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.  

***

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. ​

The Taiwan Democracy Project is holding its annual conference this Monday and Tuesday, Oct. 26-27, at Stanford. The event is open to the public; you can register and find more details here.  The conference description is below.

On December 2, the Taiwan Democracy Project will hold a special roundtable session to discuss the results of Taiwan's local elections on November 29. The event is free and open to the public, and lunch will be provided. You are encouraged to RSVP at the official event page.

Panel speakers will include Dennis Weng, visiting assistant professor of political science at Wesleyan University; Thomas Fingar, a Distinguished Fellow at the Asia-Pacific Research Center in the Freeman Spogli Institute at Stanford University; Winnie Lin, a Stanford undergraduate; and me.  Some context on the elections follows.

On November 29, Taiwan will hold comprehensive local elections which will decide a huge number of offices, from the Taipei mayor all the way down to village and ward chiefs. These elections are also being called the "9-in-1" (九合一) elections, because they combine elections to nine separate offices. By the time Taiwan's transition to democracy finished in 1996, elections to directly administered municipalities, counties and cities, townships, village chiefs, and ward chiefs were all held at separate times. Along with separate national elections for the National Assembly (beginning in 1991), the Legislative Yuan (1992), and the presidency (1996), that meant Taiwanese voters were going to the polls about once a year. That's a lot. 

In recent years, on the other hand, the trend has been toward consolidation. A set of amendments in 2005 changed the legislative term length from three to four years to coincide with the presidential term, and starting in 2012 both elections were held on the same day, creating a single national election every four years. The National Assembly was abolished in the same reform. Then county and county-level city terms were temporarily extended to align with the election cycle of the special municipalities of Taipei and Kaohsiung, for the first time creating a single local election day: 

The races to be decided in the 2014 election:

• (1) Mayors and (2) city councilors in centrally-administered municipalities (直轄市市長，市議員) for Taipei, Kaohsiung, New Taipei City, Taichung, and Taoyuan);
• (3) Executives and (4) councilors in counties and county-level municipalities (縣／省轄市長，縣／市議員);
• (5) Township and town heads and (6) councilors (鄉／鎮長，鄉／鎮議員); 
• (7) Village and ward heads (村／里長).

In addition, about 25 township-level jurisdictions with significant "mountain aborigine" populations hold special status as "self-governing" areas (自治區). In a nod to the special status of aborigines in Taiwan, local government laws require that the township heads in these areas be aborigine. This became a point of some contestation after several counties (Taipei County, Taichung City and County, and Kaohsiung City and County) were merged and raised to centrally-administered municipality status in 2009. As part of this reform, townships and towns in these areas became districts (區), which have appointed, not elected, leaders. As a consequence, several self-governing townships lost the right to elect their leaders--Wulai Township, a popular tourist destination a short trip south of Taipei, was one. 

In December 2013 the Legislative Yuan passed an amendment to restore the right to elect the leaders and councilors of these former townships. As a consequence, two more elections were added:     

• (8) Self-governing district heads and (9) representatives (自治區長，區代表).   

So that's how they got to "9-in-1".

My new column at Ketagalan Media is on electoral reform in Taiwan, and what form it should take:

Read the whole thing here.

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?

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.  

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.

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

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

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

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

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

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

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

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

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

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

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


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

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

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

On February 28, the Taiwan Democracy Project hosted a talk by Dean Chen, Assistant Professor of Political Science at the Salameno School of Humanities and Global Studies, Ramapo College of New Jersey. Prof. Chen's talk was entitled "The Origins and Development of Taiwan's Policies toward Overseas Citizens' Participation in Homeland Governance and Policymaking." The event page can be found here.

Prof. Chen's expertise is in international politics, U.S.-China-Taiwan trilateral relations, and governance and institutions of China and Taiwan. His most recent publications include Sustaining the Triangular Balance: The Taiwan Strait Policy of Barack Obama, Xi Jinping, and Ma Ying-jeou (Univ. of Maryland School of Law, 2013), U.S. Taiwan Strait Policy: The Origins of Strategic Ambiguity (Lynne Rienner, 2012), and "The Evolution of Taiwan's Policies toward the Political Participation of Citizens Abroad in Homeland Governance," with Pei-te Lin.