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James Martin Center for Nonproliferation Studies
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CNS Research StoryChen's Gambit: The Legal Basis and Potential Policy Consequences of Taiwan's Referendum
By Matthew Godsey
A number of potential referendum topics were floated by the president and his senior aides, ranging from whether to accept Beijing's "one country, two systems" unification formula to whether to demand that China withdraw the close to 500 ballistic missiles deployed against Taiwan.[2] However, the actual referendum questions, released by the President's Office on 16 January, were somewhat less inflammatory than many had expected:
Although the second question could potentially affect the course of future cross-strait relations, the first more directly impacts Taiwan's current defense policy. But what could be the possible consequences of the results of Question 1 for Taiwan's future defense acquisitions? To answer this question, it is necessary to first examine the historical and legal bases of Taiwan's referendum. Historical Origins The idea of holding a national referendum is by no means unique to the Chen era. The Constitution of the Republic of China, adopted in 1946, declares that "the exercise of the rights of initiative and referendum shall be prescribed by law."[4] However, during the 38 years of martial law (1949-1987) that followed the KMT's retreat from the mainland, the government made no effort to codify the rules or procedure for holding a referendum; on the contrary, the regime sought to neutralize dissent and punish any form of political expression. Serious discussion of how such a referendum would be initiated or conducted did not begin until 1992, when a plebiscite was suggested to determine whether Taiwan should seek readmission to the United Nations.[5] The Democratic Progressive Party (DPP), which emerged in the late-1980s as the main opposition party to KMT rule, saw the referendum as a vital tool in the push towards direct democracy in Taiwan. DPP candidate Chen Shui-bian's victory in the 2000 presidential election brought to power the main proponent of the referendum. The question, for most Taiwanese, became not whether Chen would hold a referendum, but when and on what issue. In his inaugural address, the president provided a partial answer to this question by vowing not to "promote a referendum to change the status quo in regards to the question of independence or unification."[6] With the possibility of a direct vote on independence effectively ruled out (much to the chagrin of many hard-line independence advocates within the DPP), attention focused on an issue of domestic salience: the construction of Taiwan's fourth nuclear power plant. For years, anti-nuclear activists had protested the construction of a new nuclear reactor, citing the 1986 Chernobyl disaster, as well as Taiwan's exceedingly limited capacity to store nuclear waste. In October 2000, Chen halted construction on the plant, fulfilling a key campaign promise. However, three months later, after the KMT majority in the Legislative Yuan had demonstrated its determination that nothing else would be accomplished in the parliament until construction resumed, Chen was forced to reverse his decision. The move, highly unpopular among DPP faithful, stiffened the party's resolve to pass a referendum law that would allow major policy decisions to be made by the public: upon announcing that construction would resume, Premier Chang Chun-hsiung stated that the Cabinet intended to make passage of a referendum law its top priority in future negotiations with the legislature.[7] The SARS epidemic lent further impetus to the push for a referendum law. China's efforts to prevent Taiwan from receiving World Health Organization (WHO) assistance in the midst of the crisis remain a source of bitterness and resentment for many Taiwanese. The WHO sent two experts to Taipei a full seven weeks after the first case of SARS was diagnosed there, and even then it was forced to first request permission from Beijing. In May 2003, China campaigned successfully to block Taiwan's bid to join the organization as an observer, a status that does not even require statehood.[8] Perhaps most memorable to many Taiwanese were the words of Sha Zukang, the Chinese delegate who, when questioned by Taiwanese reporters, shouted "Who cares about your Taiwan?!"[9] Seeking to capitalize on the widespread animosity towards China that this generated among Taiwanese, Chen announced the possibility of a referendum on WHO membership--specifically, whether Taiwan should devote more resources to its application for observer status.[10] Referendum Law In November 2003, the Legislative Yuan passed the Referendum Law, a watered-down version of a draft law submitted by Chen's Cabinet. Pan-blue lawmakers, who had steadfastly opposed any suggestion of a referendum bill (until polls revealed that the unpopularity of their position had enabled Chen to pull even with Pan-blue candidate Lien Chan), suddenly reversed course and declared support for a referendum measure.[11] The bill they eventually produced, however, greatly curtailed the role of the president in proposing referendum questions. It also limited the range of issues that could be determined by nationwide referendum to initiatives on "a law," a "legislative principle," the "formulation of a major policy," or "an amendment to the constitution."[12] Significantly, the law excluded questions of sovereignty or a new constitution from the referendum process, and prohibited referenda on changing the country's name, flag, anthem, or territory.[13] Although referenda to amend the constitution would be possible, a proposed amendment would require prior approval from three-quarters of the legislature before coming to a vote, a tall order in Taiwan's factional parliament. Chen and his "Pan-green" allies were so disappointed with the diluted Referendum Law that they considered vetoing it. The law prohibited the president from proposing referenda on law, policy, or the constitution, thus dashing Chen's hopes of calling a plebiscite on the fourth nuclear power plant, WHO membership, or a new constitution. However, circumstances under which the president could call a referendum were described in Article 17: When the nation is threatened by an external force that could cause a change in the nation's sovereignty, the president may, via a resolution of the Executive Yuan Council, refer a matter relating to national security to the citizen's for a vote.[14] Whether by intention or otherwise, Article 17 provided a key loophole for a president determined to hold a referendum. Opposition lawmakers accepted the argument that Article 17 would be an effective deterrent to aggression by China, since any military provocation towards Taiwan could potentially trigger a referendum on independence. Ironically, however, by carefully constructing the law so that the president could not initiate a referendum on any domestic issue, the Pan-blue alliance effectively forced Chen to choose between abandoning his referendum dream and calling a vote that would directly confront China. Considering the political investment he had already made in the referendum issue, it should have come as no surprise when Chen chose to do the latter. The "Defensive Referendum" On 29 November, two days after the passage of the Referendum Law in the Legislative Yuan, President Chen announced his intention to hold a "defensive referendum" on 20 March 2004, the same day as the presidential election. Speaking to a rally in Taipei, Chen said: "To protect the sovereignty of our country from any alien threats and changes, I'm obliged and responsible to put this issue to a referendum with the approval of the cabinet."[15] Directly invoking Article 17, Chen pointed to the 496 missiles deployed in the coastal provinces of Jiangxi, Guangdong, and Fujian as a clear threat to Taiwan's sovereignty.[16] However, he argued that, rather than promoting independence, a referendum responding to this threat would actually serve to maintain the status quo.[17] Pan-blue leaders were quick to decry Chen's plan, which they charged was both unnecessary and illegal.[18] They particularly objected to Chen's use of Article 17, which they saw as a perversion of the spirit in which it had been formulated; the article, they argued, was intended to authorize the president to hold a referendum only when the nation's sovereignty was in immediate jeopardy.[19] By abusing this authority, they charged, Chen was squandering any deterrent effect Article 17 might have on China, thus compromising national security simply to boost his chances for reelection. Beijing's reaction to Chen's referendum was characteristically vitriolic. Referring to it as an "independence referendum," China denounced the plan as a scheme to permanently split Taiwan from the mainland. A condemnation from China was widely expected, and probably would have been triggered by a referendum proposal on any subject. The Bush administration, however, was seen by both the Taiwanese government and public as a staunch supporter of Taiwan. Therefore, President Bush's stern rebuke of Chen--delivered with Chinese Premier Wen Jiabao by his side--raised more than a few eyebrows in Taipei. Although Chen initially shrugged off the criticism and vowed to carry on with the referendum, the warning from Washington almost certainly contributed to the eventual mild wording of both referendum questions.[20] Defense Procurement Deadlock A key criticism of Question 1 is that it appears designed to generate a "yes" vote. The proposal does not specify the cost of improving Taiwan's anti-missile defenses, nor describe the types of weapons that would be purchased or developed should the initiative pass. Therefore, opponents have dismissed the question as a "no-brainer," the sole purpose of which is to link-in the mind of the voter, at least--a vote for security with a vote for Chen. However, whatever the political motivations behind the initiative, the current state of deadlock in Taiwan's weapons procurement process ensures that the results of Question 1 will receive careful consideration from lawmakers. In April 2001, the Bush administration authorized the sale to Taiwan of a major arms package that included four Kidd-class guided-missile destroyers, eight diesel-electric submarines, twelve P-3C Orion anti-submarine aircraft, and a number of other weapons systems.[21] Although pleased with much of the offer, Taiwanese officials were disappointed at the absence of Aegis-equipped Burke-class destroyers, much coveted by Taiwan for their anti-missile, anti-aircraft, and battle management capabilities. The less-advanced Kidd-class destroyers were seen by many to be a meager substitute. Fierce debate erupted in the legislature over whether or not to go forward with the purchase, with several members of the defense committee moving to block the sale.[22] Opponents claimed that the Kidds were both too old and too expensive, and that Taiwan would be better served by continuing to push the United States for Aegis-equipped ships. Those who supported their purchase, on the other hand, pointed out that not only would the addition of the Kidds provide an immediate qualitative improvement to the existing fleet, their purchase would likely persuade the United States to allow the sale of Aegis-equipped destroyers at a later date. Two years of parliamentary wrangling later, the budget was finally approved, but only after the United States had agreed to a 15% reduction in the original price, a difference it made up by reducing the number of Standard-II missiles supplied with each ship (thereby decreasing its defensive capacity).[23] Taiwan currently operates three Patriot-II missile-defense batteries in the Greater Taipei area. However, efforts to secure the funds needed to acquire the more advanced Patriot Advanced Capability (PAC-3) system have met with opposition from KMT and PFP legislators. In August 2003, the Ministry of National Defense requested a special budget to purchase, among other things, six PAC-3 batteries, as well as long-range phased-array radar, an integral part of a missile defense system. Pan-blue lawmakers, intent on denying Chen a defense victory prior to the election, continued to express reservations about the cost of the package (US$15.5 billion), with some even suggesting that such a long-term commitment should not be made until after the presidential election.[24] Others were skeptical of the effectiveness of the system, voicing doubts over its performance during the second Gulf War--a concern that is not without merit, as even the qualified success the PAC-3 achieved in intercepting Iraqi Scuds might not be repeated against China's more sophisticated missiles and warheads. Bush administration officials have expressed considerable frustration with Taiwan's apparent foot-dragging over defense expenditures.[25] Some attribute this complacency to overconfidence in the willingness and ability of the United States to defend the island if it is attacked. Chen's decision to specifically address defense spending on the referendum, therefore, should be seen as a conciliatory gesture towards Washington. Consequences for Defense Policy According to the Referendum Law, a referendum can pass only if more than half of registered voters cast a ballot and more than half of those ballots support the referendum measure.[26] Voter turnout was quite high in both of Taiwan's previous direct presidential elections: 76% and 82.7% of registered voters cast ballots in 1996 and 2000, respectively.[27] Therefore, although some observers have predicted that widespread disgust with the low tenor of the current campaign would result in reduced participation, it is still reasonable to expect turnout well above the 50% required to validate the referendum results. However, with less than a month to go before the election, Taiwan's Central Election Commission (CEC) overruled President Chen's proposal that voters pick up and cast the presidential and referendum ballots simultaneously; instead, the Commission ruled that voters would pick up and cast the presidential ballot before being given the referendum ballot.[28] This decision opened the door to a boycott by the Pan-blue, which maintains that the vote is illegal. Although polls have consistently shown that more voters intend to vote "yes" than "no," the referendum's fate is likely to be determined by overall turnout and the percentage of voters who decide to boycott the vote by not picking up a referendum ballot.[29] A "yes" vote on Question 1, combined with the reelection of Chen Shui-bian, could provide the political mandate needed to push currently stalled defense budgets through the legislature, as well as funding for the continued development of Taiwan's indigenous missile-defense system. At the very least, it would severely undermine the positions of the legislature's most vocal critics of defense spending. A "yes" vote and an election victory by Lien Chan, however, would have more ambiguous consequences for defense policy. Lien would be unlikely to ignore the results of the referendum (and risk appearing undemocratic), but may choose to support a greatly scaled-down version of the special budget, or perhaps an even more symbolic expenditure. Because of the vague wording of Question 1, Lien would be largely free to pursue his own interpretation of its mandate. A "no" vote, although probably the least likely outcome, would result in a more complicated scenario. Chen has already promised that, if reelected, he would push forward the purchase of the items described in the special budget even if faced with a "no" on Question 1.[30] However, opposition legislators, emboldened by the show of public support for their position, would make any progress very difficult. A "no" vote and a Lien victory, on the other hand, would generate a new set of complications. Although the result would provide him with initial political capital, Lien would then face resistance on even minor expenditures from the pro-unification wing of his party, who could use the referendum result to justify their opposition to any new defense spending. Failure to achieve the 50% threshold required to validate the referendum would likely result in a fresh round of finger-pointing. Although there would be no public mandate for or against increased defense spending, pro-unification forces in the legislature could argue that the lack of public interest in the poll should be interpreted as a dismissal of the president's call to boost defenses. More importantly, perhaps, failure to achieve a valid result would appear to confirm Beijing's longstanding assertion that the "splittest" Chen and his DPP represent only a small minority of Taiwanese, while the majority support reconciliation with China and eventual unification. Moreover, a lackluster response to the referendum would signal to Beijing that the majority of Taiwanese were not committed to defending themselves from Chinese aggression. This possible misinterpretation holds the greatest potential to cause a dangerous break from the status quo. Conclusion A decidedly positive response
to Question 1 may make it easier for proponents of increased defense spending to
push through funding; in the end, however, lawmakers in the Legislative Yuan
will be largely free to decide for themselves how to act--or not act--upon the
referendum's results. Nevertheless, President Chen can be expected to claim
victory no matter what the final results of the referendum. To Chen, setting the
precedent of holding Taiwan's first referendum was always more important
than any policy direction such a vote would provide. Therefore, even if he loses
both the presidential election and his referendum bid, Chen and the DPP can
claim to have fulfilled their longstanding promise to establish the legal basis
to hold a referendum, thus finally granting the Taiwanese a right promised to
them by their constitution over half a century ago.
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