Article 2 of the Constitution provides: “The sovereignty of the Republic of China rests with the whole body of citizens.” According to the text of the Constitution, our Constitutional system is designed to be representative democracy. While the Constitution has undergone several amendments, it is provided in Article 53 that the Executive Yuan is the highest administrative organ of the State as well as in Article 62 and Article 63 that the Legislative Yuan is the highest legislative organ of the State, to be constituted of legislators elected by the people to exercise legislative power on behalf of the people, and that the Legislative Yuan shall have the power to decide by resolution upon statutory or budgetary bills or bills concerning martial law, amnesty, declaration of war, conclusion of peace or treaties, and other important affairs of the State. In the Constitutional Amendment promulgated on July 21, 1997, Article 3, Paragraph 2, the spirit of the Constitution that the Executive Yuan shall be report to the Legislative Yuan is therein preserved so that the political structure of the representative democracy has gone no material change.
The Constitution further provides in Article 17 that “the people shall have the rights of election, recall, initiative and referendum;” and in Article 136 that “the exercise of the rights of initiative and referendum shall be prescribed by law;” showing adequately that the people is allowed by explicit provision of the Constitution to participate in the formation of the will of the State through the exercise of their rights of initiative and referendum. Where the Legislature enacts the Referendum Act in accordance with the foregoing provisions without changing the premise that our constitutional system is based on the representative democracy, providing the people with a channel to express directly their opinions on important policies and assisting the people in exercising their rights of initiative and referendum, it is certainly not contrary to the Constitution.
Because initiative and referendum are fundamental rights of the people, bills of referendum should in principle be proposed by the people. Nevertheless, the Legislative Yuan, in exercising the legislative power on behalf of the people, has the power to resolve upon important matters of the State (see Article 62 and Article 63 of the Constitution) and to take part in the making of decisions on the formation or change of important policies of the State (see J. Y. Interpretation No. 520). The provision of the Referendum Act, Article 16, Paragraph 1, that: “Where the Legislative Yuan considers that it is necessary to hold a referendum with respect to an issue falling under Article 2, Paragraph 2, Subpragraph 3, hereof, it may, upon a resolution adopted by the Yuan Sitting, and by a letter stating the subject thereof and the reasons therefore, refer the matter to the Central Election Committee for holding a referendum.” Article 31, Subparagraph 3, of the same Act requires that the competent authority take necessary actions to materialize the content of the bill involving major government policy passed by referendum. The purpose of the above provisions is to make it possible for the Legislative Yuan, in representing the people in the exercise of the above powers, to submit to referendum controversies involving major policies for which direct vote by the people is necessary so that such issues may be decided directly by the people, provided that it is not against the fundamental principle of separation of powers under the Constitution. It is thus not contrary to the principle of representative democracy under our constitutional system, and is also consistent with the purpose of the Constitution that the sovereignty of the nation shall rest with the whole body of the people and that the people shall have the rights of initiative and referendum. It follows that the provision of Article 16, Paragraph 1, of the Referendum Act does not constitute an encroachment upon the executive power or leads to the situation of imbalance between the executive and the legislative powers.
In conclusion, the provision of Article 16, Paragraph 1, of the Referendum Act does not conflict with the Constitution in that it has not gone beyond the scope herein defined.
In order to safeguard the rights of initiative and referendum of the people and to ensure smooth and proper implementation of referendum, the legislative body shall establish comprehensive procedural and substantive regulations with respect to referendum. It shall in particular enact statutes to prescribe clearly and precisely the substantive elements required for the presentation of a bill of referendum and the procedure of holding the vote, and also establish a fair and impartial organization to take charge of the review of such bills so as to win the confidence of the people and to encourage the people to take part in referendum. To make such laws, however, the legislators must, in addition to making appropriate regulations on the principle of sovereignty by the people, adhere to the principle of separation of powers by refraining from making laws that go beyond the border of check and balance of powers to the extent of depriving completely the Executive Yuan of its power to make decisions on personnel management.
The Referendum Act provides in Article 34: “The Executive Yuan shall cause to be organized a National Referendum Review Committee, which shall take charge of the review of the following matters: 1. To determine the issue for national referendum, and 2. To determine whether the issue proposed for referendum is a same matter under Article 33 of the Act.” Thus, the National Referendum Review Committee is organized internally by the Executive Yuan as the competent authority and is responsible for specific duty and functions. The Referendum Act provides additionally in Article 10, Paragraph 2: “The National Referendum Review Committee shall complete the review of the proposal for referendum within ten days after receipt thereof, and shall reject the proposal if it is found to be non-conformable with legal requirements,” and in Paragraph 3 thereof: “If the proposed bill is found upon completion of the review process to be conformable with legal requirements, the Review Committee shall hold a hearing within ten days to identify the content of bill of referendum.” The Act further provides in Article 14, Paragraph 2: “In the absence of any of the circumstances enumerated in the preceding paragraph, the bill of referendum shall be referred by the competent authority to the Review Committee for determination, and said Review Committee shall notify the competent authority of the conclusion of its determination within thirty days,” and Paragraph 3: “The competent authority shall dismiss the bill of referendum if it is found to be non-conformable with the legal requirements, or request in writing the household registration offices to check up the sponsors of the bill within fifteen days if the bill of referendum is found to have met the legal requirements.” It is also provided in Article 55, Paragraph 1, of the same Act: “Where a national or local bill of referendum is denied by the Review Committee, the leading sponsor may file an application for remedy pursuant to the administration proceeding within thirty days after receipt of the notification.” Accordingly, the National Referendum Review Committee organized internally by the Executive Yuan is empowered to make actual decision on whether or not a bill of national referendum has been created and to make administrative dispositions externally in the name of the Executive Yuan, whereas Executive Yuan has no power to reexamine the decision made by the Review Committee. If the leading sponsor is dissatisfied with the decision, he may seek remedy through the channel of petition and administration action.
In light of the fact that the National Referendum Review Committee is organized inside the Executive Yuan, it is not an independent agency. Rather, it is an organization for the performance of specific functions in administrative procedure and is thus a “committee participating in the rendering of administrative disposition” under the Administrative Procedure Act, Article 114, Paragraph1, Subparagraph. Its duty is to scrutinize individual proposal of national referendum to determine whether or not the proposal meets the legal requirements and is an issue that may be put to the people’s initiative or referendum, and the Committee plays the role of assisting the people in properly exercising the rights of initiative and referendum, which role is by nature a part of the executive power. Because the executive branch is charged with the duty of law enforcement, and enforcement of law depends on people, the executive branch should be conferred by law with the right to make decisions with respect to the actual personnel structure including staff officers and political appointees. This right of decision-making of the executive branch is a prerequisite that is indispensable for satisfactory performance of the functions of the executive power in a country of democracy that is ruled by law. Since said Committee is organized internally inside the Executive Yuan and takes part in the procedure for rendering administrative disposition by the Executive Yuan, the Executive Yuan has undoubtedly the right to make decisions on appointment of members of the Committee. Nevertheless, in light of the fact that the functions of the National Referendum Review Committee are different from those of the ordinary administrative agencies, which is required to make decisions on and to implement policies matters, the appointment of Committee members is not a function within the scope of Article 56 of the Constitution. Hence, while the Legislative Yuan is not prohibited from taking part in the appointment of members or exerting check and balance by other appropriate means, there must be a limit on such check and balance.
The Referendum Act provides in Article 35, Paragraph 1, that: “The Referendum Review Committee under the Executive Yuan shall be composed of 21 members, who shall each serve a term of three years. The members shall be recommended by all parties in proportion to the number of seats taken by each party caucus in the Legislative Yuan and appointed by the President upon nomination by the competent agency.” Because the right to make decisions on personnel appointment is dominated by political parties and caucuses in proportion to their respective number of seats, and the Premier has no say whatsoever to nominate candidates for the posts of members and can only involuntarily accept the nominations and presented to the President for making appointments, the provision has virtually deprived the Executive Yuan of its power of personnel appointment under the Constitution and has obviously transgressed the limit of check and balance of powers. It is of course in conflict with the principles of separation of powers and must be made inoperative not later than one year as of the date of issuance of this Interpretation.
The petitioner further alleges to the effect that the procedure of deliberation by the Legislative Yuan of Article 18 of the Referendum Act involves problems of unconstitutionality. In making deliberation on a bill of law, the Legislative Yuan must do so pursuant to the rules of procedure established by itself within the scope of the Constitution. The issue of whether or not the process of deliberation of the Legislative Yuan on a bill of law that has been presented to the President for promulgation was made in pursuance of the procedure which the Legislative Yuan must follow in holding its sittings is an internal matter to be answered by itself on the principle of self-regulation of the parliamentary, rather than a matter subject to review by the authority responsible for Constitutional interpretation unless it is in clear conflict with the Constitution. This is the view we have expressed in our J. Y. Interpretation No. 342. Answer to the question whether Article 18 of the Referendum Act is against the Constitution in deliberation made by the Legislative Yuan is not clear and is pending survey. Under the current system, the power of the Constitutional interpretation authority to make survey into facts in such cases is limited, and in light of the essence of our statement above we have therefore decided not to make interpretation with respect to this part.
With regard to the petitioner’s allegation that the provisions of the Referendum Act, Article 2, Paragraph 2, Subparagraph 4; and Article 31, Subparagraph 4; are against the Constitution, Article 27, Paragraph 1, Subparagraph 4; and Article 174, Subparagraph 2; and the Amendments to the Constitution promulgated on April 25, 2000 Article 1, Paragraph 2, Subparagraph 1, there is no longer a need to make interpretation and consequently this part of the petition is dismissed by reason of the explicit provision under the Amendments to the Constitution promulgated on June 10, 2005, Article 1 and Article 12 that popular vote by the people is necessary for a bill of revision of the Constitution, thereby making the issue of unconstitutionality of the Referendum Act, Article 2, Paragraph 2, Subparagraph 4; and Article 31, Subparagraph 4; no longer exists.
*Translated by Raymond T. Chu.