I recently had the privilege of reading and reviewing for China Quarterly a massive new volume on the role of international human rights conventions and their importance for Taiwan.

The editors are all major figures in their own right. Jerome Cohen is legendary for taking up the study of Chinese legal systems during the 1950s and 60s, when nobody else thought there was much point to it, and he was a professor to both Annette Lu and Ma Ying-jeou at Harvard in the 1970s. His opening chapter recounts some of his personal history pushing back against Taiwan's martial-law-era criminal justice system, and there are some eye-opening anecdotes in there. I did not know, for instance, that Cohen was instrumental in bringing a civil lawsuit in a Taiwanese court against the the killers of Henry Liu, and that he worked with future Kaohsiung mayor and DPP presidential candidate Frank Hsieh 謝長廷 to bring pressure on the KMT regime through its own court system.

William Alford and Chang-fa Lo are no slouches, either; Alford is a vice dean and director of East Asian Legal Studies at Harvard. Chang-fa Lo 羅昌發 was Dean of National Taiwan University Law School and served as a justice of the ROC Council of Grand Justices, Taiwan's constitutional court, from 2011-2019 (as a Ma Ying-jeou appointee). In 2020 he was appointed Taiwan's representative to the World Trade Organization by Tsai Ing-wen. So during his years of public service he has managed to receive support from both the blue and green camps.

Between them, they have assembled an extremely impressive group of legal scholars and practitioners to contribute 37 chapters on many aspects of human rights law in Taiwan. The authors are also a welcome mix of Taiwan- and overseas-based experts. This kind of international, English-language collaboration is hard to pull off, but the payoff comes from having Taiwanese voices featured prominently throughout the volume and a truly original set of sources and scholarship on this topic.  

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I note in my review several things that make Taiwan's human rights regime unusual.

First, because of its diplomatic isolation, Taiwan isn't party to the key UN human rights conventions and treaties, but despite (because?) of that isolation, international law has been especially influential in the transformation of the human rights regime. For instance, in 2009 (when the KMT was the ruling party), the Legislative Yuan adopted into domestic law the two major human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and empowered Taiwan's courts to nullify other legal statutes inconsistent with provisions in the two treaties. Several chapters also focus on the efforts to turn the Control Yuan into a human rights commission or ombudsman that would give it a role more in line with international practices in other liberal democracies.

Second, Taiwan's legal system still rests on the foundations of the 1947 Republic of China constitution. In a rather odd twist, the protections for human rights enshrined there were actually quite advanced for its time, and that has helped to strengthen civil liberties in the democratic era. In particular, the survival of the ROC constitutional framework gave the constitutional court an outsized role in shaping the pace and direction of human rights reforms: in the 1990s, the court began to breathe life into constitutional aspirations that went mostly unfulfilled during the pre-democratic era and set legal practices and protections on a more liberal trajectory.

Third, Taiwan's current legal system is a remarkable mix of at least three very different traditions:  Chinese Confucianism; European continental law (much of that itself first refracted through Japanese practice before coming to the ROC, or directly to Taiwan during colonial rule); and Anglo-American practices, most notably in the applications of US First Amendment jurisprudence to libel and free-speech cases. It is a truly unique concoction of influences, and as a result it is fascinating to watch debates over legal reforms play out there now.  

I came away from this book convinced that in addition to the economic and political "miracles" that get most of the attention in scholarship on Taiwan's ROC-era transformation, there is also a human rights miracle that deserves separate consideration. Taiwan and Human Rights will be an important reference for anyone interested in Taiwan's evolution from a serial violator of human rights to one of its most enthusiastic proponents. ​

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.

Student Activism is a Good Sign

There are reasons to be heartened by the student-led occupation of the legislature. One of the signature features of Taiwan's democratic transition was the positive role played by civil society organizations. Taiwan's diverse, vibrant, and politically active civil groups have been important in broadening political participation in government and serving as watchdogs for administrative initiatives. So it is encouraging to see a resurgence of activism, especially among younger generations who have been increasingly apathetic over the last decade.

The Ma Administration's Wrong-footed Response
Yet, as Dafydd Fell notes in this editorial, the Ma administration has been really bad at responding to concerns raised by these groups. The KMT, especially the big-business-friendly and technocratic elite favored by President Ma in the Executive Yuan, retains a strong inclination toward top-down policy-making that, to put it charitably, borders on paternalism. The Ma administration has a consistent pattern of disregard for democratic procedures designed to allow civil society organizations to raise questions about government policies, and statements by executive officials about popular protests have often been remarkably tone-deaf.  

The administration's response so far to the occupation of the legislature follows this same pattern, and it has reinforced the already strong public impression that President Ma is politically inept. Ma did not publicly acknowledge the occupation of the legislature, but did attend meetings of the KMT Central Standing Committee and the Cabinet, where he reportedly praised the KMT legislative caucus and stated the administration's determination to win passage of the agreement by June. In the absence of any public statement by President Ma, members of his government started sounding off on the protestors, including the head of the Control Yuan, Wang Chien-hsien (王建煊), who called the students "ignorant" and "used by politicians," and said they needed to be forgiven, "for they know not what they do."  On Thursday, the Premier of the Executive Yuan, Jiang Yi-huah (江宜樺), asserted that the students were poorly informed and being misled and used by the DPP, and the KMT caucus whip Lin Hung-chih argued the students were "trampling on the dignity of the legislature and the people of Taiwan."  

By contrast, the response from Speaker Wang was much more measured, and, critically, ruled out for now the use of police to remove protestors by force.  Given Wang's key position in the legislature, and his ability to mediate between the two main political camps, it appears that President Ma will once again be in the awkward position of depending on Wang get the agreement approved. Thus, the student protestors have at minimum succeeded in strengthening the hand of the legislature vis-a-vis the executive branch.  I have mixed feelings about that outcome, but in comparative perspective it's not obviously a bad thing for democracy to have an assertive legislature consistently able to stand up to a presidential executive.

Troubling Democratic Implications: Not Presidential Overreach, but Governmental Paralysis
That said, some of the more outraged reactions to the KMT’s "undemocratic" attempts to get this agreement approved seem a bit hyperbolic to me.  It's worth noting a couple things about this legislative outcome that are a bit odd, and worrying from the perspective of effective governance.  

First,  the KMT controls a majority of the seats in the Legislative Yuan.  Moreover, approval for the agreement is the top legislative priority of the Ma administration right now. And President Ma also doubles as the chairman of the KMT, from which he can threaten to expel any KMT legislators who vote against the pact. And yet the agreement is still tied up in the legislative process, and has been since June. 

To me, this episode demonstrates an under-appreciated fact about Taiwan's legislature--that minority parties are quite powerful. Think about this: on a bill that's the top priority of the ruling party's chairman, and with complete control over the executive branch and a comfortable majority in the Legislative Yuan, the KMT cannot get what it wants without some cooperation from the opposition!  Whether or not you think that is a good thing in this particular case, it is troubling in a broader, systematic perspective. Many observers thought Ma Ying-jeou's victory in 2008 would usher in a new period of more effective executive-legislative cooperation; that hasn't happened anywhere near as frequently as predicted. 

Viewed in this light, the attempt by Chang Ching-chung to bring the bill to the floor for the second reading looks more like normal maneuvering via arcane parliamentary procedure than an unprecedented "illegal action".  This kind of thing is common in democratic parliaments around the world; so are roll-call votes that require party members to support the party line. What's more worrying from an institutional perspective is that legislative procedures have once again broken down over a contentious issue, and that there's ambiguity about something as basic as who should be able to chair the committee reviewing the most important piece of business this legislature will face. 
     
Finally, the pact is the result of a bilateral negotiation, and the method of its review and potential approval has implications well beyond trade issues or cross-Strait relations.  Amending it would require negotiations to be reopened, which is effectively the same as killing the deal. It is for this reason American presidents have to get Fast Track Authority from the US Senate in order to conclude free trade agreements--Fast Track ensures that any deal reached in negotiations will not be filibustered and cannot be amended, only be put to an up-or-down vote. Even if one thinks most trade agreements are terrible for Taiwan, the precedent set by the legislature's insistence on line-by-line review of agreements is really problematic: no country’s negotiators will believe that Taiwan is able to commit to deals that it signs. Taiwan already has huge disadvantages in its international relations--if it wants to be taken seriously as a good-faith ally or counterpart, it needs to be able to promise that its negotiators can deliver an up-or-down vote on any agreements they strike, as President Ma has tried to argue, without much success. The continued insistence by legislators that trade agreements be subject to renegotiation after they are signed is not in Taiwan's long-term interest. 

Trouble in the Family (煮豆燃萁). The "Ma-Wang showdown" erupted into a full-blown political scandal in the past week.  On Sunday, news broke that phone surveillance by the Special Investigative Division (SID) of the Supreme Prosecutor's Office had been much more extensive than previously revealed.  The SID's wiretaps included the phones of other legislators besides Ker Chien-ming (柯建銘), the DPP's party whip and the office's initial target.  It also apparently included the legislature's central switchboard.  Even prominent KMT officials including New Taipei City mayor Eric Chu (朱立倫), Taipei Mayor Hau Lung-pin (郝龍斌), and Taoyuan County John Wu (吳志揚) are inveighing against the SID.   

The revelation has put the methods used to approve wiretapping under intense scrutiny, particularly by people who are well-placed to do something about it: the legislators themselves.  Suddenly, individual privacy and especially proper judicial procedure are hot issues for discussion.  

Besieged on All Sides (四面楚歌) At the center of the political storm is the SID's chief prosecutor Huang Shih-ming (黃世銘).  Huang is under fire for two separate issues: potentially overstepping the SID's authority to wiretap, and improper collusion with President Ma in the announcement of the case against Wang Jin-pyng.  

The Ministry of Justice has formed a task force to investigate the wiretapping allegations, and Huang has already been grilled by members of the legislature over the matter.  Then there is the separate leak investigation opened by the Taipei District Prosecutor's Office, for which Huang, President Ma, Ma's former deputy secretary Lo Chih-chiang (羅智強), and Premier Jiang have all been summoned to give testimony.  To complicate matters further, the Control Yuan (檢察院), an odd and increasingly irrelevant relic of the original Sun Yat-sen-designed constitution that is supposed to monitor government behavior, has joined the fun and broadened its own investigation of "improper influence" by officials.  In case you've lost count, that's three separate investigations that Huang Shih-ming has triggered in the past week.

With all the controversy swirling around him, Huang has not fallen on his sword to protect Ma Ying-jeou, either, doing little to dispel the impression that his actions were closely coordinated with the Presidential Office and seeming more interested in saving his own skin.  Ma’s popularity ratings are pretty dismal, registering at 15% in some recent polls.  Ma, for his part, has denied trying to influence the Special Investigative Division's actions.  

Schadenfreude (幸災樂禍).  All the scrutiny of Huang this week has crowded out the original story of possible malfeasance by Wang Jin-pyng and Ker Chien-ming.  Remarkably, Ker is now suing both Huang and Ma.  For his part, Wang won another court decision on Monday, sustaining his injunction against being expelled from the KMT.  The next step: the Supreme Court. If the injunction is upheld there, then Wang will probably survive through the end of the term, as his lawsuit against the KMT may not be settled for years.  

Lest the DPP gain too much enjoyment out of the KMT's turmoil, allegations of malfeasance against one of their own were also in the news this week.  Tsai Ying-wen (蔡英文), the DPP's former party chairwoman and 2012 presidential candidate, was censured by the Control Yuan for "dereliction of duty" in her role as vice premier in 2007.  Tsai approved government investments in a biotech start-up that totaled about US $1.4 billion, then later worked as a spokesperson for the company after leaving government.  Notably, the same Special Investigative Division that's now in hot water over wiretapping closed its investigation into the Tsai case in August 2012, finding no evidence of wrongdoing.  That fact plus the timing of the announcement suggests a possible political motive behind the decision, and may generate more interest in the DPP in abolishing the Control Yuan.