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I have an article out today at the Journal of Democracy examining Taiwan's ongoing political stalemate and what I think is best described as a slow-motion constitutional crisis. The key theme: I don't put the whole blame on either the DPP or the KMT-TPP opposition, but rather on the way Taiwan's constitutional framework is designed (or rather, isn't) to handle divided government. I was surprised at how quickly partisan tensions escalated into inter-branch warfare after the 2024 elections, and I have been dismayed at how willing both camps have been to violate norms and push the limits of their institutional prerogatives to gain an advantage. But in hindsight, I probably shouldn't have been.
The fundamental reason is Taiwan is suffering from the classic "dual mandate" problem that Juan Linz first popularized in 1990 in his famous "Perils of Presidentialism" piece for the Journal of Democracy. I don't buy much of Linz's argument -- presidentialism can still be preferable to parliamentarian in some circumstances (see, e.g, Indonesia), and the comparative literature on this question now points to bad design choices within presidential regimes, rather than the presidentialism itself, as creating especially challenging conditions for democratic politics. But I do accept Linz's core contention that presidential regimes create an inherent tension between the executive and legislative branches, and the default pattern of politics is for each branch to be engaged in interminable conflict with the other as long as they are controlled by different parties.
James Madison in Federalist No. 51 famously characterized this conflict as a strength of presidential regimes, or at least separation of powers ones: in his phrase, "ambition must be made to counteract ambition." But for that ambition not to escalate into political warfare that ultimately destroys democracy, there has to be another branch sufficiently strong and independent to play referee and regulate the conflict. Put differently, a key constitutional design principle is that in presidential regimes, you need well-protected neutral arbiters—the judiciary, prosecutors, ombudsmen, state regulators, and above all the constitutional court—who can limit partisan conflict and keep it from spinning out of control.
The fragility of these independent institutions is the greatest weakness of Taiwan’s democracy today. As I write in the conclusion to the piece:
After several rounds of constitutional reform, Taiwan is now a strong presidential regime with only two institutions that really matter: the presidency and the legislature. Both are directly elected, giving both valid claim to a democratic mandate. When the same party has controlled both branches, partisan incentives have softened the inherent tensions in this design, and Taiwan’s policymaking process has functioned reasonably well without the need for other institutions to intervene. But with control now divided, interbranch conflict has emerged with a vengeance. Many of Taiwan’s policymaking processes have ground to a halt, and in seeking to limit the fallout from this partisan conflict, its accountability institutions have themselves become prime targets.
This piece, by the way, is the more developed version of a talk I gave at an event hosted by the Shih Ming-te Foundation in Taipei on September 9, which got picked up by a few media outlets in Taiwan, and then twisted a bit for partisan ends for a couple news cycles. For those looking for the full context of my comments, which have plenty of criticism of both political camps (e.g. the TPP-KMT retaliation against the Constitutional Court is appalling, and the DPP premier's refusal to countersign legislation is almost certainly unconstitutional), check out the article at the link.
- Published on
On behalf of Taiwan in the Indo-Pacific Region and its National Security Task Force the Hoover Institution held a Taiwan Roundtable Discussion on the Constitutional Court on Tuesday, February 18, 2025, from 5:00 - 6:00 pm PT.
Taiwan is facing a potential constitutional crisis. In December 2024, Taiwan’s opposition-controlled legislature voted to impose a 2/3 supermajority quorum for the Constitutional Court to hear new cases. The legislature then voted down all the new nominees to the Court, leaving it with only 8 of members and unable to meet the new quorum requirement. The government has appealed to the Court to meet anyway and rule that the new amendments are unconstitutional. In this discussion, three experts on Taiwan’s politics and judicial system discuss the factors leading up to this confrontation, the options facing the court, and the potential for deeper reforms to strengthen judicial independence in the face of a deepening confrontation between the ruling and opposition parties.
Taiwan is facing a potential constitutional crisis. In December 2024, Taiwan’s opposition-controlled legislature voted to impose a 2/3 supermajority quorum for the Constitutional Court to hear new cases. The legislature then voted down all the new nominees to the Court, leaving it with only 8 of members and unable to meet the new quorum requirement. The government has appealed to the Court to meet anyway and rule that the new amendments are unconstitutional. In this discussion, three experts on Taiwan’s politics and judicial system discuss the factors leading up to this confrontation, the options facing the court, and the potential for deeper reforms to strengthen judicial independence in the face of a deepening confrontation between the ruling and opposition parties.
About the Participants
Chien-Chih Lin is an associate research professor at Institutum Iurisprudentiae, Academia Sinica and an associate professor at the Graduate Institute of National Development, National Taiwan University. He received the LLM & JSD degrees from the University of Chicago. His academic interests focus on comparative constitutional law in Asia. Lin is the coauthor ofConstitutional Convergence in East Asia (2022) and Ultimate Economic Conflict between China and Democratic Countries (2022). His articles can be found in both peer-reviewed and student-edited law journals as well as edited volumes, including Oxford Handbook of Constitutional Law in Asia, American Journal of Comparative Law, and International Journal of Constitutional Law. He is the book review editor of International Journal of Constitutional Law.
Weitseng Chen is a faculty member at the National University of Singapore Faculty of Law, specializing in law and economic development, law and politics, and legal history in the context of Greater China. He has recently published several books, including Regime Type and Beyond: The Transformation of Police in Asia (CUP, 2023), Authoritarian Legality in Asia: Formation, Development and Transition (CUP, 2019), The Beijing Consensus? How China Has Changed the Western Ideas of Law and Economic Development (CUP, 2017), Property and Trust Law: Taiwan (with Yun-Chien Chang & Y. J. Wu, Kluwer, 2017), and Law and Economic Miracle: Interaction Between Taiwan’s Development and Economic Laws After WWII (in Chinese, 2000). Weitseng Chen earned his JSD from Yale Law School. Prior to joining NUS, he served as a Hewlett Fellow at Stanford’s Center for Democracy,Development, and the Rule of Law (CDDRL) and practiced as a corporate lawyer in the Greater China region with Davis Polk & Wardwell.
Kharis Templeman is a research fellow at the Hoover Institution and part of the Project on Taiwan in the Indo-Pacific. Templeman is a political scientist (Ph.D. 2012, Michigan) with research interests in Taiwan politics, democratization, elections and election management, party system development, and politics and security issues in Pacific Asia.
Weitseng Chen is a faculty member at the National University of Singapore Faculty of Law, specializing in law and economic development, law and politics, and legal history in the context of Greater China. He has recently published several books, including Regime Type and Beyond: The Transformation of Police in Asia (CUP, 2023), Authoritarian Legality in Asia: Formation, Development and Transition (CUP, 2019), The Beijing Consensus? How China Has Changed the Western Ideas of Law and Economic Development (CUP, 2017), Property and Trust Law: Taiwan (with Yun-Chien Chang & Y. J. Wu, Kluwer, 2017), and Law and Economic Miracle: Interaction Between Taiwan’s Development and Economic Laws After WWII (in Chinese, 2000). Weitseng Chen earned his JSD from Yale Law School. Prior to joining NUS, he served as a Hewlett Fellow at Stanford’s Center for Democracy,Development, and the Rule of Law (CDDRL) and practiced as a corporate lawyer in the Greater China region with Davis Polk & Wardwell.
Kharis Templeman is a research fellow at the Hoover Institution and part of the Project on Taiwan in the Indo-Pacific. Templeman is a political scientist (Ph.D. 2012, Michigan) with research interests in Taiwan politics, democratization, elections and election management, party system development, and politics and security issues in Pacific Asia.
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And maybe a fiscal one, too. And no, it has nothing to do with China.
December 20, 2024: When the cameras roll, the shoving begins...The DPP party caucus tries and fails to blockade the speaker's podium to prevent a final vote on three controversial bills. / Taipei Times
On December 20, amid shouting, shoving, fistfights, and broken furniture, Taiwan’s opposition-controlled legislature passed by a show of hands three controversial bills that threaten to kneecap its government. The first raised the threshold to recall elected officials. The second required the Constitutional Court to have a 2/3 quorum to hear constitutional cases and imposed a supermajority threshold to invalidate a law. And the third shifted the central-local revenue-sharing formula to give local governments (mostly KMT-run) 40 percent of all government revenues, up from 25 percent, at the expense of the DPP-run central government.
Four days later, the same opposition majority in the legislature voted down all seven of President Lai’s nominees to the Constitutional Court, leaving it with only eight justices and unable to meet the new quorum requirement for hearing a case. It is now effectively paralyzed. The DPP government has nevertheless requested that the court meet and rule anyway on whether the amendments to the Constitutional Court Act are themselves unconstitutional. This increasingly destructive partisan political conflict has put Taiwan on the brink of a constitutional crisis with no obvious way to resolve it.
This confrontation is also taking place in a democracy that Freedom House last year ranked as the second-best in Asia, behind only Japan, and significantly above the United States and most of Europe. Taiwan's political system has proven remarkably resilient to PRC influence operations over many years, and it has a capable and effective state and vibrant economy despite its diplomatic isolation. So why is it facing a political crisis now?
Four days later, the same opposition majority in the legislature voted down all seven of President Lai’s nominees to the Constitutional Court, leaving it with only eight justices and unable to meet the new quorum requirement for hearing a case. It is now effectively paralyzed. The DPP government has nevertheless requested that the court meet and rule anyway on whether the amendments to the Constitutional Court Act are themselves unconstitutional. This increasingly destructive partisan political conflict has put Taiwan on the brink of a constitutional crisis with no obvious way to resolve it.
This confrontation is also taking place in a democracy that Freedom House last year ranked as the second-best in Asia, behind only Japan, and significantly above the United States and most of Europe. Taiwan's political system has proven remarkably resilient to PRC influence operations over many years, and it has a capable and effective state and vibrant economy despite its diplomatic isolation. So why is it facing a political crisis now?
A Divided Legislature and a Missed Opportunity
February 1, 2024: Han Kuo-yu and Johnny Chiang celebrate winning both the speaker and deputy speaker positions with other KMT legislators, including Fu Kun-chi. / CNA
The simplest answer is divided government. For the first time in 16 years (and only the second time in its democratic history), Taiwan's legislative and executive branches are controlled by different parties: the Chinese Nationalist Party or Kuomintang (KMT) and Taiwan People's Party (TPP) together hold a majority in the Legislative Yuan, and they are locked in a fierce power struggle with the Democratic Progressive Party (DPP) government.
This conflict was not inevitable. In the January 2024 presidential and legislative elections, the DPP's Lai Ching-te (賴清德) won the presidential election but with only 40% of the vote, and the DPP lost its majority in the legislature. The KMT ended up with 52 seats (plus two blue-leaning independents), the DPP won 51, and presidential candidate Ko Wen-je's (柯文哲) centrist TPP won eight (all via the party list vote). That left no party with a majority and made the TPP the crucial swing voting bloc in the LY. In theory, the TPP could have exploited that leverage to extract significant concessions from the ruling DPP -- on policy, legislative leadership, or cabinet positions. But instead, negotiations between the DPP and TPP went nowhere, and President Lai missed his chance to head off the last year of partisan warfare.
The formation of battle lines first became apparent on February 1, when the new legislature was seated. Its first order of business was to elect a speaker and deputy speaker. Curiously, the TPP ultimately decided not to support either of the major party nominees -- the party's eight legislators voted for TPP member Huang Shan-shan (黃珊珊) in the first round, and abstained in the second. As a result, the KMT's Han Kuo-yu (韓國瑜) won the speaker's race, and KMT legislator Johnny Chiang (江啟臣) was elected as his deputy. Despite providing crucial help to the KMT, the TPP did not manage to win even the deputy speaker as the price for their support. Nor did they strike a deal with the DPP, either, although that should have secured at least one of the leadership positions for the party. Given that the TPP held the crucial votes that could have denied control of the legislature to either major party, this outcome seems like a major missed opportunity for both them and the DPP.
I've heard competing explanations for this bargaining failure. One story is that the refusal came from the DPP side -- ruling party legislators were engaged in quiet conversations with the TPP about a possible power-sharing deal, but Lai Ching-te intervened to stop the negotiations. Reporting at the time suggested that the TPP's price for cooperation in the run-up to February 1 was for the DPP to support Huang Shan-shan for speaker -- a price the DPP was apparently not willing to pay, but which in hindsight they probably should have. That interpretation is also consistent with the public comments offered by party caucus whip Ker Chien-ming (柯建銘) that "A DPP-TPP partnership is only possible if the TPP voluntarily comes to us."So maybe this was a strategic mistake by the DPP caucus (and ultimately, Lai himself), and they are suffering the consequences.
But another possibility is that the TPP was just never seriously interested in cooperating with the DPP no matter what they offered -- even before Ko Wen-je's detention in a corruption investigation several months later turbocharged the TPP's animosity toward the DPP government. Although the KMT-TPP negotiations for a joint presidential ticket broke down in spectacular public fashion in November 2023, the two parties did still enter into a pre-election coalition for the legislative races and even campaigned together, so perhaps TPP leaders had already made up their minds to team up with the KMT after the elections, too, and there really was no chance the DPP could have enticed them to defect.
Whatever the reason, ever since the new legislature was seated on February 1, the TPP has consistently chosen to act as the KMT's junior partner and supported the opposition party's confrontational approach to the DPP government. And as the partisan divide has hardened, it has also transformed into an inter-branch conflict between the KMT-TPP majority in the legislature and the DPP in the executive. The partisan maneuvering that has followed has escalated over the last year to a level of open political warfare that is posing a severe test for Taiwan's democratic institutions. And it is a test they are failing.
This conflict was not inevitable. In the January 2024 presidential and legislative elections, the DPP's Lai Ching-te (賴清德) won the presidential election but with only 40% of the vote, and the DPP lost its majority in the legislature. The KMT ended up with 52 seats (plus two blue-leaning independents), the DPP won 51, and presidential candidate Ko Wen-je's (柯文哲) centrist TPP won eight (all via the party list vote). That left no party with a majority and made the TPP the crucial swing voting bloc in the LY. In theory, the TPP could have exploited that leverage to extract significant concessions from the ruling DPP -- on policy, legislative leadership, or cabinet positions. But instead, negotiations between the DPP and TPP went nowhere, and President Lai missed his chance to head off the last year of partisan warfare.
The formation of battle lines first became apparent on February 1, when the new legislature was seated. Its first order of business was to elect a speaker and deputy speaker. Curiously, the TPP ultimately decided not to support either of the major party nominees -- the party's eight legislators voted for TPP member Huang Shan-shan (黃珊珊) in the first round, and abstained in the second. As a result, the KMT's Han Kuo-yu (韓國瑜) won the speaker's race, and KMT legislator Johnny Chiang (江啟臣) was elected as his deputy. Despite providing crucial help to the KMT, the TPP did not manage to win even the deputy speaker as the price for their support. Nor did they strike a deal with the DPP, either, although that should have secured at least one of the leadership positions for the party. Given that the TPP held the crucial votes that could have denied control of the legislature to either major party, this outcome seems like a major missed opportunity for both them and the DPP.
I've heard competing explanations for this bargaining failure. One story is that the refusal came from the DPP side -- ruling party legislators were engaged in quiet conversations with the TPP about a possible power-sharing deal, but Lai Ching-te intervened to stop the negotiations. Reporting at the time suggested that the TPP's price for cooperation in the run-up to February 1 was for the DPP to support Huang Shan-shan for speaker -- a price the DPP was apparently not willing to pay, but which in hindsight they probably should have. That interpretation is also consistent with the public comments offered by party caucus whip Ker Chien-ming (柯建銘) that "A DPP-TPP partnership is only possible if the TPP voluntarily comes to us."So maybe this was a strategic mistake by the DPP caucus (and ultimately, Lai himself), and they are suffering the consequences.
But another possibility is that the TPP was just never seriously interested in cooperating with the DPP no matter what they offered -- even before Ko Wen-je's detention in a corruption investigation several months later turbocharged the TPP's animosity toward the DPP government. Although the KMT-TPP negotiations for a joint presidential ticket broke down in spectacular public fashion in November 2023, the two parties did still enter into a pre-election coalition for the legislative races and even campaigned together, so perhaps TPP leaders had already made up their minds to team up with the KMT after the elections, too, and there really was no chance the DPP could have enticed them to defect.
Whatever the reason, ever since the new legislature was seated on February 1, the TPP has consistently chosen to act as the KMT's junior partner and supported the opposition party's confrontational approach to the DPP government. And as the partisan divide has hardened, it has also transformed into an inter-branch conflict between the KMT-TPP majority in the legislature and the DPP in the executive. The partisan maneuvering that has followed has escalated over the last year to a level of open political warfare that is posing a severe test for Taiwan's democratic institutions. And it is a test they are failing.
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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.
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.
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.
- Published on
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:
At the heart of the current conflict in Taiwan over the Cross-Strait Services Trade Agreement (CSSTA) (兩岸服務貿易協議) is a legal dispute, possibly even a constitutional one. Despite its role in igniting the student occupation of the legislature, there's not much English-language coverage of the legal questions. (Student protestors and riot police make for better news copy--who knew?!) Nevertheless, most of the materials at issue are publicly available online, so I think it's useful to gather these in one place, along with my take*. If you need some background on the conflict, see my previous post.
The first thing to note is it's not clear from precedent whether agreements signed with the PRC under the Economic Cooperation Framework Agreement (ECFA) (兩岸經濟合作架構協議) require legislative approval to take effect--because there is no precedent! The Ma administration has argued that the CSSTA is technically an Executive Order (行政命令), not a law or treaty. Furthermore, because it does not require the adoption of new legislation or amendments to existing legislation, the agreement does not require legislative ratification to take effect.
Second, the CSSTA (in Chinese here) is technically an "annex" to the ECFA (text here; special website is here). As with all agreements governing cross-Strait relations, ECFA and the subsequent CSSTA have to be negotiated and signed by the "non-governmental" bodies set up to avoid the question of Taiwan's legal status vis-a-vis the People's Republic of China. These are the Straits Exchange Foundation (SEF) (海峽交流基金會) on the Taiwan side and the Association for Relations across the Taiwan Strait (ARATS) (海峽兩岸關係協會) on the PRC side. The legal authority for negotiating cross-Strait agreements is delegated to SEF from Taiwan's Mainland Affairs Council (MAC), as specified in Article 4-2 of the Act Governing Relations between Peoples of the Taiwan Area and Mainland Area (臺灣地區與大陸地區人民關係條例). That Act is available in its entirety online, in English (here too) and in Chinese.
The key articles relevant to the current dispute are in Chapter I, Articles 4 and 5. Article 5 requires that agreements be submitted to the LY "for record" if no new laws or amendments to laws are needed. If new laws or amendments to existing laws are required by the agreement, then it must be submitted to the legislature "for consideration."
"For Record" vs. "For Consideration" (備查與審議)
That leaves the question of what submitting to the LY "for record" and "for consideration" means. From Article 5, the Chinese for "for record" is beicha (備查)--literally, “for future reference." The Chinese for "for consideration" is shenyi (審議). In practice, these terms indicate what the status quo is: if an executive order is submitted "for record", the legislature must review and either approve, reject or change the order within 90 days of its submission; if it does not, the order takes effect automatically. Thus, no action means the executive order stands. If an executive order requires new legislation, it also requires "consideration". If the legislature "considers" and takes no action, then the order does not take effect, and nothing changes. To use a more technical term, the reversion point in bargaining between the branches favors the executive under "for record" and the legislature under "for consideration" submissions.
The difference between these two procedures is the crux of the conflict over the CSSTA. The Ma administration's argument is that the cross-Strait Relations Act plus the ECFA is all the legal authority it needs to sign and implement the CSSTA. Any regulatory changes agreed to under the ECFA structure are administrative in nature, and can be implemented via executive order. And at face value, that's what Article 5 says: no new laws or amendments, no need for legislative approval.
The counter-argument (spelled out nicely here, in Chinese) is that ECFA itself is either a "prospective treaty" (準條約) or an "administrative agreement" (行政協定), but not a law passed by the legislature (立法院通過的法律), an act of authorization (授權法), or an organic law (組織法). So agreements reached by the SEF under ECFA authority cannot be treated like executive orders, because the SEF is not a formal administrative body. As a consequence, the CSSTA should be submitted to the legislature "for consideration" as a treaty, just like the ECFA was, and like the recently passed New Zealand and Singapore free trade agreements were.
A Legal Mess
Now, here's where things get messy. Neither side in this dispute has an airtight legal argument. After the agreement was signed in June 2013, the Ma administration wanted to submit the CSSTA to the legislature as an executive order, "for record." The opposition camp opposed that, of course, but Ma's position also raised concerns among KMT and PFP legislators. Speaker Wang Jin-pyng then negotiated an agreement among the party caucuses, including representatives of the KMT, to treat the agreement as "for consideration"--i.e. requiring legislative approval to take effect--and moreover, to review and vote separately on each item in the agreement. Once that decision was made, the agreement's review became subject to all the procedural rules in the LY that govern legislation. When Chang Ching-chung asserted that the 90 day deadline for review had passed, he was contradicting his own legislative caucus's position that the agreement would be treated like a treaty, not an executive order.
But on the other hand, if one reads the actual Act from which the SEF's negotiating authority is drawn, it explicitly says that no legislative approval is needed if an agreement can be enforced without new or amended laws. Here is Article 5, in English:
- Where the content of the agreement requires any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement through the Executive Yuan to the Legislative Yuan for consideration within 30 days after the execution of the agreement; where its content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to the Executive Yuan for approval and to the Legislative Yuan for record, with a confidential procedure if necessary.
If we take this language at face value, then as long as the CSSTA does not require new laws or amendments, it can take effect as an executive order--no legislative approval required. From that perspective, the willingness of the KMT caucus to treat the CSSTA as needing to be ratified by the legislature looks like a significant concession.
Given how controversial anything related to cross-Strait relations is in Taiwan, there is a strong normative argument for getting agreements ratified by the Legislative Yuan before they take effect. But the legal argument is much less clear-cut--just look at Article 5. And that ambiguity is a big problem for everyone, because it undercuts the legitimacy of cross-Strait policy-making, whether or not the CSSTA passes.
Shouldn't the Courts Resolve Legal Conflicts?
In an ideal world, the question of whether the CSSTA is an "executive order" would be resolved by the Council of Grand Justices, Taiwan's constitutional court. It's unfortunate the issue wasn't put before them, and I'm not really sure why--probably a combination of several reasons: the long time it takes to get a court decision, the Ma administration's haste to get the CSSTA through the legislature, the timing of the student occupation of the LY, and the court's own desire to stay out of partisan conflicts. At any rate, that option appears to be precluded now, and Taiwan's democracy is worse off for it.
Nevertheless, there may be a silver lining here. The Ma administration has belatedly appeared to acknowledge the legitimacy problem surrounding cross-Strait negotiations, and has proposed changes that would strengthen legislative oversight. The students occupying the legislature have proposed their own mechanisms for oversight. If some version of those gets adopted--including, crucially, a requirement that cross-Strait agreements be ratified by the legislature to take effect--then at least some of Taiwan's democratic institutions might actually come out of this crisis with a bit more legitimacy in the long run. And that's something people of all political stripes in Taiwan ought to approve of.
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.