COULD 2004 REFERENDUM HINDER MISSILE-DEFENSE

C O N F I D E N T I A L SECTION 01 OF 02 TAIPEI 003284

SIPDIS

STATE PASS AIT/W

E.O. 12958: DECL: 08/08/2015
TAGS: PGOV TW
SUBJECT: COULD 2004 REFERENDUM HINDER MISSILE-DEFENSE
PURCHASE?

REF: 04 TAIPEI 839

Classified By: AIT Director Douglas Paal, Reason(s): 1.4 (B/D).


1. (C) Summary: The March 20, 2004 referendum on improving
Taiwan's missile defenses is still causing repercussions
within the Taiwan political community. KMT legislator Su Chi
told AIT that many within the KMT see the failure of the
referendum as the public's rejection of increased
missile-defense spending and, therefore, an obstacle to
improving Taiwan's defensive capability. Constitutional
scholars are split: some say Article 30 of the Referendum Law
clearly indicates that if fifty percent of eligible voters do
not participate, the referendum is "rejected." Others say
Taiwan's first referendum was only intended to educate voters
who know little about participatory democracy, and it had
symbolic meaning only. End Summary.


2. (C) During the March 20, 2004 presidential election,
Taiwan voters were offered the chance to vote on two
referendum ballot questions, the first of which asked whether
Taiwan should acquire "more advanced anti-missile weapons"
should China refuse to withdraw its missiles aimed at Taiwan.
Of the 7.45 million votes cast, 91.8 percent supported the
purchase of improved missile-defense systems, while 8.2
percent were opposed. But, the referendum itself failed to
attract the fifty percent of 16.5 million eligible voters
required by Article 30 of the Referendum Law to be considered
valid and, thus, under the terms of Article 30, was deemed
"rejected."


3. (C) Because the requisite 50 percent threshold was not
reached, many observers concluded the missile-defense
referendum was a non-binding, legal nullity. However, in a
recent conversation with KMT legislator and Ma Ying-jeou
advisor Su Chi, AIT learned that many within the KMT believe
the failed referendum bars the government from purchasing
upgraded missile defenses. (NOTE: Septel reports on Su's
discussion of other aspects of the special budget logjam. END
NOTE.) Under Article 30 of Taiwan's Referendum Law, if less
than 50 percent of eligible voters participate, the
referendum in question is "deemed rejected" (junwei foujue).
In a discussion of the Special Defense Budget deadlock with
the Deputy Director, Su Chi argued that under Article 30,
insufficient voter turnout is equivalent to a "rejection" of
the referendum. Because the missile-defense referendum was
"rejected," the government is barred from purchasing upgraded
missile defenses. Su said President Chen insisted on holding
the missile-defense referendum which created this conundrum,
and it should be up to Chen to resolve it, particularly since
he forced the holding of an unnecessary referendum.


4. (C) Constitutional scholar and recently-appointed Director
of the President's Constitution Reform Office Lee Chun-yi
argued to AIT that the missile-defense referendum was Taiwan
society's first experience with the referendum process. Lee,
who was Deputy Mayor of Chiayi City during the referendum
said that, since the majority of voters did not understand
the issue or the significance of their votes, the referendum
result should not be considered binding. Taiwan National
University constitutional law professor Hwang Jau-yuan told
AIT the referendum should not be considered binding for two
reasons: first, the referendum was merely advisory in nature
-- even if it had passed, it would not have obligated the
government to purchase new missile defenses. Second, most
nations that employ a voter-turnout threshold distinguish
between an "invalid" result where too few voters participate,
and "rejected" results, where the threshold is met and the
measure is voted down. According to Hwang the
missile-defense result would clearly fall within the former
category. Hwang was also confident that should Taiwan's
Supreme Judicial Council ultimately rule on this issue, it
would consider the nature of the referendum and the
jurisprudence of other nations, and conclude the referendum
was advisory in nature, and invalid due to insufficient voter
turnout.


5. (C) Comment: Su Chi has in the past clung to legalistic
arguments that do not resonate widely. By contrast,
Professor Hwang said the referendum result is not a
significant legal obstacle to the LY passing authorizing
legislation for the purchase of upgraded missile defenses,
and it is likely the KMT is using the referendum as a
convenient excuse to hold up defense spending. That may be
so; it has been over a year since the result of the
referendum was known, and yet no one from the Pan-Blue side
has managed to put this issue before the Supreme Judicial
Council for an advisory opinion. The Pan-Blue's apparent
choice not to bring this issue to court may reflect its own
doubts of the legal validity of their objection. However,
the Pan-Green Chen has to assume some of the responsibility.
They forced a referendum onto the ballot to increase voter
support for Chen in a close race. Since Chen and his advisor
were intimately involved in writing the referendum law less
than four months earlier, they had every reason to know the
risks they were taking. Recent events signal the possibility
of cooperation between the Pan-Blues and Pan-Greens on
increased defense spending, which may moot this question
entirely. End Comment.
PAAL