US embassy cable - 05TAIPEI3284

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, Domestic Politics, Military Issues 
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