Campaign flag for Tsai Ing-wen and DPP legislative candidate Wu Chi-ming, January 2016. This piece originally appeared at Taiwan Insight on May 29, 2018.
Before the 2016 election brought them to power, Tsai Ing-wen and the Democratic Progressive Party (DPP) pledged to pursue political reforms that would address fundamental, long-standing weaknesses in Taiwan’s democratic system.
Three of these became particularly apparent during the Ma Ying-jeou era: an unbalanced executive-legislative relationship that concentrated extraordinary power in the president’s hands, a disproportional electoral system that worked to the Kuomintang’s (KMT) advantage, and a deep, popular distrust of many of Taiwan’s “accountability institutions”—especially judges and prosecutors, the constitutional court, and the Control Yuan.
Two years on, these weaknesses are still apparent. The ruling DPP’s record on political reform has so far been disappointing: despite some positive changes, it is mostly a series of unfulfilled pledges, missed opportunities, and unintended consequences.
First, on executive-legislative relations: Taiwan’s current constitutional structure allows for what former premier and Ma loyalist Jiang Yi-huah has termed a “super-presidency.” Under Ma Ying-jeou, power migrated from the Executive Yuan to the Presidential Office, from multi-party coalitions to a single-party KMT majority, and from intra-party pluralism to presidential dominance of the ruling party, exacerbating a massive resource asymmetry between the executive and legislative branches of government.
Nowhere was this imbalance more apparent during the Ma era than in the conduct of cross-Strait relations. The legislature had no effective way to exercise oversight over what was, arguably, the most consequential negotiations with the People’s Republic of China that a Taiwanese leader had ever entered into. Moreover, of the 28 agreements signed and submitted to the legislature for record or review, only four were submitted for review, meaning they had to face an up-or-down vote of the full Legislative Yuan before they took effect. In other words, most of these agreements were considered under rules even more favourable to the executive branch than ordinary legislation—a remarkable concession to the executive branch, considering the sensitivities involved.
Given this history, one might expect the DPP to prioritize passage of a Cross-Strait monitoring mechanism law that requires, at minimum, an affirmative vote of the legislature for any agreements to take effect. But no: now that the DPP is in power, and Tsai Ing-wen rather than Ma Ying-jeou is responsible for cross-Strait relations, talk of such a law within DPP circles has faded away. So, too, have other DPP proposals to strengthen the legislature’s hand, such as providing legislators access to more resources and larger, professional staffs, establishing a legal basis for oversight of the National Security Council and Presidential Office, and selecting a truly neutral, non-partisan legislator as the Speaker. Instead, the Legislative Yuan today is at as much of a disadvantage in its collective relations with the DPP-controlled executive as it ever was during the Ma Ying-jeou administration. (President Tsai even has the additional benefit of having a close party ally, Su Jia-chyuan, serving as Speaker; President Ma had to deal with his long-time KMT rival, Wang Jin-pyng, in that position.)
What of the second problem area, the electoral system? Here the chief complaint is about disproportionality: party vote shares do not correspond very closely to their seat shares in the Legislative Yuan. In 2008, for instance, the DPP won only 24% of the seats with 37% of the district vote, while the KMT won 72% of the seats with 51% of the vote. As the chief loser under the new system, the DPP became a fierce critic of it (though they had voted for the previous change), and Tsai Ing-wen herself pledged the party would support switching to a German-style mixed-member compensatory system, and perhaps increase the number of seats—reforms that together would ensure much greater proportionality and better representation of small parties in the legislature.
So what has happened on this front, now that the DPP is in a position to do something about it?
Again, not much. The DPP has entertained no serious proposals to change the electoral system, because it, not the KMT, is now the chief beneficiary of the disproportionality! To make matters worse, the ruling party has made two counterproductive concessions to the “direct democracy” reform agenda pushed by the New Power Party (NPP) and Taiwanese independence activists. First, the ruling party supported a change to the elections and recalls act, lowering thresholds for the number of signatures needed to initiate a recall against a public official and for a recall to be valid. Second, they approved an amendment to the referendum act, again lowering the threshold for signatures to qualify a referendum for a vote, and turnout for a vote to be valid.
Unfortunately, referendums are a dubious way to resolve complex or emotionally-charged policy issues in a representative democracy, and they have already had unintended consequences that some of their chief proponents have found unpleasant: the first legislator to face a recall vote under the new law was none other than its biggest proponent, NPP chairman Huang Kuo-chang, and one of the first referendum proposals to pass the first qualification hurdle aims to prevent the legalization of same-sex marriage.
The prospects for reform of accountability institutions are more promising. A committee appointed by Tsai Ing-wen continues to debate how to improve independence and professional capacity of judges, and whether to implement “citizen judges” or an Anglo-American style jury system to increase public participation and trust in the judicial process. And there is a good chance that some version of these reforms will eventually be adopted.
Nevertheless, here, too, Tsai and the DPP have opted for a cautious, gradualist approach to reforms. It is revealing what is not even on the table: there is no public discussion of changing the selection process or the terms of the Council of Grand Justices, Taiwan’s constitutional court, to ensure they cannot all be appointed by the same president, nor has there been any attempt to reconfigure or abolish the Control Yuan; instead, the DPP appears content simply to fill these bodies with Tsai appointees, and leave it at that. The DPP also voted to abolish the Special Investigative Division whose leader got into trouble for sharing confidential information with President Ma, but it has done nothing to address the more fundamental problem of how to guarantee prosecutorial independence from political pressure, especially from the president.
Instead, what the ruling DPP has prioritized is promoting aspects of “transitional justice”: disgorgement of illegitimate KMT party assets (pan-blue supporters might describe this, less charitably, as “getting the KMT”), an official apology to Taiwan’s indigenous minorities, and the establishment of a Transitional Justice Promotion Committee to engage in additional truth-telling about the authoritarian past. All of these initiatives are important steps forward for Taiwan, and if executed well, could strengthen the legitimacy and democratic bona fides of the political system.
But in the long run, none will obviate the need for further changes in executive-legislative relations, electoral representation, and accountability institutions. If President Tsai wants to leave a positive democratic legacy, she should turn her attention, and that of her party, toward these issues over the next two years.
Before the 2016 election brought them to power, Tsai Ing-wen and the Democratic Progressive Party (DPP) pledged to pursue political reforms that would address fundamental, long-standing weaknesses in Taiwan’s democratic system.
Three of these became particularly apparent during the Ma Ying-jeou era: an unbalanced executive-legislative relationship that concentrated extraordinary power in the president’s hands, a disproportional electoral system that worked to the Kuomintang’s (KMT) advantage, and a deep, popular distrust of many of Taiwan’s “accountability institutions”—especially judges and prosecutors, the constitutional court, and the Control Yuan.
Two years on, these weaknesses are still apparent. The ruling DPP’s record on political reform has so far been disappointing: despite some positive changes, it is mostly a series of unfulfilled pledges, missed opportunities, and unintended consequences.
First, on executive-legislative relations: Taiwan’s current constitutional structure allows for what former premier and Ma loyalist Jiang Yi-huah has termed a “super-presidency.” Under Ma Ying-jeou, power migrated from the Executive Yuan to the Presidential Office, from multi-party coalitions to a single-party KMT majority, and from intra-party pluralism to presidential dominance of the ruling party, exacerbating a massive resource asymmetry between the executive and legislative branches of government.
Nowhere was this imbalance more apparent during the Ma era than in the conduct of cross-Strait relations. The legislature had no effective way to exercise oversight over what was, arguably, the most consequential negotiations with the People’s Republic of China that a Taiwanese leader had ever entered into. Moreover, of the 28 agreements signed and submitted to the legislature for record or review, only four were submitted for review, meaning they had to face an up-or-down vote of the full Legislative Yuan before they took effect. In other words, most of these agreements were considered under rules even more favourable to the executive branch than ordinary legislation—a remarkable concession to the executive branch, considering the sensitivities involved.
Given this history, one might expect the DPP to prioritize passage of a Cross-Strait monitoring mechanism law that requires, at minimum, an affirmative vote of the legislature for any agreements to take effect. But no: now that the DPP is in power, and Tsai Ing-wen rather than Ma Ying-jeou is responsible for cross-Strait relations, talk of such a law within DPP circles has faded away. So, too, have other DPP proposals to strengthen the legislature’s hand, such as providing legislators access to more resources and larger, professional staffs, establishing a legal basis for oversight of the National Security Council and Presidential Office, and selecting a truly neutral, non-partisan legislator as the Speaker. Instead, the Legislative Yuan today is at as much of a disadvantage in its collective relations with the DPP-controlled executive as it ever was during the Ma Ying-jeou administration. (President Tsai even has the additional benefit of having a close party ally, Su Jia-chyuan, serving as Speaker; President Ma had to deal with his long-time KMT rival, Wang Jin-pyng, in that position.)
What of the second problem area, the electoral system? Here the chief complaint is about disproportionality: party vote shares do not correspond very closely to their seat shares in the Legislative Yuan. In 2008, for instance, the DPP won only 24% of the seats with 37% of the district vote, while the KMT won 72% of the seats with 51% of the vote. As the chief loser under the new system, the DPP became a fierce critic of it (though they had voted for the previous change), and Tsai Ing-wen herself pledged the party would support switching to a German-style mixed-member compensatory system, and perhaps increase the number of seats—reforms that together would ensure much greater proportionality and better representation of small parties in the legislature.
So what has happened on this front, now that the DPP is in a position to do something about it?
Again, not much. The DPP has entertained no serious proposals to change the electoral system, because it, not the KMT, is now the chief beneficiary of the disproportionality! To make matters worse, the ruling party has made two counterproductive concessions to the “direct democracy” reform agenda pushed by the New Power Party (NPP) and Taiwanese independence activists. First, the ruling party supported a change to the elections and recalls act, lowering thresholds for the number of signatures needed to initiate a recall against a public official and for a recall to be valid. Second, they approved an amendment to the referendum act, again lowering the threshold for signatures to qualify a referendum for a vote, and turnout for a vote to be valid.
Unfortunately, referendums are a dubious way to resolve complex or emotionally-charged policy issues in a representative democracy, and they have already had unintended consequences that some of their chief proponents have found unpleasant: the first legislator to face a recall vote under the new law was none other than its biggest proponent, NPP chairman Huang Kuo-chang, and one of the first referendum proposals to pass the first qualification hurdle aims to prevent the legalization of same-sex marriage.
The prospects for reform of accountability institutions are more promising. A committee appointed by Tsai Ing-wen continues to debate how to improve independence and professional capacity of judges, and whether to implement “citizen judges” or an Anglo-American style jury system to increase public participation and trust in the judicial process. And there is a good chance that some version of these reforms will eventually be adopted.
Nevertheless, here, too, Tsai and the DPP have opted for a cautious, gradualist approach to reforms. It is revealing what is not even on the table: there is no public discussion of changing the selection process or the terms of the Council of Grand Justices, Taiwan’s constitutional court, to ensure they cannot all be appointed by the same president, nor has there been any attempt to reconfigure or abolish the Control Yuan; instead, the DPP appears content simply to fill these bodies with Tsai appointees, and leave it at that. The DPP also voted to abolish the Special Investigative Division whose leader got into trouble for sharing confidential information with President Ma, but it has done nothing to address the more fundamental problem of how to guarantee prosecutorial independence from political pressure, especially from the president.
Instead, what the ruling DPP has prioritized is promoting aspects of “transitional justice”: disgorgement of illegitimate KMT party assets (pan-blue supporters might describe this, less charitably, as “getting the KMT”), an official apology to Taiwan’s indigenous minorities, and the establishment of a Transitional Justice Promotion Committee to engage in additional truth-telling about the authoritarian past. All of these initiatives are important steps forward for Taiwan, and if executed well, could strengthen the legitimacy and democratic bona fides of the political system.
But in the long run, none will obviate the need for further changes in executive-legislative relations, electoral representation, and accountability institutions. If President Tsai wants to leave a positive democratic legacy, she should turn her attention, and that of her party, toward these issues over the next two years.
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