Taiwan’s Constitutional Showdown

Late on the night of May 28th, the Legislative Yuan (LY; Taiwan’s unicameral parliament) finally rammed through a controversial package of bills in the name of parliamentary reform. As the first major score of the newly-formed coalition between the Kuomintang (KMT) and the Taiwan People’s Party (TPP), which commands the legislative majority after the January elections, the bills were hastily passed over the bitter objections of the Democratic Progressive Party (DPP), which retains control of the presidency and the executive branch under Taiwan’s semi-presidential system. This legislative saga sparked what was named the Bluebird Movement, a large-scale civic protest that is, in our view, reminiscent of the Sunflower Movement of 2014 in many ways. Unlike their Sunflower predecessors, this time, the Bluebird protestors could not bring the legislative process to a halt. Retreating from the streets after the marathon legislative proceeding was gaveled to a close, the protesters nonetheless vowed to keep up the good fight, knowing full well that the whole episode was just the first in a long series of constitutional showdowns.

Belated reform or legislative overreach?

The controversial legislation has three major components. Firstly, it seeks to enhance the legislative oversight of presidential powers by stipulating that the president’s State of the Nation address, a constitutional mechanism that has remained dormant for more than two decades, be heard annually and occasionally, in a manner similar to parliamentary interpellation. Secondly, it revamps the confirmation process by instituting requirements such as the provision of documents with affidavits from the nominees, and the use of roll-call voting. Lastly, the legislation significantly strengthens and expands the investigative powers of the LY. The legislation makes parliamentary questioning a much more potent tool for members of the LY to hold ministers and government officials to account. Those being questioned are now obligated to attend and answer questions, and counter-questioning is prohibited. The LY and its standing committees are also empowered to acquire documents and compel testimony from not only all units of government (including the military), but private persons and corporations as well. All manners of “contempt of parliament” are subjected to an administrative pecuniary penalty that the LY can impose by a floor vote. False statements by government officials are criminalized and punishable by up to one-year imprisonment. As such, the much-disputed legislation would profoundly reshape the rules of democratic game in Taiwan.

Supporters of the legislation contend that these reform measures are long overdue to provide meaningful and effective parliamentary checks and balances against the almighty executive branch. Equipped with such awesome power of investigation, the LY is expected to function like a “unit of special prosecutors from the opposition” and uncover clandestine corruption in the (DPP) government. By sharp contrast, critics of the legislation worry that, with insufficient checks and guardrails to prevent the legislative majority from weaponizing and abusing the newly-advanced parliamentary power to investigate, Taiwan’s democracy could fall prey to a downward spiral of conspiracy-mongering,gotcha politics, and even McCarthyism. Concerns over the constitutionality and soundness of the KMT-TPP reform proposals had prompted more than 120 law professors (including one of us) to sign an open letter calling for the withdrawal of the bills for more deliberation. Their pleas went to no avail, however.

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“No Discussion, No Democracy” and the China factor

Equally alarming, if not more, is the manner by which the KMT-TPP reform package was rushed and forced through the legislative process. In the absence of committee deliberation, public consultation, and inter-party negotiation in any meaningful sense, the entire legislative process was marked by shouting, brawling, truncated floor debates, and countless party-line voting by raising hands. The consolidated KMT-TPP proposals were kept as top secrets until the last minute, and the final outputs contain notable inconsistencies, ambiguities, and clerical errors.

The KMT-TPP lawmakers maintained that all they did was accelerate a much-needed reform that the DPP had pledged yet not delivered while in power. If there was someone to blame for the chaotic process, they said, it was the obstructionist and hypocritical DPP. However, many in the public found the overhasty and careless lawmaking simply unacceptable. During the floor session and outside the LY chamber, tens of thousands of Bluebird protesters chanted “no discussion, no democracy”. Their worries about democratic erosion may have been further amplified by the loomingthreats and interference from China. That the KMT caucus leader led a delegation to visit China in April had fueled suspicion that the legislation might be driven by some ulterior motives, which, in turn, hardened the opposition of the DPP and much of civil society.

Coming next: rounds two and three

After receiving the legislation for promulgation on June 5th, the DPP government requested the LY to “reconsider” the two parliamentary reform bills pursuant to Additional Article 3 of the Constitution. This was round two of the constitutional showdown. Unlike the presidential veto in many other presidential or semi-presidential democracies, the reconsideration mechanism in Taiwan is a rather weak veto power that a majority of the total members of the LY can override, and this is what the KMT-TPP lawmakers planned to do on June 21st. Given the extreme partisan polarization that plagues democratic political life in Taiwan (and elsewhere), any hope that the reconsideration would de-escalate the showdown was soon dissipated, as neither of the warring parties was interested in ending the dispute with political compromise.

Once the laws are promulgated by the president, it is all but certain that the DPP lawmakers and/or the Executive Yuan (Taiwan’s cabinet) will petition the Taiwan Constitutional Court (TCC) to intervene. This highly anticipated constitutional litigation would be round three. In a calmer time, the TCC might have enough moral and political authority to put an end to this kind of constitutional dispute. Unfortunately, we live in a much more perilous time, in which the TCC finds itself under severe political attacks. All the sitting justices of the TCC are appointed by DPP president Tsai In-wen, and seven of them will leave the court by the end of October due to term expiration. If the TCC in its present composition grants a temporary injunction or issues a merit decision on this case, its ruling is bound to be smeared as biased by some. In fact, many KMT politicians have already begun to mount a populist attack on the TCC, as the court is expected to render its judgment this summer on the constitutionality of the death penalty, which is highly popular in Taiwan. The upcoming political battle over the appointment of new justices, who are nominated by the president and confirmed by the LY, could further take a toll on the TCC. In any event, the guardian of the constitution might need help from Taiwan’s vibrant civil society to survive in the coming political storm.

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Living with ironies

For us, this ongoing constitutional showdown is replete with ironies. Upgrading the information powers of the LY may well be a good governance reform made possible by a divided government, but the way it was done only gives the reform a bad name. The Bluebird Movement demonstrated utmost civic vigilance against partisan degradation, but its outrage against political betrayal might have further coarsened civic discourse. Taiwan could really use some structural constitutional reform, but we seem to be trapped indefinitely in our ambivalent status quo. This showdown certainly puts the resilience of Taiwan’s democracy under a serious stress test, but if we, the people of Taiwan, can turn it into an opportunity to cultivate a better separation of powers and parties, we will have a stronger democracy at the end of the day.

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The Week on Verfassungsblog

Austria has been plunged into a government crisis this week after Environment Minister Leonore Gewessler voted in favor of the EU’s renaturation law in the Council of the European Union, against the will of Chancellor Nehammer. While many saw Gewessler’s action as a courageous rescue of a core environmental protection project in Europe, the ÖVP announced legal action, including bringing an action for annulment before the Court of Justice of the European Union. LUISE QUARITSCH und NIKLAS NIGL explain why such an annulment action has no prospect of success.

CHRISTIAN CALLIES also observes that the attitude towards environmental and climate protection in the European Union has recently deteriorated noticeably and outlines the complex interplay of politics, science, and law that is expressed in the EU’s Green Deal.

Good news for climate protection, on the other hand, comes from the United Kingdom. With a 3-2 majority, the UK Supreme Court delivered a landmark ruling on Thursday, significantly impacting the consideration of climate impacts in the oil and gas licensing process. While the Government’s approach so far has been to only consider exploration and production emissions, the Court’s decision establishes that emissions resulting from burning the produced oil and gas (regardless of where it occurs) have to also be considered. DARIA SHAPOVALOVA explains the ruling and its impact on UK climate policy.

Last week, the CJEU ordered a record lump sum payment of €200,000,000 and a penalty payment of €1,000,000 per day of delay until Hungary does comply with an earlier 2020 Court ruling. After depressingly limited effectiveness in regard to the ongoing assaults by Viktor Orbán’s Fidesz administration on the rule of law, GAVIN BARRETT analyses the decision and concludes that Hungary has received a stinging reminder that the Court of Justice is not toothless when it comes to the rule of law.

The Berlin Administrative Court rejected a request last week to halt arms exports to Israel. The request had been submitted by several Palestinians currently living in the Gaza Strip. MORITZ RHADES  reviewed the decision and points out fundamental legal protection gaps in the law governing arms exports.

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Could the current electoral law help the Alternative für Deutschland (AfD) in Saxony and Brandenburg achieve a better result in the autumn elections? JONAS FREDERIK HARTUNG analyses that capping compensatory seats could even lead to an unconstitutional election result in Brandenburg.

A widespread demand from right-wing populist circles is the abolition or at least severe restriction of public broadcasting. Slowly but steadily, such demands are moving into the mainstream, as disputes over the Interstate Broadcasting Treaty show. Nevertheless, MARC BOVERMAN and SAMUEL STOWASSER see little cause for concern. The guarantee of a pluralistic media landscape is spelled out in great detail in Germany’s constitutional jurisprudence.

Anti-discrimination clauses in German funding law have been occupying politics for several months. This involves the complex constitutional law question of what conditions and selection criteria are permissible in the allocation of grants, especially in the case of art that is classified as anti-Semitic. HANS MICHAEL HEINIG responds to a text that was published by us and formulates legal doctrinal objections.

In the spring, the debate on the restitution of Nazi-looted art gained momentum. Initially, the German federal government states (Bundesländer) and municipalities proposed that future restitutions should be negotiated before arbitration courts. Shortly thereafter, the federal government presented a draft law for a restitution act.  MATTHIAS WELLER analyzed both proposals: while he criticizes the draft as timid, he acknowledges the reconciliation potential of arbitration proceedings.

Rights of nature are a currently much-discussed response to multiple environmental crises. Increasingly, such rights, whether of rivers, forests, or individual animals, are being debated before courts. In recent weeks, two oral hearings took place thousands of kilometers apart – one in Ecuador and one in Erfurt. ANDREAS GUTMANN and JENNY GARCÍA RUALES place the hearings in the global discourse on the rights of nature.

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South Africa has voted in May: after 30 years, the African National Congress lost its absolute majority. Ramaphosa stays in power as the country’s president – but South Africa politics, and its constitutionalism, have changed fundamentally, says JAMES FOWKES. He sees a new constitutional order emerging and presents its players, pace, and challenges.

In accordance with the Council Decision on the exercise of the Presidency of the Council of the European Union, from July 1 of this year the office is to be held by Hungary. This occasion will mark the first time that the Presidency will have been held by a Member State that has been subject to the “surveillance” procedure in Article 7(1) of the Treaty on European Union, having been launched by the European Parliament in September 2018. PIER VIRGLILIO DASTOLI and EMILIO DE CAPITANI explain why an EU Country under the surveillance procedure should not chair the Council Presidency.

The Council of Europe’s requirements for transparency in the process of selecting a “national” judge for the European Court of Human Rights (ECtHR) should be strengthened. ADAM PLOSZKA has some lessons to be learned from the saga of the selection of a Polish judge.

Italy faces an important reform of its constitution: the introduction of direct elections for the head of government. EDOARDO D’ALFONSO MASARIÉ comes to the conclusion that the Italian Constitution has something to lose and nothing to gain with this worrying concentration of power in the hands of one person.

Kuwait, a democratic outlier in a hopelessly authoritarian Gulf, is facing a constitutional crisis after its new Emir, intolerant of his country’s never-ending political gridlocks, has suspended parliamentary life and several constitutional articles. AHMED ELBASYOUNY explains how to fix certain key design flaws in Kuwait’s six-decade-old political system.

After the RN became the strongest party in almost all French départements in the European elections, Macron dissolved the National Assembly and announced new elections for 30 June. MICHAEL HEMPELMANN identifies the constitutional logic underpinning Macron’s decision and explains what the elections might mean for the survival of the Fifth Republic as we know it.

CHRISTIAN RABY has added a new portrait to our symposium “Outstanding Women in International, European and Constitutional Law”. It is clear that Louise Weiss should be remembered for the many outstanding achievements of her life.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team

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