Why were so many referendums held this year? It is because the thresholds for initiating and enacting referendums were lowered when the Legislative Yuan adopted amendments to the Referendum Act in late 2017.

Originally, a referendum proposal required 0.5 percent of total eligible voters in the most recent presidential elections. Since this threshold was lowered to 0.01 percent, now only 1,897 petitioners are required to initiate a referendum.

The threshold for moving past the initiating stage was lowered from 5 percent to 1.5 percent, so that now only some 280,000 people need to support a referendum proposal in a signature campaign for it to be put to a nationwide vote. 

When is a referendum deemed adopted?

The amendment also lowered the threshold for the adoption of a referendum. While a voter turnout above 50 percent and an absolute majority of “agree” (Yes) votes were required for a referendum to be passed in the past, a referendum is now considered successful if at least 25 percent of eligible voters cast ballots and a relative majority votes Yes.

This means that valid Yes votes must exceed valid No votes, and that a minimum of 4.5 million people must vote in favor of a referendum for it to pass.

What happens if a referendum is adopted?

If a referendum gains public support, the issue is handed back to the mechanisms of representative democracy.

Article 30 of the Referendum Act states that if a referendum concerns a law, “the original law or autonomous regulations shall lose its force from the third day counted from the day of public notice.“ If it concerns initiatives on legislative principles, “the Executive Yuan or the municipal or county (city) government shall study a proposal of the related laws or autonomous regulations within 3 months, and send it to the Legislative Yuan or the municipal or county (city) council for deliberation.”

Put in a good light, this means that direct democracy checks the Legislative Yuan. But to put it more bluntly, only the referendum challenging the phasing out of nuclear power by 2025 was a vote concerning the repeal of an existing law (Article 95 Paragraph 1 of the Electricity Act), whereas the other referendums merely serve as references, as they resemble nationwide public opinion polls that gauge the people’s will. In the end, the decision still lies with the Executive Yuan and the Legislative Yuan.

Will same-sex couples’ right to marry be affected if all or no referendums regarding marriage equality are adopted?

Their right to marry will not be affected, but the outcome of the referendums might influence whether same-sex marriages will be regulated through an amendment of the Civil Code or through a new law specially drafted for that purpose.

Pointing to the marriage chapter in the Civil Code, which does not allow two persons of the same sex to create a permanent union, the Council of Grand Justices said in its constitutional interpretation of May 24, 2017 that “The said provisions, to the extent of such failure, are in violation of [the] constitution’s guarantees of both the people’s freedom of marriage under Article 22 and the people’s right to equality under Article 7. The authorities concerned shall amend or enact the laws as appropriate, in accordance with the ruling of this Interpretation, within two years from the announcement of this Interpretation.”

This means that same-sex couples must be granted the right to marry by May 24, 2019.

However, the Council of Grand Justices did not say how same-sex couples’ right to marry is to be regulated. Instead, the judges said: “It is within the discretion of the authorities concerned to determine the formality for achieving the equal protection of the freedom of marriage.”

The outcome of the referendums could influence the lawmaking process. And it is a whole other matter whether a special law, which could have up to more than 100 articles, would eventually still turn out to be unconstitutional.

2018 Referendum Results at a Glance
Seven Out of Ten Referendums Adopted

Translated by Susanne Ganz
Edited by Tomas Lin