It's alive! This book volume on Taiwan politics during the Ma Ying-jeou years (2008-2016), which I've edited with Chu Yun-han and Larry Diamond, just arrived in the mail from Lynne Rienner Publishers this weekend.

This is our attempt at a deep dive into various aspects of Ma-era politics, including party politics and elections, political institutions and governance challenges, trends in public opinion and democratic values, civil society and social movements, and cross-Strait and US-Taiwan-PRC relations. This look at the Ma years parallels somewhat our earlier book on the Chen Shui-bian era.

We were fortunate to be able to assemble a great group of contributors for this book--about half based in Taiwan and half abroad--who offer a variety of perspectives on the politics of the Ma years. The scholarship here draws on years of conferences, papers, and conversations that started even before President Ma left office, including with some of the key participants in and outside of the Ma administration. (Chapter 15, for instance, is by Szu-yin Ho, who served for two years as deputy Secretary-General of Ma's National Security Council.) This sort of cross-national collaboration is less common than it should be (in part because it's logistically hard to pull off!), but I am convinced the final product is much stronger for it.  

Among the many great contributions here, let me especially highlight three that provide original, provocative answers to important questions about the Ma era:

• In Chapter 3, Austin Wang explains how Tsai Ing-wen emerged from obscurity as unrivaled leader of the DPP during its years in opposition, despite having never previously held elected office;
• In Chapter 4, Nathan Batto shows how President Ma's recurrent troubles with the legislature had more to do with deep divides within the ruling KMT than they did with the obstructionist tactics of the opposition DPP and with Ma's party rival, Speaker Wang Jin-pyng;
• In Chapter 7, Isaac Shih-hao Huang and Shing-yuan Sheng demonstrate that having a majority in the Legislative Yuan does not mean a party has complete control over the Legislative Yuan, and that the legislature's decentralized law-making process makes it challenging for the executive branch to get high-priority legislation approved, whether or not the president's party holds a majority. 

For more thoughts on those issues and a broader overview of the book, check out the introductory chapter, which is available ungated from the publisher's website. 

One of the major advantages the DPP has had over the KMT in this election cycle is its cooperative relationship with the smaller upstart parties on its flanks: the Taiwan Solidarity Union (台聯), the Social Democratic Party-Green Party (社會民主黨 － 台灣綠黨) alliance, and above all the New Power Party (時代力量).

The TSU is the DPP's traditional ally, and the two worked fairly closely together in 2012 to coordinate nominations: the TSU avoided running candidates against DPP nominees in the districts, and the DPP encouraged deep green voters to consider casting a party list vote for the TSU. That strategy paid off for the pan-green camp when the TSU won 8.96% of the party list vote, which returned it to the LY after a four-year absence. And in the districts, the DPP candidates won all but four constituencies that Tsai Ing-wen carried (and six that she didn't.)

Unfortunately for the TSU, it isn't looking so hot in the polls right now and probably won't win the five percent of the party list vote it needs to retain seats in the legislature. It's likely to be replaced by the NPP, which was founded only about a year ago and is running several high-profile candidates in district races. This could have been a major problem for the DPP: a new pan-green party with a strong pro-independence slant and brash leadership, targeting the same youth vote that the DPP is counting on to help it win a majority in the LY, and without a past history of coordination in elections.   

Instead, the DPP leadership recognized this threat early on and worked out a cooperation agreement: the party would yield several districts to the NPP (only three, as it turned out), and the NPP would only campaign in those districts to avoid splitting the pan-green vote elsewhere. The arrangement has worked well enough that Tsai Ing-wen is even showing up to appear with some of the NPP candidates.

The DPP has pursued a similar approach to cooperation with candidates from other groupings, yielding several other seats to small parties. Via Solidarity.tw, here's the list of small-party candidates the DPP has endorsed:  

• Taipei 3: Billy Pan (潘建志), Independent
• Taipei 4: Huang Shan-shan (黃珊珊), People First Party
• Taipei 5: Freddy Lim (林昶佐), New Power Party
• Taipei 6: Fan Yun (范雲), SDP-Green alliance
• Taipei 7: Yang Shih-chiu (楊實秋), Independent
• ​Taipei 8: Lee Ching-yuan (李慶元), Independent
• New Taipei 9: Lee Hsing-chang (李幸長), Independent
• New Taipei 12: Huang Kuo-chang (黃國昌), New Power Party
• Taoyuan 6: Chao Cheng-yu (趙正宇), Independent
• Taichung 3: Hung Tzu-yung (洪慈庸), New Power Party
• Taichung 5: Liu Kuo-lung (劉國隆), TSU

11 seats seems like a lot to yield, right? Isn't this a costly signal that the DPP is willing to weaken its shot at a majority in order to defeat the KMT and forge a broad coalition in the LY? Well, let's step back and see just how crucial these seats are to a DPP majority. Here's the list of district seats ranked by how large Tsai Ing-wen's lead or deficit was in 2012, with the yielded districts marked in yellow (all of them are currently held by the KMT): 

Remember that the DPP needs about 41 district seats to win a single-party majority in the LY. Notice where almost all the yielded seats lie? Below #41. Waaaaay below, in fact. If some of these seats go to third-party candidates, the DPP is already going to have a majority all by itself.

I noted this in a previous post, but it's worth reiterating here: this is smart politics by the DPP. They're ceding races that are not very competitive to third parties and independents in exchange for non-compete agreements in the critical races in the 25-45 range. (In fact, this ranking probably understates just how difficult some of these seats are: Taipei is more reliably blue than the rest of the island, so the swing toward Tsai there is likely to be lower than elsewhere.)

How Much is One District Worth?
One "yellow" district is high up the list, though, and it's a very interesting one: Taichung 3 is ranked #30. What's going on there? The NPP has nominated Hung Tzu-yung, and the DPP is not running a candidate. Like the NPP candidates elsewhere, Hung is already a well-known figure in Taiwan: she is the sister of Hung Chung-chiu (洪仲丘), a military conscript who died in July 2013 as the result of harsh punishment by his superiors. (The incident triggered large protests, the resignation of the Minister of National Defense, and the rapid passage of a far-reaching reform of the military justice system.)

​By generic partisan lean, Taichung 3 is by far the most competitive district of any the DPP has yielded; a swing of just 2.33% toward Tsai would turn it green. If Hung can run anywhere close to Tsai's 2016 total in this district, she should win it easily. So, of the NPP candidates running for district seats, it's Hung, not Huang Kuo-chang (in New Taipei 12) or Freddy Lim (in Taipei 5), who is best positioned to win in 2016.

It's likely that the threat of NPP candidacies in critical races elsewhere gave them the bargaining power to get the DPP to yield Taichung 3, and as a result they're well-positioned to win at least one district seat, in addition to whatever they get from the party list. From the DPP's perspective, this is a good trade as well: they cede one competitive district for a full non-compete agreement everywhere else. And with one prominent exception, the deal has held. ​

The Curious Case of Hsinchu City
​That exception is Hsinchu City, where the DPP Legislative Yuan party caucus leader Ker Chien-ming (柯建銘) is running against both the KMT nominee Cheng Cheng-chien (鄭正鈐), a city council member, and the NPP's Chiu Hsien-chih (邱顯智). Ker is widely disliked by the NPP's core supporters, and Chiu has refused to withdraw from the race, creating the possibility of a serious pan-green split in the vote. With a big enough swing (11-12%) toward Tsai, this seat could be competitive, but it's likely to be close even then, so Chiu's candidacy could well be fatal to Ker's chances.

What's especially intriguing about this race is the possibility of an ulterior motive for the NPP, and possibly some elements of the DPP, too. As party caucus leader, Ker is in line to be the next speaker of the LY if he wins re-election, and he's likely to try to block any meaningful reforms of the cross-party negotiation mechanism (政黨協商) that has given the current speaker, Wang Jin-pyng, tremendous influence over the legislative process. That in turn could prevent Tsai Ing-wen from getting much of her policy agenda through the LY. I have no idea if Chiu's campaign is a deliberate strategy to take out Ker, but from the NPP's point of view, preventing Ker from winning re-election might just be worth splitting the pan-green vote and throwing the seat to the KMT. Some of that animosity clearly comes from Ker's long history of deal-making in the LY and his role as the key DPP member in closed-door cross-party negotiations. For instance, it's easy to forget that he was actually at the center of the special influence case that caused the open rift between Wang Jin-pyng and Ma Ying-jeou--it was a case against Ker that Wang leaned on prosecutors not to appeal.

By the way, isn't it curious that Ker is fighting for re-election in such a tough place for the DPP? (Tsai lost here in 2012 by 21 points.) How did this happen to the party caucus chair?! Ker was previously a party-list legislator for two terms, so by DPP party rules he has to run in a district now. Unlike the KMT, which flagrantly violated its own rules to allow Wang Jin-pyng to run for a third time as a list legislator, the DPP didn't yield on this point. But why Hsinchu? Well, that's where Ker is originally from; he won several consecutive races there under the old SNTV system. Now that the electoral system has changed to single-member plurality, though, he's got a much tougher challenge.

I'm a bit surprised that Ker didn't manage to parachute into an easier district somewhere else. The fact that he's not only running in Hsinchu but also facing a challenge from the NPP suggests some significant opposition to him from elsewhere within his own party. But if he overcomes the odds and wins his race, he is going to owe Tsai Ing-wen very little, and he may have a political axe to grind with her or some other elements of the DPP for putting him in such a tough position. If he ends up as LY speaker, he could quite plausibly be a DPP version of Wang Jin-pyng during the Ma era: a powerful and independent-minded leader whose first priority is protecting his own interests, not those of the president or his party. Given how badly that turned out for Ma Ying-jeou and the KMT, this race could have an outsized impact on relations between Tsai and the DPP caucus in the LY after the election. It's worth watching closely. 

UPDATE 2015.12.30: Shortly after I wrote this, allegations of vote-buying were levied against the local KMT branch and its candidate, Cheng Cheng-chien, for holding a free public banquet in a local night market for KMT members and local residents. Pretty brazen, and stupid.  

I had the privilege yesterday of joining a two-panel roundtable session at George Washington University's Sigur Center for Asian Studies on the probable outcome and impacts of the upcoming Taiwan elections. Thanks to all who came to the event and asked great questions, and to Bruce Dickson for the invitation to participate.

I've gotten a couple requests for the slides from my presentation; they're linked here.

​The short version of the talk: reform of the Legislative Yuan should be at the top of the priority list for the next president. Outside of Taiwan, the potential twists and turns in cross-Strait relations dominate the conversation and tend to overshadow everything else happening in the domestic arena. But there are a lot of problems facing Taiwan right now that don't directly involve cross-Strait relations.

The incoming administration will face several daunting domestic policy challenges, including:

• a low tax base combined with a highly uneven distribution of the tax burden;
• widespread unhappiness with the Ma administration's China-first economic strategy, but no consensus about what to do instead, and long-standing opposition in the legislature to the kinds of domestic reforms required to enter the Trans-Pacific Partnership;
• a declining defense budget, now at 2% of GDP, and rising personnel costs from the faltering transition to an all-volunteer military force;
• a potential energy crisis driven by rising opposition to nuclear power without development of realistic alternatives. 

Whatever the next administration tries to do, it will face opposition from some corners of the legislature representing vested interests that would lose out under reforms. Under the Legislative Yuan Speaker Wang Jin-pyng, the LY's cross-party negotiation mechanism has in practice given any party caucus--even one with just three members--the ability to block most legislation. So the current system will prevent major changes on any of these issues unless Speaker Wang is replaced and the negotiation mechanism is weakened or abolished. 

If the DPP wins a majority in the legislature, it will have a golden opportunity to reform the party caucus system and make it easier to pass legislation with a simple majority vote. It's critical for their own political future, for Tsai Ing-wen's, and probably for Taiwan's, that they do.​

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.

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. 

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.    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

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.

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.

A Trade Agreement with China Becomes a Political Flashpoint

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

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

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

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

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

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

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

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

Student Activism is a Good Sign

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

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

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

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

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

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

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

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