Legislative Yuan Politics: Tyranny of the Minority?
For the last year, the fight over the Cross-Strait Services in Trade Agreement (CSSTA, or Fu-Mao for short) has taken center stage in Taiwanese politics. Although Fu-Mao has been the top policy priority of the Ma administration since it was signed June 21, 2013, it remains under review by the Legislative Yuan. Improving the prospects for Fu-Mao passage was probably the primary motivation behind the attempt to expel Legislative Yuan Speaker Wang Jin-pyng from the KMT. The opposition Democratic Progressive Party (DPP) and its nominal ally, the Taiwan Solidarity Union (TSU), devoted much of their time working to slow the review process in the legislature, from initiating a physical confrontation in the LY over how the agreement would be reviewed, to demonstrations in hearings, to using parliamentary tricks to upset committee sessions. By the time Chang Ching-chung (張慶忠), the convener of the Internal Administration Committee, unilaterally announced that Fu-Mao had passed the committee in the now-infamous "30-second review" on March 18, 2014, the agreement had already languished for nine months.

The apparent success of the pan-Green parties in blocking Fu-Mao, despite not holding anything close to a majority in the legislature (the DPP and TSU together have only 43 of 113 seats, or 38%), suggests at first glance that a highly motivated minority can exercise de facto veto power over all legislative business. How you feel about that probably depends on your view about cross-Strait trade agreements: -pan-Blue types (i.e. pro-KMT) tend to think of this as a "tyranny of the minority" and a terrible affront to the democratic principle of majority rule, while pan-Green types like to characterize it as a heroic, nation-saving stand in the face of a ruling party captured by Chinese interests. But if we step away from the particular issue of Fu-Mao, and think about what's best for Taiwan's democracy in the abstract, allowing minority parties an effective veto over anything they don't like is troubling. 

Imagine if the partisan roles were reversed. In fact, let's take a DPP dream scenario: say, a hypothetical President Tsai Ing-wen taking office in 2016, and enjoying a newly elected pan-Green majority in the legislature, attempts to win legislative approval for a special budget to purchase a new arms package just approved by the U.S. Then imagine the opposition pan-Blue parties, despite controlling only a minority of the seats, effectively blocking this proposal, as they did several times (with a majority) during the Chen Shui-bian administration? If you're a pan-Green supporter, you're very quickly going to change your tune about minority party rights and heroic boycotts and blockades, no?  So, if minority parties really are able to exercise a de facto veto in the legislature, that does not bode well for coherent policy change in a place whose political elites are highly polarized over anything to do with cross-Strait relations. You're effectively stuck with the status quo.

Minority Party Obstruction Requires Majority Party Dissent
Now, let me strike a more optimistic note: I do not actually think the opposition parties have an effective veto over everything in the LY. On the contrary, in President Ma's first term, the Economic Cooperation Framework Agreement, which created the foundation for subsequent cross-Strait agreements like Fu-Mao and was also fiercely opposed by the DPP and TSU, passed the legislature only six weeks after it was signed. 

What the approval of ECFA indicates to me is that a president can get his priorities passed by the LY, even in the face of opposition party boycotts and blockades, if two conditions hold: (1) his party has a working majority, and (2) his own party's legislators are willing to vote the party line. What Ma is missing right now on Fu-Mao is the second: support from KMT legislators. In other words, the key disagreement over Fu-Mao right now is within the KMT, not between the Ma administration and the DPP or Speaker Wang.

This claim is not obvious, and it's more of a working hypothesis than a firm conclusion. But from conversations with political insiders and a close reading of actions in the LY, I'm increasingly convinced there was, even a year ago, significant opposition in the KMT's legislative caucus to Fu-Mao--enough opposition, in fact, that the agreement would probably have been rejected if the vote were secret. 

Eventually, Speaker Wang worked out a procedural compromise in which the opposition DPP was allowed to offer amendments to each ECFA article, and the KMT then voted them all down, before the full bill was passed on August 17. This worked out okay for everyone: the DPP got a face-saving way to yield to the KMT majority, which was going to pass the bill one way or another; the KMT caucus got to avoid more fights on the floor; President Ma got ECFA approved; and Wang got to play peacemaker. 

If you think about it a bit, these kinds of physical confrontations shouldn't happen very often. They impose a cost on everyone: they attract a lot of negative media attention to the institution (including from CCTV in China!), people get hurt, etc. So there's an incentive for all sides to work out a compromise that precludes a public confrontation on the floor. The reason this doesn't happen all the time, I would guess, is uncertainty: neither party knows just how credible any given threat is by the KMT to initiate a confrontation in the LY and end a blockade. In the ECFA case, the July 8 showdown ended any uncertainty that the KMT would be able to mobilize its caucus to defend the speaker and end the blockade of the podium--in other words, that almost all KMT legislators supported ECFA and were willing to do whatever it took to get it passed. Once that became common knowledge, the DPP had only symbolic options left, like walking out of the legislative session in protest and getting an article-by-article vote it knew it would lose.

Between a Rock and a Hard Place (進退兩難): For KMT Legislators, Fu-Mao is not ECFA
So that brings us back to Fu-Mao, the Cross-Strait Services in Trade Agreement (CSSTA). If the KMT managed to get ECFA through the legislature in six weeks in 2010, then why wasn't it able to do the same for Fu-Mao in 2013? Nothing fundamental has changed in the legislature: the KMT lost some seats in the last election, but the party still has a significant majority (64/113, or 57%), even discounting the four additional legislators from the People First Party and Non-Partisan Solidarity Union who in general have voted with the KMT. The DPP and TSU are still quite solidly in the minority.

What has changed is public opinion, both toward President Ma and cross-Strait trade relations. When ECFA was signed in June 2010, Ma's public approval rating was about 47%--not great, but reasonably high given that Taiwan's economy was recovering from a severe recession that began almost as soon as he came into office.  Public support for ECFA was also positive: a TVBS survey in May 2010 found 41% of respondents approved of signing the agreement, while 34% disapproved.

By contrast, shortly after Fu-Mao was signed in June 2013, TVBS found public opinion running against the agreement, 47-30%, and Ma's approval rating at only 13%, with an astounding 73% of respondents disapproving of his performance, an all-time high. This was before any of the events of the subsequent year, including the Ma-Wang fight and the Sunflower Movement.

Given these polling numbers, it's not hard to see why support for Fu-Mao in the KMT caucus might have been a lot weaker than the party elites wanted to admit. Not only did legislators have to worry about all the criticism coming from industry groups and constituents within their districts. They also had to worry about the electoral consequences of taking a public stand in favor of an unpopular trade agreement with China, while going out on a limb for an even more unpopular president who's spent most of his time in office keeping them at arm's length. But Ma is still the party chairman, and has repeatedly indicated he's willing to discipline KMT members who don't toe the party line on this issue. That's the definition of being stuck between a rock and a hard place (進退兩難). 

So then the DPP comes along and blocks the speaker's podium, and dissenting KMT members have an escape hatch: publicly say nothing so as not to violate party dictates, but privately avoid being anywhere near the legislature when it comes time for a show of force to get the DPP to stand down. It's not a coincidence that there was another major showdown at the speaker's podium on June 25, 2013, shortly after Fu-Mao was signed on June 21. This one did not go so well for the KMT, or at least for Ma's allies: after six hours of altercations, the parties agreed to an extensive item-by-item review of Fu-Mao, against the wishes of the Ma administration. Buried in the news reports of this confrontation are two revealing differences with ECFA. First, the KMT leadership itself started the standoff by ordering legislators to try to secure the speaker's podium at 6:30am, to preempt pan-Green legislators who were planning to do the same. Second, they failed, in part because there were many fewer KMT legislators present than in 2010--note the failure to block off the back door. I'm willing to bet there are a few KMT members who were secretly thrilled with this outcome, because it got them off the hook from having to support an unpopular agreement or else face party discipline.

I should reiterate that a lot of this explanation is informed speculation on my part. But even if I've got some of the details wrong, the fact remains that KMT legislators have been quite willing recently to criticize and vote against the party leadership on many different issues, especially if the votes are not public. The most striking instance of this kind of mass defection from the President's camp came just a couple of months ago over Control Yuan nominees. There was a rather bitter dispute between Ma and his allies in the LY, on one side, and what appeared to be the opposition DPP again, on the other, over how Control Yuan nominees would be voted on. Ma wanted to impose a public vote, because he was (rightly) worried that many of his nominees would go down to defeat otherwise. The pan-Greens instead demanded a secret vote. In the end, the DPP and TSU physically blocked access to the ballot boxes set up in the LY chambers, and then occupied the speaker's podium again; this strategy succeeded in forcing the vote to be carried out individually with private ballots, without the "group voting" that Ma's allies had initially devised to keep KMT members in line. And lo and behold, 11 of the 29 Control Yuan nominees were voted down--an outcome that could only have happened with at least eight "no" votes from KMT members. 

Politics in the Legislature: Messy, but Responsive to Public Opinion
Let me sum up what is now a rather long post. I've argued that there are some important strategic reasons behind all the spectacle of fights and occupations in the legislature:

• The Taiwanese legislature features a limited minority veto;
• When the majority party is cohesive and disciplined, minorities can't generally stop things they oppose;
• But when there's dissent within the majority party, minority party obstruction becomes highly effective.

Thus, the Ma administration has been in a bind much of his second term: he wants to get legislative approval for Fu-Mao and other policy priorities, but these are unpopular, and so is he. And he's been unable to threaten or cajole KMT legislators into doing what it takes to overcome DPP opposition. What we've seen play out over the last year and more is at heart a consequence of Ma running up against his limited authority over the LY, even though he's the chairman of the majority party there. 

If you buy this argument, then the implication for democracy in Taiwan is a lot better than I implied in the last post: minorities in the LY don't generally exercise vetoes over everything they don't like, and majority parties, especially when they have public opinion on their side, can indeed get controversial things passed. It's only when public opinion is running strongly against something the executive wants that it's likely to stall in the legislature. And if you think elected representative parliaments should be broadly responsive to changing public opinion, then that's probably a good thing.

The Constitutional Ambiguity of Cross-Strait Agreements
At the heart of the current conflict in Taiwan over the Cross-Strait Services Trade Agreement (CSSTA)  (兩岸服務貿易協議) is a legal dispute, possibly even a constitutional one. Despite its role in igniting the student occupation of the legislature, there's not much English-language coverage of the legal questions.  (Student protestors and riot police make for better news copy--who knew?!)  Nevertheless, most of the materials at issue are publicly available online, so I think it's useful to gather these in one place, along with my take*.  If you need some background on the conflict, see my previous post.

The first thing to note is it's not clear from precedent whether agreements signed with the PRC under the Economic Cooperation Framework Agreement (ECFA) (兩岸經濟合作架構協議) require legislative approval to take effect--because there is no precedent!  The Ma administration has argued that the CSSTA is technically an Executive Order (行政命令), not a law or treaty.  Furthermore, because it does not require the adoption of new legislation or amendments to existing legislation, the agreement does not require legislative ratification to take effect.

Second, the CSSTA (in Chinese here) is technically an "annex" to the ECFA (text here; special website is here). As with all agreements governing cross-Strait relations, ECFA and the subsequent CSSTA have to be negotiated and signed by the "non-governmental" bodies set up to avoid the question of Taiwan's legal status vis-a-vis the People's Republic of China. These are the Straits Exchange Foundation (SEF) (海峽交流基金會) on the Taiwan side and the Association for Relations across the Taiwan Strait (ARATS) (海峽兩岸關係協會) on the PRC side. The legal authority for negotiating cross-Strait agreements is delegated to SEF from Taiwan's Mainland Affairs Council (MAC), as specified in Article 4-2 of the Act Governing Relations between Peoples of the Taiwan Area and Mainland Area (臺灣地區與大陸地區人民關係條例). That Act is available in its entirety online, in English (here too) and in Chinese.  

The key articles relevant to the current dispute are in Chapter I, Articles 4 and 5.  Article 5 requires that agreements be submitted to the LY "for record" if no new laws or amendments to laws are needed.  If new laws or amendments to existing laws are required by the agreement, then it must be submitted to the legislature "for consideration."

"For Record" vs. "For Consideration" (備查與審議)
That leaves the question of what submitting to the LY "for record" and "for consideration" means.  From Article 5, the Chinese for "for record" is beicha (備查)--literally, “for future reference." The Chinese for "for consideration" is shenyi (審議).  In practice, these terms indicate what the status quo is: if an executive order is submitted "for record", the legislature must review and either approve, reject or change the order within 90 days of its submission; if it does not, the order takes effect automatically.  Thus, no action means the executive order stands. If an executive order requires new legislation, it also requires "consideration".  If the legislature "considers" and takes no action, then the order does not take effect, and nothing changes. To use a more technical term, the reversion point in bargaining between the branches favors the executive under "for record" and the legislature under "for consideration" submissions.     

The difference between these two procedures is the crux of the conflict over the CSSTA.  The Ma administration's argument is that the cross-Strait Relations Act plus the ECFA is all the legal authority it needs to sign and implement the CSSTA.  Any regulatory changes agreed to under the ECFA structure are administrative in nature, and can be implemented via executive order.  And at face value, that's what Article 5 says: no new laws or amendments, no need for legislative approval.

The counter-argument (spelled out nicely here, in Chinese) is that ECFA itself is either a "prospective treaty" (準條約) or an "administrative agreement" (行政協定), but not a law passed by the legislature (立法院通過的法律), an act of authorization (授權法), or an organic law (組織法). So agreements reached by the SEF under ECFA authority cannot be treated like executive orders, because the SEF is not a formal administrative body.  As a consequence, the CSSTA should be submitted to the legislature "for consideration" as a treaty, just like the ECFA was, and like the recently passed New Zealand and Singapore free trade agreements were.  

A Legal Mess
Now, here's where things get messy.  Neither side in this dispute has an airtight legal argument.  After the agreement was signed in June 2013, the Ma administration wanted to submit the CSSTA to the legislature as an executive order, "for record." The opposition camp opposed that, of course, but Ma's position also raised concerns among KMT and PFP legislators. Speaker Wang Jin-pyng then negotiated an agreement among the party caucuses, including representatives of the KMT, to treat the agreement as "for consideration"--i.e. requiring legislative approval to take effect--and moreover, to review and vote separately on each item in the agreement. Once that decision was made, the agreement's review became subject to all the procedural rules in the LY that govern legislation. When Chang Ching-chung asserted that the 90 day deadline for review had passed, he was contradicting his own legislative caucus's position that the agreement would be treated like a treaty, not an executive order.

But on the other hand, if one reads the actual Act from which the SEF's negotiating authority is drawn, it explicitly says that no legislative approval is needed if an agreement can be enforced without new or amended laws.  Here is Article 5, in English:

If we take this language at face value, then as long as the CSSTA does not require new laws or amendments, it can take effect as an executive order--no legislative approval required.  From that perspective, the willingness of the KMT caucus to treat the CSSTA as needing to be ratified by the legislature looks like a significant concession. 

Given how controversial anything related to cross-Strait relations is in Taiwan, there is a strong normative argument for getting agreements ratified by the Legislative Yuan before they take effect.  But the legal argument is much less clear-cut--just look at Article 5.  And that ambiguity is a big problem for everyone, because it undercuts the legitimacy of cross-Strait policy-making, whether or not the CSSTA passes.  


Shouldn't the Courts Resolve Legal Conflicts?
In an ideal world, the question of whether the CSSTA is an "executive order" would be resolved by the Council of Grand Justices, Taiwan's constitutional court.  It's unfortunate the issue wasn't put before them, and I'm not really sure why--probably a combination of several reasons: the long time it takes to get a court decision, the Ma administration's haste to get the CSSTA through the legislature, the timing of the student occupation of the LY, and the court's own desire to stay out of partisan conflicts.  At any rate, that option appears to be precluded now, and Taiwan's democracy is worse off for it.   

Nevertheless, there may be a silver lining here.  The Ma administration has belatedly appeared to acknowledge the legitimacy problem surrounding cross-Strait negotiations, and has proposed changes that would strengthen legislative oversight.  The students occupying the legislature have proposed their own mechanisms for oversight. If some version of those gets adopted--including, crucially, a requirement that cross-Strait agreements be ratified by the legislature to take effect--then at least some of Taiwan's democratic institutions might actually come out of this crisis with a bit more legitimacy in the long run. And that's something people of all political stripes in Taiwan ought to approve of.

* A caveat: I'm not a lawyer or an expert on ROC constitutional law.  If you are an expert on ROC constitutional law, then by all means weigh in in the comments and tell me where I've gone wrong.

A Trade Agreement with China Becomes a Political Flashpoint

The trade agreement (link in Chinese; h/t Ketagalan Media) was signed on June 21, 2013 between the leaders of the Straits Exchange Foundation (SEF) and the Association for Relations Across the Taiwan Strait (ARATS), which manage the "unofficial" relationship between Taiwan and the People's Republic of China.  The agreement follows the Economic Cooperation Framework Agreement (ECFA) successfully concluded and ratified by the legislature in 2010 during Ma Ying-jeou's first term. The services agreement would would open up some of Taiwan's services industries, notably its financial sector, to mainland Chinese investment, and vise versa. 

The Legislative Yuan: Where Presidential Priorities Go to Die?
The services agreement is the top legislative priority of the Ma Ying-jeou administration, but it has faced determined opposition from the DPP, which has been attempting to block the bill in the Legislative Yuan.  Since the KMT controls a majority in the legislature (64/113, or 57%, to the DPP’s 40/113 or 35%), the DPP would lose a straight-up party-line vote. So instead, the party has tried to keep the agreement off the legislative agenda, bottle it up in committee, and otherwise slow down the legislative process using whatever tactics it can, in hopes that the political dynamics will eventually shift in its favor. By stalling, the pact may become increasingly unpopular among the public and soften support from KMT legislators enough to put in doubt its final passage.

So far, this strategy has worked surprisingly well. In contrast to the ECFA, which passed the legislature less than two months after it was signed, the services agreement has languished. When the agreement was signed in June, there was some question about whether it even had to be approved by the legislature to take effect--because the agreement does not require any amendments to laws or new legislation, it could be treated as an executive regulation under Article 5 of the Cross-Strait Relations Act (台灣地區與大陸地區人民關係條例), in which case it comes into effect 90 days after legislative review commences.  

Given how controversial the pact was, and the concerns expressed by lawmakers not only from the pan-greens but from the KMT and PFP as well, the Ma administration had little choice but to submit the agreement to the legislature and hold a formal vote.  Rather than an expedited review and an up-or-down vote on the agreement as a single package, as Ma had wanted, Speaker Wang Jin-pyng quickly negotiated a cross-party agreement* to conduct an item-by-item review, which ensured that the services trade agreement not only would have to win legislative approval but also be subject to an extended and acrimonious set of politically damaging hearings and votes. (Incidentally, this probably was the main reason President Ma attempted unsuccessfully to purge Speaker Wang from the KMT and force him out of the legislature in September.)

In September the bill was referred to the Internal Administration Committee, which scheduled 16 separate hearings lasting until March 10. With KMT legislative leaders threatening to push for an extra session in January to bring the bill to the floor, Wang Jin-pyng negotiated another cross-party agreement to postpone the review process until after March 10, when the last hearing was scheduled to take place. 

The Latest Maneuvering
On March 7, the DPP played its next card. The DPP convening member on the Internal Administration Committee, Chen Chi-mai (陳其邁), unexpectedly scheduled a formal review of the agreement to take place in the committee the next week. According to legislative precedent, the convener who places the item on the agenda for the first time is allowed to chair the review; thus, the DPP was now in control of the committee's proceedings. The KMT caucus cried foul, complaining that because they had already conceded to an extensive set of hearings and line-item roll-call votes, the DPP should not have attempted to seize the committee chair as well; the KMT caucus whip Lin Hung-chih (林鴻池) also argued that since the bill was initiated by the KMT, by rights its convener, the KMT legislator Chang Ching-chung (張慶忠), should chair the review. 

That set up a battle to establish control over the chairman's seat. Several DPP members camped out overnight in the meeting room, and as legislative clerks tried to add legislators' names to a sign-in sheet to speak on the morning of March 12, verbal and then physical altercations broke out. The committee meeting descended into shouting matches and a prolonged standoff between KMT and DPP legislators, and it was eventually adjourned without ever having begun. The next day's committee proceedings immediately broke down as well.  When the committee reconvened on Monday, March 17, the dysfunction continued. Pan-green legislators physically occupied the meeting room's podium to prevent Chang Ching-chung from calling the meeting to order, and after three hours he called off the meeting and unilaterally declared that the services pact had cleared the committee and would go to the legislative floor for a second reading. He justified that action by arguing that the review of the agreement had not been completed by the committee within the required 90 days.
 
The DPP claimed Chang's action violated the previous cross-party agreement to allow a full committee review of the pact, and in response the party's members boycotted the legislature's plenary session on Tuesday, forcing adjournment and a return to the cross-party negotiation committee (政黨協商) headed by Speaker Wang.*  The students' occupation of the legislative floor beginning Tuesday night means that the bill's consideration is stalled for the moment, although the KMT continues to threaten that the Executive Yuan could simply declare the agreement in effect as an executive regulation, bypassing the legislative process altogether as the Ma administration hoped to do back in June. 

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*[As an aside, one of the interesting aspects of this process is how it illustrates the importance of Speaker Wang and the Cross-Party Negotiation Committee, or 政黨協商, to the effective functioning of the legislature. None of the news reports I have seen emphasize just how difficult it has been for the KMT to get bills passed in the LY without first having a cross-party agreement. The DPP's ability to cause chaos and effectively prevent the legislature from conducting business--akin to a filibuster--gives it a veto over legislation despite the KMT's comfortable majority.  This is a feature of Taiwan's legislature that deserves a lot more attention than it is getting in the English-language media.]