On November 27, 2003, Taiwan's legislature passed a referendum bill with certain restrictions.
There were five versions of the bill. Most draft articles proposed by the Kuomintang and the People First Party (known as Pan-Blue Camp) were adopted. The draft prepared by the ruling Democratic Progressive Party (DPP) was defeated.
Of the bill, the most critical one was article 2 -- in respect to the scope of a referendum. The separatist version that referred to change of the island's name, anthem, flag and constitution in future referendums was excluded, since of the 190 members of the legislature who attended the session, only 14 voted for the bill, one against and 175 abstained, indicating even the majority of DPP's legislators were reluctant to support.
The wilder version from the "executive yuan" comprising referendums to amend the existing constitution and to enact a new constitution was also rejected by 114 votes, whilst the milder version put forward by the Pan-Blue Camp was adopted by 114 votes. This version suggested that referendums be used for review of law, initiative of legal principles, initiative or review of major public policies and review of amendments to constitutional principles.
Among the four issues of referendum, review of law, of major public policies and of amendment to constitutional principles can be regarded as a negative measure to check upon ill or defective law, public policies or constitutional amendment, whilst initiative of legal principles and of major public policies will be considered as a positive measure to put forward the said principles or policies directly by citizens outside the legislature.
As the referendum for change of sovereignty and for territorial integrity have been dropped, it is believed that the tensions across the Taiwan Straits can be temporarily eased. This may be attributed to Beijing's warning of a strong response if Taiwan passed a referendum law without restriction. Recent diplomatic exercises and military deployment by the mainland had deterred separatist legislators from going a step further.
On the other hand, some members of the Taiwan legislature may also have recognized that any referendum needs justification. The goal of a referendum should not be illegal, nor incompatible with international law. Just as the ends of referendums cannot justify the use of unlawful means, so is it equally true that referendums do not sanction unlawful ends.
Albeit Taiwan was occupied by Japan some time ago, it is an inalienable part of China. The Cairo Declaration signed by China, the US and Britain on December 1, 1943 demanded that all Chinese territories Japan had occupied such as Northeast China, Taiwan and Penghu Islands be returned to China (Paragraph 2 of the Declaration).
On July 26, 1945, China, the US and Britain (the USSR joined later) signed the Potsdam Proclamation urging Japan to surrender. It stipulated that the terms of the Cairo Declaration shall be implemented (clause 8 of the proclamation).
Defeated in World War II, Japan agreed, on September 2, 1945, to accept all the terms of the Potsdam Proclamation in its capitulation and hand over all captured territories including Taiwan to China (clause 1 of Japanese Capitulation).
Once Taiwan had been returned to China subsequent to World War II, it could no longer be treated as a colony. The right of people's self-determination will not apply any more. By the Declaration on Granting Independence to Colonial Countries and People passed by the United Nations' General Assembly on December 14, 1960, it has been affirmed that all colonized people can enjoy the right to self-determination, but any secessionist attempt aimed at partial or total disruption of a country is incompatible with the purposes and principles of the charter of the UN. (article 6 of the declaration)
At its 26th session, the General Assembly of the UN adopted on October 25, 1971 by an overwhelming majority a resolution restoring all the lawful rights of China in the UN to the Chinese mainland.
On February 28, 1972, a joint Shanghai communique was issued by the governments of the People's Republic of China and the US as a result of President Richard Nixon's visit to Beijing. In this agreement or, strictly speaking, a treaty, the Chinese side reaffirmed that Taiwan is a province of China which had long been returned to the motherland. The US side declared acknowledgement that all Chinese on either side of the Taiwan Straits maintain there is but one China, and that Taiwan is a part of China. It was also agreed that the question of the government of China was an internal matter, a position from which the Taiwan authorities would not dissent.
In Reel v Holter (1981), the Court of Appeal of the UK, when asked to decide whether Taiwan was a country within the meaning of the Rules of the International Amateur Athletic Federation (IAAF), was simply concerned with the interpretation of the rules of IAAF and not with the international sphere of statehood and sovereignty. Accordingly, a statement from the UK Foreign Office to the effect that Taiwan was not recognized as a state was not a point.
Notwithstanding that the passed referendum bill does not include a mechanism for enactment of the new constitution, the so-called defensive referendum on the island's sovereignty in Article 15 in the event of external threat to its security is adopted. This will leave room for the Pan-Green Camp to conduct separatist activities, and thus create uncertainty and probably crises along the Taiwan Straits. It gives Chen Shui-bian the power to hold a "defensive referendum" on the island's political status if China tries to use force to make Taiwan unify. In order to gain sympathy and some kind of election benefit by provoking the mainland, Chen will likely and, perhaps frequently, abuse this power on or before March 20, 2004.
It should, however, be realized that the opposition Pan-Blue Camp may also utilize the mechanism to challenge the major public policies of the ruling party on issues like "three direct links", "consolidation of ethnic groups" and probably "one China principle and 1992 consensus". In the circumstance of poor administrative performance or economic downturn, a referendum is indeed a double-edged sword capable of being employed to rectify the mistake of major public policies under Chen's administration. If it is the case, the referendum law will be a turning point for the DPP's failure, sooner or later.
Dr. Song Sio-chong is the honorary consultant of China Law Office, a law firm under the auspices of the Ministry of Justice of the PRC and licensed to practice law on the mainland and in HKSAR.
(China Daily HK Edition December 2, 2003)
