| dc.description.abstract | The study aims to probe how the litigation power of the leading proposer and any person having the right of referendum in any referendum litigation derived from various procedures for national referendums shall be defined and applied. The Constitution of the Republic of China (Taiwan) defines the rights of initiative and referendum as a basic right, which was recognized by the Interpretation No. 645. Besides, the exercise of a referendum is not only a basic right but also the authority vested in a government agency, i.e., the participation right in dual nature. Notwithstanding, the requirements about protection of the leading proposer set forth in the Referendum Act have never granted the other persons having the right of referendum the litigation power to challenge a proposal of referendum. As a matter of fact, Article 17 of the Constitution of the Republic of China (Taiwan), Article 25 of the International Covenant on Civil and Political Rights of the General comment No. 25 protect individuals’ freedom to vote. In consideration of Article 16 of the Constitution, which upholds that where there are rights, there are remedies, the other persons having the right of referendum should also reserve the subjective right to petition with courts for remedies. The practical opinions confuse how the right of defense and right of political participation work in any pre-referendum litigation. This Study tries to explain that the possibility theory is developed from the concept about the right of defense, which focuses on the protection of personal rights and avoid any class action, while the right of political participation focuses on the expression of the citizens’ general will. In fact, in order to judge whether the litigation power exists or not, it is necessary to distinguish the “formation of procedure” or “participating as an individual.” In the latter case, any person simply with the right of referendum will be considered satisfying the legality requirements about litigation.
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During the review on whether any referendum complies with the Constitution, there is no doubt that the leading proposer have the litigation power. The question of whether the proposal involves a constitutional amendment procedure, and does not fall within the scope of the Referendum Act, is classified as the issue that if the initiation of an action is meritorious or not. For the other persons with the right of referendum, even if Article 17 of the Constitution doesn’t intend to cover the “substantive right to object” to deny the referendum against the Constitution, when their rights of defense are infringed upon by any referendum, they shall be held entitled to the litigation power for defense. At the stage of review on the subject and reasons of the referendum, the leading proposer might have a major understanding about the claim against the formality examination principles, as according to the interpretation of the Supreme Administrative Court, the Central Election Commission has the duty to render a constitutional administrative decision when reviewing referendum proposals. Undoubtedly, the other persons having the right of referendum shall have the right of objection to the procedure, in the context of the subject of referendum against the principles of objectivity, neutrality, conciseness and clarity, or the written statement of reasons for the referendum which is misleading or misrepresented. Whether the proposer may supplement petition letters voluntarily at the stage of signatures and check for the referendum involves the formation of the referendum procedure. Notwithstanding, since the Referendum Act does not provide relevant regulations, it is impossible to expand the interpretation based on Article 17 of the Constitution. Before the referendum, the Central Election Commission has no right to review the relevant government agency’s written opinion. Besides, the relevant government agency is obliged to access the information related to the referendum under the Constitution. If the government agency fails to explain the legal effects if the referendum is passed or rejected, the other persons having the right of referendum may seek judicial remedies. | en_US |