Taiwanese citizens headed to the polls during the country’s November 24 regional elections tasked with deciding on 10 public referendum questions, alongside choosing local leaders. The day became mired with long lines, confusion in understanding the referendum items, and a general sense of chaos. The voting provided 10 answers but many more lingering questions.
Voters decided on items such as Question 10: “Do you agree that Civil Code regulations should restrict marriage to being between a man and a woman?” The “yes” votes won, in a direct rejection of a 2017 ruling by Taiwan’s top court, which determined that same-sex couples had a constitutional right to marry.
However, voters also decided on two other questions pertaining to LGBT marriage equality. Question 12 asked voters: “Do you agree to types of unions, other than those stated in the marriage regulations in the Civil Code, to protect the rights of same-sex couples who live together permanently?” Like Question 10, this item was put forth by opponents of marriage equality; the “yes” votes also prevailed.
Question 14 was put forth by marriage equality advocates. It asked: “Do you agree that the Civil Code marriage regulations should be used to guarantee the rights of same-sex couples to get married?” The referendum failed, with just 32.7 percent of voters choosing “yes.”
Taiwan’s Referendum Act has been in place since 2003 and a series of national referendums were previously held in 2004 and 2008, all of which failed to pass. In 2017, the ruling Democratic Progressive Party (DPP) implemented sweeping reforms to the act, lowering the proposal threshold needed for an item to appear on the ballot from 5 percent of the population to 1.5 percent. For a referendum to pass, 25 percent of the electorate, rather than 50 percent, would have to vote “yes” while also outnumbering “no” votes.
These new thresholds were meant to activate the power of a previously toothless act and ease Taiwan’s mechanisms of direct democracy. This year’s elections, the first serious large-scale referendum experiment at the national level, however, raised grave concerns about whether the process meets a standard of majority rule rather than empowering small and well-mobilized interest groups.
Direct Democracy or Undemocratic?
Groups interested in submitting a referendum were required to collect 281,745 signatures, or 1.5 percent of voters, for a proposal be approved by Taiwan’s Central Election Commission (CEC). Taiwan’s Happiness of Our Next Generation, a right-wing Christian group opposed to marriage equality, rapidly met this threshold and began campaigning for Questions 10 and 12. Pro-equality groups had to quickly mobilize to catch up to well-funded anti-equality groups.
For each referendum question, supporters and opponents are granted five televised “debate” slots to make their cases to the public, giving equality opponents a level platform in a country where 71 percent of citizens supported same-sex marriage in 2015, according to a government survey.
Some marriage equality opponents had already begun to disseminate messages via social media containing falsehoods such as claims that foreigners with AIDS would come to Taiwan to utilize its national health insurance. Anti-equality groups were also prepared with flyers at voting stations, reportedly breaking the law by treading too close to polling stations, according to multiple witness accounts.
Many voters recalled encountering fellow citizens confused with how to interpret or fill out referendum ballots, which contained unclear and contradictory language, and frustrated with the time referendums added to the voting process. Chen In-chin, the chairman of the CEC, immediately resigned, and the CEC proposed holding a separate day of voting for referendums in the future.
However, this leaves fundamental questions unaddressed about whether referendums can work as vehicles of direct democracy. Many have argued that, similar to the Brexit vote, referendums incorrectly distill complex issues to a simple “yes” or “no” question, especially when presented to the national electorate rather than focusing on localized issues within smaller municipalities.
Pro-LGBT advocates have also argued that human rights issues should not be put to a popular vote in the first place. In Taiwan, matters of national sovereignty, such as a vote for formal independence from China outside of the Republic of China (ROC) paradigm, are ineligible for referendum consideration. However, Question 10 passed despite directly contradicting a ruling by Taiwan’s constitutional court.
The ruling DPP has already said it will fashion a law separate to the Civil Code to legalize same-sex unions. However, Taiwan’s high court warned after the referendums that its May 2017 ruling, which mandated legislative action on full marriage equality within two years, remains in place.
Participation by Political Parties
Out of 10 questions presented to voters, seven passed. (The questions were numbered from 7-16.) These included measures to repeal the planned shutdown of Taiwan’s nuclear power plants, curb coal and thermal power plants, and maintain a ban on food imports from Japan’s disaster-stricken Fukushima region. A measure to compete in the 2020 Tokyo Olympics as “Taiwan” rather than “Chinese Taipei” failed to pass.
Political analysts pointed out that DPP officials did not take a stance on the LGBT equality referendums. In a June 2018 interview with Agence France-Presse, President Tsai Ing-wen said her government would “bridge the differences” and propose a bill despite societal divisions on the matter. This never came to be.
Conversely, the opposition Kuomintang (KMT) itself proposed and backed the referendums on coal and thermal energy and Fukushima food imports, finding success after it “spent a lot of energy and resources” on those three measures while not focusing on the others, according to KMT legislator Johnny Chiang.
Chiang, speaking at a December 4 panel hosted by the Institute for Taiwan-America Studies in Washington, D.C., said his party did not take an official position on the LGBT-related referendums but acknowledged that opponents of marriage equality may be inclined to support the KMT.
While legislators from both parties took individual stances on the referendums – the pro-LGBT items were proposed by DPP legislator Wang Ting-yu along with Social Democratic Party member Miao Po-ya, while some KMT candidates expressed their opposition to same-sex marriage – the DPP’s silence on the slate of measures proved deafening.
Wang said in a post-election interview that, on issues such as marriage equality, “what [the DPP] tried to do perhaps is correct, but we didn’t communicate with people.” Now, less than one year after it triumphantly pushed through referendum reform, the DPP finds itself acting on a public mandate in direct contradiction with a high court ruling – a situation it may struggle to legislate its way out of.