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Amending the Referendum Act may have been a mistake in a highly politicized environment like Taiwan, where polarization is severe and civil society feels super-empowered. Fringe and intolerant groups now have a tool to hijack policymaking in a way that is detrimental to this nation’s democracy.

Taiwan’s Central Election Commission (CEC) on April 17 passed a review of two referendums proposed by Christian-led conservative groups seeking to constrain marriage equality and prevent same-sex education in elementary and junior high schools nationwide.

This is the latest bid by the Happiness of the Next Generation Alliance, a conservative group that has spearheaded a campaign against marriage equality in Taiwan. At its core, the alliance opposes revising the Civil Code to permit same-sex marriage, but says it supports a special law to protect the rights of same-sex couples seeking to form a union. For their part, LGBTQ groups and their supporters argue that a separate law for same-sex unions would discriminate against gay individuals.

The two questions asked in the proposed referendum are: “Do you agree with using means other than the marriage regulations in the Civil Code to protect the rights of two people of the same gender to build a permanent life together?” and “Do you agree that the marriage regulations in the Civil Code should define marriage as between a man and a woman?” A third, pertaining to sex education, asks, “Do you agree that during the elementary and junior high school stage, the Ministry of Education and schools at all levels should not implement same-sex education as stipulated in the Gender Equity Education Act’s implementation rules?”

On May 24, 2017, the Council of Grand Justices ruled that it was against the constitution to bar same-sex individuals from getting married, and therefore argued that stipulations in the Civil Code that marriage can only occur between a man and a woman violate constitutional guarantees of equal rights. In the same ruling, the council gave the authorities two years to amend or enact relevant laws, in accordance with the ruling of the interpretation, adding that it was within the discretion of the authorities concerned to determine the formality for achieving the equal protection of the freedom of marriage.

Two recent developments since 2016 have allowed the alliance to launch this latest in a series of initiatives to prevent marriage equality and proper sex education in schools. The first consists of revisions to the Referendum Act, which lowered the threshold for the initiation and holding of referendums. In December 2017, the Greater Taipei Stability Power Alliance, a conservative group ideologically allied with the Happiness of the Next Generation Alliance, exploited the loosening of referendum regulations by seeking to unseat New Power Party Chairman Huang Kuo-chang. Despite listing a series of reasons why they sought Huang’s removal, it was clear that the key reason behind their attempt, which ultimately failed, was Huang’s support for marriage equality. Other legislators have been threatened with similar action since.

As I argued at the time, the recall attempt set a dangerous precedent by demonstrating that a marginal group can now seek to unseat just about any elected official who won by a close margin in an election, regardless of that official’s actual performance.

Loosely defined, forbearance is the agreement by members of a policy to allow elected officials and the institutions they represent to function without the overuse by the opposition of checks and balances that, while legal, would undermine good governance and perhaps even lead to gridlock.

Now the attempt to hold a referendum, even after the Council of Grand Justices has rendered its decision (equal protection of the freedom of marriage), continues that tradition by seeking to overturn that verdict. At its core, this initiative breaks the unwritten rule of any healthy democracy that Steven Levitsky and Daniel Ziblatt, in their excellent book How Democracies Die, describe as “institutional forbearance.” Loosely defined, forbearance is the tacit agreement by members of a polity to allow elected officials and the institutions they represent to function without overuse by the opposition of checks and balances that, while legal, would undermine good governance and perhaps even lead to gridlock. While Ziblatt and Levitsky limit that responsibility to public officials, I would argue that civil society, especially when it is empowered by referendums and recall action, should also use such instruments judiciously.

In a highly polarized society like Taiwan, the slippery slope that risks being created by the injudicious use of referendums could cause serious long-term damage to the nation’s democracy by undermining the ability of elected officials to deliver on their policy promises. Worse, it could bring the whole system to a standstill by giving opposition groups and parties the means to question, and potentially undo, any and all policies. What this has created, in effect, is something akin to filibuster, except that in this situation, that instrument has been put in the hands of an unelected civil society.

What is particularly troubling in this instance is the fact that efforts to block marriage equality occur after a party, the Democratic Progressive Party (DPP), won both the executive and legislative branches of government in the January 2016 elections on a platform in which implementing marriage equality figured prominently. Thus, that DPP officials and lawmakers, once in office, would move to implement laws that realize that election promise should not have come as a surprise to anyone. Had general society been fundamentally opposed to marriage equality, Tsai Ing-wen would not have been elected president, and her DPP would not have gained as many seats as it did in the Legislative Yuan.

Therefore, the DPP’s performance in the 2016 elections tells us that voters either supported marriage equality, or that their opposition to marriage equality was insufficiently strong to prevent their voting for the party. Conversely, those who feared the DPP would quickly implement marriage equality could have voted for a party which opposed marriage equality (e.g., the Christian-right Faith and Hope League) or one that did not make same-sex marriage a major component of its platform (e.g., the Kuomintang, KMT). They could also have abstained. The DPP won the elections, and the unwritten rule of forbearance suggests that opposition parties and civil society (not to mention those who decided not to vote) should accept that outcome, including the party’s — and now the government’s — stance on marriage equality. Policies on marriage and gender equality ought to be reflected by the composition of the officials in the executive and legislative branches who were elected in free and fair elections, as well as in the members of the judiciary who were appointed by the said elected officials. The unwritten rule of forbearance implies that opposition parties and the public ought to respect policy implementation. Voicing discontent and pressuring the authorities is one thing: but to abuse democracy itself, and possibly undermining its good functioning, is another one altogether, and something that should be avoided.

Absent respect for that unwritten rule, why should we have lawmakers, and why should we even bother to elect them, if after they are brought to power we can use “legal” instruments to prevent them from implementing the very things they promised to do while campaigning? That isn’t to say that referendums should never be used. But that democratic tool should only be used in extreme circumstances or when an elected party/government drastically departs from its campaign promises, which is certainly not the case with marriage equality and gender equality. Those who disagree with those policies should therefore wait until the next elections and work hard to ensure that officials and lawmakers who oppose marriage equality and gender equality-based sex education are elected into office. But seeking to block, or to undo, such policies between elections shows a troubling lack of forbearance and an abuse of democracy.

The second reason why we find ourselves in this situation today is the Tsai government’s unwillingness or inability to deliver on that campaign promise. This foot-dragging has given oxygen to opponents, who now see an opportunity to cause greater friction in hopes of stalling implementation. Though welcome, the ruling by the Council of Grand Justices also made it possible for the Tsai administration to get away with indecisiveness, a sign of weakness that opponents of marriage equality were quick to seize upon. Unfortunately, President Tsai continues to argue that society is not yet ready for marriage equality and that more deliberation is therefore necessary. As a result, DPP Caucus Whip Ker Chien-ming last week once again shot down attempts by DPP legislators to put the issue on the agenda for the current legislative session. That stalling on President Tsai’s part gives the opening that Christian right groups need to keep agitating, while convincing DPP-voting Christians who oppose marriage equality (e.g., Presbyterians) that their threats will be sufficient to compel her government to continue stalling, or to dilute its ultimate decision, on marriage quality.

The other problem with President Tsai’s stance is that we could name a number of other human rights-related issues throughout history where “society” was conceivably “not yet ready.” This includes the abolition of slavery, de-segregation, women’s suffrage, ending Apartheid — or conceding that the earth is not flat, for that matter.

The other problem with President Tsai’s stance is that we could name a number of other human rights-related issues throughout history where “society” was conceivably “not yet ready.” This includes the abolition of slavery, de-segregation, women’s suffrage, ending Apartheid — or conceding that the earth is not flat, for that matter. But elected politicians nevertheless took risks, and in doing so they changed history by enlarging the scope of human rights in their society.

Amending the Referendum Act may have been a mistake in a highly politicized environment like Taiwan, where polarization is high and civil society feels super-empowered. The lowered thresholds invite abuse and allow even fringe, ultra-conservative, foreign-linked and intolerant organizations to highjack (often for quasi-totalitarian religious purposes) the whole system. Of course it could be tempting to respond in kind, and for LGBTQ groups to initiate their own referendums on, say, denying conservative Christian Churches the right to hold assembly or to involve themselves in politics (I for one believe that intolerant religious organizations are far more damaging to society than gay marriage or sex education ever could be). But we supporters of modernity refrain from doing so, not only because this would risk creating a vicious circle, but because we agree to play by the unwritten rule of forbearance, which yields yet another rule for modern times: tolerance. We can tolerate their existence — their views, even — because this is what democracy is all about.

But that tolerance does not mean we should allow those groups to undermine the institutions, and the democracy, that we cherish.

Top photo: Taiwanese Gay rights activist Chi Chia-wei waves a rainbow flag during the Taipei LGBT Pride Parade on Oct. 28, 2017 (J. Michael Cole/Taiwan Sentinel).

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