TDB Vol. 2 No. 8: The Anti-Same-Sex-Marriage Referendum Questions and their Implications

TDB Vol. 2 No. 8: The Anti-Same-Sex-Marriage Referendum Questions and their Implications

Taiwanese voters will be asked on Nov. 24 to make a call on a series of questions pertaining to same-sex marriage in Taiwan. Convoluted language, misplaced expectations and the government’s middle-ground approach could cause problems down the road. Alison Hsiao looks into the matter.

 

On May 24, 2017, the Constitutional Court ruled that the Civil Code provisions prohibiting marriage between two people of the same sex are in violation of the Constitution that guarantees people’s freedom of marriage and right to equality. The landmark ruling also stated that the concerned authorities (i.e., the Legislative Yuan) shall amend the relevant laws within two years from the issuance of this interpretation. On Nov. 24 this year, exactly six months to the day away from the second anniversary of the court ruling, Taiwanese will vote on referendum questions asking whether they agree with the statement that marriage regulated by the Civil Code should be limited to a union between a man and a woman, and whether they agree to protect the right of same-sex couples to form a permanent union by means other than marriage as stipulated in the Civil Code.

Soon after the Central Election Commission (CEC) approved the said referendum questions in March, people began asking how they did not contradict the Interpretation and whether the result of this referendum could upend what the Constitutional Court has granted. Now with the referendum in the offing, a more pressing and determining question is: how will the result of this referendum, binding in the sense that it is “a proposal of initiative of the legislative principles for law” (Referendum Act, Article 30), affect the country’s prospects on the same-sex marriage issue?

► See: TDB Volume 1 No. 5 Constitutional Interpretation No. 748 Paves the Way for Marriage Equality in Taiwan

Taiwan’s gay pride parade is the largest in Asia. (photo credit: J. Michael Cole)

Wordplay

The CEC approved the referendum questions concerning the definition of marriage and same-sex couples’ right to form a union (along with a question about gender equality education) on April 17. This came after several hearings and criticism from pro-same-sex-marriage groups who argued that since the Judicial Interpretation was equal to the Constitution in status and effect, referendum proposals that attempt to sustain what has been ruled unconstitutional is in itself unconstitutional.

CEC Chairman Chen In-chin, in defense of the decision, said the proposals were no longer unconstitutional after the groups proposing the questions made the necessary revisions.

The questions, before revisions, were, “Do you agree that marriage should be union between a man and a woman,” and “Do you agree that the rights for two persons of the same sex to form a permanent, common life should be protected by a separate law under the premise that the definition of marriage — union between a man and a woman — is not changed?” During hearings, legal experts and officials at the Ministry of Justice deemed those unconstitutional and in contradiction of Judicial Interpretation No. 748, and for this reason they very likely would have been rejected by the CEC.

To avoid such an outcome, anti-same-sex-marriage groups replaced “marriage” in the referendum questions with “marriage as regulated by the Civil Code,” which for the CEC meant that the proposers of the two referenda “clearly recognize that their referendum proposals do not preclude same-sex couples from exercising the ‘freedom of marriage’ cited in Judicial Interpretation No. 748 in the form of other laws” and “recognize the equal protection of same-sex couples’ freedom of marriage.”

In other words, the underlying statement was that, even if the two referenda passed, it by no means entails that same-sex couples would be deprived of the right to marriage as guaranteed by Judicial Interpretation No. 748.

In the Referendum Bulletin (emitted on Oct. 24 and again on Nov. 2), the Executive Yuan also explicitly stated that the right of same-sex couples to get married is protected by the Constitution, as stipulated in Judicial Interpretation No. 748, and would therefore not be affected in any way by the results of the two referendums. The Executive Yuan added that if the two referenda passed, the government would “propose to amend the same-sex-marriage-related regulations on the basis of both the referendum results and Judicial Interpretation No. 748 and submit the amendment proposals to the Legislative Yuan for review” (emphasis added).

 

On November 18th, a week ahead of the referendum, a rally of more than 100,000 people gathered on Ketagalan Boulevard in Taipei in support of same-sex marriage, calling on voters to vote yes to pro-same-sex-marriage groups’ proposals. (Photo credit: Li Sihwei)

Questionable Intent

Anti-same-sex-marriage groups railed against the Executive Yuan’s opinions as stated in the Referendum Bulletin, accusing the government of distorting the meaning of their referendum questions, which they maintain do not advocate for same-sex marriage but rather aim to propose same-sex civil partnership. The groups again emphasized their stance during a TV debate held earlier this month, arguing that Judicial Interpretation No. 748 had not granted unions by same-sex couples marriage status.

The anti-same-sex-marriage groups never imagined, as the CEC said they had, that replacing “marriage” with “marriage as regulated by the Civil Code” in their referendum questions would in any way make them recognize same-sex couples’ freedom of marriage. Notwithstanding what they told the CEC, they believe that if there is to be a separate law, it can only be a same-sex civil partnership law, not a same-sex marriage law.

Weighing in, National Taipei University Law professor Kuan Hsiao-wei has argued that the content of the proposals by the anti-same-sex-marriage groups makes their intentions “not understandable,” which under the Referendum Act would have given the CEC sufficient grounds to reject their proposals in the first place. Kuan called on the CEC to investigate whether the clarifications given by the groups for the controversial referendum proposals during the review process may have been insufficient — and if so, whether approval of their questions by the CEC may have been inappropriate.

The implications of unclear referendum proposals could be serious. If they pass on Nov. 24, for those who falsely believed they were voting against same-sex marriage of any kind, legislation permitting a separate same-sex marriage law could stoke up radical responses and political outrage. A same-sex-civil-partnership law, on the other hand, would betray the spirit of Judicial Interpretation No. 748 and the expectations of liberal groups. And if pro-same-sex-marriage groups want to challenge the constitutionality of the (possible) same-sex-civil-partnership law, the process would take years before the Constitutional Court makes a final ruling.

Political Will

Earlier this month, the New Power Party said that based on an opinion poll it conducted on the referenda, 26.7 percent of respondents said they would vote “yes” to the questions proposed by the anti-same-sex-marriage groups, which was the highest among all referendum questions, save for the 56.5 percent of those who either had no clue or had no comment (the pro-same-sex-marriage proposals received only 13.1 percent). The numbers appeared to reflect social conservatism. Many respondents may have been won over by the “traditional family values” trumpeted by the anti-same-sex-marriage groups, and by the power of religious mobilization.

There is however a possibility that none of the questions will pass the threshold. Still, the number of ballots each camp garners could serve as an indicator of public sentiment, which politicians could not ignore without incurring political costs. The results of the referendums will therefore pose a great challenge to the government.

After the Constitutional Court ruling in May last year, the administration deferred final decision to a popular vote, which will likely boomerang. A political decision will have to be made after all, and it is very likely that neither camp will be able to reconcile their expectations with the government’s middle-ground approach.

 

Feature Photo Credit: Hsiang-wei Wang

TDB Vol. 2 No. 7: Taiwan, U.S. Join Forces in Countering Disinformation

More and more, democracies are beginning to identify the means and objectives of authoritarian disinformation. Such cooperation is essential, as anti-democratic forces are learning from each other and continually improving their tactics. Alison Hsiao reports on a recent bilateral initiative between Taiwan and the U.S. 

 

Goethe once said, “The truth must be repeated again and again because error is constantly being preached round about us. And not only by isolated individuals but by the majority.” More than two centuries later, the admonition is more relevant than ever, and was quoted by Taiwan Foundation for Democracy Chairman and Legislative Speaker Su Jia-chyuan in his opening remarks at a workshop aiming to combat disinformation earlier this month.

Legislative Speaker and TFD Chairman Su Jia-chyuan gave opening remarks at 2018 GCTF opening ceremony.

The 2018 Global Cooperation Training Framework (GCTF) workshop on “Defending Democracy through Media Literacy” was co-hosted by the Taiwan Foundation for Democracy (TFD), the American Institute in Taiwan (AIT) and the Ministry of Foreign Affairs. GCTF was launched in 2015 to “institutionalize and serve as a platform for expanding one of the brightest areas of U.S.-Taiwan relations: cooperation on regional and global issues.” In 2018, cooperation between the two likeminded democracies turned to the wave of propaganda tactics that have buffeted the globe in recent years, a phenomenon only new in the sense that advances in technology have enabled hostile actors to spread content “farther and faster at less cost,” as U.S. Deputy Assistant Secretary Scott Busby said during the opening ceremony of the workshop in Taipei.

The U.S. is grappling with the spread of disinformation, and Taiwan is “also on the front lines,” AIT Director Brent Christensen said, adding that “we all have much to learn from Taiwan about how to marshal our academic, policy, and technical resources to confront external pressure.”

External Pressure

Taiwan has indeed long been subjected to constant and ferocious espionage attacks and hacks from China, and the use of disinformation, a phenomenon that goes back centuries, has been aided by the recent technological leap in the mobile industry and social networking. For Beijing, spreading disinformation also has strategic benefits when coupled with the measures it has been tabling to lure Taiwanese youth and professionals. Discrediting the Tsai Ing-wen administration and Taiwan’s democratic institutions would make incorporation in a system with Chinese characteristics, and possible future unification, less alarming to the Taiwanese — so Beijing’s theory goes.

Digital Minister Audrey Tang

Asked during her keynote speech at the opening ceremony about the channels China uses to spread disinformation in Taiwanese society, Taiwanese Digital Minister Audrey Tang responded, “Many.”

“If there is any channel that you can think of, that’s probably used for that purpose,” as any channel that can spread information is a channel via which disinformation can also be spread, she said.

It is true that “ not all IP addresses [of those found spreading disinformation] traced back to a [Chinese] region are necessarily linked to the [Chinese] government,” Tang said. The addresses “can also be linked to the [Chinese Communist] party or to the military,” she quipped, evoking snickers and laughters from the audience with a tacit understanding of the indivisibility of party, military, and government in China.

Tang added that we can nevertheless “make what we know public and rely on an international collaboration framework and independent and investigative journalists to piece together the puzzle.”

Taiwan as a testing ground

The importance of multilateral collaboration and independent media was shown in a recent issue published by local media outlet Mirror Media. The report shows that Taiwanese national security and intelligence agencies, during exchanges of information with Taiwan’s allies, obtained a copy of a strategic report detailing how the People’s Liberation Army (PLA) Strategic Support Force — established in December 2015 as part of the PLA’s major reform to be in charge of cyber, electronic, information and space operations — has been emulating Russia’s activities in its annexation of Crimea and interference in the 2016 U.S. elections. Beijing’s aim is to support a pro-Beijing administration in Taiwan in 2020, using next month’s local elections around Taiwan as a “trial run.”

The report reveals that the strategic intentions of the external forces targeting Taiwan by using new media is to amplify the effects of disinformation in public opinion, delegitimize the current government, and hollow the trust between the government and the people, between the administration and the military, and people’s mutual trust. The ultimate aim, the strategic report reportedly says, is “to utterly alter Taiwanese people’s ‘misrecognition’ of and dependence on the Western electoral system and debilitate Taiwan militarily, politically, and psychologically.”

Besides those traced back to China, IP addresses behind comments about specific electoral candidates on PTT, Taiwan’s largest online bulletin board, have been found to originate in Russia, Venezuela, Japan, Vietnam, South Korea and Indonesia (those are believed to be “bots”).

In 2017 there were 19 million Facebook users in Taiwan, out of a total population of 23.5 million people; LINE, a popular social media app, also reported it had 19 million users in 2018. Posts and messages carrying doctored or out-of-context photos accompanied by misleading stories or lies are difficult to debunk within closed/chat groups. Besides the rumor that cost the life of a Taiwanese a diplomat in Japan, the report offers “classic examples” of disinformation from China that was deliberately spread to stir up panic and discord in Taiwan. Among others, this includes “news” claiming that the Democratic Progressive Party-led Tsai government intended to exchange artifacts stored at the National Palace Museum with Japan for a 50-year exhibition and leasing Taiping Island (Itu Aba) in the contested South China Sea to the U.S. military. The sources were found to be Weibo (China’s Twitter-like platform), WeChat groups, as well as “content farms” funded by China.

 

A Weibo post claiming that Taiwan government is exchanging treasured artifacts with Japan for a 50-year exhibition was screengrabbed and, with text added, circulated in LINE closed groups. The National Palace Museum issued a statement denying the rumor and made a downloadable jpg-format of the statement, understandably, for easy spreading.

 

The most intimidating form of disinformation is not outright lies, but rather news-like posts that are partly true or based on bits of information from credible news stories. The disinformation about leasing Taiping Island to the U.S. was based on a Taiwanese government announcement that it would turn the island into a base for humanitarian aid and scientific research. Comments by a Chinese Ministry of National Defense spokesperson against the “leasing proposal” gave authenticity to the claim. Also based on a true event was the disinformation — coupled with an old photo of Taiwanese armored personnel carriers driving down a street — about a brigade of 8,000 U.S. marines allegedly arriving in Taiwan to be stationed at the newly built AIT compound in Neihu, Taipei. This bit of disinformation received much attention, in part due to the fact that news outlets were reporting at the same time that the U.S. normally dispatches Marines in uniform as guards at American embassies.

The photo of Taiwanese armored personnel carriers driving down a street was coupled with a story claiming 8,000 US marines were to station at the newly-built AIT compound in Neihu, Taipei for disinformation spreading. (Photo: Mirror Media)

 

Joint efforts

Taiwan’s foreign ministry is well aware of the danger. Also describing Taiwan as “on the front lines when it comes to coordinated attacks of disinformation,” Foreign Minister Joseph Wu said the ministry is no stranger to such attacks as it deals with them “on a daily basis.” “The topics of disinformation range from potential switches in diplomatic relations to issues with very real national security implications.”

“For every falsehood we discredit,” he said, “more come to take their place.”

Multilateral cooperation is therefore necessary to fight a malaise that is “prevalent across many government agencies in Taiwan and around the world,” Wu said. “On this issue [of disinformation], we seek to share information, contribute our strengths, and work more closely with our like-minded partners and countries from around the region.”

Governments need to join hands and so must civil societies. Cofacts, a collaborative fact-checking platform which combines “chatbots” and a hoax database developed by a Taiwanese tech community, has much to share in its experience in combating disinformation embedded in closed chat groups. Rumor&Truth and Mygopen are also website-based bottom-up effort to debunk rumors and “fake news.” There is room for non-government actors to form networks and learn from each other in a world where authoritarian governments evolve and learn from each other’s tactics.

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