Worth checking out if you are in Taiwan over the next two months: on August 11, the 2014 Asian Barometer Conference (conference website not yet available) at National Taiwan University; and on September 15-17, the 2014 International Conference on Formosan Indigenous Peoples: Contemporary Perspectives, at Academia Sincia (conference website here.) The Taiwan Democracy Project and CDDRL are co-sponsoring the first. I will post more info here as it becomes available.  Descriptions below.

In keeping with this blog's mission of highlighting Taiwan-related events on campus:

The Stanford Center for International Development (SCID) has established a Memorial Award and Lecture Series to celebrate the life and accomplishments of Dr. Kuo-Shu Liang, who was Governor of the Central Bank of Taiwan, 1994 – 95. [The official announcement has these years wrong; Dr. Liang was vice governor of the Central Bank from 1975-1979, not governor.]

The third bi-annual event will take place at Stanford on Monday, April 28, 2014, 4:30-6:00pm. Dr. Jianhai Lin, Secretary of the Fund and the International Monetary and Financial Committee, will be the invited recipient of the Kuo-Shu Liang Award and will deliver the Kuo-Shu Liang Memorial address, entitled "Global Economic Landscape and Challenges."  The event page is here.

Jianhai Lin is the Secretary of the Fund and the International Monetary and Financial Committee. He oversees the Secretary's Department that has operational responsibility for the 24-member Executive Board, and serves as the official contact point of the IMF's 188 member countries on institutional matters, including work of the Board of Governors. The Secretary's Department also organizes Spring and Annual Meetings, and is the creator and custodian of the IMF's official record.

A Chinese native, Mr. Lin was appointed to his current position in March 2012. He previously served in senior positions in the Secretary's, Finance, Policy Development and Review, and Asian and Pacific Departments. During his IMF career, he has worked across a wide range of country, policy, and administrative issues.

Mr. Lin studied at the University of International Business and Economics in Beijing, China, and the University of California at Berkeley, and earned his doctorate from the George Washington University. Before joining the Fund, he worked in the financial sector and academia.

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.    

The Stanford Night Market, an annual tradition going back over a decade, is being held this evening, 6:30-9 pm on the Stanford campus at White Plaza. It's hosted by the Taiwanese Cultural Society at Stanford. Check it out if you're around!  Details can be found at the event webpage.

On May 5, 2014, the Taiwan Democracy Project will welcome Roselyn Hsueh to Stanford for a very timely talk on the politics of trade in Taiwan.  Dr. Hsueh is an assistant professor of political science at Temple University and a visiting scholar in the Religion, Politics, and Globalization Program at U.C. Berkeley.  Her talk is entitled, "Economies and Identities: The Politics of Taiwan's Globalization in the Age of China." The talk is free and open to the public, although you are encouraged to RSVP to alice.carter@stanford.edu.  The talk abstract is below.  UPDATE: The official event page is here.

Professor Hsueh's research focuses on the politics of market reform, comparative capitalism, development, and other areas of international and comparative political economy. Her publications include China’s Regulatory State: A New Strategy for Globalization (Cornell University Press, 2011) and “China and India in the Age of Globalization: Sectoral Variation in Postliberalization Reregulation,” Comparative Political Studies 45 (2012): 32-61. She received her Ph.D. from U.C. Berkeley and has served as a Hayward R. Alker Postdoctoral Fellow at the University of Southern California and conducted research as a U.S. Fulbright Scholar at the Institute of World Economics and Politics, Chinese Academy of Social Sciences. 

On Wednesday, April 9, 2014, the Taiwan Democracy Project at Stanford University's Center on Democracy, Development, and the Rule of Law (CDDRL) will host a special event featuring President Ma Ying-jeou of the Republic of China on Taiwan.  Co-sponsored with the Taipei Economic and Cultural Office of San Francisco and the Office of the President of the Republic of China, the event will feature a pre-recorded video address by President Ma on U.S.-Taiwan economic and trade relations.

The address will be followed by a panel discussion featuring leading Stanford faculty and fellows, including Thomas Fingar, the Oksenberg-Rohlen Distinguished Fellow at the Freeman Spogli Institute, and Larry Diamond, director of CDDRL. The panelists will respond to President Ma's remarks and comment on the recent dramatic events in Taiwan, including the ongoing occupation of the Legislative Yuan by students opposed to the cross-Strait services trade agreement.

The event will take place from 12-1:30pm in the East Room of the Freeman Spogli Institute at Stanford University, 616 Serra Street.  It is free and open to the public, and a light lunch will be served.  However, due to space limitations, RSVP is required and will be enforced at the door, and as of now the event is fully subscribed.  If you wish to be added to the wait list, you are encouraged to email Alice Carter at alice.carter@stanford.edu. 

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:

24 years after the beginning of the "Wild Lily Movement" (野百合學運), a spontaneous student protest that galvanized Taiwan’s political elite behind far-reaching democratic reforms, student-led protestors have again attempted to weigh in on Taiwan’s political future. About 9pm local time on Tuesday, March 18, students in Taipei suddenly climbed the gates of the Legislative Yuan compound, took over the floor and barred the doors of Taiwan's national legislature. Attempts by police to remove them failed, and by Wednesday night a crowd estimated at more than 50,000 had gathered near the legislature to support the students.  The student protests were in reaction to the contentious item currently before the legislature to approve the Cross-Strait Service Trade Agreement (海峽兩岸服務貿易協議). 

Coverage of the sit-in is available from media outlets across the political spectrum. For starters, here's the generally pro-government China Post and (in Chinese) the KMT-friendly United Daily News on the protests, and here's the pro-opposition and DPP-friendly Taipei Times and (in Chinese) Liberty Times.    Updates in English on the events, including a live stream of the floor of the Legislative Yuan, can be found at Ketagalan Media.  The protests have now attracted significant coverage abroad, as well, including in the Washington Post, Bloomberg, the New York Times Sinosphere blog, and Buzzfeed. There is also good reaction from bloggers here, here, and here.

Rather than repeat what can be found at those links, I thought I’d tackle three questions raised by the occupation of the legislature that haven't gotten sufficient attention:

1.  How did we get here?
2.  Why is this a big deal, or is it?
3.  What are the deeper implications for Taiwan's democracy?

Separate posts follow.

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.]