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This article argues that the Taiwan Referendum Law 2003 and the defence referendum held in 2004 raise a number of legal problems that deserve closer examination. It discusses the history of the Referendum Law from both legal and political viewpoints and argues that a functional and legitimate referendum must be carried out in compliance with the rule of law and the supremacy of the Constitution. The author identifies four main areas of concern, taking into account the Constitutional Amendment in 2005. First, the Referendum Law contained unconstitutional provisions that were not challenged before the defence referendum was held. Secondly, the Referendum Law should have expressly relied on the Constitution as its legal basis. Thirdly, the Referendum Law does not clearly determine the legal effects of the referendum. Fourthly, it does not contain adequate legal restraints on the President’s power to call a defence referendum. These legal issues have been raised in politically oriented cases in the courts. This article, however, concludes that the initiative to rectify the legal problems of the Referendum Law should lie with the Legislative Yuan of Taiwan.

The Referendum Law 2003 in Taiwan: Not Yet the End of the Affair