Towards a more Deliberative Direct Democracy: Examination and Evaluation of Taiwan s Case

Transcription

1 Towards a more Deliberative Direct Democracy: Examination and Evaluation of Taiwan s Case Jau-Yuan Hwang (Working paper in progress, to be completed) 1. Introduction Direct democracy (DD), being referendum or initiative, has been often criticized for lacking deliberative quality, as compare to representative democracy. Some scholars even use the theory of deliberative democracy to reject direct democracy. 1 To a less degree, some blames the lack of deliberation at the drafting stage by proponents, during the petition signature-collection period by signers, and during the campaign and voting process among the proponents and opponents. 2 In this paper, the author will try to counter the above criticism by proposing several designs to enhance the deliberative quality of direct democracy. Considering the differences between initiatives and referendums during the proposal formation stage, this paper will focus on the deliberative quality of direct democracy after a proposal is certified and before its voting, i.e., during the campaign period. In section 2, this paper will first examine and evaluate a special design to promote public deliberation under Taiwan s Referendum Act: government-sponsored and compulsory TV debates. After pointing out the weakness of the said TV debates, section 3 of this paper will propose several modifications to improve the deliberative quality of the said TV debates mechanism. In particular, this paper will discuss in details the mechanism of Citizen Review Panel (CRP) as an alternative or supplement to the said TV debates. In section 4, this paper will reflect on the relations between direct democracy and deliberative democracy from the theoretical perspective. 2. Compulsory TV Debates for Referendums: Taiwan's Laws and Practice In order to facilitate more discussions on the referendum proposals before voting, Taiwan s Referendum Act provides for a special mechanism of compulsory TV Professor of Law, National Taiwan University College of Law; S.J.D Harvard Law School. 1 See Ethan J. Leib (2006). Can Direct Democracy Be Made Deliberative? Buffalo Law Review 54: 903, (citing Lawrence Gene Sager s article of 1978 and others). 2 See Nora H. Kashani & Robert M. Stern (2011). Making California s Initiative More Deliberative. California Western Law Review 47: 311,

2 debates. Article 18, Paragraphs 2 and 3 of the said Act provide: The Central Election Commission shall provide the representatives of positive and negative opinions with hours to present their opinions or debate through national wireless TV channels at public expenses, and the designated TV stations may not refuse. The operating regulations shall be prescribed by the Central Election Commission. The presentation or debate referred to in the preceding Paragraph, in case of a proposal of national referendum, shall be held for at least five times through national wireless TV channels. 3 The first such TV debate was held on February 29, A total of ten TV debates were held for two referendum proposals voted on March 20 of the same year. In January and March of 2008, another four proposals were put for referendum vote. Accordingly, 20 more TV debates were held by the Central Election Commission. 4 In accordance with the relevant regulations, the proposer is entitled to presenting the positive views. On the other side, it is usually the government authorities (from either the executive or legislative branch) that will present the opposing views. Meanwhile, any ad hoc campaign office which has been registered with the election commission under the Referendum Act 5 in the TV debates. may also apply to present its opposing views Type Positive views Negative views Citizen Initiatives Proposers (Citizens) Government (EY or LY) Parliament-proposed Referendums President-proposed Referendums Legislative Yuan (LY) Competent authorities Executive Yuan (EY) Opposing congressional caucuses or registered campaign office Table 1: Participants of TV Debates 3 Referendum Act of Taiwan (Dec. 31, 2003, last amended Jun. 1, 2012). For the English text of Referendum Act, see (last visited Jun. 8, 2012). The text used in this paper has been slightly modified by the author. 4 At the local level, there have been two local referendums held at Kaohsiung City in November 2008 and at Penghu County in September Government sponsored TV debates were also held by the local election commissions. 5 Referendum Act of Taiwan, Art. 21, Para. 1: " After it is announced a proposal of referendum is established, the proposers and the objectors may set up offices with permission to propagandize their opinions, and may collect funds to hold relevant activities; however, they may not accept donations from the following. Regulations governing the permission and management of the offices shall be prescribed by the Central Election Commission...." For such campaign office, the number of petitioners shall be not less than 0.01% of the total electors in the latest presidential election. 2

3 Source: Referendum Act of Taiwan and its regulations; Done by the author As Table 1 indicates, the presenters of both views for various types of referendum votes would be politicians and government officials, in most cases. To tip the balance towards more civilian participation, the implementing rule of such TV debates requires at least one presenter for the opposing views must come from the registered campaign office, if there exists such office. Despite the above regulations, the participants of TV debates in Taiwan have been dominated by active or former cabinet-level government officials, legislators, party leaders and political activists closely associated with the major political parties. For example, among the 20 speaker for the ten TV debates held in 2004, only three were university professors or writer of no previous political career then. The rest of 17 were either legislators, government officials or party (ex-)leaders. Even many of them were nominated by the said campaign offices, most of which were organized by political figures. Politicization of TV debates has to do with the political nature of referendum issues and their proposers. In 2004, the first two referendum proposals were initiated by the then president Chen along with his campaign for re-election. The latter four proposals of 2008 were in fact initiated by key figures of the two major political parties, KMT (Kuomintang, Chinese Nationalist Party) and DPP (Democratic Progressive Party). All of the six proposals for national referendum have been on controversial political issues. 6 To be fair, political controversies around these referendum issues also had their positive impact on deliberations. These TV debates usually attracted much audience attention and got substantial media coverage. To a certain degree, such government-sponsored TV debates did generate some discussions among the citizens. Nevertheless, overall speaking, such debates have been more like campaign debates among candidates and much less deliberative discussions among citizens at large. Besides, they have been conducted as elite-centered and top-down campaign strategies, instead of citizen-led and bottom-up process. 6 The two issues voted in 2004 were on the weapon-procurement and Taiwan-China negotiation mechanism. The four issues in 2008 involved the liquidation of unlawful KMT s party assets, legal prosecutions for corruptions of high-ranking government officials, and Taiwan s bid for the UN membership (2). 3

4 3. Suggested Improvements and Alternatives to Enhance the Deliberative Quality of DD Process Though the government sponsored TV debates do stimulate some deliberations among citizens, there is still much room for further improvements. In the following, I will propose some suggestions for improving the deliberative quality of this TV debate mechanism and the overall process of direct democracy in Taiwan More Citizen Participation in the TV Debates As stated above, the governing regulation provides that at least one presenter for the opposing views should be chosen from the citizen-run campaign office, if there exists such office. In practice, most of such campaign offices were set up by political activists, due to the political nature of the past six referendum proposals. As a result, there has been little genuine citizen participation in the TV debate process. For more citizen participation and deliberation along with the TV debate process, this paper would suggest the election commission should allow the citizens to propose questions before the debate for review by the debate moderators. The debate moderators may select appropriate questions and present them during the Q&A sessions for the speakers to answer. Moreover, the election commission may consider to allow the ordinary citizens to make their call-in or send s during the Q&A sessions in order to ask questions or express their opinions. With such direct participation by ordinary citizens, the overall deliberative quality of TV debates should be enhanced Public Hearings on the Referendum Proposals A frequently-implemented mechanism to improve deliberation is to hold public hearings after the referendum proposal is submitted to the competent authorities and before the ballot date. Ideally, holding of public hearings would not only facilitate the deliberation among citizens but that between the government and proposer sponsors, and among the sponsors themselves. Such public hearings could be held by the election commission or by the legislature before the ballot date. The common purpose and benefit of any such public hearings would be to provide a public forum for both proponents and opponents to air their views openly. These pros and cons would certainly enlighten the interested citizens so that they may make a more informed decision upon casting their votes. 4

5 If the hearing is held by the election commission, it may also help clarify the intent, meaning, and effect of proposals, particularly in the case of citizen initiatives. When a hearing is held by the legislature concerned, it would create an opportunity for the legislature to communicate with the initiative sponsors. Such deliberation process should help the legislature decide whether to adopt the proposal by its own legislation, or, if not, how to respond to the proposal once approved by the popular votes. Some scholars suggest a notice-and-comment procedure should further improve the quality of DD proposal, in that the proposers would be able to amend the original proposal after such hearings. 7 This administrative regulation model of public hearings may work to this effect in those countries, which allow DD sponsors to amend their original proposal before ballot date. However, Taiwan s current laws do not allow DD sponsors to amend their proposals once they are certified by the election commission. Without changing the relevant laws, the model of notice-and-comment procedure may not be a realistic option Citizens Review Panel (CRP) on the DD Proposal before the Ballot Day On top of the above mentioned TV debates and public hearings, the mechanism of Citizens Review Panel (CRP) 8 should be a more effective way to facilitate the direct participation and intensive deliberation by ordinary citizens. The notion of CRP is often inspired by Citizens Assembly, once created and practiced in British Columbia, Canada in While the mechanism of Citizens Assembly may serves as an alternative to ballot initiatives, the model of CRP could work to improve the deliberative quality of the DD process, instead of replacing it. The core idea of CRP is to create a citizen panel to deliberate on the initiative or referendum proposals and give their reasoned opinions to the voters, usually via 7 See Glenn C. Smith (2011). More D (Deliberation) For California s DD (Direct Democracy): Enhancing Voter Understanding and Promoting Deliberation through Streamlined Notice-and-Comment Procedures. California Western Law Review 48: I adopt this idea, while modifying the name, from the design of Citizens Initiative Review (CRP). For introduction of CRP, see John Gastil, Justin Reedy & Chris Wells (2007). When Good Voters Make Bad Politics: Assessing and Improving the Deliberative Quality of Initiative Elections. University of Colorado Law Review 78: For a brief introduction and discussion of the British Columbia Citizens Assembly, see id. at ; Note (2010). Making Ballot Initiatives Work: Some Assembly Required. Harvard Law Review 123: 959,

6 position papers. With the analysis, findings and recommendations provided by CRP, general citizens may be able to receive less biased and more thoughtful views, ranging from supportive, neutral to opposing, on the proposals to be voted. Hopefully, the CRP may enhance the deliberative quality of overall DD process, leading to more rational and responsible voters decision. (1) Composition of CRP Panel A CRP panel would consist of an appropriate number of qualifies citizens, with adequate representation or combination of racial, ethnic, gender and other types of backgrounds. 10 For a CRP panel to deliberate efficiently, the number of CRP panel members should fall within a reasonable range, say persons, 11 depending on the population size of the community or jurisdiction it represents. In the case of national referendum or initiative votes, there could be many local CRP panels organized along with the division of political units. (2) Selection of CRP Panel Members On the surface, selection of CRP panel members is similar to the jury selection process. Its members are to be drawn by lot from among the qualified citizens (voters) at large. However, its selection process shall ensure a fair representation of various segments of the society as a whole. Besides, selection of CRP panel members would not preclude those who already have had knowledge of the DD proposals. 12 (3) Meeting and Deliberation of CRP Panel It is suggested that the CRP panel meet for a certain period of time, say one week, to complete their work. During the meeting period, all of the panel members will first receive background information by neutral witnesses. Then they shall listen to pro and con arguments and have the opportunities to cross-examine both sides. After all the briefings and testimonies, the panel shall begin their deliberation and formulate their preliminary positions (pro, neutral and con). They may want to hear feedbacks and comments from the previous neutral, pro and con witnesses, as well as from the interested fellow citizens. In the end, they are to draft and present to the public their 10 See Note, supra note 9, at In the State of Washington, U.S.A., the number of CRP panel member is set at 24 for each initiative proposal. See Gastil, Reedy & Wells, supra note 8, at See id. 6

7 final panel statements. 13 (4) Final Statement of CRP Panel Unlike the jury, the CRP panel is not to render their single and final judgment on the merit of DD proposal. Instead, it will present their consensuses and various positions to the public at the same time. The panel shall make a consensus statement on the facts and findings that are agreed by all of panel members. Meanwhile, it should also include the supporting and opposing arguments in the final statement. This final statement of CRP panel shall be included in the Voters Pamphlet that will be distributed to every citizen voter. The video and transcripts from the panel deliberations shall be make available to the public, for example, on line or via other media Reflections on the Deliberative Quality of DD and the Possible Effects of Proposed Designs [To be completed] 13 See id. at See id. at