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. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

TDB Vol. 2 No. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

Recent amendments to the Referendum Act and the Civil Servants Election and Recall Act have taken Taiwan one step closer to achieving direct democracy. Alison Hsiao explains the changes made to the former and shows why some issues remain off-limit.

 

Direct democracy has made strides in Taiwan in the past year, with significant changes made by recent amendments to the Referendum Act (公民投票法) and the Civil Servants Election and Recall Act (公職人員選舉罷免法). By this process, both acts saw the thresholds lowered and technical barriers removed or lessened, which has garnered applause but also created new challenges.

Referendum Act in a birdcage

The Legislative Yuan passed amendments to the Referendum Act on Dec. 12, 2017, unshackling the law from what some referred to as a “birdcage.” The birdcage was mainly due to the law’s “double one-half threshold,” whereby a national referendum could pass only if the number of voters who participated reached at least 50 percent of the electorate in the last presidential election (thereafter simply “electorate”), and at least 50 percent of those who voted did so in favor of the referendum question. Failure to reach either of those conditions would automatically mean that the people have vetoed the referendum question.

Critics had long argued that referendum questions and campaigns could be manipulated to secure the easy rejection of an argument, since failure to even reach the initial threshold — a 50 percent voter turnout — would mean that the proposal is rejected.

For example, a question could be phrased by those who did not want to stop the construction of a nuclear power plant as whether voters want to stop construction of the nuclear power plant (as opposed to whether they want to continue construction). As the 50-percent voter turnout can hardly be reached in a non-election vote in Taiwan, the referendum proposers could win their case by campaigning against casting the vote at all, or, if they did not want to be too brazen, by simply not campaigning.

Threshold to threshold

However, there were hurdles to cross before even getting to the double one-half threshold.

The group/person that proposed to hold a national referendum would need to demonstrate they have the support (in the form of signatures) of at least 0.5 percent of the electorate in the last presidential election (approximately 94,000) in order for that referendum proposal to be sent to the Referendum Review Commission for official appraisal. The Commission has the power to decide whether a proposal can stand. Prior to the amendment, the Act stipulated that the “matters subject to referendum shall be recognized by the Referendum Review Commission.” (The Commission has historically turned down several proposals amid disputes (1)(2).) Only after the Commission gave the green light could a referendum proposal proceed to the second stage of signature collection needed for a referendum to take place. The number of signatures for the second-stage signature drive had to reach 5 percent of the electorate (approximately 940,000).

Besides the sheer number of signatures involved which was said to contribute immensely to the technical barrier, the Referendum Review Commission was also at the center of controversy due to questions over its impartiality (the Commission members were nominated by the Executive Yuan) and its constitutionality (the Commission had substantive power to restrict people’s right to direct democracy).

‘A new page in Taiwan’s democratic development’

The amendments passed in mid-December scrapped the “double one-half threshold,” lowered the number of signatures required, and abolished the Referendum Review Commission (see Table 1 below).

According to the amended law, only 0.01 percent of the electorate’s (approximately 1,879) signatures are now needed for a proposal to be handed to the Central Election Commission, which is now the competent authority in charge of ensuring that matters to be put to a vote comply with the Act. The second-stage signature collecting now needs signatures by only 1.5 percent of that electorate (approximately 280,000) to initiate a referendum.

A referendum is passed when the number of those who voted yes to a referendum question is greater than that of those voted no, and when the former accounts for more than a quarter of the electorate (approximately 4.695 million).

Once a referendum has taken place, regardless of the result, the same referendum item cannot be put to a vote again within two years.

Other major changes include the lowering of the referendum voting age from 20 to 18; allowing the Executive Yuan (with the approval of the Legislative Yuan) to put its policy proposals to a national referendum; and directives that the Central Election Commission set up an electronic system to facilitate the process of signature collecting.

The People Rule Foundation, founded and led by former Democratic Progressive Party (DPP) chairman Lin I-hsiung, who has long advocated for amendments to the Referendum Act, called the changes “a new page in Taiwan’s democratic development” as “people rule” can now be further substantiated.

But Foundation chief executive officer Liu Ming-hsin said the amendments have only met “90 percent of the [foundation’s] expectation.” The “10 percent disappointment,” Liu said, was the exclusion of “territorial change” as a possible referendum item.

 

                                                                                                    Table 1

 

ROC territorial change

Despite the relaxed rules in the amended Referendum Act, the legislature voted to exclude constitutional amendments as items that can be put to a national referendum. Parties had had exchanged heated words on the matter since 2016, when proposals to amend the Act were first tabled.

The ruling Democratic Progressive Party (DPP) maintained that since there are already rules governing amendments to the Constitution in the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), there was no need to include them in the Referendum Act, with DPP Legislator Lee Chun-yi calling the Referendum Act merely a “procedural law.”

New Power Party (NPP) Legislator Huang Kuo-chang, however, pointed out that since the Additional Articles of the Constitution state that the alteration of the national territory should go through a referendum (Article 1), the Referendum Act as a procedural law should not exclude constitutional amendments as possible referendum items. The main opposition Kuomintang (KMT) stood with the DPP on excluding those.

The issue of changing the Republic of China (ROC) boundary has been the object of contention as it hits a raw nerve among many who fear that the territorial claims upheld by the ROC since 1947 — which encompass territory that is larger than what the People’s Republic of China rules and claims — or the ROC’s “inherent” territorial boundary as stated in the ROC Constitution, could be altered if this were put to a referendum. Conversely, by making the territorial boundary stipulated in the Constitution coterminous with that of what is under Taiwan’s current effective rule, which would include Taiwan, the Pescadores, Kinmen and Matsu, Taiwan’s de jure independence (without changing the name of the country) could, according to some, be achieved.

The NPP caucus had also demanded that cross-Strait political negotiations be put in the Act as a referendum item, requiring initiatives for cross-Strait political talks be put to a referendum before any negotiations between the two governments can take place. The NPP’s proposal did not receive majority approval in the legislature.

Application

The NPP and the Social Democratic Party (SDP) have each since proposed and collected the needed number of signatures to pass the first-stage threshold to call a referendum on overturning amendments to the Labor Standards Act, which was also passed recently on Jan. 10 amid controversy and protests.

See also: TDB Vol. 2. No. 2: Taiwan’s Tough Road to Labor Reform

Members of the opposition SDP set up booths to collect signatures to annul the latest amendments to the Labor Standards Act. (photo courtesy of the SDP official Facebook page)

One other group that has hitched the wagon to the new referendum law was the Happiness of the Next Generation Alliance, an anti-same-sex-marriage alliance, which has collected enough signatures and passed the first-stage signature threshold at the end of January for its proposal to define marriage as strictly the union between a man and a woman, this despite a groundbreaking Constitutional Interpretation in May 2017. On Jan. 31, the group announced it had successfully collected more than 3,000 signatures for a referendum proposal that aims to make revisions to gender equality education.

For both issues, there is no easy way through the CEC, which has now taken over the responsibility of reviewing proposals from the now-defunct Referendum Review Commission.

On Feb. 1 the CEC announced that the referendum proposals tabled by the NPP and the anti-gay-marriage group must first be referred to public hearings for clarification on the wording of the proposals before the CEC determines whether the proposals are valid. The NPP called on the CEC not to create technical barriers to stall their proposal, adding that there were no ambiguities or contradictions in its proposal. The Happiness of the Next Generation Alliance convener said they were not surprised about the CEC’s announcement, as the issues have generated much public debate.

The surge in proposals is the result of the expectation that the referendum(s) could be held alongside the nine-in-one local elections on Nov. 24 this year.

 

 

Feature image: From Flickr CC BY 2.0.

No More Articles