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
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.
Partisan Power Struggles: Three Arenas of Conflict
What may be less obvious is that the current confrontation is a foreseeable consequence of Taiwan's constitutional framework, which despite going through several rounds of reforms is still an awkward mash-up of presidential and parliamentary features that isn't well-designed to handle periods of divided government. As in most separation of powers systems, the president and legislature in Taiwan are set up to be adversarial: they are elected by different constituencies (separate origin) and cannot dissolve or replace the other branch (separate survival). When a single party controls both branches, as has been true in Taiwan for most of its democratic history, the shared interests of the party have helped soften these inter-branch tensions and maintained some semblance of a rational policy-making process. Taiwan has generally been well-governed during these periods without suffering from the erosion of civil liberties and the rule of law that too often has followed prolonged periods of one-party rule in other young democracies.
But given Taiwan's sharp blue-green divide, when different parties control the two branches, their interminable partisan warfare gets elevated to the level of inter-branch conflict, and both sides have strong incentives to push the institutional limits of the branches they control. Taiwan has had only one previous era of divided government -- the Chen Shui-bian years, from 2000-2008 -- and it was a time of regular bare-knuckled political brawling. (A personal aside: I have a tiny bit nostalgia for this era, despite the widespread political dysfunction, because it's when I first went to Taiwan and got really immersed in Taiwan politics. The current political tumult all feels a bit retro to me.)
It is unfortunate that Taiwan appears to be returning to a pattern of inter-branch partisan conflict that parallels what happened in the Chen era, and the political system does not appear to be acquitting itself any better now than it did then. Over the past year, this fight has played out in three distinct arenas: oversight and investigations, independent institutions, and budgets.
The first concrete indication that the opposition was going to play hardball with the DPP government was when it attempted to give itself new and potentially far-reaching investigative powers over the executive branch. A week after Lai Ching-te's inauguration on May 20, the KMT-TPP coalition passed amendments to the Act Governing the Legislative Yuan's Power (立法院職權行使法) that included the following changes:
- Invite the President to give a state of the nation address to the Legislative Yuan, but require him to respond to oral questioning by legislators;
- Forbid civil servants called before the legislature for interpellation from expressing disagreement with the questioner or responding with their own questions;
- Expand the legislature's powers to compel members of the government, NGOs, and private citizens to testify before legislative committees and provide written documents, and establish financial penalties for non-compliance;
- Criminalize and increase penalties for government officials who commit perjury or are found in contempt of the legislature.
It was no surprise that the DPP government opposed this legislation and returned the bill to the LY for reconsideration, and the opposition passed it again (in effect, the Premier has a very weak veto that can be overridden with a second simple majority vote in the LY). The Executive Yuan then submitted the bill to the Constitutional Court for a ruling on its constitutionality. The Court quickly issued an injunction blocking the new legislation while it heard arguments and deliberated. Eventually, in October, the court issued a ruling that largely substantiated the government's objections and struck down most of the legislative provisions. (Nathan Batto has a good summary on his blog of the ruling and its implications.)
That ruling, combined with a decision issued in September that narrowed the application of the death penalty, redirected the opposition's ire toward the Constitutional Court. The KMT-TPP coalition quickly initiated legislation raising the threshold for the court to strike down laws, and allowed the terms of seven of the 15 justices to expire on October 31 without scheduling hearings for the replacements that President Lai had nominated. Since then, the battle over oversight authority has mostly died down as the KMT and TPP have shifted their attention toward other arenas. For the time being, the DPP has effectively fended off the opposition's efforts to expand its investigative powers, but these issues could pop back up at some point and reemerge as a locus of conflict.
The independence of the Constitutional Court (until recently known in English as the Council of Grand Justices) emerged as a major flashpoint starting last summer. Taiwan's tradition of judicial independence is young and has shallow roots, and it has not been helped by the way justices are selected. The court has a total of 15 justices serving staggered, eight-year terms with no immediate reappointment. The obvious political problem with that design is that Taiwan's presidential and legislative elections run on a four-year cycle, so if a president serves two terms, s/he gets to appoint every single member of the constitutional court. That is in fact what happened during the Tsai Ing-wen era: as of last July, all the court members were Tsai appointees confirmed by a DPP-controlled legislature. Lest KMT partisans scream too loudly about this, they were the beneficiaries of the same system during the Ma Ying-jeou era: by 2016, every single justice was a Ma appointee confirmed by the KMT majority in the LY.
The design of the court's appointment process means that, even if the justices are in practice not at all partisan creatures and are applying a completely honest professional impartial reading of the constitution to arrive at their decisions, they will inevitably be accused of blatant favoritism toward the ruling party if the decision benefits that side. And that in fact is the gist of the KMT-TPP criticism, and why they have said they are blocking Lai's nominees. To be fair, they have a valid concern here -- given their newfound power in the LY and the Court's political importance, President Lai really should negotiate with the opposition parties to find a compromise slate of candidates that both sides agree will be impartial justices. But it would also be better if the reversion point in this standoff were not the complete immobilization of the Court -- the majority in the legislature needs to be compelled to act quickly on the President's nominees, rather than be incentivized to stall as they are now.
Unfortunately, the opposition hasn't merely been satisfied with blocking Lai's nominees; after the Court's ruling in October, it went even further by amending the Constitutional Court Procedure Act to raise the quorum and decision thresholds. The motivation for this step was transparently partisan and, to be blunt, outrageous: under the new threshold the Court cannot rule (or at least, the opposition seems to expect it can't) on the constitutionality of any bills the legislature passes until and unless new justices are seated -- and the KMT-TPP coalition will be able to reject any nominees who they think might dare to rule against them in the future.
(An aside...there is an important nuance here that I have not seen mentioned: until recently, the Court had a 2/3 supermajority requirement to issue constitutional interpretations. The move to a >1/2 threshold was part of a broader Constitutional Court reform package passed by the DPP legislature in 2021 -- for those interested, Lin Chien-chih of Academia Sinica wrote an excellent explainer piece on this reform. So a restoration of the higher requirement is not, in and of itself, inherently antidemocratic or a threat to judicial independence. The bigger problem is the political context and the drastic effect that it will have on the Judicial Yuan's ability to function in the near term.)
This direct attack on the independence of the judiciary has attracted the most attention in English-language commentary (e.g. see here, here, and here). But it is not just the Constitutional Court that has been paralyzed by the opposition's refusal to approve new nominees. The KMT and TPP have also targeted most of the other independent institutions that require LY confirmation for their members. These include Taiwan's three independent commissions -- the National Communications Commission (NCC), which regulates Taiwan's broadcast media; the Fair Trade Commission (FTC), and the Central Election Commission, which runs Taiwan's elections -- as well as the Examination Yuan and the Control Yuan.
The NCC has been a special bugbear of the KMT ever since it refused in 2020 to renew the broadcast license of the deep blue TV station CtiTV, which forced it off the air (although it didn't close down -- it still streams on YouTube.) After the new legislature was seated, the opposition wasted little time before going after the commission and trying to limit its authority or paralyze it. In April, the KMT and TPP announced they would oppose all four of the DPP government's nominees to the seven-member committee. In May, the KMT advanced legislation that would eliminate the requirement that broadcast media renew their licenses, effectively stripping the NCC of its most important enforcement tool. In July, with the EY and LY in a standoff over the commissioner nominations, the KMT and TPP voted to prevent the executive from extending the terms of the outgoing commissioners in an acting capacity; the EY then exploited a loophole in the statute to elevate the outgoing deputy chair, Weng Po-hsiung (翁柏宗), to acting chairman, maintaining the minimum quorum of four commissioners. Finally, with the EY and LY still at an impasse over the commissioner nominations, in November the opposition passed a bill to force acting chair Weng to step down by December 1; since then the commission has only had three members and is short of the legal quorum it needs to function.
So far, the review of appointments to the other independent institutions -- the FTC and Examination Yuan -- has been less contentious, in part because they are less politically salient and in part because the TPP has demonstrated some intriguing independence from the KMT on these votes: it supported two of the four FTC commissioner nominees, voting with the DPP to approve them, but opposed two others, voting with the KMT to reject them. It also voted to support six of the seven nominees for the Examination Yuan, splitting with the KMT to support Chou Hung-hsien (周弘憲) as head but voting with the KMT against Supreme Prosecutors Office prosecutor Ker Li-ling (柯麗鈴).
Again, the institutional design here leaves a lot to be desired: the reversion point if the two branches can't agree on nominees is that the commission or Yuan cannot legally function, and there is no incentive for the legislature to move quickly to approve or reject nominees. The opposition can also use its leverage over this process to punish decisions it doesn't like or take out personal grievances on the nominees. Since the procedures for selecting Control Yuan and Central Election Commission members are the same, these nominations loom as the next battles in this arena and could deepen the political crisis, particularly if the CEC ends up immobilized in the same way.
Under Taiwan's constitutional framework, the Executive Yuan dominates the annual budget process. It enjoys sweeping agenda-setting power, including the exclusive right (Article 59 in the ROC Constitution) to draft the annual budget bill before it is sent to the Legislative Yuan for review and approval (Article 63). The LY's powers in the budget process are limited: it can cut or freeze items but, crucially, it cannot add spending (Article 70), nor can it reallocate funds between categories (Judicial Yuan Interpretation 391). Because of these restrictions, the executive branch has the upper hand over the LY; the legislature can (and often does) unilaterally pass legislation requiring money to be spent on new initiatives, but the executive can simply ignore the statutes by refusing to include the funding in the next annual budget. Thus, Taiwan's institutional framework gives the executive branch broad flexibility to set the agenda while limiting the legislature to a purely reactive role. In practice, legislators across the political spectrum have still found creative ways to exercise influence over government ministries, by cutting or freezing budgets and calling ministers before the legislature to be grilled in public hearings. But to date they have not managed to wriggle out of this budgetary straitjacket to add significant new spending.
Since the new legislature was seated, however, the KMT-TPP majority has been aggressively pushing against these constitutional constraints. The first significant battle in this arena was over an apparently minor issue related to paying compensation for indigenous groups. On June 4, the opposition majority passed a bill doubling the compensation payments due to indigenous landholders affected by a logging ban. The amendments to that act also required the executive branch to appropriate additional funds to fulfill the terms of the compensation deal. Although the amounts involved were small, this issue turned into a prolonged struggle because of the precedent it would set: if the LY can compel the EY to add spending outside the regular annual budget process on this issue, it could open up a Pandora's Box of other funding demands and erode the executive branch's budgeting authority. Negotiations dragged on throughout the fall until in November the EY finally signed on to a cross-party consensus to pass a new special budget to fund the compensation scheme.
The problem with this deal for the DPP government (and for Taiwan's long-term fiscal discipline) is that special budgets offer the legislature a pathway around the executive's control of the budgetary process -- one the opposition will now probably seek to use a lot more. To date these special budgets (特別預算) have been truly "special": they have been large, rare, and in general used for major capital projects requiring dedicated multi-year outlays. Recent examples include the "Forward Looking Infrastructure Development Program" passed by the DPP in 2017, and re-upped in 2019 and 2021, and the defense procurement special budget passed in 2022 to fund ongoing purchases of high-end weapons systems from the United States.
Incidentally, both parties have used special budgets when they have been in power, and this practice goes all the way back to the pre-democratic period: Chiang Ching-kuo's famous 10 Major Construction Projects (十大建設) of the 1970s were adopted through the same extraordinary special budget process, and under Lee Teng-hui in 1991 the KMT-controlled legislature passed a massive special budget for infrastructure, the Six Year National Development Plan. And, not surprisingly, whichever party has been in the opposition has been a fierce critic of their "overuse." For instance, back in the 1990s, the DPP boycotted the vote on the Six Year Development Plan, and in 2017 the KMT occupied the speaker's podium and managed to force a reduction in the length of the initial Forward Looking Infrastructure Development Program.
Now that the KMT is again in the driver's seat in the legislature, the party has suddenly rediscovered its enthusiasm for special budgets. In March 2024, party caucus whip Fu Kun-chi proposed a massive US$60 billion special budget for infrastructure construction on the east coast that would primarily benefit his district, Hualien County, and Taitung County. Although he got initial public backing for the idea from Speaker Han and Deputy Speaker Chiang, the KMT caucus ultimately shelved the idea in June (In addition to the huge price tag, its benefits would have been concentrated in only two legislative districts, Hualien and Taitung). But the prospect of a KMT-TPP end-around the executive via a special budget remains a very real threat to the DPP government.
Recently, though, the opposition has taken aim at a different target: the central-local revenue allocation formula. One of the three bills passed on December 20 amended the Act Governing the Allocation of Government Revenues and Expenditures (財政收支劃分法) to change the distribution of revenue between the central and local governments from a 75-25% split to a 60-40% one. (The reporting on this bill, in both English and Chinese, has been especially confusing -- several stories have erroneously reported that local governments will get 60% of revenues, not 40%.) It's too early to say how this change will ultimately play out, but the potential consequences for the central government's fiscal picture are dire and could require cuts of up to 40% of all discretionary central government spending, as the DGBAS head argued before the legislature a couple weeks ago.
As if that weren't enough fiscal chaos, the KMT and TPP are also threatening deep cuts to some of their favorite targets in the annual budget bill, including the majority of the operating budgets of the Ministry of Digital Affairs, the Ministry of Agriculture, the Mainland Affairs Council, and the NCC, as well as the bulk of funding for the next phase of Taiwan's indigenous submarine construction. They have also vowed to cut subsidies to TaiPower, Taiwan's state-owned power company, which has been operating deep in the red for several years. The proposed cut to TaiPower's budget is especially grating because the KMT-TPP coalition also got a lot of political mileage last year out of criticizing TaiPower's proposal to raise electricity prices to help close its operational deficit, although in the end the opposition parties made only minor changes to the Electricity Act that preserved the rate-setting committee's authority to enact increases without having to get LY approval.
This budget battle is still playing out as of this writing, but it is clear the KMT-TPP coalition is having a signficant impact on Taiwan's budgetary priorities. The funding allocation reform, if it sticks, will erode the central government's fiscal capacity to the benefit of local governments, and may make it harder to increase funding for defense and civil society resilience programs that are of intense interest to foreign observers right now. At the moment it is not an encouraging picture.