Taiwan – Direct democracy, Minority Rights, and the Referenda in the 9-in-1 elections, 2018

The 9-in-1 local elections for Taiwan on November 24, 2018, also saw voters cast ballots on 10 referenda. The large number of referenda follows from the Revised Referendum Act, which took effect on January 3, 2018, following passage by the Taiwan legislature in December, 2017. The elections saw the ruling Democratic Progressive Party (DPP) routed: the party lost seven of the 13 cities and counties it held to the opposition Kuomintang (KMT), including Kaoshiung, a DPP-foothold for 20 years. The final election tally for the 22 city, county, and special municipality mayoral and magistrate seats saw the DPP with six seats, the opposition KMT with 15, while independent incumbent mayor of Taipei, Ko Wen-je, was re-elected by 0.23 percent margin, or slightly over 3000 votes. KMT candidate for Taipei, Ting Shou-chung, has challenged the results and lodged a suit for a recount, which officially started on December 3, 2018. Much has been said about the election results as well as the disappointing referenda outcomes, particularly for advocates of same-sex marriage. Here, I review scholarship regarding the promises and perils of direct democracy, to contextualize the referenda and their outcomes in Taiwan.

Direct democracy occurs when citizens participate directly in policy-making, most commonly through referenda and initiatives. Some perennial concerns regarding direct democracy are voters’ knowledge or access to information; the role of money; how the outcomes are translated into policy; and whether democracy aids majority or minority interests.[1] Supporters of direct democracy often fall along arguments that, by and large, direct democracy engenders greater political engagement and participation and, hence, is more representative and democratic.[2] Critics charge that direct democracy typifies majoritarian rule which often fails to accommodate and may even discriminate against minority interests.[3] On balance, studies find that the evidence generally falls on the side that minority rights needs protection against the processes of direct democracy.[4] Indeed, Donovan (2013) finds pronounced “stereotypes and negative affect” in information campaigns leading-up to direct democracy ballots (1731). [5]

In important ways, the Revised Referendum Act pave for democratic deepening, political engagement, and even change. In particular, it reduced the voting age to 18 to empower youths to participate in established institutions and processes. It also reduced the required number of signatures to initiate a proposal and to support the initiated piece to 0.01 percent, and 1.5 percent, respectively, of the electorate in the most recent presidential election, which are equivalent to 1879 and 281,745 respectively. It also eliminates the Referendum Review Commission and reduces the turnout quorum to 25 percent of registered voters, where a majority affirming the referendum means that it passes. Prior to the revisions, the 2003 Referendum Act stipulates that the initiation and support of a referendum are 0.1 percent and 5 percent respectively of the electorate in the most recent presidential election; further, amendments must be approved by more than 50 percent of all eligible voters at a referendum held in six months from the public announcement of the revisions. These conditions set a high bar for passage of referendum: none of the six referenda proposed since the 2003 Act passed.

However, the ease of initiating a referendum also led the same-sex marriage issue to be put to a plebiscite. In this regard, by failing to put in safeguards on the referendum process, the government has complicated its policy-making process and responsibility.

Thus, on November 29, 2018, the Judicial Yuan Secretary-General asserted that the Constitutional Court’s 2017 ruling on same-sex marriage – the Court ruled that the Civil Code that prohibited same-sex marriages was unconstitutional – represents the highest law of the land and cannot be overridden by referenda. This is followed by the announcement by the Ministry of Justice of preparations for a same-sex marriage bill, to be presented to the legislature before March 1, 2019. Still, with more than 60 percent of the voters expressing opposition to same-sex marriage, the road ahead to reconcile the referenda with legislation will be rocky.

 

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[1] Lupia, Arthur, and John Matsuska. 2004. “Direct Democracy: New Approaches to Old Questions.” Annaul Reviews Political Science: 463-82

[2] Clark, Sherman. 1998. “A Populist Critique of Direct Democracy.” Harvard Law Review Issue 2 Dec: 434-482.

[3] Gunn, Patricia. 1981 “Initiatives and Referendums: Direct Democracy and Minority Interests.” Urban Law Annual No 135: 1-27

[4] Lewis, David. 2011. “Direct Democracy and Minority Rights: Same-Sex Marriage Bans in the United States.” Social Science Quarterly, vol 92 no 2: 364-83; Haider-Markel, Donald, Alana Querze and Kara Lindaman. 2007. “Lose, Win, or Draw? A Reexamination of Direct Democracy and Minority Rights.”Political Research Quarterly vol 60 no 2: 304-14.

[5] Donovan, Todd. 2013. “Direct Democracy and Campaigns Against Minorities.” Minnesota Law Review vol 97 no 5: 1730-1779.

 

 

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