A Constitutionalist Analysis of the Institutionalization of Referendum in Taiwan
Date Issued
2007
Date
2007
Author(s)
Shen, Yi-Hui
DOI
zh-TW
Abstract
As a system of direct democracy, referendum supervises the autocracy and irresponsibility of the parliament, as well as the decision-making and administration of the government in modern countries. It is undoubtedly a representation of the experiences of direct democracy in ancient Greek and Rome. However, referendum is not totally unlimited. In fact, the concept of natural law which lies in the core of constitutionalism dominates and somehow restrains the operation of referendum. Therefore, the procedure of referendum is supposed to accord with or reinforce the spirit of constitutionalism. In this sense, referendum is a neutral and implemental mechanism, rather than a pronoun of populism. On the other hand, since the enactment of Referendum Law in Taiwan is highly political, during the process of deliberations, the mobilization and confrontation of political forces more often than not overshadow the sobriety principle of constitutionalism. As a result, some articles of Referendum Law violate the spirit of constitutionalism. A comprehensive knowledge of the modern concepts of constitutionalism so as to scrutinize and refine the institutionalization of referendum in Taiwan is indeed necessary.
This thesis aims to conduct a historical survey of the intellectual foundation and evolution of constitutionalism, analyzes the supposed direction of the institutionalization of referendum in Taiwan, and reflects on its possible defects, in hope that the institutionalization could correspond to the spirit of constitutionalism. Based on the four modern concepts of constitutionalism—human rights protection, popular sovereignty, separation of powers, and judicial review, this thesis investigates various matters, including the referendum threshold, limitations of referendum issues, the constitution of Referendum Supervisory Committee, the proposer of referendum issues, the mechanism that prompts dialogue of deliberations, the institutionalization of local referendum, the timing at which judicial review interferes with a referendum issue and its review criteria, etc.
Subjects
立憲主義
自然法
人權保障
權力分立
司法審查
公民投票
constitutionalism
natural law
human rights protection
popular sovereignty
separation of powers
judicial review
referendum
SDGs
Type
thesis
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