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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.
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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
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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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
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
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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