May 2, 2025 • 59 mins
On behalf of Taiwan in the Indo-Pacific Region and its National Security Task Force the Hoover Institution held a Taiwan Roundtable Discussion on Tuesday, February 18, 2025, from 5:00 - 6:00 pm PT.
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
Chien-Chih Lin is an associate research professor at Institutum Iurisprudentiae, Academia Sinica and an associate professor at the Graduate Institute of National Development, National Taiwan University. He received the LLM & JSD degrees from the University of Chicago. His academic interests focus on comparative constitutional law in Asia. Lin is the coauthor ofConstitutional Convergence in East Asia (2022) and Ultimate Economic Conflict between China and Democratic Countries (2022). His articles can be found in both peer-reviewed and student-edited law journals as well as edited volumes, including Oxford Handbook of Constitutional Law in Asia, American Journal of Comparative Law, and International Journal of Constitutional Law. He is the book review editor of International Journal of Constitutional Law.
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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Episode Transcript
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[MUSIC]
>> Kharis Templeman (00:03):
Hello, good afternoon from Stanford University.
I'm Karis Templeman, I'm a researchfellow here at the Hoover Institution.
And it's my pleasure today to introduceour seminar on a very timely topic in
Taiwan, Taiwan's Constitutional Courtunder divided government.
We have three distinguishedpanelists with us today.
(00:26):
We have Tianjir Lin from Academia Sinica,Wei Tsung Chun from
National University of Singapore,who is physically in Palo Alto today.
And we're pulling on him again fora second appearance with us this quarter.
And then we have Lev Nachman joining usfrom National Taiwan University as well.
(00:50):
I wanted to just make a coupleremarks about why we're holding
this event in this format and at this timeand provide a little bit of background for
what I consider to be a buddingconstitutional crisis in Taiwan.
So on December 20th of last year,Taiwan's opposition controlled
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legislature passed an amendment tothe Constitutional Court Procedure Act
which imposed a 2/3 quorumrequirement to hear cases and
a 9/15 requirement for invalidating laws.
Four days later, the legislaturethen voted down all seven of
President Lai's nominees to the courtwhich left it short of that majority.
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There are now only eightsitting justices and
under the new amended lawthey cannot legally meet and
adjudicate questions of constitutionalitybecause they are short of that quorum.
Nevertheless, the DPP government has askedthe court to meet anyway and to rule
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on the constitutionality of the amendmentto the Constitutional Court Procedure Act.
So the court is basically ina no win situation right now.
They can accept the case and issue aruling, in which case the legislature will
probably escalate their attacks onthe court and on judicial independence.
Or they can bow to the legislature'snew supermajority requirement and
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basically concede paralysis in the faceof opposition threats until and
unless new justices are confirmed.
In other words, the court isbasically facing a crisis here and
it doesn't have an easy orclear way out of this situation.
I'd also note that the Court isonly the most obvious victim of
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a year of escalating partisanwarfare between a KMT TPP majority
in the legislature andthe DPP run executive branch.
There are similar power struggles to theone over the court now playing out over
other nominally independentbodies including
the National Communications Commission,the Fair Trade Commission and
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the Examination and control uns in Taiwan.
And potentially in the future the CentralElection Commission could fall into
the same kind of partisan fight.
And so basically this period of dividedgovernment we're in threatens all
of the sort of independent institutions
that are supposed to adjudicatepartisan grievances in Taiwan.
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And this potentially is a rising threatto Taiwan's democratic resilience,
which as I'm sure most ofthe audience is aware,
is also threatened bythe PRC across the strait.
And also this is happening at a prettydelicate time in US Taiwan relations in
that we have a new administration that'sjust come into office and it's unclear
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what that administration's long termapproach is going to be towards China,
towards Taiwan, and towards otherpartners and allies in the region.
And so it's hard for me to escapethe conclusion right now that divided
government is becoming a seriousthreat to Taiwan's own security.
(04:13):
And so we've been able to assemble a greatgroup to discuss these issues today.
Let me give a little more backgroundon our panelists before I turn
it over to them to comment onthe Constitutional Court paralysis issue.
The first speaker we'll have today is LevNachman, who's a political scientist and
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assistant professor atNational Taiwan University in Taipei.
He teaches in the Graduate Institute ofNational Development and he's also a non
resident fellow at the Atlantic Counciland the National Bureau of Asian Research.
Second, we'll turn to Jian Zhilin,
who is an associate research professorat Institutum Jurisprudentiae,
(04:59):
I hope I said that right,at Academia Sinica.
And he's also an associate professoralso at the Graduate Institute of
National Development atNational Taiwan University.
He holds an LLM anda JSD from the University of Chicago.
And then batting cleanup forus over here is Wei Tsung Chun.
(05:20):
Wade Sung is a faculty member atNational University of Singapore,
the Faculty of Law there.
He specializes in law andeconomic development, law and
politics, and legal history inthe context of Greater China.
So without further ado, since we'veonly got an hour for this conversation,
let me turn it over to Lev.
Basically, can you breakdown how we got here?
(05:43):
How is divided government working ornot working in Taiwan over the last year?
>> Lev Nachman (05:48):
First of all, of course, thank you so much for
inviting me to be on the panel.
It begins with the 2024election when we see for
the first time in a long timea divided government in Taiwan.
And of course,it is a matter of blue versus green.
But the light teal elephant in the roomis, of course the Taiwan People's Party,
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the third party that unless you followTaiwan domestic politics closely,
is sort of this new party that many peopleoutside of our typical circles don't
really know much about.
But it is arguably the thing that hassort of led to a lot of the grievances
that we see today not necessarilythe TPP themselves but
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more the wedge that they have placedwithin Taiwan politics so for
a little bit of background in 2024the KMT has a slim majority of
seats in the legislative UNthey want 52 plus a couple of
independent blue leaning voters andthe DPP won 51 however
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you need 57 in order to havea majority in the legislative UN and
the TPP this third party won 8seats which is third parties
go in Taiwan we call kingmakerseat anyone to pass anything
they need at least some of thosesweet TPP supporter votes and
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unfortunately the TPP has madeit very clear that the core
part of their party's ideologyis that they oppose practically
anything the DPP does whichmeans that more often than not
they side with the KMT Theirdecision to side with the KMT is
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not always necessarilyan ideologically driven alliance but
for the sake of what a lot ofthe audience is worried about
today it does have veryideological sort of takeaways in
the sense that it gives the KMT and the.
Their vision of Taiwan's future,a very big advantage in today's world.
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Now, the TPP itself,
beyond sort of claiming to be aboveblue green politics, has made it
very clear that they are emphaticallynot above blue green politics.
And in a way that as someone whofollows third parties in Taiwan,
I have seen the TPP side with the KMTin ways that sort of go beyond typical,
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you know, enemy of my enemy is my friend.
And instead, we're seeing kind of a reallystrong embrace between the TPP and
the kmt.
I think the best example is to actuallylook at the leadership of these parties.
So when we think of the TPP,we typically think of Koenzha,
a man who has sort of made his mark onTaiwan politics for the last decade.
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But he's not the one I'm talkingabout right now because Koenzha, for
those unfamiliar, is currently pendingjail time for corruption charges.
He's not the first in the TPP to havecorruption charges that are going to
face jail time, but his role in the partyis now incredibly marginalized and
kind of put to the side.
Instead, his successor,someone named Huang Guoqang, who,
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if you follow Taiwan politics for sometime, will be a name familiar to you from
a formerly very pro independence party,the New Power Party.
Huang Guocang himself has jumped ship andhas gone from being a very pro
independence politicianto joining the TPP.
And he didn't just join the tpp.
He has sort of led the alliancebetween the TPP and the kmt.
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He has joined KMT heavyweights likeFu Kunqi and Han Kuo Yu on stage,
championing their ideas,championing their policies.
And for.
For an American comparison,that's sort of like AOC jumping on board
the Republican Party andsaying, I'm here for this.
It just makes no ideological sense inTaiwan's context to see Huang Guo Tsang on
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stage with the KMT.
But that's the currentworld that we're living in.
So Huang Guang was just electedparty chair of the TPP.
He has inherited spirit,as some of the netizens like to say.
And Koenzha, before he went back intojail, made a ringing endorsement for
Huang Wu Chang,saying to his followers to follow Huang.
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Huang himself has a cultof personality following.
And in the way that a handful of usthought might happen that Huang Guo Tang
would sort of takeadvantage of the TPP and
this very niche role they play in Taiwanpolitics, he has, in fact, done just that.
And now he is in control of thiskingmaker party in Taiwan now,
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what exactly that's goingto look like in the future?
Given that he has led the chaoticstoppage of anything from happening
in domestic politics, I think that we'regonna see more disruption from the TPP and
sort of enabling the KMT's ability tosort of stop things from happening.
(11:15):
Just to give some quick,because as a public opinion person, I
feel obligated to at least share a coupleof public opinion numbers very quickly.
So to speak to sort of the stuffthat CAR has talked about,
whether it wasthe Constitutional Court crisis.
Whether or not it was the legislativeUN reforms earlier this year,
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the sort of responsefrom civil society and
the bluebird movement and the proteststhat have been breaking out in Taiwan.
What our public opinion datashows about support for
these things is largely partisan,which isn't very surprising.
If you're green leaning, then youthink these things are horrible and
if you're blue leaning,you think these things are great.
What I think is particularly interesting,however, is one of our findings,
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particularly for the legislative UN andsort of anything that,
that seems on the surface to beabout supporting balance of power,
independents are largely in favor of.
So especially for say like the legislativereforms, when it was going to give
legislators a lot of power andtake away power from the President,
we found that independentvoters were largely in favor.
(12:19):
Our hypothesis is that forthem balance of power is a good thing.
Even if the KMT is sort of co-opting thatframing, it seems to be effective against
a lot of average voters, andwe can talk more about that later.
I just wanted to throw that in there,but I'll stop there for now so
others can speak.
>> Kharis Templeman (12:34):
Okay, great.
There's a lot to dig into there and
I'm looking forward tofollowing up on a lot of that.
But let me turn it over to Jianzhi and
get your sense of,are we in a Constitutional Court crisis?
Is this an unprecedented moment or is thisthe kind of thing that comes along every
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few years when the court does somethingthat provokes one party or another?
>> Chien-Chin Lin (12:59):
I think, of course, this is unprecedented, and we are in,
as you say,in a Constitutional Court crisis.
Before that, I would like to brieflyintroduce the common system.
In Taiwan, unlike the UN states,the Constitutional Court justice,
they serve a staggerednon-renewable term of eight years.
And this is important.
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By eight years, and by staggered,I mean every three or four years,
there will be a couple ofjustices stepping down.
And the reason why the framers decideto make their terms eight years is
to ensure that every new president wouldhave the chance to appoint his guy,
his or her guys on the bench.
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In the US, not every American Presidenthas this privilege or this power.
So this is the, and, and, andof course there are down and you know,
downsides of this,this institutional design.
And then one obvious downside is thatif win the presidential election,
you know, consecutively, twice or thrice,
the party essentially controls theconstituent court in the sense that every
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justice will be appointed by the sameparty, if not by the same president.
That's an obvious downside, and that's whywe are facing a constitutional crisis.
So now.
But make no mistake,this happens in the past.
It happens when, mind you,when our former president,
KMT, mind you,won the presidential election twice.
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And it happens also when Tsai Ing Wenwon the presidential election twice.
So essentially, it's weird to say,but essentially, it's actually
the norm that the same party would controlthe constitutional corps for some time.
I don't really worry about that toomuch is because as I said earlier that
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the justice served a non renewable termof eight years, which means that their
terms are relatively short, sotheir legacy will not last long.
It's very differentfrom the United States.
You know, justice stay there forlike 30 years.
So they only stay on the bench foreight years.
But still, you know,
if you are in the opposition partylike the kmt, you will be unhappy.
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And this is particularly the case becausethe Constitutional Corps control or
nominated, I'm not goingto use the word control,
I'm appointed by the DPP presidents.
They actually frustrated the KMTseveral times in their decisions in
the past several years, includingtransitional justice, including you know,
party property, something like this.
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So the KMT legislators, they were reallyunhappy about the Constitutional Court.
But you know, before our, before the next,the last congressional election,
they were in the minority,so they have nothing to do.
And after the last congressional election,the kmt,
together with the TPP thatLev just mentioned, they.
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They forge an alliance, andbasically they can veto any candidates.
So that's why the case.
So in order to paralyze the ConstitutionalCourt, they amend the Procedure Act and
requiring, as Kharis justmentioned at the very beginning of
the introduction, that theyrequire that every constitutional
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decision should have the consentof 9 justice out of 15.
And note that this is actually the worstscenario of a super majority requirement
because they asked for a fixed numberrather than three-fifths of the Court.
And this is very different.
If you ask three-fifths of the court,
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that means that a court can remainfunctioning even you have only eight.
>> Kharis Templeman (16:51):
Yeah. >> Chien-Chin Lin
ask a super majority requirement fora variety of reasons,
although most top courtsrequire simple majority.
But it is very different when youask that there must be nine votes,
a fixed nine votes, because, obviously,
if your Court has fewer than nine justice,the Court is paralyzed.
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So this is why I say that it is arguablyconstitutional if they amend the law
in a way that says you requirethree-fifths of the sitting justice or
three-fifths of the participating Justice.
But it is very different when you sayyou need nine votes no matter how
many justice you are on the bench.
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So that's why I say that the Courtbasically is essentially paralyzed.
And there are several solutions,potential solutions, but
the Court, I think, two orthree days ago just veto one.
There's one petition by a citizen arguing
that the ConstitutionalCourt Procedure Act
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is unconstitutional becauseit paralyzed the court.
Which means that all the ordinarycitizens could not take advantage of
the Court to have their rights remedy.
But the Constitutional Court said,no, you don't have standing
to challenge the constitutionality ofthe Constitutional Court Procedure Act.
So it is unclear whether howthe Constitutional Court will see it.
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But let me emphasize at the lastof my talk is that in the past,
the Constitutional Courthas declared its procedural
role unconstitutionalin its own decisions.
This happened in the past.
It is unclear whether they would do soagain this time because it is
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more polarized, politically-speaking,and it is more sensitive.
But my opinion is that becausethe Constitutional Court had declared,
I think in 1990s or something,had declared their procedural rule
unconstitutional, it could be that theywill do it again, but it's hard to say.
(19:02):
So I guess I will stop here, andany comments and questions, I welcome,
thank you.
Okay, great.
Let's go ahead and go to Wei Tsung andget your thoughts on this.
I'm particularly interested inthe historical aspect of this,
since you've been studying this issue fora long time.
You're familiar with some challengesto judicial independence in
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the 1990s in Taiwan when it was just goingthrough its transition to democracy.
And so what's your take on the threatto judicial independence today?
>> Weitseng Chen (19:34):
So yes, I was asked by Kharis to offer some historical
perspective about, my term,judicialization of politics in Taiwan.
But the main question in my mindis still a contemporary one,
whether Taiwan is facing a crisis.
Are we witnessing democraticbacksliding like in Korea,
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Poland, Turkey, Hungary,and India, etc., right?
So I guess let me disclose myanswer from the beginning.
My answer is yes,there is a crisis, right?
But it's not so severe that we cancall it democratic backsliding.
We are not facing a situation asextreme as a coup d'état in Korea just
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a couple months ago.
And instead the problem lies inthe weakening of the capacity
of the Court rather than weaponize it,right?
So let me highlight a few points here.
My first point is about the attitudeof Constitutional Court
towards politics historically, right?
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So historically,
the Constitutional Court justice in Taiwanhave been quite self-restrained, right?
They are responsive rather than proactive,right?
This was true under the Ma Ying-jeou era,the Chen Shui-bian era, and certainly
during the authoritarian rule under ChiangChing-kuo and Chiang Kai-shek, right?
And justice tend to wait andsee, align themselves with
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the dominant political views orpublic consensus, right?
One example is, well,the 1990s Taiwan's Grand Justice ruled
that the indefinite tenure ofthe pre-1949 legislatures, right,
violated the democratic principles andthey mandate new elections.
(21:23):
And this decision acceleratedTaiwan's democratization,
leading to a direct legislativeelection in the 1990s, right?
It may have seem bold, right?
But it ultimately reflected the dominanceof the KMT's reformist factions
within the party, right, because I guessChiang Ching is pretty aware of it.
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The Chief justice at the time saidprivately that the justice got
a very clear signal from the KMT andstarted to prepare for
this interpretation long time ago, right?
So overall, justice are self-constrained.
So now my second point is,even the justice of self-restraint,
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the Court became an unintended referee
in all the partisan battles since 2000s,right?
And this shift was largely due tothe Grand Justice Adjudication Act,
right, which has been replaced by
the Constitutional Court Procedure Actthree years ago, right?
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And prior to three years ago,which is 2022,
the old act allowed governmentalagencies to bring cases to
the Court whenever it is unclear whethera law is unconstitutional or not.
And this differs from other democracies,including Germany and
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the US, which emphasizethe cases has to be, right?
And the justice only rule on cases whereindividual rights has been violated and
exhausted the remedy.
But in the case of Taiwan,
any governmental agencies were able tobring cases to the justice, right?.
So as a result, the Constitutional Courtwere forced to resolve
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many political disputes betweengovernmental agencies and branches.
What can they do to avoidpolitical confrontations?
Justice used this strategy basedon a strategic ambiguity, right?
And that is, instead of issuing clearrulings, the Court will use vague
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language to allow both sides to claimpartial victory and move on, right?
One example is the interpretation in 1996,
the court refused to state clearly whether
KMT's Vice President Lian Zhancould also serve as a Premier and
successfully avoiding a directpolitical confrontation.
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But that being said, there are twoshortcomings for this strategy.
A strategic ambiguity approach.
And the first shortcoming is.
Well, what if both parties feel theyare winners and then the political
struggles continue, cuz they try tofight based on their winning position,
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they selected it selectively interpreted,right?
And one example is about the nuclear plan.
In 2001, the court declined toissue a clear rulings on whether
the DPP's government's unilateralcancellation of the nuclear
plan project was constitutional ornot, right?
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And then both the DPP and
the KMT claimed victory based ontheir readings of the rulings.
And then the politicaldeadlock only worsen, right?
And the second shortcomingabout this strategic ambiguity
involves opposite scenarios, right?
That is when neither partiesfeel like a partial winners,
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but rather a partial losers, retaliationfrom politicians follow, right?
The best example is the courtdecisions in 2004 regarding
the assassination attempt againstPresident Chen Shui-bian,
which helps Chen Shui-bian'snarrow election victory.
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And at the time, the opposition parties,including KMT and
the People's First Party,which is it's a minor party,
now accused President Chen of staginghis own assassination attempt.
As a result, they passed a speciallaw creating a commission with
extraordinary investigated powers, right?
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And the Court rules that the commissionitself was constitutional,
but some of his powerviolated the constitution.
What's the consequence, right?
Political revenge.
Because KMT was very upset, right?
So the legislative UN cut offthe judicial UN's budget,
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slashed justice salaries,eliminated their funding for
technology, computer research andeven tribals.
So this experience madejustice very determined
to avoid sheer politicalbattles in the future.
But paradoxically,this leads to what we ended up with today.
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And that's my third point, right?
It's a paradox.
The more the paradox is,the more unwilling Taiwanese justice
are to adjudicate politics,the more vulnerable they are to politics.
So let me explain why, right?
Well, in 2002.
(27:12):
Exactly, because the justice donot want to deal with politics.
They push forthis Constitutional Court Procedure Act,
and it introduced two key changes.
One, they restricted the governmentinitiated cases, right?
In doing so, the Court hopes to actlike German Constitutional Court or
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the US Supreme Court, focusing onfundamental rights in concrete cases.
Rather than resolving these politicaldisputes between governmental branches.
And the second new element isthey lower the thresholds for
declaring unconstitutionality from2/3 to a simple majority, why?
(27:57):
Because the thenChief Justice Xu Zhongli hoped the Court
to be more proactive than before, right?
But always be careful forwhat you wish for, right?
Unfortunately, one of the firstmajor cases regarding fundamental
rights under the new system isabout capital punishment, right?
(28:20):
Case that had been stalled foryears due to these 2/3 threshold.
But now with the new lower threshold,
the Court had no excuse tokeep delaying it, right?
The justice in charge is Justice Huang,right?
Who is a participant actually in LarryDiamond's conference in 2006 at CDDRL.
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He's a very capable justice.
But his progressive decision upset KMT and
the general public who is not ready toabolish the capital punishment, right?
So this basically led to what we ended upwith today, that is judicial paralysis.
Historically, just one or
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two political sensitive cases wereenough to provoke a severe backlash.
So as just mentioned,
the Court is now paralyzed after the new
amendment to the Procedure Act.
So last, let me just conclude by saying afew words about my personal evaluation and
(29:29):
prediction for the future.
So still the first question is,
is this judicial paralysisa judicial capture, right?
As we witness in the trainof democratic recessions?
I don't think so, right?
Not exactly.
I think we are seeinga significantly weakened
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court in the future,but not captured court.
Judicial capture meansthe executive branch, right?
Takes control over the courtsis in Poland, Hungary or India.
But in Taiwan,the situation is the opposite, right?
The President is notcontrolling the Court.
Instead it is the Legislative Yuan that is
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weakening the Court'scapacity to function for
DPP or the President's progressive agenda.
And the minority justice noweffectively have the veto power and
making it very difficultto review case critically.
So that's the first.
(30:34):
And secondly, one may wonder wouldPresident Lai Ching-te got so
frustrated that he will carry outsome dramatic unwise political
maneuver like declaring the martiallaw by Korean President Yoon and
I don't think so, right?
It's not just not possible in Taiwangiven the DPP's political climate,
(30:59):
but the current large scalerecalls that is going on
is one of such maneuversout of DPP's frustration.
So the final question is why would it end,right?
The crisis.
My view is until the end of thislarge scale recall movement ends
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in which both parties willexhaust their political capital,
political parties have noincentive on both sides
to negotiate about the Court'sjustice nomination.
So I guess to conclude this isa judicial crisis, no doubt about it.
(31:39):
Under the new amendment, the Court ismore vulnerable to partisan conflicts.
But the primary damage willbe the Court's capacity and
to some extent legitimacy as well, right?
But how far this crisis will escalate?
And don't mind the cause,legitimacy, accountability, or
(32:02):
Even its supremacy, andthereby triggering Democratic backsliding.
I guess it remains to be seen.
>> Kharis Templeman (32:09):
Thank you, Wei Tsung.
So I actually want to start thisdiscussion by posing the same question
to each of you, which is about thecritical role of the TPP in all of this.
I have been a little surprised at how,at least publicly, they've been very
closely aligned, as Lev noted,with the KMT on many of these issues.
(32:33):
And I've been surprised in partbecause they look to me to be more
in the green camp than the bluecamp until fairly recently.
And now they're very clearly,at least publicly, again,
marching lockstep with the KMT.
But also the DPP needed their votes,and the DPP should have been
(32:54):
willing to pay a pretty high priceearly on to try to get them on side or
at least negotiate an issue byissue coalition of some sort.
And so I'm curious from each of youwhy you think that didn't happen.
Is it that President Lai just didn't offerenough, that he was too stubborn, or that
the DPP hasn't accepted the fact that theylost their majority in the legislature?
(33:16):
Or is it that the TPP decided thatthere was no price that the DPP could
possibly pay to get them onboard with the Lai government?
Lev, let me toss it over to you first,and then we'll go to the other two.
>> Lev Nachman (33:33):
Yeah, so I think there's two stories.
There's the insidethe legislative UN story and
there's the outside oflegislative UN story.
So inside the legislative UN is,you have DPP-TPP dynamics,
which are largely driven byKe Chien-ming and Huang Kuo-chang.
They don't like each other very long time.
(33:54):
That dates back toSunflower Movement 2014,
them would have ever ina million years come to.
That's how factional politics works.
Yeah, you're very familiar.
And to a degree, for a while,
Ke Chien-ming was kind of the one callingthe shots of how the DPP was acting.
I mean, the example that we can pointto is when there was the moment to vote
(34:14):
on the Supreme Court nominee oron the Constitutional Court nominees.
One of the justices thatwas not the nominee,
the Ojingi, William Bly nominated her.
But it was Ke Chien-ming that saidwe're not gonna vote for her.
(34:36):
And if you vote for her,you're out of the DPP.
So that was kind of Ke Chien-mingcalling the shots in the legislative UN,
even though the TPP was willing tovote for Liu Jingyi on that issue.
But that's a complicated matter foranother time.
Outside the legislative un,you have sort of the unavoidable
feature of the tpp, which is thatthey campaign on being anti dpp,
(34:58):
and it's a hard sell to theirvoter base to work with the DPP,
especially when 90% of theirpolitical advertising during
the election was, William Lai isgoing to make the country worse.
They spent very little time talking.
So I think from their voter base'sperspective versus why would we work with
(35:21):
the DPP that's a little bit harder toassault it to some of their voters.
>> Kharis Templeman (35:24):
Okay, great.
Tianzhi, let me changethe question slightly and
talk about the judicialnominees that Lai put forward.
Why didn't he anticipate that they wouldbe rejected by the opposition coalition?
And knowing that they would be, why didn'the try to find some candidates that would
(35:44):
be compromised candidateswho could win approval?
>> Chien-Chin Lin (35:49):
I don't know.
I have been asked these questionsmultiple times, and to be honest,
I don't really have a good answer.
It could be that, you know, becausein Taiwan, there will be a, you know,
a committee, you know,led by the vice president and
including a bunch of, you know,former justice they would nominate.
(36:10):
They will submit a list of candidatesof the justice to the President Lai.
And this list is not binding in a sensethat President Lai could still change
from among these candidates.
So it's unclear whether whythe President Lai still chose this.
But so far, as I heard that,because this is not
(36:33):
the first time the DPP presidentfacing a hostile Congress.
Former President Chen Shui-bian,when he tried to appoint his
justice in 2003, the Congressstill was controlled by the KMT.
But still he could,you can say, in a sense,
(36:53):
successfully appoint I think 11 out of 15.
>> Kharis Templeman (36:58):
Right.
>> Chien-Chin Lin (36:58):
It has been said that Chen was more
flexible in that sense compared to Lai.
And so I guess Lai thought thathe could at least, I don't know,
successfully point some of them,if not all of them.
And it turns out, andas Lev just mentioned,
(37:22):
that Liu Jingyi was very close,and it's obviously a playhouse
strategy that the DDP eventuallydecided to withdraw its support.
So, sorry, I don't really havea good answer to the question.
But I think my answer is that President,
I thought that he could at least havesome of them, if not all of them.
>> Kharis Templeman (37:43):
Okay, so he basically miscalculated then, that's what this-
>> Chien-Chin Lin (37:46):
Yes, miscalculation,
I would say.
>> Kharis Templeman (37:48):
Okay, wait Song,
do you have thoughts on the TPPpoo's role in all this?
>> Weitseng Chen (37:55):
Well, I guess in light of all these democratic
backsliding around the world, right.
There's a new item to be addedto the dictatorship's playbook.
Nowadays, to controlthe Constitutional Court or
High Court is the most efficientway to control the politics.
(38:19):
In Poland, the president controlthe Constitutional Court.
As a result,the court declare any unconstitutional
move by the presidentconstitutional right.
Or conversely,declare unconstitutional, right, for
any constitutional movements carriedout by the opposition party.
(38:44):
In other words, you don't have to win themajority in the parliament before you can
control the system, right?
Or at least destroy the system.
So I guess either party in Taiwan justshows the similar dynamics, right?
So that's the institutional froman institutional design perspective.
And for, of course,there are always some principle and
(39:08):
there are always some agency factors,right?
These personal struggles and
personal sentiment against each other
between TPP and DPP is well known, right?
Huang Kuo-chang, the chairman of TPP,
(39:28):
doesn't get along withKe Chien-ming of DPP.
But why they don't negotiate?
I guess.
First, the nomination process is not
really well-coordinated,right, in the past.
And as far as I know,this time is operated as in
(39:51):
the past,some advisors are passed over, so
there's informational symmetry issues.
And from, from Huang's perspective,
Huang Guo Chang's perspective,he used to side with dpp, right.
When he was the chairperson ofthe Sidai Li Liang, the people's power.
(40:15):
And then there was a debatewithin the new party then, right.
They said, well, they didn't getsufficient respect by DPP, right.
Even though they are supposed tobe the kingmaker parties, right.
So they are going through a soulsearching process, you know,
(40:38):
what's the value forthe third party, Right.
A new party in Taiwan.
So I guess that's why Huang nottried once before and failed.
He was not happy about the result,not happy about the attitude of dpp.
So this time he just moved to the otherside, which is I guess understandable.
(41:01):
Right, but still one of the maincause of partisan conflicts nowadays.
>> Kharis Templeman (41:09):
I should invite our audience.
If you have questions,please drop them in the Q and A and I.
Will get to those, I hope before.
The end of our hour here.
I know Dr Diamond is on the line here.
Larry, do you have comments orthoughts on this?
>> Larry Diamond (41:26):
Well, I have a couple questions that are interrelated.
This is all happening at a timeof I think pretty obviously
manifest rising danger forTaiwan security.
And if we're geopolitically.
There was just an article in the Economistrecently about how many countries.
(41:50):
Virtually majority of the UN havesigned up completely to the PRC's
claim of legitimacy basically todo anything it wants to Taiwan.
The security situation isobviously very concerning
in terms of the gradual extension of PRC.
(42:11):
MRCilitary activity aroundthe perimeter of various kinds and
just the March toward the 2027 magicdate for readiness of the PLA.
It's all pretty alarming.
And I listen to this and it just kind ofsounds like whistling while Rome burns.
(42:36):
It seems to thispolitically nonpartisan and
dispassionate observer that there'sa variety of possible compromises,
one of which would be along the linesof what happens in other democracies.
There's a wide variety of practicesin these sort of circumstances.
(43:00):
They get together, they negotiate.
One side nominates four Justices,the other side nominates three Justices.
They recognize neither hascomplete power now, and
they put a mix of Justices onthe bench and they move forward.
Are there any talks?
Is there no recognition of the gravityof the surrounding circumstances?
(43:23):
And is there anyone, the Bar association,
any neutral agency that couldmediate this political dispute?
>> Kharis Templeman (43:32):
Yeah, Lev, you want to kick us off?
>> Lev Nachman (43:35):
Sure.
So I think it's worth notingthat there's quite a few people,
especially from the green leaning camp,who have very much Highlighted
that this isn't just a matterof democracy, it's messy.
It's a matter of no, we're freezingour own country's institutions.
(43:55):
At a time when the PRC has made itincreasingly clear that their ambitions
for Taiwan are becoming more andmore imminent.
So Taiwan, as I know everyone here knows,
doesn't have the luxury of time to justsort of figure this out as we go along.
The more Taiwan becomes paralyzed,
the easier the PRC has tosell itself to the world.
(44:16):
And importantly to I think a lot ofblue leaning voters in Taiwan there.
There were protests by the Taiwan Barassociation against this.
There was protest, there have beenprotests pretty much nonstop Protests
against all of this have startedsince before Lai was president.
And unfortunately a lot ofthe protests had to be partisan.
(44:39):
So if you're green leaning, you're atthe protests and if you're blue leaning,
you're not at the protests.
The way that these protests are nowsort of manifesting is through recalls.
So the parties have decided that the bestway to channel this sort of civil society
energy is to try to recalleach other's politicians.
I don't think that's a particularlyeffective solution to any of this, but
(45:00):
that is the solution thatthe parties are going with.
I think that there's a lotof people who do recognize,
Larry, your frustration of why isthere no possibility to compromise.
But no, I do not think that there is areal drive by either party to compromise.
Instead both are looking for
retaliatory measures like recalls>> Kharis Templeman: Tianju.
>> Chien-Chin Lin (45:23):
Yeah, of course as Larry just said, there are some calls that
ask or that urge President Laito nominate more neutral guys.
Some even suggest that he should nominateformer President Ma Ying Jeou and
former President Tsai Ing Wento the bench.
Because they have law degrees andthey are former just like friends like.
(45:45):
But I'm not sure if thisworks because as that or
some Weijin just mentioned that ttheKMT just vetoed all nominations
including some that are perceivedneutral and some are career judges.
They are on the ordinary course fortheir lives and they.
And one of them even support oreven I would say even support death
(46:09):
penalty which is consistent with whatKMT is but still she got voted down.
So it's not really andI guess it's not really like so
long as you nominatenominate neutral guys,
you will got, you will got a full bench.
It's not necessary, it's not guaranteed.
(46:30):
And the other issue is that becausethe legislature is they vote
on candidates one by one.
S they do not vote on them in a packagewhich means that if you nominate
like you know three blue guys andfour green guys.
Let's say it could end up the MTlegislatures they simply you know
voted down the four guysthe four green guys instead of so
(46:53):
there's no guarantee that the exchangewould be successful I guess
that's one risk President I wasestimating so that's my take.
>> Kharis Templeman (47:03):
Okay Wei Tang >> Weitseng Chen
guess I just emphasized my point whichis in the past both in Taiwan and
South Korea the Constitutional Courtplays a crucial role
as a referee in thispartisan conflicts right.
(47:26):
And earlier for example you know when in
the permission against Chen Shui Bian's
assassination attempt the retaliation from
the Legislative Yuan is horrible, right?
They cut off the justice salaries andbudgets and
(47:49):
then later on the Constitutional Courtstood up right and say well this kind of
law that made Constitutional Court nonfunctionable is unconstitutional, right?
So they sell themselves, andthis time, same, all right?
I know there's a debate withinthe court whether they should use
(48:09):
the similar approach, right?
Saying, well, this kind of supermajority with a fixed number effectively
made the court non-functionable, right?
Can we declare it unconstitutional?
But the justice majority says no,all right?
They don't want to deal with politics.
So the more unwilling theyare to deal with politics,
(48:30):
the more vulnerable they become,all right?
That's the situation now.
So, I guess it's a purepolitical negotiation instead
of judicial issue at this moment.
But, given the current largescale recalls across the country,
both parties have no incentive tosit down and to talk, all right?
(48:53):
That's not the ideal situation.
So let me, I want to kind of step back and
put this in historical perspective.
We've brought up the Chen Shui-bianera a fair amount,
which is the one other timewe had divided government.
And that era has, I think,a well deserved reputation as being
quite chaotic,featuring deep political polarization.
(49:18):
I don't know if we're at Chen Shui Bianlevels now in Taiwan, but
we're getting close, it feels like.
But there is an underappreciated, I think,positive element of the Chun era,
which is that there was quite a bit ofinstitutional reform during that era.
There was the creation ofthese independent commissions,
the change inthe Constitutional Court Organic Act.
(49:43):
Is there room for some kind of broaderinstitutional reform that would
change a bunch of things at the sametime that both sides could get behind?
Is there, at least in theory,the possibility?
Because it seems to me right now theinstitutions of the ROC on Taiwan are not
well designed for an oppositioncontrolling the legislature and
(50:04):
the ruling party,just controlling the executive.
And that should be obvious to everybody.
And so I'm wondering if there is a kindof grand bargain that could get Taiwan
out of this particularstalemate right now.
>> Lev Nachman (50:18):
So, unfortunately, there are institutional changes being made, but
they're arguably counterproductive.
So, you know, yeah, you know, you do haveinstitutional changes to the legislative
UI now where legislators havemore powers now, you know,
you have changes to the courts andyou know, there's debates about the nc,
the NCC that we talked about, andwe don't even need to bring up the budget.
(50:38):
But you know, there's a lot going on.
There's rumors always about,can there be a grand bargain?
There's a rumor that William Lai is gonnameet with Han Guo Yu to talk about saying,
if we back off on recalls,maybe you can nudge on the budget, but
how likely is that going?
(50:59):
I mean, which seems to me like a veryreasonable compromise on some level.
But I just, I worry that partisanpolitics are going to kick in and
that the mood these days is just to be asretaliatory and aggressive as possible.
And I hope that there is space for that.
But these days it doesn'tseem particularly likely.
>> Kharis Templeman (51:22):
Yeah, okay.
Jianzhi.
>> Chien-Chin Lin (51:25):
I think which is what I actually wrote a paper in
the Hoover Institute, actually,which is why I argue,
I think one easy institutional reformis that you may consider raising
the threshold, the decisionmaking threshold a little bit.
Not, you know,a fixed number of nine people, but
you can consider raising it in three,like a 2/3.
And that was the case duringthe Chen Shui-bian era.
(51:47):
Which is why the Taiwan Congressionalcourt was considered as more neutral at
that time, because it requiredthe consent of two-thirds.
Which means that you can say arguablygreen justice need to negotiate with,
you know, moderate justice or even,you know, blue justice in a sense.
And two-thirds on the one hand makes surethat there will not be radical opinions of
(52:11):
the court because you need to compromiseunder a two super majority threshold.
And on the other hand, two thirds isokay in the sense that it keeps the work
functioning orat least it will not be paralyzed.
It could delay, could make the quorumless efficient because you need a two
thirds and there will be some negotiationbetween those justice of different
(52:33):
at different spectrums.
And this is why the current,or you can say
the Congress was hostileto the constituent court,
because currently or before the amendment,
it requires a simple majority.
(52:53):
And when it requires simple majority,you can say the court is more likely or
more vulnerable to the accusation ofpartisanship or something like this.
And also I think the easiest way toinstitutional reform is you can raise
the bar to some extent, not to,you know, it's unconstitutional if you
raise the bar to like, I don't know,10 out of 15 or fixed number.
(53:17):
But two-third is a numberthat was considerate.
That's my two cents.
>> Kharis Templeman (53:22):
Great.
Let me get Admiral Ellis in here forthe last question, and
then we'll do one final wrap up.
>> Admiral Ellis (53:29):
Yeah, thanks Carson, and thanks to the panelists.
A great conversation and one thathas been very enlightening for me.
Can you hear me?All right, I see my picture is frozen.
My question is the old saying inthe US Is all politics are local.
In Taiwan, no politics are local.
As Larry said in his remarks, they'reglobal, and they're playing out in a court
(53:52):
that perhaps the people of Taiwan are notaware of or particularly concerned about.
But.But I think very much they should be,
because those of us thatare friends of Taiwan, and
I certainly count myself in that campafter decades of that relationship,
have always admired andtouted the independent character,
(54:17):
the stable democracy, the model forthe region, if not the world,
the ranking in the globaldemocratic indexes and the like.
This is making that conversationa lot more difficult.
Is there a popular awareness of this?
Do the parties speak for the people?
(54:37):
Are people concerned aboutthe optics associated with this?
Particularly in a time where youcould perhaps candidly say we have
a US Administration that's prone to snapdecisions and quick policy judgments and
the like, that might tend inways that have dramatic and
perhaps unappreciated consequences.
(54:57):
Again, that's not all on the shoulders ofthe people of Taiwan or its legislators or
its judicial system, for that matter.
But the grand bargain that Lev was talkingabout, whether it's constitutional reform,
or judicial interpretation, or,heaven forbid, political consensus, and
as an American, I'm certainly not arguingthat we're a paragon of virtue in that.
(55:21):
Is there any sense that this is moreserious than we've seen in the past,
that it's gone beyond the local,that it could have, you know,
implications on a global scale thatperhaps aren't fully appreciated?
I'd welcome your perspective on that.
Thank you.
>> Kharis Templeman (55:36):
And since I didn't get to Weitzeng on the last round,
let me start with you,Weitzeng, your thoughts.
>> Weitseng Chen (55:41):
Yeah, I really appreciate this geopolitical sentiment
toward Taiwan, all right?
I guess if I have the magic power to do,to pick one reform and
make it come true of tomorrow,I will deal with misinformation.
I was talking to a highcourt judge yesterday.
Today and ask him to comparethe partisan conflicts now to
(56:05):
10 years ago,20 years ago on the Chen Shui-bian era.
And the response is worse, it's worse.
And there's no limitation forboth parties to fight until the final end.
And one reason is from his perspective,is about misinformation.
(56:27):
For example, some people are calling foropen trial for
KE Wenzhe, the former chairperson of TPP.
And literally no oneunderstand what is that about,
it's open a public trial all the timeever since for Mossa trial in 1979.
But this kind of misinformationhas to be dealt with,
(56:50):
otherwise a public discourse,it's just not possible to be generated.
Right.
But sadly, that's,I guess it's a crucial issue from
a geopolitical perspectivemeans of information.
>> Kharis Templeman (57:05):
[INAUDIBLE], your final thoughts?
>> Chien-Chin Lin (57:08):
Yeah, I just mentioned a bit that I think one issue I'm
concerning is about absentee voting.
I think the TPP andarguably the PMT are trying to advance or
to propose absentee voting in Taiwan,
which I don't think is a goodidea given that there are like
(57:28):
millions of Taiwanese living andworking in mainland China.
And there are a bunch of questionsassociated with absentee voting,
and United States is fully aware of this.
So particularly in the context of Taiwan,
I would say probably against this,even though, but unfortunately,
(57:49):
the P claim essentially canget everything they want.
So this is one thing I would like to raise>> Kharis Templeman: that that is
probably.
Worth its own session right there.
And I will put that on our,on our list of potential future talks.
Lev, you have the lastword with this panel?
>> Lev Nachman (58:07):
Yeah, super fast.
You know, I asked a colleague of mine, youknow, is this normal chaos in Taiwan or
is this a kind of a specialkind of chaos in Taiwan?
And I think we kind of came tothe conclusion that we're getting towards
special chaos, not because, you know, thechallenges we're seeing are new to Taiwan.
We see fights in the legislators,we've seen extreme partisanship.
It's the timing of the geopoliticsthat Taiwan currently exists,
whether it's the United States orwhether it's the prc.
(58:30):
This is not a good time forTaiwan to have to deal with these issues.
Ideally, we would deal with these thingsat a more stable geopolitical time, but
Taiwan unfortunately doesn'thave that luxury today.
And I think that's what makes thisfeel more chaotic than normal,
is that we're having to fix institutionsin Taiwan at a time with so
much geopolitical uncertainty.
>> Kharis Templeman (58:48):
All right, well, the Taiwanese have to end on a more positive
note, have a remarkable pattern overthe years of muddling through and
finding a way to survive a lot ofchaos and ambiguity over the decades.
So I hope that's what ends up happeningin this particular moment as well.
(59:09):
Just want to thank our audience forsticking with us tonight.
You've been listening to the projecton Taiwan in the Indo Pacific region.
Our panelists Lev Nachman, Jiang Zhi Lin,and Wei Tsung Chun have joined us for
an hour long conversation on Taiwan'sConstitutional Court under divided
government.
Thanks again.
I'm Karas Templeman,I'm wishing you all good night.
>> Admiral Ellis (59:30):
Thank you all.
>> Weitseng Chen (59:31):
Thank you.
>> Larry Diamond (59:32):
Thank you.
[MUSIC]
>> Kharis Templeman (00:03):
Hello, good afternoon from Stanford University.
I'm Karis Templeman, I'm a researchfellow here at the Hoover Institution.
And it's my pleasure today to introduceour seminar on a very timely topic in
Taiwan, Taiwan's Constitutional Courtunder divided government.
We have three distinguishedpanelists with us today.
(00:26):
We have Tianjir Lin from Academia Sinica,Wei Tsung Chun from
National University of Singapore,who is physically in Palo Alto today.
And we're pulling on him again fora second appearance with us this quarter.
And then we have Lev Nachman joining usfrom National Taiwan University as well.
(00:50):
I wanted to just make a coupleremarks about why we're holding
this event in this format and at this timeand provide a little bit of background for
what I consider to be a buddingconstitutional crisis in Taiwan.
So on December 20th of last year,Taiwan's opposition controlled
(01:13):
legislature passed an amendment tothe Constitutional Court Procedure Act
which imposed a 2/3 quorumrequirement to hear cases and
a 9/15 requirement for invalidating laws.
Four days later, the legislaturethen voted down all seven of
President Lai's nominees to the courtwhich left it short of that majority.
(01:36):
There are now only eightsitting justices and
under the new amended lawthey cannot legally meet and
adjudicate questions of constitutionalitybecause they are short of that quorum.
Nevertheless, the DPP government has askedthe court to meet anyway and to rule
(01:59):
on the constitutionality of the amendmentto the Constitutional Court Procedure Act.
So the court is basically ina no win situation right now.
They can accept the case and issue aruling, in which case the legislature will
probably escalate their attacks onthe court and on judicial independence.
Or they can bow to the legislature'snew supermajority requirement and
(02:24):
basically concede paralysis in the faceof opposition threats until and
unless new justices are confirmed.
In other words, the court isbasically facing a crisis here and
it doesn't have an easy orclear way out of this situation.
I'd also note that the Court isonly the most obvious victim of
(02:46):
a year of escalating partisanwarfare between a KMT TPP majority
in the legislature andthe DPP run executive branch.
There are similar power struggles to theone over the court now playing out over
other nominally independentbodies including
the National Communications Commission,the Fair Trade Commission and
(03:08):
the Examination and control uns in Taiwan.
And potentially in the future the CentralElection Commission could fall into
the same kind of partisan fight.
And so basically this period of dividedgovernment we're in threatens all
of the sort of independent institutions
that are supposed to adjudicatepartisan grievances in Taiwan.
(03:29):
And this potentially is a rising threatto Taiwan's democratic resilience,
which as I'm sure most ofthe audience is aware,
is also threatened bythe PRC across the strait.
And also this is happening at a prettydelicate time in US Taiwan relations in
that we have a new administration that'sjust come into office and it's unclear
(03:53):
what that administration's long termapproach is going to be towards China,
towards Taiwan, and towards otherpartners and allies in the region.
And so it's hard for me to escapethe conclusion right now that divided
government is becoming a seriousthreat to Taiwan's own security.
(04:13):
And so we've been able to assemble a greatgroup to discuss these issues today.
Let me give a little more backgroundon our panelists before I turn
it over to them to comment onthe Constitutional Court paralysis issue.
The first speaker we'll have today is LevNachman, who's a political scientist and
(04:36):
assistant professor atNational Taiwan University in Taipei.
He teaches in the Graduate Institute ofNational Development and he's also a non
resident fellow at the Atlantic Counciland the National Bureau of Asian Research.
Second, we'll turn to Jian Zhilin,
who is an associate research professorat Institutum Jurisprudentiae,
(04:59):
I hope I said that right,at Academia Sinica.
And he's also an associate professoralso at the Graduate Institute of
National Development atNational Taiwan University.
He holds an LLM anda JSD from the University of Chicago.
And then batting cleanup forus over here is Wei Tsung Chun.
(05:20):
Wade Sung is a faculty member atNational University of Singapore,
the Faculty of Law there.
He specializes in law andeconomic development, law and
politics, and legal history inthe context of Greater China.
So without further ado, since we'veonly got an hour for this conversation,
let me turn it over to Lev.
Basically, can you breakdown how we got here?
(05:43):
How is divided government working ornot working in Taiwan over the last year?
>> Lev Nachman (05:48):
First of all, of course, thank you so much for
inviting me to be on the panel.
It begins with the 2024election when we see for
the first time in a long timea divided government in Taiwan.
And of course,it is a matter of blue versus green.
But the light teal elephant in the roomis, of course the Taiwan People's Party,
(06:13):
the third party that unless you followTaiwan domestic politics closely,
is sort of this new party that many peopleoutside of our typical circles don't
really know much about.
But it is arguably the thing that hassort of led to a lot of the grievances
that we see today not necessarilythe TPP themselves but
(06:35):
more the wedge that they have placedwithin Taiwan politics so for
a little bit of background in 2024the KMT has a slim majority of
seats in the legislative UNthey want 52 plus a couple of
independent blue leaning voters andthe DPP won 51 however
(06:58):
you need 57 in order to havea majority in the legislative UN and
the TPP this third party won 8seats which is third parties
go in Taiwan we call kingmakerseat anyone to pass anything
they need at least some of thosesweet TPP supporter votes and
(07:19):
unfortunately the TPP has madeit very clear that the core
part of their party's ideologyis that they oppose practically
anything the DPP does whichmeans that more often than not
they side with the KMT Theirdecision to side with the KMT is
(07:40):
not always necessarilyan ideologically driven alliance but
for the sake of what a lot ofthe audience is worried about
today it does have veryideological sort of takeaways in
the sense that it gives the KMT and the.
Their vision of Taiwan's future,a very big advantage in today's world.
(08:06):
Now, the TPP itself,
beyond sort of claiming to be aboveblue green politics, has made it
very clear that they are emphaticallynot above blue green politics.
And in a way that as someone whofollows third parties in Taiwan,
I have seen the TPP side with the KMTin ways that sort of go beyond typical,
(08:30):
you know, enemy of my enemy is my friend.
And instead, we're seeing kind of a reallystrong embrace between the TPP and
the kmt.
I think the best example is to actuallylook at the leadership of these parties.
So when we think of the TPP,we typically think of Koenzha,
a man who has sort of made his mark onTaiwan politics for the last decade.
(08:54):
But he's not the one I'm talkingabout right now because Koenzha, for
those unfamiliar, is currently pendingjail time for corruption charges.
He's not the first in the TPP to havecorruption charges that are going to
face jail time, but his role in the partyis now incredibly marginalized and
kind of put to the side.
Instead, his successor,someone named Huang Guoqang, who,
(09:18):
if you follow Taiwan politics for sometime, will be a name familiar to you from
a formerly very pro independence party,the New Power Party.
Huang Guocang himself has jumped ship andhas gone from being a very pro
independence politicianto joining the TPP.
And he didn't just join the tpp.
He has sort of led the alliancebetween the TPP and the kmt.
(09:42):
He has joined KMT heavyweights likeFu Kunqi and Han Kuo Yu on stage,
championing their ideas,championing their policies.
And for.
For an American comparison,that's sort of like AOC jumping on board
the Republican Party andsaying, I'm here for this.
It just makes no ideological sense inTaiwan's context to see Huang Guo Tsang on
(10:06):
stage with the KMT.
But that's the currentworld that we're living in.
So Huang Guang was just electedparty chair of the TPP.
He has inherited spirit,as some of the netizens like to say.
And Koenzha, before he went back intojail, made a ringing endorsement for
Huang Wu Chang,saying to his followers to follow Huang.
(10:29):
Huang himself has a cultof personality following.
And in the way that a handful of usthought might happen that Huang Guo Tang
would sort of takeadvantage of the TPP and
this very niche role they play in Taiwanpolitics, he has, in fact, done just that.
And now he is in control of thiskingmaker party in Taiwan now,
(10:51):
what exactly that's goingto look like in the future?
Given that he has led the chaoticstoppage of anything from happening
in domestic politics, I think that we'regonna see more disruption from the TPP and
sort of enabling the KMT's ability tosort of stop things from happening.
(11:15):
Just to give some quick,because as a public opinion person, I
feel obligated to at least share a coupleof public opinion numbers very quickly.
So to speak to sort of the stuffthat CAR has talked about,
whether it wasthe Constitutional Court crisis.
Whether or not it was the legislativeUN reforms earlier this year,
(11:35):
the sort of responsefrom civil society and
the bluebird movement and the proteststhat have been breaking out in Taiwan.
What our public opinion datashows about support for
these things is largely partisan,which isn't very surprising.
If you're green leaning, then youthink these things are horrible and
if you're blue leaning,you think these things are great.
What I think is particularly interesting,however, is one of our findings,
(11:58):
particularly for the legislative UN andsort of anything that,
that seems on the surface to beabout supporting balance of power,
independents are largely in favor of.
So especially for say like the legislativereforms, when it was going to give
legislators a lot of power andtake away power from the President,
we found that independentvoters were largely in favor.
(12:19):
Our hypothesis is that forthem balance of power is a good thing.
Even if the KMT is sort of co-opting thatframing, it seems to be effective against
a lot of average voters, andwe can talk more about that later.
I just wanted to throw that in there,but I'll stop there for now so
others can speak.
>> Kharis Templeman (12:34):
Okay, great.
There's a lot to dig into there and
I'm looking forward tofollowing up on a lot of that.
But let me turn it over to Jianzhi and
get your sense of,are we in a Constitutional Court crisis?
Is this an unprecedented moment or is thisthe kind of thing that comes along every
(12:54):
few years when the court does somethingthat provokes one party or another?
>> Chien-Chin Lin (12:59):
I think, of course, this is unprecedented, and we are in,
as you say,in a Constitutional Court crisis.
Before that, I would like to brieflyintroduce the common system.
In Taiwan, unlike the UN states,the Constitutional Court justice,
they serve a staggerednon-renewable term of eight years.
And this is important.
(13:20):
By eight years, and by staggered,I mean every three or four years,
there will be a couple ofjustices stepping down.
And the reason why the framers decideto make their terms eight years is
to ensure that every new president wouldhave the chance to appoint his guy,
his or her guys on the bench.
(13:42):
In the US, not every American Presidenthas this privilege or this power.
So this is the, and, and, andof course there are down and you know,
downsides of this,this institutional design.
And then one obvious downside is thatif win the presidential election,
you know, consecutively, twice or thrice,
the party essentially controls theconstituent court in the sense that every
(14:06):
justice will be appointed by the sameparty, if not by the same president.
That's an obvious downside, and that's whywe are facing a constitutional crisis.
So now.
But make no mistake,this happens in the past.
It happens when, mind you,when our former president,
KMT, mind you,won the presidential election twice.
(14:31):
And it happens also when Tsai Ing Wenwon the presidential election twice.
So essentially, it's weird to say,but essentially, it's actually
the norm that the same party would controlthe constitutional corps for some time.
I don't really worry about that toomuch is because as I said earlier that
(14:51):
the justice served a non renewable termof eight years, which means that their
terms are relatively short, sotheir legacy will not last long.
It's very differentfrom the United States.
You know, justice stay there forlike 30 years.
So they only stay on the bench foreight years.
But still, you know,
if you are in the opposition partylike the kmt, you will be unhappy.
(15:16):
And this is particularly the case becausethe Constitutional Corps control or
nominated, I'm not goingto use the word control,
I'm appointed by the DPP presidents.
They actually frustrated the KMTseveral times in their decisions in
the past several years, includingtransitional justice, including you know,
party property, something like this.
(15:37):
So the KMT legislators, they were reallyunhappy about the Constitutional Court.
But you know, before our, before the next,the last congressional election,
they were in the minority,so they have nothing to do.
And after the last congressional election,the kmt,
together with the TPP thatLev just mentioned, they.
(16:00):
They forge an alliance, andbasically they can veto any candidates.
So that's why the case.
So in order to paralyze the ConstitutionalCourt, they amend the Procedure Act and
requiring, as Kharis justmentioned at the very beginning of
the introduction, that theyrequire that every constitutional
(16:25):
decision should have the consentof 9 justice out of 15.
And note that this is actually the worstscenario of a super majority requirement
because they asked for a fixed numberrather than three-fifths of the Court.
And this is very different.
If you ask three-fifths of the court,
(16:46):
that means that a court can remainfunctioning even you have only eight.
>> Kharis Templeman (16:51):
Yeah. >> Chien-Chin Lin
ask a super majority requirement fora variety of reasons,
although most top courtsrequire simple majority.
But it is very different when youask that there must be nine votes,
a fixed nine votes, because, obviously,
if your Court has fewer than nine justice,the Court is paralyzed.
(17:12):
So this is why I say that it is arguablyconstitutional if they amend the law
in a way that says you requirethree-fifths of the sitting justice or
three-fifths of the participating Justice.
But it is very different when you sayyou need nine votes no matter how
many justice you are on the bench.
(17:33):
So that's why I say that the Courtbasically is essentially paralyzed.
And there are several solutions,potential solutions, but
the Court, I think, two orthree days ago just veto one.
There's one petition by a citizen arguing
that the ConstitutionalCourt Procedure Act
(17:56):
is unconstitutional becauseit paralyzed the court.
Which means that all the ordinarycitizens could not take advantage of
the Court to have their rights remedy.
But the Constitutional Court said,no, you don't have standing
to challenge the constitutionality ofthe Constitutional Court Procedure Act.
So it is unclear whether howthe Constitutional Court will see it.
(18:20):
But let me emphasize at the lastof my talk is that in the past,
the Constitutional Courthas declared its procedural
role unconstitutionalin its own decisions.
This happened in the past.
It is unclear whether they would do soagain this time because it is
(18:41):
more polarized, politically-speaking,and it is more sensitive.
But my opinion is that becausethe Constitutional Court had declared,
I think in 1990s or something,had declared their procedural rule
unconstitutional, it could be that theywill do it again, but it's hard to say.
(19:02):
So I guess I will stop here, andany comments and questions, I welcome,
thank you.
Okay, great.
Let's go ahead and go to Wei Tsung andget your thoughts on this.
I'm particularly interested inthe historical aspect of this,
since you've been studying this issue fora long time.
You're familiar with some challengesto judicial independence in
(19:24):
the 1990s in Taiwan when it was just goingthrough its transition to democracy.
And so what's your take on the threatto judicial independence today?
>> Weitseng Chen (19:34):
So yes, I was asked by Kharis to offer some historical
perspective about, my term,judicialization of politics in Taiwan.
But the main question in my mindis still a contemporary one,
whether Taiwan is facing a crisis.
Are we witnessing democraticbacksliding like in Korea,
(19:56):
Poland, Turkey, Hungary,and India, etc., right?
So I guess let me disclose myanswer from the beginning.
My answer is yes,there is a crisis, right?
But it's not so severe that we cancall it democratic backsliding.
We are not facing a situation asextreme as a coup d'état in Korea just
(20:16):
a couple months ago.
And instead the problem lies inthe weakening of the capacity
of the Court rather than weaponize it,right?
So let me highlight a few points here.
My first point is about the attitudeof Constitutional Court
towards politics historically, right?
(20:39):
So historically,
the Constitutional Court justice in Taiwanhave been quite self-restrained, right?
They are responsive rather than proactive,right?
This was true under the Ma Ying-jeou era,the Chen Shui-bian era, and certainly
during the authoritarian rule under ChiangChing-kuo and Chiang Kai-shek, right?
And justice tend to wait andsee, align themselves with
(21:03):
the dominant political views orpublic consensus, right?
One example is, well,the 1990s Taiwan's Grand Justice ruled
that the indefinite tenure ofthe pre-1949 legislatures, right,
violated the democratic principles andthey mandate new elections.
(21:23):
And this decision acceleratedTaiwan's democratization,
leading to a direct legislativeelection in the 1990s, right?
It may have seem bold, right?
But it ultimately reflected the dominanceof the KMT's reformist factions
within the party, right, because I guessChiang Ching is pretty aware of it.
(21:47):
The Chief justice at the time saidprivately that the justice got
a very clear signal from the KMT andstarted to prepare for
this interpretation long time ago, right?
So overall, justice are self-constrained.
So now my second point is,even the justice of self-restraint,
(22:13):
the Court became an unintended referee
in all the partisan battles since 2000s,right?
And this shift was largely due tothe Grand Justice Adjudication Act,
right, which has been replaced by
the Constitutional Court Procedure Actthree years ago, right?
(22:34):
And prior to three years ago,which is 2022,
the old act allowed governmentalagencies to bring cases to
the Court whenever it is unclear whethera law is unconstitutional or not.
And this differs from other democracies,including Germany and
(22:56):
the US, which emphasizethe cases has to be, right?
And the justice only rule on cases whereindividual rights has been violated and
exhausted the remedy.
But in the case of Taiwan,
any governmental agencies were able tobring cases to the justice, right?.
So as a result, the Constitutional Courtwere forced to resolve
(23:20):
many political disputes betweengovernmental agencies and branches.
What can they do to avoidpolitical confrontations?
Justice used this strategy basedon a strategic ambiguity, right?
And that is, instead of issuing clearrulings, the Court will use vague
(23:43):
language to allow both sides to claimpartial victory and move on, right?
One example is the interpretation in 1996,
the court refused to state clearly whether
KMT's Vice President Lian Zhancould also serve as a Premier and
successfully avoiding a directpolitical confrontation.
(24:09):
But that being said, there are twoshortcomings for this strategy.
A strategic ambiguity approach.
And the first shortcoming is.
Well, what if both parties feel theyare winners and then the political
struggles continue, cuz they try tofight based on their winning position,
(24:33):
they selected it selectively interpreted,right?
And one example is about the nuclear plan.
In 2001, the court declined toissue a clear rulings on whether
the DPP's government's unilateralcancellation of the nuclear
plan project was constitutional ornot, right?
(24:55):
And then both the DPP and
the KMT claimed victory based ontheir readings of the rulings.
And then the politicaldeadlock only worsen, right?
And the second shortcomingabout this strategic ambiguity
involves opposite scenarios, right?
That is when neither partiesfeel like a partial winners,
(25:19):
but rather a partial losers, retaliationfrom politicians follow, right?
The best example is the courtdecisions in 2004 regarding
the assassination attempt againstPresident Chen Shui-bian,
which helps Chen Shui-bian'snarrow election victory.
(25:42):
And at the time, the opposition parties,including KMT and
the People's First Party,which is it's a minor party,
now accused President Chen of staginghis own assassination attempt.
As a result, they passed a speciallaw creating a commission with
extraordinary investigated powers, right?
(26:04):
And the Court rules that the commissionitself was constitutional,
but some of his powerviolated the constitution.
What's the consequence, right?
Political revenge.
Because KMT was very upset, right?
So the legislative UN cut offthe judicial UN's budget,
(26:25):
slashed justice salaries,eliminated their funding for
technology, computer research andeven tribals.
So this experience madejustice very determined
to avoid sheer politicalbattles in the future.
But paradoxically,this leads to what we ended up with today.
(26:51):
And that's my third point, right?
It's a paradox.
The more the paradox is,the more unwilling Taiwanese justice
are to adjudicate politics,the more vulnerable they are to politics.
So let me explain why, right?
Well, in 2002.
(27:12):
Exactly, because the justice donot want to deal with politics.
They push forthis Constitutional Court Procedure Act,
and it introduced two key changes.
One, they restricted the governmentinitiated cases, right?
In doing so, the Court hopes to actlike German Constitutional Court or
(27:34):
the US Supreme Court, focusing onfundamental rights in concrete cases.
Rather than resolving these politicaldisputes between governmental branches.
And the second new element isthey lower the thresholds for
declaring unconstitutionality from2/3 to a simple majority, why?
(27:57):
Because the thenChief Justice Xu Zhongli hoped the Court
to be more proactive than before, right?
But always be careful forwhat you wish for, right?
Unfortunately, one of the firstmajor cases regarding fundamental
rights under the new system isabout capital punishment, right?
(28:20):
Case that had been stalled foryears due to these 2/3 threshold.
But now with the new lower threshold,
the Court had no excuse tokeep delaying it, right?
The justice in charge is Justice Huang,right?
Who is a participant actually in LarryDiamond's conference in 2006 at CDDRL.
(28:44):
He's a very capable justice.
But his progressive decision upset KMT and
the general public who is not ready toabolish the capital punishment, right?
So this basically led to what we ended upwith today, that is judicial paralysis.
Historically, just one or
(29:04):
two political sensitive cases wereenough to provoke a severe backlash.
So as just mentioned,
the Court is now paralyzed after the new
amendment to the Procedure Act.
So last, let me just conclude by saying afew words about my personal evaluation and
(29:29):
prediction for the future.
So still the first question is,
is this judicial paralysisa judicial capture, right?
As we witness in the trainof democratic recessions?
I don't think so, right?
Not exactly.
I think we are seeinga significantly weakened
(29:50):
court in the future,but not captured court.
Judicial capture meansthe executive branch, right?
Takes control over the courtsis in Poland, Hungary or India.
But in Taiwan,the situation is the opposite, right?
The President is notcontrolling the Court.
Instead it is the Legislative Yuan that is
(30:12):
weakening the Court'scapacity to function for
DPP or the President's progressive agenda.
And the minority justice noweffectively have the veto power and
making it very difficultto review case critically.
So that's the first.
(30:34):
And secondly, one may wonder wouldPresident Lai Ching-te got so
frustrated that he will carry outsome dramatic unwise political
maneuver like declaring the martiallaw by Korean President Yoon and
I don't think so, right?
It's not just not possible in Taiwangiven the DPP's political climate,
(30:59):
but the current large scalerecalls that is going on
is one of such maneuversout of DPP's frustration.
So the final question is why would it end,right?
The crisis.
My view is until the end of thislarge scale recall movement ends
(31:19):
in which both parties willexhaust their political capital,
political parties have noincentive on both sides
to negotiate about the Court'sjustice nomination.
So I guess to conclude this isa judicial crisis, no doubt about it.
(31:39):
Under the new amendment, the Court ismore vulnerable to partisan conflicts.
But the primary damage willbe the Court's capacity and
to some extent legitimacy as well, right?
But how far this crisis will escalate?
And don't mind the cause,legitimacy, accountability, or
(32:02):
Even its supremacy, andthereby triggering Democratic backsliding.
I guess it remains to be seen.
>> Kharis Templeman (32:09):
Thank you, Wei Tsung.
So I actually want to start thisdiscussion by posing the same question
to each of you, which is about thecritical role of the TPP in all of this.
I have been a little surprised at how,at least publicly, they've been very
closely aligned, as Lev noted,with the KMT on many of these issues.
(32:33):
And I've been surprised in partbecause they look to me to be more
in the green camp than the bluecamp until fairly recently.
And now they're very clearly,at least publicly, again,
marching lockstep with the KMT.
But also the DPP needed their votes,and the DPP should have been
(32:54):
willing to pay a pretty high priceearly on to try to get them on side or
at least negotiate an issue byissue coalition of some sort.
And so I'm curious from each of youwhy you think that didn't happen.
Is it that President Lai just didn't offerenough, that he was too stubborn, or that
the DPP hasn't accepted the fact that theylost their majority in the legislature?
(33:16):
Or is it that the TPP decided thatthere was no price that the DPP could
possibly pay to get them onboard with the Lai government?
Lev, let me toss it over to you first,and then we'll go to the other two.
>> Lev Nachman (33:33):
Yeah, so I think there's two stories.
There's the insidethe legislative UN story and
there's the outside oflegislative UN story.
So inside the legislative UN is,you have DPP-TPP dynamics,
which are largely driven byKe Chien-ming and Huang Kuo-chang.
They don't like each other very long time.
(33:54):
That dates back toSunflower Movement 2014,
them would have ever ina million years come to.
That's how factional politics works.
Yeah, you're very familiar.
And to a degree, for a while,
Ke Chien-ming was kind of the one callingthe shots of how the DPP was acting.
I mean, the example that we can pointto is when there was the moment to vote
(34:14):
on the Supreme Court nominee oron the Constitutional Court nominees.
One of the justices thatwas not the nominee,
the Ojingi, William Bly nominated her.
But it was Ke Chien-ming that saidwe're not gonna vote for her.
(34:36):
And if you vote for her,you're out of the DPP.
So that was kind of Ke Chien-mingcalling the shots in the legislative UN,
even though the TPP was willing tovote for Liu Jingyi on that issue.
But that's a complicated matter foranother time.
Outside the legislative un,you have sort of the unavoidable
feature of the tpp, which is thatthey campaign on being anti dpp,
(34:58):
and it's a hard sell to theirvoter base to work with the DPP,
especially when 90% of theirpolitical advertising during
the election was, William Lai isgoing to make the country worse.
They spent very little time talking.
So I think from their voter base'sperspective versus why would we work with
(35:21):
the DPP that's a little bit harder toassault it to some of their voters.
>> Kharis Templeman (35:24):
Okay, great.
Tianzhi, let me changethe question slightly and
talk about the judicialnominees that Lai put forward.
Why didn't he anticipate that they wouldbe rejected by the opposition coalition?
And knowing that they would be, why didn'the try to find some candidates that would
(35:44):
be compromised candidateswho could win approval?
>> Chien-Chin Lin (35:49):
I don't know.
I have been asked these questionsmultiple times, and to be honest,
I don't really have a good answer.
It could be that, you know, becausein Taiwan, there will be a, you know,
a committee, you know,led by the vice president and
including a bunch of, you know,former justice they would nominate.
(36:10):
They will submit a list of candidatesof the justice to the President Lai.
And this list is not binding in a sensethat President Lai could still change
from among these candidates.
So it's unclear whether whythe President Lai still chose this.
But so far, as I heard that,because this is not
(36:33):
the first time the DPP presidentfacing a hostile Congress.
Former President Chen Shui-bian,when he tried to appoint his
justice in 2003, the Congressstill was controlled by the KMT.
But still he could,you can say, in a sense,
(36:53):
successfully appoint I think 11 out of 15.
>> Kharis Templeman (36:58):
Right.
>> Chien-Chin Lin (36:58):
It has been said that Chen was more
flexible in that sense compared to Lai.
And so I guess Lai thought thathe could at least, I don't know,
successfully point some of them,if not all of them.
And it turns out, andas Lev just mentioned,
(37:22):
that Liu Jingyi was very close,and it's obviously a playhouse
strategy that the DDP eventuallydecided to withdraw its support.
So, sorry, I don't really havea good answer to the question.
But I think my answer is that President,
I thought that he could at least havesome of them, if not all of them.
>> Kharis Templeman (37:43):
Okay, so he basically miscalculated then, that's what this-
>> Chien-Chin Lin (37:46):
Yes, miscalculation,
I would say.
>> Kharis Templeman (37:48):
Okay, wait Song,
do you have thoughts on the TPPpoo's role in all this?
>> Weitseng Chen (37:55):
Well, I guess in light of all these democratic
backsliding around the world, right.
There's a new item to be addedto the dictatorship's playbook.
Nowadays, to controlthe Constitutional Court or
High Court is the most efficientway to control the politics.
(38:19):
In Poland, the president controlthe Constitutional Court.
As a result,the court declare any unconstitutional
move by the presidentconstitutional right.
Or conversely,declare unconstitutional, right, for
any constitutional movements carriedout by the opposition party.
(38:44):
In other words, you don't have to win themajority in the parliament before you can
control the system, right?
Or at least destroy the system.
So I guess either party in Taiwan justshows the similar dynamics, right?
So that's the institutional froman institutional design perspective.
And for, of course,there are always some principle and
(39:08):
there are always some agency factors,right?
These personal struggles and
personal sentiment against each other
between TPP and DPP is well known, right?
Huang Kuo-chang, the chairman of TPP,
(39:28):
doesn't get along withKe Chien-ming of DPP.
But why they don't negotiate?
I guess.
First, the nomination process is not
really well-coordinated,right, in the past.
And as far as I know,this time is operated as in
(39:51):
the past,some advisors are passed over, so
there's informational symmetry issues.
And from, from Huang's perspective,
Huang Guo Chang's perspective,he used to side with dpp, right.
When he was the chairperson ofthe Sidai Li Liang, the people's power.
(40:15):
And then there was a debatewithin the new party then, right.
They said, well, they didn't getsufficient respect by DPP, right.
Even though they are supposed tobe the kingmaker parties, right.
So they are going through a soulsearching process, you know,
(40:38):
what's the value forthe third party, Right.
A new party in Taiwan.
So I guess that's why Huang nottried once before and failed.
He was not happy about the result,not happy about the attitude of dpp.
So this time he just moved to the otherside, which is I guess understandable.
(41:01):
Right, but still one of the maincause of partisan conflicts nowadays.
>> Kharis Templeman (41:09):
I should invite our audience.
If you have questions,please drop them in the Q and A and I.
Will get to those, I hope before.
The end of our hour here.
I know Dr Diamond is on the line here.
Larry, do you have comments orthoughts on this?
>> Larry Diamond (41:26):
Well, I have a couple questions that are interrelated.
This is all happening at a timeof I think pretty obviously
manifest rising danger forTaiwan security.
And if we're geopolitically.
There was just an article in the Economistrecently about how many countries.
(41:50):
Virtually majority of the UN havesigned up completely to the PRC's
claim of legitimacy basically todo anything it wants to Taiwan.
The security situation isobviously very concerning
in terms of the gradual extension of PRC.
(42:11):
MRCilitary activity aroundthe perimeter of various kinds and
just the March toward the 2027 magicdate for readiness of the PLA.
It's all pretty alarming.
And I listen to this and it just kind ofsounds like whistling while Rome burns.
(42:36):
It seems to thispolitically nonpartisan and
dispassionate observer that there'sa variety of possible compromises,
one of which would be along the linesof what happens in other democracies.
There's a wide variety of practicesin these sort of circumstances.
(43:00):
They get together, they negotiate.
One side nominates four Justices,the other side nominates three Justices.
They recognize neither hascomplete power now, and
they put a mix of Justices onthe bench and they move forward.
Are there any talks?
Is there no recognition of the gravityof the surrounding circumstances?
(43:23):
And is there anyone, the Bar association,
any neutral agency that couldmediate this political dispute?
>> Kharis Templeman (43:32):
Yeah, Lev, you want to kick us off?
>> Lev Nachman (43:35):
Sure.
So I think it's worth notingthat there's quite a few people,
especially from the green leaning camp,who have very much Highlighted
that this isn't just a matterof democracy, it's messy.
It's a matter of no, we're freezingour own country's institutions.
(43:55):
At a time when the PRC has made itincreasingly clear that their ambitions
for Taiwan are becoming more andmore imminent.
So Taiwan, as I know everyone here knows,
doesn't have the luxury of time to justsort of figure this out as we go along.
The more Taiwan becomes paralyzed,
the easier the PRC has tosell itself to the world.
(44:16):
And importantly to I think a lot ofblue leaning voters in Taiwan there.
There were protests by the Taiwan Barassociation against this.
There was protest, there have beenprotests pretty much nonstop Protests
against all of this have startedsince before Lai was president.
And unfortunately a lot ofthe protests had to be partisan.
(44:39):
So if you're green leaning, you're atthe protests and if you're blue leaning,
you're not at the protests.
The way that these protests are nowsort of manifesting is through recalls.
So the parties have decided that the bestway to channel this sort of civil society
energy is to try to recalleach other's politicians.
I don't think that's a particularlyeffective solution to any of this, but
(45:00):
that is the solution thatthe parties are going with.
I think that there's a lotof people who do recognize,
Larry, your frustration of why isthere no possibility to compromise.
But no, I do not think that there is areal drive by either party to compromise.
Instead both are looking for
retaliatory measures like recalls>> Kharis Templeman: Tianju.
>> Chien-Chin Lin (45:23):
Yeah, of course as Larry just said, there are some calls that
ask or that urge President Laito nominate more neutral guys.
Some even suggest that he should nominateformer President Ma Ying Jeou and
former President Tsai Ing Wento the bench.
Because they have law degrees andthey are former just like friends like.
(45:45):
But I'm not sure if thisworks because as that or
some Weijin just mentioned that ttheKMT just vetoed all nominations
including some that are perceivedneutral and some are career judges.
They are on the ordinary course fortheir lives and they.
And one of them even support oreven I would say even support death
(46:09):
penalty which is consistent with whatKMT is but still she got voted down.
So it's not really andI guess it's not really like so
long as you nominatenominate neutral guys,
you will got, you will got a full bench.
It's not necessary, it's not guaranteed.
(46:30):
And the other issue is that becausethe legislature is they vote
on candidates one by one.
S they do not vote on them in a packagewhich means that if you nominate
like you know three blue guys andfour green guys.
Let's say it could end up the MTlegislatures they simply you know
voted down the four guysthe four green guys instead of so
(46:53):
there's no guarantee that the exchangewould be successful I guess
that's one risk President I wasestimating so that's my take.
>> Kharis Templeman (47:03):
Okay Wei Tang >> Weitseng Chen
guess I just emphasized my point whichis in the past both in Taiwan and
South Korea the Constitutional Courtplays a crucial role
as a referee in thispartisan conflicts right.
(47:26):
And earlier for example you know when in
the permission against Chen Shui Bian's
assassination attempt the retaliation from
the Legislative Yuan is horrible, right?
They cut off the justice salaries andbudgets and
(47:49):
then later on the Constitutional Courtstood up right and say well this kind of
law that made Constitutional Court nonfunctionable is unconstitutional, right?
So they sell themselves, andthis time, same, all right?
I know there's a debate withinthe court whether they should use
(48:09):
the similar approach, right?
Saying, well, this kind of supermajority with a fixed number effectively
made the court non-functionable, right?
Can we declare it unconstitutional?
But the justice majority says no,all right?
They don't want to deal with politics.
So the more unwilling theyare to deal with politics,
(48:30):
the more vulnerable they become,all right?
That's the situation now.
So, I guess it's a purepolitical negotiation instead
of judicial issue at this moment.
But, given the current largescale recalls across the country,
both parties have no incentive tosit down and to talk, all right?
(48:53):
That's not the ideal situation.
So let me, I want to kind of step back and
put this in historical perspective.
We've brought up the Chen Shui-bianera a fair amount,
which is the one other timewe had divided government.
And that era has, I think,a well deserved reputation as being
quite chaotic,featuring deep political polarization.
(49:18):
I don't know if we're at Chen Shui Bianlevels now in Taiwan, but
we're getting close, it feels like.
But there is an underappreciated, I think,positive element of the Chun era,
which is that there was quite a bit ofinstitutional reform during that era.
There was the creation ofthese independent commissions,
the change inthe Constitutional Court Organic Act.
(49:43):
Is there room for some kind of broaderinstitutional reform that would
change a bunch of things at the sametime that both sides could get behind?
Is there, at least in theory,the possibility?
Because it seems to me right now theinstitutions of the ROC on Taiwan are not
well designed for an oppositioncontrolling the legislature and
(50:04):
the ruling party,just controlling the executive.
And that should be obvious to everybody.
And so I'm wondering if there is a kindof grand bargain that could get Taiwan
out of this particularstalemate right now.
>> Lev Nachman (50:18):
So, unfortunately, there are institutional changes being made, but
they're arguably counterproductive.
So, you know, yeah, you know, you do haveinstitutional changes to the legislative
UI now where legislators havemore powers now, you know,
you have changes to the courts andyou know, there's debates about the nc,
the NCC that we talked about, andwe don't even need to bring up the budget.
(50:38):
But you know, there's a lot going on.
There's rumors always about,can there be a grand bargain?
There's a rumor that William Lai is gonnameet with Han Guo Yu to talk about saying,
if we back off on recalls,maybe you can nudge on the budget, but
how likely is that going?
(50:59):
I mean, which seems to me like a veryreasonable compromise on some level.
But I just, I worry that partisanpolitics are going to kick in and
that the mood these days is just to be asretaliatory and aggressive as possible.
And I hope that there is space for that.
But these days it doesn'tseem particularly likely.
>> Kharis Templeman (51:22):
Yeah, okay.
Jianzhi.
>> Chien-Chin Lin (51:25):
I think which is what I actually wrote a paper in
the Hoover Institute, actually,which is why I argue,
I think one easy institutional reformis that you may consider raising
the threshold, the decisionmaking threshold a little bit.
Not, you know,a fixed number of nine people, but
you can consider raising it in three,like a 2/3.
And that was the case duringthe Chen Shui-bian era.
(51:47):
Which is why the Taiwan Congressionalcourt was considered as more neutral at
that time, because it requiredthe consent of two-thirds.
Which means that you can say arguablygreen justice need to negotiate with,
you know, moderate justice or even,you know, blue justice in a sense.
And two-thirds on the one hand makes surethat there will not be radical opinions of
(52:11):
the court because you need to compromiseunder a two super majority threshold.
And on the other hand, two thirds isokay in the sense that it keeps the work
functioning orat least it will not be paralyzed.
It could delay, could make the quorumless efficient because you need a two
thirds and there will be some negotiationbetween those justice of different
(52:33):
at different spectrums.
And this is why the current,or you can say
the Congress was hostileto the constituent court,
because currently or before the amendment,
it requires a simple majority.
(52:53):
And when it requires simple majority,you can say the court is more likely or
more vulnerable to the accusation ofpartisanship or something like this.
And also I think the easiest way toinstitutional reform is you can raise
the bar to some extent, not to,you know, it's unconstitutional if you
raise the bar to like, I don't know,10 out of 15 or fixed number.
(53:17):
But two-third is a numberthat was considerate.
That's my two cents.
>> Kharis Templeman (53:22):
Great.
Let me get Admiral Ellis in here forthe last question, and
then we'll do one final wrap up.
>> Admiral Ellis (53:29):
Yeah, thanks Carson, and thanks to the panelists.
A great conversation and one thathas been very enlightening for me.
Can you hear me?All right, I see my picture is frozen.
My question is the old saying inthe US Is all politics are local.
In Taiwan, no politics are local.
As Larry said in his remarks, they'reglobal, and they're playing out in a court
(53:52):
that perhaps the people of Taiwan are notaware of or particularly concerned about.
But.But I think very much they should be,
because those of us thatare friends of Taiwan, and
I certainly count myself in that campafter decades of that relationship,
have always admired andtouted the independent character,
(54:17):
the stable democracy, the model forthe region, if not the world,
the ranking in the globaldemocratic indexes and the like.
This is making that conversationa lot more difficult.
Is there a popular awareness of this?
Do the parties speak for the people?
(54:37):
Are people concerned aboutthe optics associated with this?
Particularly in a time where youcould perhaps candidly say we have
a US Administration that's prone to snapdecisions and quick policy judgments and
the like, that might tend inways that have dramatic and
perhaps unappreciated consequences.
(54:57):
Again, that's not all on the shoulders ofthe people of Taiwan or its legislators or
its judicial system, for that matter.
But the grand bargain that Lev was talkingabout, whether it's constitutional reform,
or judicial interpretation, or,heaven forbid, political consensus, and
as an American, I'm certainly not arguingthat we're a paragon of virtue in that.
(55:21):
Is there any sense that this is moreserious than we've seen in the past,
that it's gone beyond the local,that it could have, you know,
implications on a global scale thatperhaps aren't fully appreciated?
I'd welcome your perspective on that.
Thank you.
>> Kharis Templeman (55:36):
And since I didn't get to Weitzeng on the last round,
let me start with you,Weitzeng, your thoughts.
>> Weitseng Chen (55:41):
Yeah, I really appreciate this geopolitical sentiment
toward Taiwan, all right?
I guess if I have the magic power to do,to pick one reform and
make it come true of tomorrow,I will deal with misinformation.
I was talking to a highcourt judge yesterday.
Today and ask him to comparethe partisan conflicts now to
(56:05):
10 years ago,20 years ago on the Chen Shui-bian era.
And the response is worse, it's worse.
And there's no limitation forboth parties to fight until the final end.
And one reason is from his perspective,is about misinformation.
(56:27):
For example, some people are calling foropen trial for
KE Wenzhe, the former chairperson of TPP.
And literally no oneunderstand what is that about,
it's open a public trial all the timeever since for Mossa trial in 1979.
But this kind of misinformationhas to be dealt with,
(56:50):
otherwise a public discourse,it's just not possible to be generated.
Right.
But sadly, that's,I guess it's a crucial issue from
a geopolitical perspectivemeans of information.
>> Kharis Templeman (57:05):
[INAUDIBLE], your final thoughts?
>> Chien-Chin Lin (57:08):
Yeah, I just mentioned a bit that I think one issue I'm
concerning is about absentee voting.
I think the TPP andarguably the PMT are trying to advance or
to propose absentee voting in Taiwan,
which I don't think is a goodidea given that there are like
(57:28):
millions of Taiwanese living andworking in mainland China.
And there are a bunch of questionsassociated with absentee voting,
and United States is fully aware of this.
So particularly in the context of Taiwan,
I would say probably against this,even though, but unfortunately,
(57:49):
the P claim essentially canget everything they want.
So this is one thing I would like to raise>> Kharis Templeman: that that is
probably.
Worth its own session right there.
And I will put that on our,on our list of potential future talks.
Lev, you have the lastword with this panel?
>> Lev Nachman (58:07):
Yeah, super fast.
You know, I asked a colleague of mine, youknow, is this normal chaos in Taiwan or
is this a kind of a specialkind of chaos in Taiwan?
And I think we kind of came tothe conclusion that we're getting towards
special chaos, not because, you know, thechallenges we're seeing are new to Taiwan.
We see fights in the legislators,we've seen extreme partisanship.
It's the timing of the geopoliticsthat Taiwan currently exists,
whether it's the United States orwhether it's the prc.
(58:30):
This is not a good time forTaiwan to have to deal with these issues.
Ideally, we would deal with these thingsat a more stable geopolitical time, but
Taiwan unfortunately doesn'thave that luxury today.
And I think that's what makes thisfeel more chaotic than normal,
is that we're having to fix institutionsin Taiwan at a time with so
much geopolitical uncertainty.
>> Kharis Templeman (58:48):
All right, well, the Taiwanese have to end on a more positive
note, have a remarkable pattern overthe years of muddling through and
finding a way to survive a lot ofchaos and ambiguity over the decades.
So I hope that's what ends up happeningin this particular moment as well.
(59:09):
Just want to thank our audience forsticking with us tonight.
You've been listening to the projecton Taiwan in the Indo Pacific region.
Our panelists Lev Nachman, Jiang Zhi Lin,and Wei Tsung Chun have joined us for
an hour long conversation on Taiwan'sConstitutional Court under divided
government.
Thanks again.
I'm Karas Templeman,I'm wishing you all good night.
>> Admiral Ellis (59:30):
Thank you all.
>> Weitseng Chen (59:31):
Thank you.
>> Larry Diamond (59:32):
Thank you.
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