Ostpolitik: Procedural Legitimacy, German Style
In 1969, West Germany had been a democracy for less than 20 years*. In a situation with some striking parallels** to Taiwan's current one, the newly-elected Social Democratic chancellor Willy Brandt pushed for a policy of engagement rather than confrontation with the communist East Germany and its Soviet patron. Under this so-called Ostpolitik, or "eastern policy," Brandt signed a series of treaties renouncing the use of force, recognizing post-war European borders, establishing diplomatic recognition of Warsaw Pact states in eastern Europe, and culminating in a peace treaty, the Basic Treaty, with East Germany itself in 1972.
Ostpolitik was hugely controversial in German political life. Brandt was the first non-conservative to hold the chancellorship in the post-war era, and his sharp change in policy was fiercely opposed by the former ruling party, the Christian Democratic Union (CDU). After the Basic Treaty was signed in early 1972, several MPs from Brandt's coalition partner the FDP defected to the opposition, and it looked like Ostpolitik might be stalled or reversed.
But in a crucial showdown in April 1972, the CDU fell two votes short*** of winning a no-confidence vote to replace Brandt's government with a conservative coalition. Seven months later, Brandt's coalition was re-elected in federal elections, and the treaty was then approved by the German parliament. By winning both a no-confidence vote and an election after the Basic Treaty was signed, Brandt endowed his policies toward Eastern Europe with a great deal of democratic legitimacy despite the controversy. Most impressively, when the CDU eventually returned to power in 1982, it retained Ostpolitik, which by that point was supported by all the major political parties.
It’s instructive to consider all the ways Taiwan’s current institutions prevent a kind of “German solution” to the CSSTA controversy. There are four big ones:
1. Ostpolitik Agreements were Treaties. The Basic Treaty signed by the Brandt government with East Germany was beset by ambiguity about the official status of the East German state: West Germany had claimed since partition to represent the entire German nation and refused to acknowledge the legitimacy of an independent East Germany (sound familiar?). Brandt’s linguistic work-around was to assert that two states existed “in Germany,” but that they could not regard one another as foreign countries. Nevertheless, when the Basic Treaty was signed, everyone agreed that it required parliamentary approval to take effect--like the Treaty of Moscow and Treaty of Warsaw before it.
Unlike in the Taiwan case, the West German procedure for approving the Basic Law remained the same as for approving agreements with other foreign powers: an up-or-down vote in both houses of parliament. In Taiwan, however, it's not clear whether the CSSTA even requires a vote in the Legislative Yuan, even though trade agreements with other countries do.
2. The Advantages of Parliamentarism (I): Executive Actions depend on Parliamentary Confidence. As head of government in a parliamentary regime, Brandt’s actions implicitly depended on the continued support of a majority in the Bundestag, the lower house of the German parliament. Ostpolitik, and especially the Basic Treaty, were controversial enough that Brandt nearly lost this majority. Had the opposition CDU managed to win the no-confidence vote, Brandt would have been replaced by a new conservative coalition, and the Basic Treaty would likely have been modified or withdrawn.
In contrast to the Taiwan case, there was an obvious institutional way to settle the conflict over Brandt’s policy: hold a vote in parliament. Brandt’s victory in that vote confirmed he still had the minimum support needed to advance the treaty. In Taiwan, the legislature has a formal no-confidence power, but it's much weaker: it can be used only against the premier, not the president; it gives the president the right in turn to dissolve the legislature, so most LY members don't want to use it lest they have to face the voters in early elections; and it can only be used once every 12 months.
Moreover, in a move that looks rather stupid in hindsight, the DPP brought a no-confidence measure against premier Jiang Yi-huah last October, which, given the KMT's majority, predictably failed badly. So even if enough members of the LY were willing to risk early elections to bring down the premier and his cabinet, that option is closed off for the next six months.
3. Proportional Electoral Systems Make Coalition Governments Likely. Since the founding of the FDR, Germany has almost always had stable coalition governments. A key reason is the German electoral system, the so-called mixed-member compensatory system. Under the German system, all parties which win over five percent of the party vote get a proportional share of seats in the lower house. Thus, for much of Germany’s postwar history, a small centrist party, the FDP, held the balance of power in the Bundestag. Brandt relied on FDP support to stay in office; the vice chancellor and foreign minister under Brandt was the head of the FDP, Walter Scheel. When FDP members opposed to the Basic Treaty started defecting, the Brandt coalition was in trouble.
In contrast, Taiwan’s 2005 electoral reform created a much more majoritarian electoral system: the KMT’s current majority in the Legislative Yuan is due in part to a highly disproportional conversion of votes into seats. As a consequence, there is no coalition partner on which the KMT depends to get bills passed in the legislature, and no direct way for non-KMT parties to ensure they are included in the cabinet.*^
4. The Advantages of Parliamentarism (II): Early Elections. Fourth, despite winning the no-confidence motion, Brandt was still in a precarious political position. He had lost several members of his coalition, and it soon became clear that he no longer held a working majority in the Bundestag. So, he called early elections: in November 1972, seven months after the no-confidence vote, German voters got to weigh in on the Brandt government and, by association, Ostpolitik. The result of the polls left little doubt that Brandt had the support of a popular majority: both the SDP and FDP gains seats at the expense of the CDU. Brandt had for all intents received a popular mandate to continue with Ostpolitik.
Again, the contrast with Taiwan is stark. There is no requirement that the Ma administration face the voters again before implementing the CSSTA. Nor can Ma call early elections even if he wanted to; that would require a no-confidence vote to pass the legislature, which, as I noted above, isn't even a constitutional option until October 2014. In short, there's no easy way to have the voters weigh in directly on the current controversy or the Ma administration's performance until the 2016 general election--two years away. The consequence is that the CSSTA controversy is likely to remain unresolved, exacerbating political gridlock in Taiwan until at least 2016. It's hard to see that as a good outcome for Taiwan's democracy.
** I should emphasize I do not mean to draw any lessons from this example about how cross-Strait rapprochement should proceed. I highlight this case only because of the admirable way in which a highly divisive foreign policy issue was resolved domestically to West Germany's long-term benefit, not because I think Taiwan-PRC relations should be handled in the same way.
*** The CDU lost the vote when two of its own members unexpectedly failed to support the party's motion. After the unification of Germany in 1990, East German secret files revealed that both MPs were paid by the East German secret service to vote against the motion.
*^ In practice, the Cross-Party Negotiation Committee (政黨協商) in the Legislative Yuan gives minority parties the ability to slow or block legislation; it does not, however, give them any say in, or claim to, Executive Yuan cabinet positions, as a real cross-party coalition would in a pure parliamentary regime.