“Breaking The Birdcage And Returning Power To The People”

Fourteen years after the first introduction of initiative and referendum rights into the national legislation of Taiwan, lawmakers of the majority centre-left Democratic Progressive Party celebrated with shouts of “Let the people decide, return power to the people!”

The celebration followed the passage of major revisions to the Referendum Act December 12 after a 63-0 vote boycotted by lawmakers of the right-wing Chinese Nationalist Party (Kuomintang or KMT).  The passage of the revised Referendum Act fulfills a major campaign promise of President Tsai Ing-wen, who thanked lawmakers on her Facebook page for “breaking the birdcage and returning power to the people.” In a statement released after the third reading, the “Foundation for People`s Rule” organized by long-time promoter of the right of referendum and ex-DPP chairman Lin I-hsiung, said that “the legislation of a workable referendum law marks a historical page in Taiwan`s democratic development.”

“We hope the Taiwan people can cherish this hard-won democratic achievement and make good use of the Referendum Act to manifest our national will and construct a more beautiful Taiwan, “the Foundation said. The adoption of the revised direct democracy legislation took place shortly after the DPP-controlled legislature had overridden KMT opposition to approve a statute to establish a special commission for the realization of “transitional justice” for human rights violations during the four decades of KMT authoritarian rule.  The DPP first introduced a draft referendum law in 1990 and, in December 2003, a KMT-controlled legislature passed Taiwan`s first Referendum Act.

Making direct democracy more accessible

The act quickly became known as a “birdcage law,” for setting excessively high thresholds and restraints on citizen initiatives. Many of those controls have now been eased or removed with the new legislation. Under the revised law, signatures from 1.5 percent (about 280,000 people) of the population will be required to put an initiative on the ballot for national elections. The former requirement was 5 percent (or over 930,000 people).

Citizens` Initiatives will now be validated if they gain the backing of at least 25 percent of the electorate, or about 4.7 million people, so long as “Yes” votes outnumber “No” votes. Earlier citizen`s initiated referendums were invalidated if less than 50 percent of the eligible voters cast ballots. This created an incentive for boycott strategies by the opponents of an initiative. Unsurprisingly all six national popular votes initiated by citizens` initiative were invalidated due to this requirement. Under the new threshold, four of the six would have been approved. “We have lowered the previous barriers for valid of approval of referendums, but have retained a 25 percent threshold in order to ensure a certain degree of representation for major public policy decisions,” said DPP Legislator Lee Chun-yi.

Voting age reform included

In another historic step, the Parliament not only extended the political rights of the current electorate but also lowered the voting age for signing an initiative and participating in referendum votes  from 20 to 18. Under the revised law, the responsibility to administer national referendums - including verifying signatures in both initiative stages and handling the implementation process for referendums - has been placed in the hands of the Central Election Commission. The CEC is an independent Cabinet-level commission in which no political party can occupy over one-third of its 11 seats; its chair and vice chair are nominated by the premier and approved by the Legislature.

DPP Legislative Caucus chairman Ker Chien-ming told P2P that the CEC will now be empowered to directly make determinations as to whether first-stage initiatives meet the requirements of Article 2. However, lawmakers did not lift all limits on the right of referendum or initiative. The DPP majority rejected a proposed revision by the more radical New Power Party to Article 2 that would permit proposals to amend the constitution, change the national title or flag, or ratify territorial changes.  Instead, the DPP and KMT both voted to retain the existing provision which states that national referendum topics must involve ratification of laws, the initiation of legislative principles, or the initiation or ratification of major policies.  DPP Legislator Wang Ding-yu told P2P that the provision was dropped “not for ideological or political reasons, but because the existing Constitution already has a procedure for making amendments.“

Still hard to amend the constitution

Under this procedure, proposals to amend the constitution must be submitted by at least one-third of the members of the 113-seat Legislative Yuan and approved by a three-fourths majority of lawmakers before being ratified by a  popular vote in which the draft amendment must receive “yes” votes from at least 50 percent of the eligible electorate. Lawmakers rejected a proposal by the New Power Party to drop all thresholds for passage; they also turned aside a motion by the KMT to set the threshold at 20 percent instead of 25 percent of the eligible electorate. DPP Legislator Lee Chun-yi said the KMT, which had exercised authoritarian rule over Taiwan from the end of the Second World War through the early 1990s, was being “self-contradictory.”

The KMT always considered the right to referendum as a monster, but now that it has lost power, it hopes to lower the thresholds as much as possible so that it can challenge the current governing party and try to secure passage of laws that it cannot secure passage in the legislature,” Lee said. The DPP majority also rejected a clause proposed by the NPP to require that all agreements negotiated with the People`s Republic of China, which claims sovereignty over Taiwan, must be ratified by national referendum. DPP Legislator Lee Chun-yi said the DPP supported the principle that the results of negotiations between Taipei and Beijing should be ratified by national referendum, but stated that this provision should be included in a draft act governing the negotiation, signing and implementation of “cross-strait agreements” with China now under legislative review.

Farewell to the controversial Referendum Review Committee

Taiwan Public Opinion Foundation chairman You Ying-Lung told P2P that the revised law “breaks through many of the unreasonable restrictions on the right of initiative in the former ‘birdcage’ law.”

“The revised act will create a referendum system that will be more progressive and appropriate to Taiwan`s development as a new democracy and basically is in line with the principles of direct democracy,” said You. “The lowering of the threshold for passage to at least one fourth of eligible voters is reasonable for Taiwan`s special situation as a new democracy."

You also expressed approval of the elimination of the Referendum Review Committee, which was established under the Central Election Committee and given the power to vet whether first-stage petitions matched the requirements of Article 2. The Referendum Review Committee was formed by representatives from political parties based on their share of legislative seats, which until January 2016 ensured a majority of delegates recommended by the KMT.
“The Referendum Review Committee by design and in its operation restricted or killed referendum topics through the manipulation of one political party,” said You. “The CEC can be expected to have a non-partisan stance thanks to its organization as an independent body and should not dare to block or boycott referendum topics."

Who will be the first to fly?

On January 3 Taiwan President Tsai Ing-wen signed the revisions to the Referendum Act into law. Now everybody wonders, who will be the first to use the improved direct democratic rights in this Asian country.? According to national news media, there are several initiatives that have been put in the pipeline by both political parties and civic organizations. These citizens´ initiative could be put before the voters alongside the November 2018 mayoral and local assembly elections. 

Here are some possible initiatives:

• The opposition leftish New Power Party is currently drafting an initiative for a minimum wage law to guarantee basic needs. The topic was decided upon by the party`s legislative caucus based on the result of an internet survey;
• A “Taiwan Peace and Neutrality Initiative” may be launched by former Taiwan vice president Annette Lu; * lawmakers for the right-wing opposition Kuomintang (KMT) told news media in mid-December that they are considering launching citizens´ initiatives to ban imports of food from areas where there have been nuclear accidents, such as Japan`s Fukushima Prefecture. Additionally, KMT spokesman Hung Ming-chieh told reporters January 2 that the opposition party will release several more initiative topics “around the lunar new year” holiday which begins February 15. Hung said the party was evaluating a range of topics, including energy, air pollution, pension reform and transitional justice. The KMT has opposed reform bills approved by the center-left Democratic Progressive Party government since the KMT lost power in both the executive and legislative branches last spring.
• The “Taiwan Alliance to Protect the Family,” a coalition of conservative social and religious groups opposed to same-sex marriage, has already launched an informal signature campaign for a possible popular vote on the question of “Do you agree or disagree that marriage should be restricted to unions of one man and one woman?” .
• Chang Ya-chung, president of the far-right “Sun Yat-sen School” (named after KMT founder Sun Yat-sen) and a National Taiwan University professor of political science, announced January 3 on the school`s Facebook page that it would launch a number of initiatives to “rebuild values,” beginning with a proposal on “protecting trust in retirement pensions” aimed at reversing a recent civil service pension reform, according to the Central News Agency. (DE) 

With regard to the same-sex marriage issue, National Chengchi University Professor of Law Lin Chia-ho told P2P that the Constitutional Court, in Interpretation #748 issued May 24, 2017, found that Civil Code provisions that “do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the purpose of living a common life” are “in violation of the constitution” and instructed the government to revise these provisions to permit same-sex unions within two years.

“It is rather questionable whether an initiative under the Referendum Act can challenge this interpretation by the Constitutional Court,” Lin said. He expressed concern that the lowered threshold for initiatives could trigger an excessive mobilization” in line with European experience, and provide openings for conservative groups to reverse progressive or liberal reforms.

“Since Taiwan has a vibrant civil society, it is difficult to forecast what kind of issues may become subjects for a popular vote, but I`m not worried that we will see to many popular votes initiated by citizens,” said Taiwan Public Opinion Foundation chairman You Ying-lung. “The threshold of about 300,000 valid signatures to put an initiative on the ballot is not too high, but it`s also not very low."

Many topics will be raised with the lower thresholds for petitions, but referendum is a means for the expression of different views and not a monster,` said Democratic Progressive Party Legislator Lee Chun-yit. “I don`t think having many popular votes on substantive issues will be a bad thing," Lee said.