Taiwan’s Reform Bills Indicate Volatility

Executive Summary:

• Taiwan’s Executive Yuan has returned inflammatory legislation to the Legislative Yuan over concerns that it violates democratic principles, procedural justice, and the country’s constitution. The legislation is also likely to face judicial challenges.
• Contentious provisions could force testimony by military officials and others without proper legal safeguards and under threat of financial sanction or a prison sentence, potentially endangering national security through exposing classified information.
• The involvement of officials such as the Kuomintang’s (KMT) Fu Kun-chi and the timing of the legislation following high-level meetings with members of the PRC leadership, has raised suspicions about PRC involvement in stoking controversy.
  

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The administration of Taiwan President Lai Ching-te (賴清德) is off to a rocky start. On June 6, Taiwan’s Executive Yuan (EY; 行政院) issued a press release stating that it would request that the Legislative Yuan (LY; 立法院) reconsider amendments passed on May 28 to the “Law on the Exercise of Powers and Functions of the Legislative Yuan (立法院职权行使法)” and additions to Chapter 5-1 and Article 141-1 of the island’s “Criminal Code (刑法)” (EY, June 6). This development is only the latest skirmish in an ongoing battle at the heart of Taiwan’s democracy and comes at the end of several tumultuous weeks.

The legislation, which passed its third reading in the pan-Blue-dominated LY at 10:53 p.m. on Tuesday has drawn extraordinary levels of concern (TW Reporter, May 28). [2] The end of May saw protests on a scale unseen since the 2014 Sunflower Movement almost exactly a decade ago, and at their peak reached over 100,000 participants in Taipei (New Bloom Magazine, May 25; see China Brief, April 9, 2014). [3] Observers and interest groups both domestic and international have also engaged in public criticism, voicing substantive issues but also inveighing against procedural malpractice, both in person on the streets in Taipei, New York City, and elsewhere, as well as in op-eds and public letters in traditional and social media outlets.

A statement from the DPP Mission to the United States succinctly encapsulates the main issues with the legislation, listing seven reasons for the decision to return the bills to the LY for review (DPP Mission to the United States, June 6). These reasons are the following: a lack of substantive discussion in passing the legislation, violating democratic principles; confusing the dual executive system, and requiring unconstitutional questioning of the President; an overly broad scope for legislative investigations and hearings; a disregard for due process of law, violating procedural justice; an indefinite review of personnel approval, leading to lengthy vacancies in important government positions; an unclear definition of “Contempt of Congress,” arbitrarily expanding legislative power; and possibilities of criminal penalties (both fines and prison sentences) on account of mere “suspicion” of officials making false statements. The Control Yuan (CY; 監察院) has also issued a statement saying that the legislation “violates the separation of powers (涉違反權力分立)” and is thus unconstitutional (CY, May 28). There are further concerns that the legislation could adversely affect national security (BBC Chinese, May 29; Bloomberg, May 30).

All this comes at a time of relative volatility for Taiwan, which is under constant pressure from the People’s Republic of China (PRC). The PRC has not been in the foreground of the intense domestic political struggles—which included brawls in the legislature, injuring five lawmakers—but its presence has nevertheless been felt. On May 23 and 24, the People’s Liberation Army Eastern Theater Command held the long-planned “Joint Sword-2024A” drills, surrounding the island as a form of what a PRC government spokesperson later characterized as “firm punishment (坚决惩戒)” (81.cn, May 29). The timing of the legislation, following high-level meetings in the PRC by KMT officials in April, have raised suspicions about PRC involvement.

The Letter of the Law: Irregularities in Passing the Legislation

The manner in which these laws were passed by the legislature is one of the motivating factors behind the protests and the basis of much of the criticism they have provoked. This is quite separate from the content of the laws themselves. Procedural irregularities, sometimes without precedent in the island’s democratic era, do not indicate a legislative majority willing to play by the rules. This has led to protest slogans accusing the LY of being a “black box (黑箱)” (see New Bloom Magazine, April 1)

It remains to be seen whether such conduct will characterize the pan-Blue coalition’s behavior going forward, or whether this was merely an unusual display of power at the start of their term. Nathan Batto, a political scientist based in Taipei, argues for the latter, writing that while it is common, if not very legitimate, for parliamentary majorities to bend the rules in order to pass their legislative agenda, using such tactics on a regular day-to-day basis will likely lead to crisis (Frozen Garlic, May 22). Some key figures from the Kuomintang (KMT) who have been responsible for driving the legislation, however, suggest that the picture is more complicated.

The KMT’s legislative caucus whip, Fu Kun-chi (傅崐萁), is of particular concern (New Bloom Magazine, May 31). At the end of April, Fu met with senior PRC officials, including Wang Huning (王沪宁), chairman of the Chinese People’s Political Consultative Conference—a core part of the united front system (Focus Taiwan, April 27). Fu has a history of financial crimes (Taipei Times, June 26, 2020). More pertinently, he has been pushing additional legislation sanctioning infrastructure projects in his own constituency in eastern Taiwan (Nikkei, May 23). Some of Fu’s critics have been alarmed at provisions in the bill that might open these projects up to financing from the PRC, and specifically as part of the Belt and Road Initiative (BRI) (FTV News, May 13).

Former Taiwan President Ma Ying-jeou (馬英九), a member of the KMT, also traveled to the PRC in April. Following this visit, during which he met with PRC President Xi Jinping, his office urged the LY to tone down the Anti-Infiltration Act, a law designed to limit the PRC’s attempts to interfere with Taiwan’s politics and elections (Nikkei, May 23). It is unclear whether the timing of these bills soon after these visits is more than coincidence, but they have provoked alarm in Taiwan. The context of significant, cross-domain PRC influence campaigns in Taiwan has made the pan-Blue coalition’s attempts to rush legislation through the LY doubly concerning.

The procedural issues began before the legislation was brought to the LY. Green-leaning legal experts who were cosignatories of an open letter criticizing the legislation argued that the bills were not given full deliberation at the committee stage or drafted following consultation with relevant experts (Facebook/Brian Chang, May 27). Instead, the committee stage was “cursory,” and the party negotiation stage was skipped more or less entirely (Frozen Garlic, May 22). The three rounds of readings were similarly undemocratic. The text of the legislation was not publicized prior to the readings, and consequently lawmakers did not know what they were voting on (New Bloom Magazine, May 18). This was exacerbated by the KMT and TPP using amendments to rewrite most of the critical clauses. The DPP’s Rosalia Wu Su-yao (吳思瑤), minority secretary-general of the LY, complained that both the KMT and TPP “tried to smuggle in textual amendments even during the third reading (甚至在三讀還想要偷渡文字修正),” characterizing it as “extremely unfair and absurd (非常不公平且荒誕)” (TW Reporter, May 28). The committee chair also blocked DPP legislators from speaking several times during these sessions, or only allowed them three minutes to speak (The Diplomat, May 31; New Bloom Magazine, May 25).

This has led to sloppiness in the bills that were ultimately passed. For instance, the third reading version of one of the bills contains a mix-up of the words “object (物件)” and “file (檔案)” in different clauses, and another section omits the currency of fines for those found to be in non-compliance, or writes “yuan (元)” instead of “New Taiwan Dollars (新臺幣)” (Business Today, May 28; TW Reporter, May 28). The process by which the bills were passed was also unusual. Amendments were hastily voted on by a simple show of hands (New Bloom Magazine, May 25). While this was done to speed up the process, it has implications for transparency, as it is not recorded which legislators were for or against each article (The Diplomat, May 1).

The LY majority has sought throughout the process to characterize the reform bills as unremarkable and common to democracies the world over. As some of the open letters and other criticisms suggest, however, while such laws are common, the precise form of Taiwan’s new rules are not. One long-form piece helpfully compares the amendment to the Law on the Exercise of Legislative Yuan’s Powers and Functions to the United States’ Contempt of Congress Bill (TW Reporter, May 27; US Congress, accessed June 4). It finds two big differences. First, that in the United States, contempt of Congress applies only in the context of a congressional investigation, and routine questions are not included. Second, that even in an investigative setting, only a witness who refuses to appear, or after appearing refuses to answer questions “relevant to the investigation,” will be in contempt of Congress. It is not contempt to “counter-question” a questioner or to refuse to answer a question that is not relevant to the investigation but is intended to harass the witness. In the bill in question however, there is no limit to the rule’s application, nor are investigations limited in scope to issues relevant to the investigation.

One further point of concern with the bills is the financial penalties introduced for violating the new laws. As the green-leaning organization DoubleThink Lab has pointed out, those who do not comply with committees’ requests for information could be repeatedly fined NTD$100,000 (US$3,100). Members of the LY could thus attempt to ‘wear down’ all but the wealthiest individuals deemed to not be cooperating with investigations, even if those individuals are trying to protect classified or proprietary information (LinkedIn/Doublethink Lab, May 24).

The Letters of the Lawyers: Experts and Others Speak Out

Both the substantive and procedural issues with the legislation have led to widespread condemnation. Lawyers have published open letters, political scientists have co-authored op-eds in international media outlets, and foreign diplomats and business communities have voiced concern. This is on top of the protests that have sprung up on city streets across the island.

At the end of April, prior to the bills’ arrival in the LY, the EU Chamber of Commerce warned its members of the potential risks of the legislation. They focused on how the legislation would empower lawmakers to ask for classified documents from private companies and to “investigate” ongoing judicial cases and possibly even influence trials in court (CNA, April 29). The note, published in Euroview, warns that corporate leaders “will need to understand the risks of not cooperating with a Legislative Yuan investigation or otherwise engaging in any behavior, however well intentioned, that might anger legislators” (Euroview, April 23).

The Taiwan Bar Association published an open letter on May 18. In it, the Association argued that the legislation was unconstitutional, and criticized the LY for not legislating “in accordance with its constitutional duties (于宪法职责，妥适立法)” (Taiwan Bar Association, May 18). This was in part a technical argument, stating that the LY was not observing Article 63 of the constitution, which requires bills to be discussed and debated fully before decisions are passed. The association, which is chaired by a former DPP lawmaker, was strident in its criticism, lambasting the LY for “not only an attack on the fundamentals of Taiwan as a democracy, but also contrary to the fundamentals of democratic constitutionalism and the politics of public opinion (此不仅斫伤台湾作为民主国家的根本，亦违背民主宪政及民意政治的基本原理).”

Another group of lawyers published an open letter on Facebook on May 27 before the third reading of the bills. As of 11 p.m. on May 30, it had 128 signatories (Facebook/Brian Chang, May 27). This letter called on the government to return the bills to committee due to “procedural flaws and unconstitutional content.” It also took issue with the constitutionality of some of the legislation. For instance, the author wrote that “Interpretation No. 585 [of the constitution] recognizes that ‘the investigative power of the Legislative Yuan is an auxiliary power necessary for the Legislative Yuan to exercise its constitutional powers,’ but ‘based on the principle of separation of powers and the principle of checks and balances, the subjects or matters to be investigated by the investigative power of the Legislative Yuan are not unlimited.’” As such, “the means used by the Legislative Yuan to compel the people to cooperate … all involve people’s constitutional rights to personal freedom, freedom of expression, information privacy, and the right to property, etc. The purpose, scope, means, procedural safeguards, and remedies for these rights must be stipulated in detail, which is obviously insufficient in the current bill.”

On May 20, a self-described group of international academics, journalists, and politicians, including Stephen M. Young and William A. Stanton—both former directors of the American Institute in Taiwan (AIT), a de facto embassy of the United States—wrote an additional open letter (The Diplomat, May 24). The letter’s content, which was broadly aligned with the pan-green camp, expressed “strong concern and disappointment,” noting that the reforms “exceed the bounds of those found in constitutional democracies around the world, subvert the rule of law and parliamentary procedures, and should be taken in the context of the KMT’s stated objective of undermining good governance.” They go on to argue that “in most constitutional democracies, while contempt of parliament or congress charges exist, they have generally applied to the defiance of lawfully ordered subpoenas or lying in the course of judicial investigations. No democracy has applied contempt charges to officials discharging duties during the course of regular hearings or for merely ‘talking back.’”

The Diplomat has hosted an important part of the debate, publishing three further articles in recent days. One, by KMT legislator Wu Tsung-hsien and the KMT’s assistant director of International Affairs Howard Cheng-Hao Shen, sought to defend the bill as pro forma for constitutional democracies, dismiss concerns about the KMT suppressing debate, and accuse the DPP of manipulating public opinion to foment the protests (The Diplomat, May 29). This prompted two rebuttals—one from the DPP and one from four political scientists in the United States and Taiwan. The former, written by Calvin Chu at the DPP Mission in the United States, distinguished carefully between previous DPP proposals for the LY’s powers of investigation and those tabled by the KMT. For instance, it emphasizes the ways in which the KMT’s version violates the constitution, including by lacking safeguards for the rights of civilians and individuals under investigation. The latter criticized the KMT article for misrepresenting crucial facts, and argued that the protesters and critics are motivated by legitimate concerns (The Diplomat, May 31).

The PRC Presence and Security Concerns

PRC media reporting has been supportive of the bills and the KMT’s conduct, while criticizing the legislation’s opponents and the DPP for disinformation. For instance, the Global Times quoted exclusively pro-PRC media outlets in Taiwan to characterize opposition to the bill as aimed merely at “protecting the power of the Lai administration.” The piece also described the protests as involving five thousand people—despite at least one estimate putting the height of the protests as reaching one hundred thousand in Taipei alone (New Bloom Magazine, May 25).

The legislation also has implications for Taiwan’s defense. Taiwan-based political scientist Lev Nachman has argued that provisions forcing testimony by military officials could jeopardize key projects, including previous president Tsai Ing-wen’s multi-billion-dollar initiative to develop military submarines (Financial Times, May 26). The KMT has described this as “fake news,” though there have been alleged security-endangering behavior from certain KMT lawmakers. Ma Wen-chun is under investigation for leaking confidential information about citizens from South Korea (which has no official diplomatic relations with Taiwan) being involved in the submarine project, and Hsu Chiao-hsin is facing legal action by the Ministry of Foreign Affairs for leaking confidential details of diplomatic agreements with Czechia, Lithuania, and Ukraine to try to sink diplomatic cooperation (Taipei Times, May 7; Bloomberg, May 30). Experts thus fear that the LY could push to cut back on defense- and diplomacy-related budgetary expenses in this parliament (BBC Chinese, May 29). This would not be without precedent. During the administration of the first ever non-KMT president, Chen Shui-bian (陳水扁), a KMT-dominated legislature held up efforts to increase defense spending on necessary US weapons purchases by voting down an arms procurement bill 63 times. The DPP, KMT, and TPP all state that they are in favor of pursuing defense reforms and increasing the defense budget to 3 percent of GDP, but some pan-blue politicians may once again attempt to hold national security hostage to assuage the PRC. [4]

Conclusion

Activity in the last two weeks, whether inside Taiwan’s Legislative Yuan, on the streets across the island, or on the seas surrounding it, does not bode well for the stability or security of Taiwan. The acute upheaval is likely to die down in the short term, as the protests were a result of the KMT’s irregular tactics to push through legislation which is now to be reconsidered by the LY. Depending on the course the reform bills now take, and additional constitutional reforms that could also be coming further down the road, the difficulties that the Lai administration was set to face in his first presidential term already seem heightened. For now, the next phase to watch will be how the legislation progresses as it is reconsidered by the LY, and how constitutional legal challenges unfold.

Notes

[1] The author would like to thank Julia Famularo for her feedback on an earlier draft of this article.

[2] The texts of the amendments can be read here: https://docs.google.com/spreadsheets/d/1VhRCz5ln2o4CMpzOUIW5pXhD4YNcuS0B/htmlview#gid=21825256

[3] While many of those involved in the current protests also took part in the Sunflower Movement, there are distinctive differences. One study shows that the average age of participants in the recent rallies was about 35, while that of the Sunflower Movement was 28; interviews conducted by the team covered the age range of 15 to 75, while 75 percent of Sunflower Movement participants were under 30 (TW Reporter, May 28).

[4] This observation comes from Julia Famularo.