Kharis Templeman
中文姓名:祁凱立
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Taiwan Democracy Project Seminar: Ian Rowen, October 11

10/24/2015

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On October 11, the Taiwan Democracy Project hosted Ian Rowen, a doctoral candidate in the Department of Geography at University of Colorado, Boulder. His talk was entitled, "The Sunflower Movement and the Future of Taiwan's Political Culture." The abstract and speaker bio are below. 

​Abstract 
Based on first-hand participant-observation, this talk will examine the culture, politics, and spatiality of the Sunflower Movement. Taiwan's most significant social movement in decades, the Sunflower Movement not only blocked the passage of a major trade deal with China, but reshaped popular discourse and redirected Taiwan's political and cultural trajectory. It re-energized student and civil society, precipitated the historic defeat of the KMT in the 2014 local elections, and prefigured the DPP's strong position coming into the 2016 presidential and legislative election season.
 
The primary spatial tactic of the Sunflowers-- occupation of a government building-- was so successful that a series of protests in the summer of 2015 by high school students was partly conceived and represented as a "second Sunflower Movement". These students, protesting "China-centric" curriculum changes, attempted to occupy the Ministry of Education building. Thwarted by police, these students settled for the front courtyard, where a Sunflower-style pattern of encampments and performances emerged. While this movement did not galvanize the wider public as dramatically as its predecessor, it did demonstrate the staying power of the Sunflower Movement and its occupation tactics for an even younger cohort of activists.

The Sunflower Movement showed that contingent, street-level, grassroots action can have a major impact on Taiwan's cross-Strait policies, and inspired and trained a new generation of youth activists. But with the likely 2016 presidential win of the DPP, which has attempted to draw support from student activists while presenting a less radical vision to mainstream voters, what's in store for the future of Taiwanese student and civic activism? And with strong evidence of growing Taiwanese national identification and pro-independence sentiment, particularly among youth, what's in store for the future of Taiwan's political culture? ​
Bio
Ian Rowen is PhD Candidate in Geography at the University of Colorado, Boulder, and recent Visiting Fellow at the European Research Center on Contemporary Taiwan, Academia Sinica’s Institute of Sociology, and Fudan University. He participated in both the Sunflower and Umbrella Movements and has written about them for 
The Journal of Asian Studies, The Guardian, and The BBC (Chinese), among other outlets. He has also published about Asian politics and protest in the Annals of the Association of American Geographers (forthcoming) and the Annals of Tourism Research. His PhD research, funded by the US National Science Foundation, the Fulbright Program, and the Taiwan Foundation for Democracy, has focused on the political geography of tourism and protest in China, Taiwan, and Hong Kong. 
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Why Hung Hsiu-chu's Previous Vote Totals Don't Tell Us Much about Her Appeal as a Candidate

7/29/2015

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Hung Hsiu-chu (洪秀柱) is now the official KMT nominee for president in 2016. She has a reputation as a deep-Blue partisan without a demonstrated ability to appeal to moderates. If that's true, it bodes poorly for the ruling party's chances. 

But is it true? This anonymous article at Thinking Taiwan* attempts to make that case by examining her district vote totals in elections to the Legislative Yuan, which is the most concrete data we have about her electoral appeal. (Hung was elected as a KMT member from Taipei County in 1989, 1992, 1995, 2001, and 2004, and on the KMT party list in 1998, 2008 and 2012; the actual numbers are available here, from the Election Study Center at National Cheng Chi University.) Good for the writer for actually trying to supply some hard evidence for this claim, but in truth these results tell us very little about Hung's mass appeal.

The reason is that pre-2008 LY vote returns are from multi-member districts, and all the major parties used vote equalization (配票) systems in these elections. Vote totals for Hung or any other LY candidate nominated by a party can't be taken at face value as an indication of popularity. To imply otherwise is poor analysis.

A Quick Primer on Elections under Single Non-Transferable Vote
To see why, let's take a step back and remember how parties campaigned in these districts. Until 2008, elections to the legislature were held using the Single Non-Transferable Vote (SNTV) system. SNTV is defined by:
  • Multi-member districts, i.e. more than one representative will be elected from a single district;
  • Voters can cast only a single ballot for only one candidate (not a party, and not multiple candidates);
  • The top M vote-getters all win a seat, where M is the number of seats in a district. 

SNTV has a lot of features that make it unloved among electoral systems geeks, which is one of the reasons it was replaced for the legislature in Taiwan. (Nevertheless, it's still used for every other lower-level council election.) The most important is that it presents two serious coordination problems for the largest political parties, which increase in difficulty with the number of seats elected from a single district:
  1. A nomination problem. Parties have to estimate prior to the election how much support they have in the district to know how many candidates to nominate. Nominate too few, and your nominees all win but with many votes to spare, and all the extras could have won you another seat. Nominate too many, and your votes will be spread too thinly, leading in the worst-case scenario to a shutout when you could have won several seats. This gets harder the less information parties have about their level of support. 
  2. A vote distribution problem. To maximize the expected number of seats they'll win, parties have to get their supporters to distribute their votes as evenly as possible across multiple nominees. This can be a real challenge if one or two candidates are much more popular and well-known. If voters cast their ballots sincerely, then popular nominees will win with thousands of votes to spare, while lesser-known candidates from the same party will be overshadowed and lose.  

How to Solve Vote Allocation Problems: Randomization vs Responsibility Zones
Political parties in Taiwan have developed a number of ways to deal with these problems so that they can maximize their seat share. The DPP's most common strategy has been to randomize the votes: the party instructs its core supporters to ignore the candidates' identities entirely and "randomly" vote for one of the DPP nominees. 
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DPP campaign poster showing the vote-randomization system for candidates in Tainan County, 2004 Legislative Yuan election.
For instance, in 2004, the DPP nominated five candidates for the legislature in Tainan County, a district with eight seats. The party then told its supporters to cast a ballot based on the last number of the voter's national ID card (see above). All five DPP candidates won; here were their vote shares:
  • (1-2) Lee Jun-yi 李俊毅: 9.28%
  • (3-4) Huang Wei-je 黃偉哲: 8.56%
  • (5-6) Yeh I-chin 葉宜津: 6.64%
  • (7-8) Cheng Kuo-chung 鄭國忠: 10.01%
  • (9-0) Hou Shui-cheng 侯水盛: 10.09%
Except for Yeh, that's what a randomization strategy will get you, if properly followed by your supporters: roughly even shares of the vote for all nominees, and they all get in. (Yeh won her seat despite not finishing in the top 8, because of the female quota rule; she bumped the 8th place candidate, the KMT's Kuo Tian-tsai (郭添財).) 

The randomization scheme is not a DPP innovation, by the way; the New Party also used this system in Taipei back when it was competitive. In general, the more ideological a party’s voters, the more appealing a randomization scheme is. 

In contrast, the KMT traditionally employed “responsibility zones” (責任區) within the larger districts: each official nominee was assigned some areas (usually groups of wards or villages) that were their exclusive zones to campaign in, and they were not supposed to appeal to voters in other areas.** The KMT also would hold back some of their so-called “iron vote” (鐵票) precincts—typically villages filled with military personnel, civil servants, and their families who could be expected to loyally support the party en masse. In the days leading up to the election, if a couple of the party’s candidates appeared to be doing worse than expected, the party strategists would at the last moment direct some of the iron vote to them to bolster their chances of winning. The responsibility zone system was used widely by the KMT in the 1980s and 90s because it worked well and gave them a systematic advantage: the party could exploit the advantages of its connections to local factions, its superior knowledge of local support levels, and its almost complete control of local ward chiefs and vote-brokers. 
You Can't Infer Candidate Appeal Solely from Election Returns under SNTV
So what do election results under this system tell us about Hung Hsiu-chu’s appeal as a candidate? Very little. Because the KMT imposed a vote distribution system in the LY elections, individual candidate vote totals are not a reliable indication of how popular the candidates are.

For instance, here’s her vote returns from the legislative election in Taipei County in 1992, by administrative area:
  • Banqiao City: 2.33%
  • Sanchong City: 0.89%
  • Zhonghe City: 4.2%
  • Yonghe City: 14.39%
  • Xinzhuang City: 1%
  • Xindian City: 4.52%
  • Shulin City: 1.01%
  • Yingge Township: 0.99%
  • Sanxia Township: 1.55%
  • Danshui Township: 2.08%
  • Xizhi City: 1.06%
  • Ruifang Township: 1.02%
  • Tucheng City: 2.78%
  • Luzhou City: 0.98%
  • Wugu Township: 0.74%
  • Taishan Township: 1.21%
  • Linkou Township: 1.14%
  • Shenkeng Township: 2.42%
  • Shiding Township: 1.31%
  • Pinglin Township: 3.95%
  • Sanzhi Township: 1.37%
  • Shimen Township: 0.91%
  • Bali Township: 0.94%
  • Pingxi Township: 1.59%
  • Shuangxi Township: 0.56%
  • Gongliao Township: 1.76%
  • Jinshan Township: 0.68%
  • Wanli Township: 2.43%
  • Wulai Township: 5.82%
Now, a couple of things about 1992: it was the first election for the full legislature, and Taipei County was a single electoral district with 16 seats--huge, by SNTV standards. This was close to a worst-case scenario for political parties trying to equalize votes: there hadn't been a previous full LY election to provide info about each party's expected support, and the district magnitude (i.e. # of seats) is really high. An effective vote distribution system is critically important for party success, and also really hard to implement here. 

These results show Hung was much stronger in some areas than others (Yonghe, Zhonghe, Xindian, Wulai, and Pinglin stand out), but they don’t show where her responsibility zones were or if she needed help from the “iron vote.”  If I had to guess, I'd say she was assigned to Yonghe and parts of the four other cities she was strongest in: they're all clustered together just south of Taipei. But we can't tell that from the returns; and they also tell us nothing about whether she over- or under-performed relative to expectations.

The one thing we can say from these figures is how the KMT itself did. The last winner in this district was Chou Po-lun (周伯倫) of the DPP, who got 2.65% of the vote. Hung got 3.04%. Of the 17 KMT candidates, not all of whom were nominated, 10 were elected, with vote shares ranging from 2.66% to 5.89%, and the KMT won 62.5% of the seats with 45.7% of the vote. From the KMT’s perspective, that was a terrific result, and Hung’s share of the vote was just about perfect: safely above the cutoff point, but not too much above that a lot of votes were wasted. That tells us that Hung, and most of the other elected KMT candidates, probably played by the party’s rules. What it does not tell us is that Hung had no mass appeal, because demonstrating that wasn't her objective in this (or any of the other) LY elections. 

If critics want to cast Hung as a deep-Blue ideologue with no ability to win votes from moderates, fine. She hasn't shown that ability, it's true. But she also has never been asked to. Her past election results tell us very little about how she'll do as the KMT candidate for president. 

* From Solidarity.tw, apparently.
**A fun aside: this is one of the best-studied topics in Taiwanese politics research. Among the prominent work on this is from the current chair of the Central Electoral Commission, Liu I-chou, who wrote his dissertation on the KMT’s responsibility zone system. Also, a big chunk of Shelley Rigger’s Politics in Taiwan, one of the best-known English-language books on Taiwanese elections, extensively covers party strategy in SNTV elections. 
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Ma vs Wang, Lesson 3: Ma thought removing Wang would solve his problems with the legislature. It won't.

9/26/2014

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For previous posts in this series: intro, one, two.
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Legislative Yuan Speaker Wang Jin-pyng turns down an offer to be the vice-presidential candidate on the KMT ticket, as Ma Ying-jeou looks on, May 31, 2007.
What motivated President Ma to attempt to expel Wang Jin-pyng from the KMT last September? One possibility is that Ma was genuinely troubled by the compelling evidence in the influence-peddling case brought against Wang, and saw the revelations as a moment to take a stand against corruption within the KMT’s legislative caucus. It’s hard to square this theory with the inconsistent reaction of Ma to other cases of scandal in the KMT, though, as this blog post by Frozen Garlic notes.

Another possibility is that the dispute was personal. There’s ample evidence of a long-running Ma-Wang rivalry that goes back at least to the party chairman’s election in 2005, when Ma trounced Wang with over 70 percent of valid votes. As Ma prepared to run for president, Wang declined an invitation to run on the ticket as Ma’s vice president. So there may be some lingering animosity from this history. But this story isn’t very convincing, either. For one, savvy politicians rarely let personal feelings get in the way of political strategy—and those that do tend not to last in politics very long.

I think the answer lies elsewhere. If we think entirely in strategic terms, stripped of emotion and morals, there are two institutional reasons why Ma might have viewed Wang Jin-pyng in his role as speaker of the Legislative Yuan as a major impediment to his agenda, and thus sought to replace him with a more pliable figure.

1. Wang chairs the Cross-Party Negotiation Committee. The Cross-Party Negotiation Committee (in Chinese: 黨團協商, 政黨協商 or 朝野協商) is the body charged with resolving inter-party conflicts over legislative procedure. As this article details, it was created in the late 1990s in an attempt to reduce uncertainty and increase legislative efficiency, which had been disrupted by “wildcat” protests by opposition legislators. It came into force in 1999, the same year that Wang Jin-pyng became LY speaker, so its role is inextricably intertwined with Wang’s stewardship as the head of the legislature. 

As far as I have been able to tell, the CPNC is not well understood, even among Taiwanese political scientists who specialize in legislative politics. The basic rules (detailed here) are: 
  • Every party caucus (which requires a minimum of 3 members) is allowed one representative, typically the party caucus whip.  
  • The CNPC meets at the discretion of the LY Speaker; in practice this happens whenever there's a boycott or blockade in the legislature, which has happened at least 80 times in this LY.
  • Discussions are supposed to be recorded or otherwise made public; this rule is blatantly and routinely violated.
  • Any legislative action agreed to by all party representatives in the CNPC will not be opposed by individual members of each caucus, allowing for expedited reviews, votes, or other legislative actions.
I've not been able to identify any consensus about the ultimate effect the CPNC has on the conduct of legislative business. At one extreme, the CPNC could be working to formalize a minority party veto over all legislative action. That is, because all parties have to agree in the CNPC, even the smallest parties (the Taiwan Solidarity Union right now has only 3 members) could effectively block controversial legislation by withholding agreement in the committee.  That would require virtually everything to pass with the consent of all parties--an alarmingly high threshold for policy change.

At the other extreme, the CPNC could just function as a more formal version of the informal discussions that take place all the time between different parties in the legislature, and give no extra meaningful authority in practice to opposition parties.

The conversations I've had with people at the legislature suggest that the CPNC looks a lot more like the second situation than the first: to the extent negotiations in this body are meaningful, it is because the opposition parties are able to do things outside the CPNC to block majority action on legislation. And if negotiations in the committee actually were on the record, as the statute requires, the party leaders would simply move them out of that committee and somewhere else private.  Thus, the CPNC is not really the place where the president's agenda goes to die. If President Ma thought getting rid of Wang would gut the CNPC and streamline legislative action, he had the wrong target in mind.
2. Wang does not use police force to end opposition blockades.  Rather than in the Cross-Party Negotiation Committee, the opposition's power to block ruling party legislation lies primarily in its ability to occupy the speaker's podium, and thus to prevent legislative sessions from being gaveled in. As I noted in the previous post, this type of action is something like a filibuster, and it is not absolute; the KMT caucus ended one of these blockades by physically removing opposition legislators from the podium prior to the passage of ECFA in 2010. The inability of the KMT to repeat that success in recent months is probably because of dissension within the majority party caucus itself, rather than anything the opposition is doing differently.
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DPP legislator Chang Chun-hsiung (right) slaps Legislative Yuan Speaker Liang Su-jung at the speaker's podium, April 12, 1991.
A shoving match is not the only way the majority party could counter an opposition party blockade of the speaker's podium, however. The Speaker also has the authority to call in the LY's security force to restore order. As this article describes, the "sergeant at arms" power (警察權) has been used a total of six times, all before 1992 when the legislature was fully democratic (i.e. the majority of legislators were still permanent representatives of mainland China):
  • 1988.12.06: DPP legislators objecting to the continued presence of permanent unelected "Eternal Legislators" (萬年立委) try to grab the microphone from the speaker, Liu Kuo-tsai (劉闊才), starting a fight. Liu calls in the police and throws the DPP legislators out of the chambers.
  • 1989.07.04: As a protest against the unelected legislators, DPP legislator Wu Yung-hsiung (吳勇雄) stands at the presentation podium (發言台) and refuses to budge. Speaker Liu calls security personnel in to have him removed from the chamber.
  • 1990.05.29: Hau Pei-tsun, the sitting Minister of Defense and a retired military general, is nominated to be the next premier by President Lee Teng-hui. During the confirmation hearing, the DPP criticizes the nomination, calling Hau the head of a new “military cabinet” (軍人組閣). (Until 1997, premiers had to receive LY confirmation before taking office.) During the confirmation vote, a physical altercation breaks out between KMT and opposition LY members, and Speaker Liang calls in security to restrain the opposition.
  • 1990.11.06: DPP members are unhappy that Speaker Liang permits Premier Hau to give perfunctory answers to legislators (“敷衍兩句“). A fight breaks out while Hau's remarks are being read into the official record, and Liang again calls in security to quash the opposition’s protests.
  • 1990.12.18: Upset at the KMT caucus's sudden change to the legislative agenda, the DPP caucus starts a group protest, and DPP legislator Wei Yao-kan (魏耀乾) unplugs the microphone while Speaker Liang is attempting to start the session. For the third time in a year, Liang calls in security personnel, who struggle to restrain DPP legislators and restore order. 
  • 1991.04.12: The best-known incident: DPP legislator and future premier Chang Chun-hsiung (張俊雄) approaches Speaker Liang at the podium, hands him a letter of protest, and then without warning lightly slaps him, telling him that this is a “wake-up call” from the Taiwan people. Furious, Liang orders security into the chamber. DPP legislator Lu Hsiu-yi (盧修一) rushes to defend Chang, ends up injured at the bottom of the scrum with the police, and is sent to the hospital. A few moments of the confrontation can be seen in the video accompanying this news story.

Given these precedents, then, during any of the dozens of times the opposition parties have occupied the podium over the last year, Wang could have used this power to have them removed. And this presumably would have allowed action on everything on President Ma's agenda, including the Cross-Strait Services in Trade Agreement. So in a strictly legal sense, Speaker Wang has not used every weapon in his arsenal to ensure legislative action on executive priorities. He is allowing the opposition to block legislation without consequences. From Ma's perspective, then, a speaker more sympathetic to the president's agenda could use this power to end opposition blockades--thus, in all probability, the attempt to get rid of Wang. 
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Speaker Wang, still banging away.
Ma Might Think Getting Rid of Wang Will Tame the Legislature. It Won't.
If we view the Speaker's authority over the legislature in its historical context, the picture is not nearly so simple. First, the sergeant-at-arms power has never been used in the democratic era. Taiwan today is a strikingly different place from Taiwan in 1991: most obviously, all legislators are subject to direct elections now. Calling in the police would be the political equivalent of dropping a nuclear bomb on the legislature. The opposition would no doubt go all-out to resist a police action in the legislative chambers and to play up the violence and drama, and the image of security forces dragging out opposition legislators would attract not only blanket domestic news coverage but probably also a great deal of opprobrium from abroad as well. 
 
It's also just not Wang's style--he's been able to survive as speaker in large part because he's viewed as a fair-minded and consensus-oriented leader, one of the few people who is well-connected and respected among both political camps. And even if Wang were in theory willing to entertain the idea, the fate of the last speaker to call in the police should give him pause: Liang Su-jung lasted barely over a year in the position before he had to resign. 

It's conceivable that, had Ma succeeded last September in expelling Wang from the party and creating a vacancy for the speaker's office, a Ma ally could have been installed in the position--someone like the KMT caucus whip Lin Hung-chih (林洪池). But he would face the same basic dilemma: he doesn't have the internal party unity to win a showdown with the DPP, and using the police to remove opposition legislators would impose a huge political cost. I'm skeptical that the KMT caucus would agree to bear that cost, or that they would support a nominee for speaker who was willing to impose it. 

Thus, removing Wang Jin-pyng from the Speaker's position was not likely to change the underlying situation much. Even if it had succeeded, I think Ma's attempt to purge Wang was a serious strategic miscalculation, and indicates a fundamental misunderstanding of how the legislature works.    
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Ma vs Wang, Lesson 2:  The KMT legislative caucus is Ma Ying-jeou's primary opponent

9/21/2014

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For the previous posts in this series, see here and here.
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Readying for battle: pan-Green and pan-Blue legislators wave competing signs before the opening of the legislative session, July 8, 2010.
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.
PictureKMT legislators celebrate the passage of the Economic Cooperation Framework Agreement (ECFA) in the Legislature, August 16, 2010.
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. 

Why is the KMT, rather than the obstructionist tactics of the DPP, key to explaining the failure of the legislature to approve Fu-Mao? Because those tactics are only effective if the majority party isn't well-organized or committed to counter them. For instance, take the primary weapon the opposition uses: blockading the speaker's podium (霸佔主席台), which physically prevents Speaker Wang from gaveling in the legislative session (which normally happens every Tuesday and Thursday at 9am when the legislature is in session). This action is, roughly speaking, the Taiwanese version of a filibuster. Without a formal commencement of the legislative session, no LY business can be conducted, and actions such as the review of Fu-Mao cannot commence.

So what's to prevent the minority parties in the legislature from doing this all the time? The majority party tactic that's been used in recent years is to have a physical confrontation in the legislative chamber with blockading opposition legislators. As crazy as this might sound to the uninitiated, the majority party can clear a path to the podium by rallying all of its members to the LY floor and shoving the opposition out of the way in what looks like a rugby scrum. The video shown here (also see the photo at left) is an example of a successful effort.

It's easy to get so distracted by all the chaos and the spectacle of elected legislators throwing things at one another that you miss the critical outcome of this scrum: Speaker Wang gavels in the session to begin the second reading of ECFA. (One can just make him out at the back of the crowd, waiting for a path to clear. The video shows more of the sequence.) The KMT caucus then votes down a series of motions by the DPP to stall or to make ECFA subject to an item-by-item review. 
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A phalanx of KMT legislators work to force DPP members out of the speaker's podium and end the minority blockade of the legislative session. Speaker Wang Jin-pyng subsequently gaveled in the session, and the Economic Cooperation Framework Agreement proceeded to the second reading, July 8, 2010.
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.
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Second Term Blues: President Ma's approval rating, June 2008-June 2013
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.
PictureDPP legislators block access to the voting box in the legislature, preventing a vote on Control Yuan nominees, July 4, 2014
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.

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Ma vs Wang, Lesson 1: The Legislative Yuan matters more than ever for policy-making in Taiwan

9/19/2014

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For the intro post in this series, see here.
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The old days of executive dominance: premier Hau Pei-tsun orders Chen Shui-bian, then a DPP legislator, back to his seat in the Legislative Yuan, Oct. 21, 1992.
For most of Taiwan's postwar history, policy-making was highly centralized in the Executive Yuan and the KMT itself. The Legislative Yuan, by contrast, was mostly a talking shop that rubber-stamped government budgets and initiatives. That began to change with democratization, but it's been a slow process. Even today, the annual budget proposal is drafted by the executive, and the legislature is prevented from adding new spending--the only way for legislators to affect this process directly is to cut funding, or freeze funds once they've been appropriated.

Nevertheless, the legislature has steadily accumulated authority at the expense of executive ministries over the last two decades. The ability of opposition party legislators to make life tough for executive branch officials became especially apparent in the later years of the Chen Shui-bian administration, when a pan-Blue (KMT-PFP) alliance held a relatively unified majority of the seats in the LY. Legislative committee inquisitions of ministers were common, key bureaus had budgets cut or frozen for transparently partisan reasons, and much of the government's proposed legislation (with key exceptions) was blocked. 

At the time, the standoff between the two branches appeared due almost entirely to the intensely partisan atmosphere that prevailed from 2004-2008. Thus, when Ma Ying-jeou won the 2008 election and the KMT won over 3/4 of the seats in the LY, most observers expected executive-legislative relations to become much more cordial and cooperative again. And for Ma's first term, they seemed to be improved, although even then there were complaints about LY "inefficiency" at passing high-priority legislation.

But legislative independence has reemerged with a vengeance in Ma's second term, even though the KMT remains the majority party there. What is so striking about the events of the last year and more is that even in a period of "unified" party control of both branches, the LY has prevented a quick passage of the president's top policy priority--the CSSTA--and may have killed it for good. That is not an outcome that I would have predicted in 2012, when Ma was re-elected. 

From a systemic perspective, what's potentially more troubling is that the current situation is about the best a governing party in Taiwan could ever hope for: the KMT controls the presidency and a majority in the legislature, and the president is the chairman of the party. The unity of purpose across the branches should be highest in this scenario. If a president can't get his agenda approved by the legislature under these circumstances, when can he?
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Ma vs Wang, One Year Later

9/19/2014

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Legislative Yuan Speaker Wang Jin-pyng and President Ma Ying-jeou, playing nice for the cameras
Although it passed mostly unnoted in the Taiwanese media, last week marked the one-year anniversary of the (failed) attempt by President Ma Ying-jeou (馬英九) to expel Legislative Yuan Speaker Wang Jin-pyng (王金平) from the KMT. It has also been about a year since I started blogging regularly on Taiwanese politics, so the Ma-Wang fight featured prominently in my first posts.  At the time, I hadn’t paid much attention to intra-KMT politics or executive-legislative relations, and I quickly realized there was a lot I didn't understand. My working assumption had always been that because the KMT controlled a comfortable majority in the legislature, and President Ma was the chairman of the KMT, he could probably get most of what he wanted approved there. 

The sudden attempt to purge Speaker Wang suggested that executive-legislative policy-making was more complicated, and more interesting, than I had supposed. And the slow, foot-dragging review of the Cross-Strait Services in Trade Agreement (CSSTA) (兩岸服務貿易協議) --"Fu-Mao" for short--in the legislature put the lie to the idea that President Ma could ultimately wield control over the KMT to get executive priorities passed.  It eventually became clear that these two events were probably linked: that Ma's strike against Wang was motivated at least in part by his frustration with the slow pace of action on the CSSTA in the legislature. 

All this happened well before a procedural dispute sparked the student protest and occupation of the legislature that became known as the Sunflower Movement. Thus, while the student protests were unexpected and dramatic, and attracted a huge amount of foreign and domestic media attention, their main political achievement so far is to have reinforced the pre-existing stalemate between the legislature and the executive. The focus on the light and heat generated by the Sunflower Movement has, I think, obscured this fact: the legislature as an institution is a formidable and powerful opponent of the executive. 
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Ma and Wang at the KMT party congress, September 15, 2014.
The narrative of the Ma administration is that the legislature is dysfunctional, and that the opposition Democratic Progressive Party (DPP) is entirely to blame for the ruling party's troubles. At the KMT's party congress  this past week, for instance, President Ma criticized the DPP for its "endless" obstructionism and "abuse" of minority power. 

If the main opposition party in the legislature really does have the ability to block everything it doesn't like, then that is indeed worrisome for Taiwan's democracy. But it's not as simple as that. The DPP, for all its success in harassing cabinet officials and stalling government initiatives, is not able to exercise an effective veto over legislation as long as the KMT itself is unified. Thus, I think the fundamental political problem for Ma lies not with the opposition but within the KMT itself. 
In posts over the next few days, I'm going to elaborate on this claim, along with some thoughts on what it means for Taiwan's democracy. In particular, I think the events of the last year have demonstrated four things:
  1. The Legislative Yuan matters more than ever for policy-making.
  2. The KMT legislative caucus is the primary obstacle to presidential priorities--not the DPP, the Cross-Party Negotiation Committee, or Wang Jin-pyng.
  3. President Ma thought removing Wang Jin-pyng would solve his problems with the legislature. It won't.
  4. The Ma administration doesn't understand the politics of the legislature very well.

Separate posts will follow.
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A Model for Taiwan?: West Germany, 1969

4/18/2014

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As an alternative to the way cross-Strait policy has been dealt with (or rather, not dealt with) in Taiwan over the last year, I've been thinking a lot about how similar foreign policy or trade controversies have historically been resolved in other democracies.  One example I like a lot comes from the former West Germany. 

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.  

PictureProtestors outside the Legislative Yuan last October call for the president's resignation and a no-confidence vote against the Executive Yuan.
Why a German-Style Solution Isn't Available in Today's Taiwan
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.    


* It might not be obvious at first glance, but this is roughly the same age as Taiwan's democracy today: the first elected postwar government in Germany took office in September 1949, and Taiwan has had a fully elected legislature since 1992 and a popularly elected president since 1996.  

** 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.
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TDP Seminar: Roselyn Hsueh

4/12/2014

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On May 5, 2014, the Taiwan Democracy Project will welcome Roselyn Hsueh to Stanford for a very timely talk on the politics of trade in Taiwan.  Dr. Hsueh is an assistant professor of political science at Temple University and a visiting scholar in the Religion, Politics, and Globalization Program at U.C. Berkeley.  Her talk is entitled, "Economies and Identities: The Politics of Taiwan's Globalization in the Age of China." The talk is free and open to the public, although you are encouraged to RSVP to alice.carter@stanford.edu.  The talk abstract is below.  UPDATE: The official event page is here.

Professor Hsueh's research focuses on the politics of market reform, comparative capitalism, development, and other areas of international and comparative political economy. Her publications include China’s Regulatory State: A New Strategy for Globalization (Cornell University Press, 2011) and “China and India in the Age of Globalization: Sectoral Variation in Postliberalization Reregulation,” Comparative Political Studies 45 (2012): 32-61. She received her Ph.D. from U.C. Berkeley and has served as a Hayward R. Alker Postdoctoral Fellow at the University of Southern California and conducted research as a U.S. Fulbright Scholar at the Institute of World Economics and Politics, Chinese Academy of Social Sciences. 


Economies and Identities: The Politics of Taiwan’s Globalization in the Age of China

For several weeks in March and April, university students in Taiwan camped out in the legislative and cabinet offices to protest the Cross-Strait Agreement on Trade in Services between China and Taiwan.  Joined by hundreds of thousands of Taiwanese, spilling out to the streets, the demonstrators claim President Ma Ying-jeou negotiated the agreement with China without seeking any public input and bypassing the legislative process entirely.  Implications of this historical social movement include the functioning of Taiwan’s democratic institutions, which have undergone regime change but democratic consolidation remains in question.  Additionally, a potential cross-strait crisis can affect U.S.-China relations in the post-Cold War era.  Two important forces are also at play: China’s meteoric playing-by-its-own-rules economic rise, and the evolving Taiwanese national identity after its transition to democracy.  This talk will center on the national-specific consequences of liberal trade and democracy for Taiwan’s economic globalization and political development.

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TDP Special Event for April 9, 2014: President Ma Ying-jeou Videoconference 

4/3/2014

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On Wednesday, April 9, 2014, the Taiwan Democracy Project at Stanford University's Center on Democracy, Development, and the Rule of Law (CDDRL) will host a special event featuring President Ma Ying-jeou of the Republic of China on Taiwan.  Co-sponsored with the Taipei Economic and Cultural Office of San Francisco and the Office of the President of the Republic of China, the event will feature a pre-recorded video address by President Ma on U.S.-Taiwan economic and trade relations.

The address will be followed by a panel discussion featuring leading Stanford faculty and fellows, including Thomas Fingar, the Oksenberg-Rohlen Distinguished Fellow at the Freeman Spogli Institute, and Larry Diamond, director of CDDRL. The panelists will respond to President Ma's remarks and comment on the recent dramatic events in Taiwan, including the ongoing occupation of the Legislative Yuan by students opposed to the cross-Strait services trade agreement.

The event will take place from 12-1:30pm in the East Room of the Freeman Spogli Institute at Stanford University, 616 Serra Street.  It is free and open to the public, and a light lunch will be served.  However, due to space limitations, RSVP is required and will be enforced at the door, and as of now the event is fully subscribed.  If you wish to be added to the wait list, you are encouraged to email Alice Carter at alice.carter@stanford.edu. 


UPDATE: The video of this event is now available online, here.
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The Cross-Strait Services Trade Agreement: Executive Order, Treaty, or Neither?

4/2/2014

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PictureRepublic of China constitution
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:

  • Where the content of the agreement requires any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement through the Executive Yuan to the Legislative Yuan for consideration within 30 days after the execution of the agreement; where its content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to the Executive Yuan for approval and to the Legislative Yuan for record, with a confidential procedure if necessary.
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.
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    About Me

    I am a political scientist with research interests in democratization, elections and election management, parties and party system development, one-party dominance, and the links between domestic politics and external security issues. My regional expertise is in East Asia, with special focus on Taiwan.

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