of the proposed referendum does not exist. Any referendum proposal would be premature. At best it would be political demagoguery.

In fact the two sides have many procedural problems to consider before they sign ECFA. One is that the draft of the agreement will go into effect only after approval by the Legislative Yuan. for Beijing, it must be approved by the NPC. How cross-Strait official government documents should be signed, and what formal procedures should be implemented, warrant careful consideration. If the process includes public referenda, one must find a more rational approach. Should a public referendum be considered when the Executive Yuan asks the Legislative Yuan to consider a draft? Or should it be considered only after the Legislative Yuan has given its approval? The Referendum Law leaves much room for interpretation. The referendum process is the final step in the democratic process. It must abide by the rule of law. One must not approach every issue by resorting to electoral politics and political mobilization. If one fails to determine what sort of referendum procedure is what the rule of law and democracy on Taiwan require, then one has betrayed the hopes and dreams of the public on Taiwan regarding democratic politics.

We of course have our own view on whether ECFA really requires a public referendum. But if some voters insist that the issue requires a referendum, they have the right to demand one, in accordance with legal procedures. Those who oppose a referendum cannot stop them. Therefore we are not addressing the political legitimacy or political wisdom of demanding an ECFA referendum. We are merely reminding the government and the Pan Green opposition that if a referendum on ECFA cannot be avoided, then we must proceed in a proper and logical manner. Selfish political calculations must not be allowed to bedevil the Republic of China's referendum process.

ECFA公投多些理性 少些政黨算計
2010-06-07
中國時報

行政院公投審議委員會上周經數小時反覆討論，依投票方式做成決定，結果票數十二比四，否決了台聯所提的「你是否同意政府與中國簽訂兩岸經濟合作架構協議（ＥＣＦＡ）」公投案。綠營人士對此表達高度不滿，醞釀昇高抗爭態勢，持續為相關議題添加政治柴火升溫。

公投審議委員會駁回台聯提案的理由有二：一是提案的主文與理由矛盾；二是以正面表述的疑問式命題主張反對ＥＣＦＡ的立場，即使公投通過，也不能改變現狀，因此並不屬於重大政策的複決，故無法通過。

公投審議委員會做此決定，十分正確，我們前已提出類似的看法。現在此案不能成立，提案者顯然不會就此罷休，捲土重來可想而知，就此我們想提出若干看法。

指控公投審議委員會否決此案是阻擋公投，其實稍具政治常識者，都知道問題並不在此。公投審議委員會的決定其實釐清了公投法上一個模糊不明的地帶，台聯提出的ＥＣＦＡ公投案，不論是無心插柳還是有意栽花，如果通過，就會形成一種吊詭，因為提案者明明反對兩岸簽署ＥＣＦＡ協議，卻反轉其辭，用一個看起來像是問句的肯定語法提案，其結果不但會形成選民對於提案內容的混淆，也會使得即使多數民眾表達反對ＥＣＦＡ也不能阻擋ＥＣＦＡ的怪異現象。如果這是一個有心的政治算計，那是一種用心甚深的政治算計；如果只是無心之失，用心加以調整，其實並不困難。此中應該思考的問題有二，一是公投提案的內容如何表述，一是公投提案的時機。

民主國家代議政治是常態，公民投票只具有補充代議政治不足的功能。將ＥＣＦＡ議題交付公投的人士，如果是要求政府推動ＥＣＦＡ，即是創制案的性質，政府既然要推動ＥＣＦＡ，就沒有提出重大政策創制的必要。如果是否決政府推動的ＥＣＦＡ，那是要複決這項重大政策；所提出的公投案只要以「反對」或「不同意」ＥＣＦＡ協議的形式提出，就不會有誤導選民或是主文與理由相互矛盾的顧慮。捨此不為，卻要指責公投審議委員會阻擋公投，不是欲加之罪，就是言過其辭。

複決重大政策的公投提案，時機也是重點。既然是複決重大政策，當然應該要等到重大政策形成之後提出才有意義。以ＥＣＦＡ協議的簽署而言，還未談定任何協議的內容，等於是複決案的複決標的尚不存在，提出任何複決案都是過早或不成熟的提案，充其量只是政治口水的操作而已。

兩岸簽署ＥＣＦＡ協議的程序本來還有許多應該思考的問題，其中一個題目就是協議的草案應經立法院通過始能生效，在對岸而言，則涉及是否需要人大通過的對應程序。兩岸未來要簽署正式的官方文件應經雙方怎樣的正式程序始能生效，其實很值得仔細斟酌。如果此中還要夾雜著公民投票的程序，就更該找出一種合理的辦法。是在行政院向立法院提出草簽版本請求審議時就可提出公民投票複決案，還是要等到立法院通過後才可複決，依照公民投票法，也有再討論的空間。公民投票是一種民主政治的終極程序，不能不伴隨著應有的法治理性，凡事皆以選舉政治社會動員的態度來對待，而不去設想怎樣的公民投票程序才是台灣需要的法治民主安排，其實對不起台灣人民對於民主政治的堅持與追求。

對於兩岸ＥＣＦＡ協議是否需要交付公投，我們當然不是沒有任何看法。不過，如果有的選民堅持這是一種需要交由公民投票的議題，其實本有權利依照法定程序加以提出，不是旁人反對就能阻攔得了的。因此我們今天不去討論追求ＥＣＦＡ公投的政治正當性或是政治智慧，而要在此提醒朝野，ＥＣＦＡ公投如果是台灣不能迴避的問題，就該找到正當而合理的程序讓它可以理性進行，政黨的私心算計，不該是台灣公民投票制度始終揮之不去的幽靈。