I’ve finally gotten around to putting together survey results for this year’s exciting mayoral races (see link on the right-hand side bar). I’m looking forward to lots of crazy plot twists in the next few months, as befits the crazy year we have been through.
On Monday, June 23, I participated in a conference on legislative oversight at the Brookings Institute in Washington DC. The conference received quite a bit of media coverage, though not necessarily on the topic of legislative oversight. Keynote speaker Su Chi criticized the legislature’s current internal rules, especially the practice of caucus consultations (政黨協商). Caucus consultations are supposedly the darkest corner of Taiwan’s political system. They thwart the will of the majority, enhance corruption, make Speaker Wang into a dictator, erode traditional values of honesty, chastity, and filial piety, and make ice cream taste bitter. (Maybe I’m remembering Su’s talk a bit incorrectly.) Of course, this is all part of the Ma government’s ongoing campaign to purge Wang and tighten its grip over the legislature in an effort to push through its version of the Services Trade Agreement (and other legislation). Caucus consultations are an easy target, but calling for their abolition is more about political infighting than improving the legislative process. I’m not a big fan of caucus consultations, but they exist within a certain context. In order to eliminate this step, you have to also overhaul several other parts of the legislative process. I’ll discuss that some other time in some other post. For now, I’ll note that no one at the Brookings conference disagreed with Su Chi because we were discussing legislative oversight, not caucus consultations.
In this post, I’m going to summarize my presentation. I was asked to discuss the pros and cons of various proposals for the Cross-Straits Agreements Monitoring Framework 兩岸協議監督條例 (CSAMF).
The first thing I learned in preparing for the talk was that oversight may mean something very different in Taiwan than in the US context. In American politics, oversight refers to how Congress monitors, guides, and controls the executive branch as the executive wields the powers delegated to it by Congress. Congress is the source of authority, typically writing a law saying that the executive may do something in order to achieve a certain goal. As such, oversight involves defining policy goals. In Taiwan, most people do not see oversight in the same terms. The Executive Yuan (EY) is given much broader authority to define policy goals, and many people consider the Legislative Yuan’s (LY) job simply to be to scrutinize EY actions in order to ensure that there is no corruption or other obvious failing in implementation. Scrutiny is, of course, also a critical element in American notions of oversight, but the power to set policy goals is much more important. I am not arguing that there is a consensus either in Taiwan or in the USA, but merely that actors in the USA are much more likely to see the legislature’s attempts to guide politics as legitimate than their counterparts in Taiwan.
This basic philosophical question of the appropriate balance of power between the legislature and the executive is evident in the various CSAMF bills. As of last week, five bills had been introduced since the beginning of April, by the EY, TSU, You Mei-nu 尤美女, Li Ying-yuan 李應元, and Chiang Chi-chen 江啟臣. The DPP introduced a bill in January, but that was long before the Sunflower Movement changed everything. The DPP has promised to introduce a new bill, but they had not done so before I left for DC last Saturday.
Of the five current bills, the two most important are the EY bill and the You bill. You is a DPP party list legislator, and the bill was cosigned by most members of the DPP caucus, but this is not a DPP bill. Rather, the You bill represents the Sunflower Movement. It was written primarily by Lai Chung-chiang, a lawyer closely associated with the students, and it presents the Sunflower vision of a strong legislature. Lai explicitly modeled his bill on the American and Korean practices, taking the strongest powers of the legislature from each country. In the Sunflower bill (as I will call it from here on), the legislature is active at every step of the process, laying out goals, deciding how the process will unfold, and actively managing the negotiations. This is in marked contrast to the EY bill, which states explicitly in the proposal that the EY has the power to decide and execute policy and the LY only has the power to oversee (ie: scrutinize) and ratify. In fact, the EY bill does more to restrict the LY than to empower it.
We do not yet have a DPP bill, but based on my limited discussions I will speculate about the DPP’s stance. Remember that this is speculation and may not correctly represent the DPP’s actual positions.
On the philosophical question of an appropriate balance of power between the LY and EY, I got the impression that the DPP wants the legislature to be stronger than it currently is, but not that much stronger. Fundamentally, the DPP seems to accept the idea that the EY should lead the policy process.
Let’s look at several concrete aspects of the various bills.
All the bills suggest that the EY has the responsibility to report to the LY. In the EY bill, this is basically the only responsibility the EY has toward the LY. The EY bill states that the EY has the responsibility to report, explain, and answer questions. It does not indicate that the EY has any responsibility to heed the reactions to these reports. Rather, the impression is simply that the EY is informing; the communication seems to be in one direction only. The Sunflower bill looks quite different. It states that the LY can require the EY to report at several stages. Note that now the LY has the initiative to require the report. Moreover, the LY can reject the report or require changes to the EY’s policy direction. Rather than simply listening passively, the LY is an equal (maybe dominant) partner determining the policy line. Further, the Sunflower bill provides for administrative and civil penalties if bureaucrats ignore LY instructions.
One of the thorniest questions is how to deal with associated legislation. Currently, if other changes can be made by executive order, the EY can simply inform the LY of the associated legal changes. These items are sent to the LY “for record” (備查案). Such items are typically read out in committee, but that is all that needs to be done. No vote is taken. The EY makes the decision as to which items can be handled by executive order and which need a law to be amended. This is a fairly large gray area, and the Ma administration has used its leeway aggressively. For example, all of the agreements made before ECFA was signed were simply sent to the legislature for record. This caused quite a bit of consternation to many in the green camp who felt that such important changes needed the approval of the legislature. (Don’t blame Ma for the current rules. They were set up for maximum short-term flexibility under President Chen, whose team was infamously unable to see into the future. This is an important point to remember when the new set of rules is made.)
The EY basically maintains the current system. However, it further strengthens the EY position by adding a time limit to items sent for record. Under the EY bill, if the LY doesn’t process items for record within six months, they are automatically considered approved. That is, the LY cannot passively stall; if it wants to reject an agreement it has to actively vote against it. (A bill introduced by KMT legislator Chiang Chi-chen 江啟臣 is even more extreme: All of the associated legislation is to be considered along with the main agreement, and all of it is voted on in a single package vote.)
The Sunflower bill is radically different. It explicitly says that the main agreement cannot go into effect until all associated legislation is passed, and there is no time limit for this to occur. The EY can still decide what is sent to the LY for record, but the LY can change any item from for record to for consideration (審查案)(requiring a vote) with only a 1/3 vote. Moreover, if the legislature does not process a for record item within three months, it automatically becomes a for consideration item. In short, the LY can passively veto any agreement simply by refusing to act on associated legislation.
The DPP position is unclear. My impression is that the DPP’s main concern is simply to expand the range of items sent as for consideration. That is, anything that really matters should need the active approval of the legislature.
Both the EY and Sunflower bill allow for bodies other than the LY to engage in oversight. The EY bill stresses the importance of national security, and insists that every agreement should be thoroughly reviewed by the National Security Council and also by expert committees. There are two interesting points here. One, the EY bill gives more oversight power to these bodies than to the LY. Whereas the LY is only allowed to listen to reports, the NSC and expert bodies are supposed to weigh in with concrete suggestions that the EY must then take into account. Two, if you don’t already trust the EY, these bodies won’t reassure you very much. The NSC is appointed by the president, so if the president strongly wants something to pass, the NSC probably will not stand in the way. The expert bodies are to have 30 members. 27 will be appointed by parties proportional to their legislative delegations, and the other three will be appointed by the EY. That is, the EY will have a reinforced majority on these expert bodies. (At any rate, expert bodies generally don’t cause problems for the authorities.) In sum, the EY claims that citizens should feel confident that any security issues will be carefully considered by the EY and its allies.
(One wonders if the drive for “security” is really cover for lack of transparency.)
The Sunflower bill places less emphasis on security and more on impact assessments, especially economic, environmental, and human rights impacts. It does this by empowering the LY to hold a series of public hearings, inviting a variety of societal actors to express their opinions. Note that the LY, not the EY, is running the process in this version. This strategy is directly taken from the US Congress, which places great importance on setting up “fire alarms.” (Congress empowers constituents to be able to investigate proposed legislation and alert it whenever they see something that they don’t like. This way members of Congress don’t have to do the hard work themselves.)
Should the legislature have the right to demand changes to an agreement and/or reopening of negotiations? The EY bill states that the LY has the power to accept or reject, not to amend. This position is based on the idea that in multilateral international agreements, any demand for amendments would require reopening negotiations with all signatories, many of whom may already have started their own ratification process. In such cases, demands for amendment are tantamount to rejection.
This logic is a bit disingenuous in the case of cross-straits agreements. Agreements between Taiwan and China are bilateral, not multilateral. If one side demands a change, there is nothing to stop the other side from accepting that change or demanding its own counterchanges. The multilateral necessity for an up or down vote is simply not present.
The Lai bill clearly rejects the EY position. The LY is given the power to demand revisions at every stage. Before the negotiations start, the LY can demand changes to the goals. During negotiations, the LY can demand changes. After the agreement has been signed, the LY can demand that the negotiations be reopened.
The DPP position seems to be somewhere in the middle. The LY should be able to ask for changes. However, practically speaking, this power is unlikely to be used. What the DPP really wants is for the EY to listen to LY demands (formally or informally) earlier in the process and to incorporate LY positions into its own goals. That is, the EY and LY need more communication.
Finally, there is the question of whether political agreements should be treated differently from economic agreements. In the EY bill, there is no distinction. In the Sunflower bill, the threshold is much higher for anything that touches on questions of sovereignty (and a host of other “important” categories). These agreements would need 3/4 approval in the legislature, and then they would need to be approved by the general public in a referendum.
Regardless of whether the legislature approves the Services Trade Agreement, a monitoring framework is needed. My personal opinion is that the EY bill gives far too much leeway to the EY. It is only a slight exaggeration to say that there is more “oversight” in the title of the EY bill than in all the actual articles combined. The LY needs to be involved in order to legitimize the process. Much of the controversy over the current Services Trade Agreement has been caused precisely because the EY seems insistent on monopolizing the entire process. At the same time, I do not think it is practical or desirable to set up an American-style co-equal partnership between the LY and EY. The LY simply doesn’t have the capacity at present to negotiate agreements, and I worry about whether individual legislators would be able to extract too many concessions for their own personal gain. The system will work best if the EY leads the process but also allows a substantial amount of input and supervision from the LY.
 I have translated政黨協商 as Inter-Party Negotiations. My colleague Fang-yi Chiou prefers Party Negotiation Mechanism. I will stick with Su Chi’s term in this post.
Why are there so many protests? Of course, there are proximate causes for each incident, but I’m interested in a deeper structural explanation. I think the real problem is that Taiwan’s government is too majoritarian. It is perhaps not news that a majority can determine policy here, but I wonder if people realize how the system has shifted over the past two decades. I think it is fair to say that Taiwan is currently more majoritarian than at any time since Chiang Ching-kuo was president.
What does it mean to say that Taiwan is majoritarian? In a majoritarian system, minorities have few opportunities to block the majority, or even to negotiate for slight changes. Moreover, majoritarian systems often create majorities out of mere pluralities. That is, fragmented groups are pushed together, and then the resulting majority is endowed with tremendous power. The majority retains this power even when some of the original coalition would rather withdraw. In short, the danger of majoritarianism is that it can bestow more power on the incumbents than their societal support warrants. When a majority party has the power to push through policies without regard for minority opinions, the losers have little recourse but to take to the streets. Working within the system ceases to be a viable option.
There are several sources of majoritarianism. I’m an electoral systems specialist, so of course I will start with electoral rules.
Taiwan’s president is elected by a simple plurality. That is, the winning candidate does not need to break 50%; he or she only needs to win more votes than any other candidate. Perhaps counterintuitively, plurality elections tend to be more majoritarian than majority systems (which typically have a runoff if no one gets 50% in the first round). In majority systems, small parties have a chance to demonstrate their strength in the first round, and they can use this demonstrated strength as a bargaining chip for concessions from big parties in the second round. In plurality systems, there is only one round, and voting for a small party can potentially throw the election to the big party candidate from the other camp. Voters thus tend not to be willing to support small party candidates at all. The result is that votes are focused on the two major candidates, whether or not voters really prefer smaller parties or less popular candidates. This can give major parties (and neutral observers) an inflated sense of how much support they have in society.
The legislative electoral system also has strong majoritarian tendencies. Taiwan’s current mixed member majoritarian (MMM) system has 73 single seat districts, 6 multi-member seats for Aborigines, and 34 party list seats. Numerically, the single seat districts dominate the system, and they are elected by plurality rule. Just as with the presidential election, this tends to exaggerate the popularity of the top two contestants. The party list seats are elected by proportional representation and should be friendlier to smaller parties. In the 2012 elections, the two big parties combined for 93% of the votes in the single seat districts, but only 79% in the party list tier. Recall that the list tier elects fewer than 30% of the total seats, so a party with 10% of the list tier votes will only three or four seats. This meager payoff is a severe disincentive for ambitious politicians to organize a new party. Even if a politician is willing to try, potential backers will be hesitant to bankroll, volunteer for, or invest too much effort in the new party. As a result, the party list tier does not do very much to counteract the majoritarian tendencies of the single seat districts.
Why are small legislative parties important? A small party may start out as a loyal party of the president’s legislative coalition. However, if the president becomes unpopular, small parties are usually the first legislators to break ranks. Imagine how much President Ma’s power would be curtailed today if the KMT and PFP had 53 and 15 seats instead of 65 and 3. With Ma’s unpopularity, the PFP would almost certainly withhold support in the legislature unless the KMT made significant concessions to PFP demands.
The old electoral system used from 1992 to 2004 was far less majoritarian. The multi-member districts using the single non-transferable vote (SNTV) rule allowed smaller parties to win seats much more easily. For example in 2004, the PFP won 13.9% of the votes and 15.1% of the seats while the TSU won 7.8% of the votes and 5.3% of the seats. These semi-proportional outcomes made it worthwhile to try to take advantage of any divisions in public opinion by organizing smaller parties.
Many people have proposed that Taiwan should change to a German-style mixed member proportional (MMP) system. This would also significantly reduce the majoritarian tendencies engendered by the legislative electoral rules.
Electoral rules are an important source of majoritarianism, but there are others as well. One source is increasing party cohesiveness in the legislature. During the democratic era, both the KMT and DPP have steadily become more and more disciplined. In roll call votes in the Second and Third Terms (1993-1998), legislators defected from their party line over 3% of the time. In recent years, defections are well under 1%. More importantly, abstentions have decreased. In the early 1990s, KMT and DPP legislators abstained from nearly 30% of votes. Notably, the KMT suffered higher defection and abstention rates than the DPP throughout the 1990s. Today, this is closer to 10% of all votes. Relatively poor party discipline meant that the KMT did not have a firm grasp on the legislature after 1992. When the KMT wanted to push things through, it was not always able to mobilize enough party legislators to do so. After 1996, when the KMT was reduced to a mere three-seat majority, it effectively lost control of the legislature. KMT legislators routinely blackmailed their party, threatening not to show up unless the party gave them some sort of payoff. In other words, individual party members had much more leverage over the party’s eventual decisions, and they could force the party to modify some of its more unpopular proposals. Today, with much higher levels of party discipline, individual KMT legislators have far less opportunity to force party leaders to listen to their demands. Power is thus much more concentrated in the hands of the party leadership.
On a related point, the KMT is now less factionalized than it has been in the past. In the early 1990s, when the KMT still had a relatively large majority in the legislature, it was torn by the mainstream / non-mainstream division. This division was serious enough that the President Lee had to appoint several premiers from the non-mainstream faction. Premier Hau and President Lee were more political enemies than allies. President Lee did not get a firm grasp on power within the KMT until after Hau resigned in early 1993 and the New Party splintered off in the summer of 1993. Even then, he had to be wary of non-mainstream faction counterattacks. In contrast to the mainstream / non-mainstream struggles of the early 1990s, the current clash between Ma and Wang has not forced all party members to openly take sides. Most legislators have simply kept their heads low and tried to stay on good terms with both sides.
The electoral calendar also leads to higher levels of majoritarianism. In the 1990s, there were major elections nearly every year. 1991: National Assembly; 1992: legislature; 1993: county governments; 1994: Taiwan governor and municipal mayors; 1995: legislature; 1996: president and National Assembly; 1997: county governments; 1998 municipal mayors. Because there was always an election on the horizon, governments had to continually worry about public opinion. In fact, there was a lot of grousing that there were too many elections. Many in the KMT complained that the government was unable to make good long-term policy because it was always worried about short-term public opinion. The current electoral calendar is completely different. We now only have two elections in any given four year period. All the national elections are combined into one big election day, and all the local elections are combined into a second big election day. Moreover, the local elections come relatively late, roughly 34 months into the presidential cycle. Because of this, presidents can simply ignore public opinion for the first half of their term. After all, there will probably be time for it to bounce back. And even if the president’s party does poorly in local elections, these do not affect the balance of power in the national government. There is no way for the public to restrain the president’s party in the legislature during the term. They must wait a full four years, at which time the cycle starts anew. Policymakers have thus attained that 1990s wish: they can make decisions without worrying about the impact on public opinion. Unfortunately, while policymakers like to think that they hold a unique wisdom and make good decisions, unpopular policies are often unpopular for a reason. One of the primary aims of democracy is precisely to prevent policymakers from ramming through policies without considering their adverse effects on large groups of people.
It probably goes without saying that divided government diffuses power. When one party holds the presidency and another controls the legislature, unhappy people on both sides of the divide have a friendly institution willing to listen to their complaints.
In other countries, there are other mechanisms to spread power more broadly. Many countries have bicameral legislatures. A second house elected by a different method makes it harder for a small plurality to control the government so thoroughly. My colleague Jih-wen Lin has shown that government coalitions in Japan tend to include extra parties precisely because the governing coalition wants to maintain power in the upper house.
Some countries have federal systems. In a federal system, strong regional governments can resist unpopular policy initiatives from the national government. In unitary systems like Taiwan, local governments do not have the right to pass laws, and they often do not have independent fiscal powers. This severely limits their capacity to serve as a check on the national majority party.
An independent court system can check majority powers. In most liberal democracies, minorities can turn to the courts to protect their interests. Unfortunately, the judicial system is one of the weakest parts of Taiwan’s government. The judiciary rarely dares stick its nose into controversial issues until they have festered for so long that society has already reached a consensus. For example, an independent judiciary almost certainly would have declared the Assembly and Parade Act unconstitutional long ago. There is good reason for the judiciary’s reticence: it enjoys very low levels of public confidence. There is widespread belief that the judiciary, especially at the top levels, follows instructions from the KMT. At the very least, few people believe the judiciary is neutral. My colleague Chung-li Wu is currently doing interesting research on systematic political biases in judicial outcomes.
Regional cleavages can disperse power. If different groups have distinct regional power bases, a multi-party system can result. In India, for example, regional parties dominate many states, and the national parliament has two, large, fractious coalitions. In Taiwan, the KMT and DPP are the two major parties in almost every corner of the country (except Jinmen and Matsu).
Supermajoritarian rules can also restrain majorities. For example, in the US Senate, the filibuster rule allows minorities to block (or severely slow down) proposals if they can muster 40% of the votes. Since minorities can usually get 40% of the votes, majorities have a strong incentive to modify their proposals to make them more acceptable to the minority. In Taiwan, a simple majority is required to win votes. However, there is some degree of consensualism in other legislative stages. For example, inter-party negotiations require the assent of all party caucuses. Further, in recent years, opposition parties have taken to occupying the podium to stop votes from being held, much in the same way that minorities in the US Senate uses the filibuster (or the mere threat of the filibuster) to prevent votes from being held until the majority compromises a bit. However, tactics such as occupying the podium are not recognized in the formal legislative rules and are not generally seen as legitimate opposition tactics.
All in all, power is highly concentrated in today’s Taiwan. This is the result of several factors, some of which have been slowly building for decades and some of which suddenly snapped into place a few years ago. The aggregate effect is that the KMT party leadership currently has more actual power than at any time since Chiang Ching-kuo was alive. This is great for the winners. However, with unassailable power, the KMT leadership has very little incentive to worry about public opinion. It can push its favored policies without regard for public backlash. Even worse, because it does not have to worry about public opinion, there is no incentive to do the hard work of selling policies to the public and building a solid consensus to support them. We have seen this quite vividly with the cross straits services trade agreement. Rather than trying from the outset to build a pact that could win broad support and then going out and energetically building that support, the government has preferred to keep the pact out of the public eye as much as possible. This may save the KMT a lot of effort, but it is not necessary healthy for the system. From opponents’ point of view, there are almost no points of access from which they can try to modify or block government policies. The opposition parties in the legislature are impotent, the ruling party in the legislature follows orders from above, the courts are useless, local governments only have limited power, and there is usually no upcoming election to throw their energies into. There simply is no way to work within the system to stop policies that they do not like. All they can do is go out onto the street. When even street protests seem useless, even more radical steps are on the horizon.
If we are indeed in a “constitutional moment” when it is possible to change the basic architecture of the system, one of the top priorities should be to shift the system in a more consensual direction. The goal should be to encourage minorities to express their opposition within the normal political institutions, and this requires giving them enough power that they can achieve moderate successes. Minorities should not have absolute vetoes, but neither should they be entirely powerless. At present, the system has become so majoritarian that it is threatening to rip itself apart.
Yesterday the KMT organized a small anti anti CSSTA event. The event featured worried mothers asking their children to go home. The demonstrators also complained that the police were tired.
I rather doubt that many of the participants were actually mothers of protesting students. Still, it’s amusing to think about the life lessons these “mothers” are teaching their “children.” For example, “Don’t stand up for your beliefs.” “When something is tiring, you should give up.” “All major national decisions should be decided by what causes the least inconvenience to the police.” How inspiring!
Today at the big demonstration, I saw a sticker that is probably a more accurate description of how students’ mothers actually feel. It said, “政府動粗；媽媽生氣了！！Violent Gov’t Angers Mothers.”
When the students forced their way into the Executive Yuan compound yesterday, they were forcing a confrontation. All week long, Premier Jiang and President Ma had been encouraging Speaker Wang to use force to clear the legislature. The students had to know that Ma and Jiang would not allow them to occupy the EY. Further, the executive branch is a little different in nature than the legislative branch. You can shut down the legislature for a few days without any dire consequences, but the executive branch has day-to-day operations. My personal opinion is that the president and premier had good cause to order the police to remove the student protesters from the EY compound. (When I think about it, I’m still shocked that force hasn’t been employed to clear the legislature. It is extraordinary for any government to allow demonstrators to occupy critical government buildings.)
Forcing a confrontation is not necessarily a problem for practitioners of non-violent resistance. (If I recall correctly, Gandhi did not like the term “passive resistance.” There is nothing passive about it.) One of the basic ideas of non-violent resistance is to force authorities to suppress you. By accepting whatever violence they impose upon your person without retaliation, you demonstrate your commitment to a cause and establish your moral authority. You are trying to cause observers, including the authorities who repress you, to reflect on why you believe so strongly in something and question whether or not they are justified in using physical force to compel you to follow their rules or orders. You also send a message that you are resolutely committed to your position, so the authorities should not expect your resistance to fade away simply because they have repressed you one time. Like a hunger strike, non-violent resistance relies on your willingness to endure physical suffering to communicate the seriousness of the injustice.
The most difficult thing about non-violent resistance is the non-violence part. It is extremely hard not to defend yourself or fight back when you are being physically attacked. I was very impressed with the way the demonstrators in the EY courtyard conducted themselves last night. I saw very few instances of protesters retaliating. They certainly resisted: by lying down, locking arms, and trying hard not to be pulled away, they were defying police orders and efforts. However, almost none of the protesters lashed out physically at the police. In fact, the students were so successful in resisting arrest that the police had to step up their level of physical coercion by bringing in water cannons. They were not going to be able to clear the complex by dawn by simply pulling apart protesters one by one. Again, this is how non-violent protest is supposed to work. You are trying to force the authorities to suppress you as vividly and brutally as possible. By accepting higher levels of suffering, you make a stronger statement. The students last night made a very loud statement with their actions.
[Note: The most significant retaliation I saw was directed toward the water cannon trucks. Demonstrators pelted them with small (relatively harmless) objects, such as plastic water bottles. Two of the three trucks got flat tires. No one has explained what happened, but it is reasonable to suspect that someone in the crowd punctured the tires. I do not consider violence like this toward a physical object (the trucks) to be as significant as the restraint showed toward humans (the police).]
From the other side, the police were given orders to clear the compound using whatever non-lethal force they deemed necessary. [I saw no hints of preparation to use lethal force, and I can’t imagine that President Ma or Premier Jiang even considered that option.] Of course, the police are supposed to use the absolute minimum level of violence necessary. However, this was a fundamentally physical confrontation, and their first order was to get the job done. Some excessive use of force had to be expected as different people made different judgment calls on the ground. The responsibility for any excessive violence belongs entirely to Ma and Jiang, not to the police. When Ma and Jiang ordered the operation, they authorized the violence.
For the most part, I don’t think the violence got out of control. The police had to use some force, and they did. In fact, the students were resolute and solid enough that the police had to escalate their force. I did not see what went on beyond the view of the TV cameras, and there are indications that the police were less restrained in their use of force in those areas. However, I generally think the police used appropriate levels of coercive power to carry out their orders in clearing the compound.
In short, the students forced a confrontation by occupying the legislature. Ma and Jiang made a justifiable choice to use force to clear them out. Governments simply cannot let protesters take over critical public offices, especially ones that are responsible for the daily operations of the state. The police were given orders, and they carried out their orders in a more or less professional manner. The students made a strong statement of their moral authority, resoluteness, and commitment to their cause. There were no riots, no deaths, and minimal property damage. The students, the police, and Ma and Jiang all faced a challenge, and I think they all met that challenge reasonably well.
There is one exception. There is a fundamental distinction between protests inside the EY and protests out on the street. Ma and Jiang had a clear justification for removing protesters from the EY building and courtyard. However, there is far, far less justification for removing protesters from the streets outside the EY. People have a fundamental right to assembly; indeed the Council of Grand Justices just issued a constitutional interpretation declaring spontaneous street demonstrations to be legal. After sunrise and after the EY had been cleared out, the police demanded that people clear the streets around the EY. When the protesters did not comply, police used water cannons on them. This was excessive force against legitimate protesters. Ma and Jiang can credibly claim that the protests inside the EY were illegal; I do not believe that justification extends to protests outside the EY. Using water cannons against street protesters was an excessive, irresponsible, and unnecessary use of coercive power against citizens.
From a strategic point of view, I think the students committed a serious blunder. When they were still only in the legislature, they enjoyed high levels of public support and moral authority. I think they have probably surrendered some of that. They also had opportunities to engage in substantive debate on the CSSTA. They might have tried to focus public attention on particular parts of the pact, perhaps by taking up one specific topic every day. The focus has now shifted drastically away from any sort of substantive debate. We are now simply talking about who is right and who is wrong. This is probably working against the students since the radical students who stormed the EY allowed Ma and Jiang to redefine the students as violent and their actions as illegal. The moderates still in the legislature have far less room to maneuver now, and I don’t know that they can accomplish anything more than they already have. It is probably time for them to consider their exit strategies.
From here, we are probably moving to a new phase in which the professional politicians take center stage. Speaker Wang has started inter-party negotiations, and legislators will make the next few critical decisions, including how to define the CSSTA, how to review it, how many and what types of votes will be allowed, and so on. We haven’t heard a lot from individual legislators, especially from the KMT, about their substantive views on the CSSTA. It’s time to see if the KMT is really solidly behind this pact or not.
Yesterday students occupied the Executive Yuan. Last night, the police forcefully cleared them out. Today we are all still trying to figure out exactly what happened and what we should think about it.
First, a summary of the events as I saw them.
I was at the protests until about 2:00am. I walked around on the streets outside the EY compound, and I did not go inside. From the outside, we could not see very clearly what was happening inside. I went home and watched most of the police action on TV until about 6:00am.
I do not know how many protesters were inside the EY complex. My best guess is 2000-5000, but that is a very shaky guess.
On TV, police mostly used reasonable amounts of force. Remember, this was fundamentally a physical confrontation, so police had to use some force. For the most part, the students sat on the ground with their arms locked, the police pried them away one by one, pulled them out of the complex, and released them into the street. Every once in a while, the police used their sticks, but I did not see any of them take a swing at any protesters’ heads. Mostly the sticks were used to pry the students apart. Police also occasionally used their PVC riot shields to hit the protesters. As the night went on, the police were not making fast enough progress in clearing the complex. Their orders were to clear it by dawn, and they were not going to meet that deadline picking apart the protesters one by one.
Sometime around 3:30 or 4:00am, they began using three water cannon trucks. The water pressure was well below lethal levels. A media cameraman was knocked over, but remember that someone holding a heavy TV camera at their head level is not exactly stable. Protesters with their feet firmly planted were usually able to stand against the water. Most protesters were lying on the ground to begin with and able to withstand the water. However, the water was very effective in weakening resistance. Water saps your strength. It’s a lot harder to resist when you are cold, wet, and miserable. Some protesters, including former Premier Frank Hsieh, lost their glasses to blasts of water. After the water cannon trucks were brought in, the riot police made much faster progress in clearing the courtyard.
TV cameras were not able to record all of the action. The media was not allowed to record the progress inside the EY building. There are indications that the police were less restrained in their use of force there. Also, several protesters from the courtyard claimed that the police had hit them a few times after they were pulled away back through police lines where the cameras could not see them. From what I could see on TV, it looked to me like the police used reasonably appropriate levels of force in clearing the EY compound. However, what I couldn’t see was almost certainly more violent than what I could see.
After the EY compound was cleared, protesters remained on the streets outside. This was after dawn, and many of these protesters were older people angry at the treatment of the students. The police ordered them to clear the streets, some of which are important traffic arteries. Eventually, water cannons were used on these protesters to force them off of one of the big streets (中山南路).
No deaths have been reported. I did not see any firearms or tear gas. There were rumors of people in the crowd with tear gas canisters. (If this is correct, I suspect those people were more likely to be gang members than students. A group preparing for non-violent resistance simply does not arm its members or even allow them to be armed. I am not sure any tear gas canisters were actually used.) The NTU hospital issued a press release this morning saying that it had treated around 60 students for injuries sustained in the protests. I did not hear of any critical injuries. Injured protesters interviewed by the media generally pointed to contusions, bruises, cuts, and pains from being violently pulled.
I will write a separate post with more interpretation. For now, this is simply a statement of what I think happened.
[I began writing this post this afternoon. It reflects how my thinking has crystallized over the past few days. Most was written before tonight’s events at the Executive Yuan. I’m not yet sure how that changes my thinking.]
In my Frozen Garlic Manifesto, I claim to have one clear political bias. I am a democrat. In light of this week’s events, maybe I need to clarify that. I believe, first and foremost, in representative democracy. This belief has led me to have very deeply conflicted feelings about the student protests.
On the one hand, I am humbled and inspired by the student’s sincerity, passion, organization, self-control, and maturity. Last night, I listened to a small-scale lecture from a NTU law student rebut the KMT legal explanation for why it was legal to send the bill to the floor in the way they did. The student was thorough, careful, and utterly persuasive. These students are humbling, and they make me proud to be part of this society.
On the other hand, well, this part is more complicated.
There are two conceptually different protests. One is outside. I have no problems at all with the protests outside the legislature. I believe they are legal, justified, and I personally support just about everything they want. The protest inside the legislature is an entirely different animal.
By occupying the legislative chamber, the students have effectively suspended the normal operations of democracy. The legislature cannot act while the students are there. This is not something we should take lightly.
No matter how much popular support a protest group has, it does not have the same legitimacy as a democratically elected legislature. We simply do not allow marchers to make decisions for the general public. The public conferred the power to make public decisions on that group of 113 people through its votes in the 2012 election. The protesters outside have not gotten any such formal delegation of power from the populace. In 2006, the Red Shirt protesters mobilized hundreds of thousands of people and they had widespread public sympathy, but that did not negate the results of the 2004 election. Chen Shui-bian remained the legitimately elected president. Similarly, the 113 members of the legislature remain the only people who can make legislative decisions on behalf of the general public.
In almost all other cases, I would consider occupying the legislative chamber to be illegitimate and anti-democratic, and clearing them by force (if necessary) would be entirely appropriate. In this particular case, I think there is a small gray area, and I believe the occupation is justified. However, there are limits on how long the students can stay and what they can demand, and I am worried that they are getting dangerously close to crossing these (fuzzy) lines.
In light of the extreme importance of the Cross Straits Services Trade Agreement and the questionable way in which it was being processed in the legislature, I think it was justifiable for the students to demand a time out. This is the most important issue to come before the legislature in the six years of Ma’s presidency, and it has the potential to fundamentally reshape society. It deserves careful treatment. It was not getting careful treatment, to say the least. What the students have done is to tell the society to wake up and pay attention, the media to cover the debates in a substantive and responsible way, and the parties to stop merely grandstanding for political points or blindly following orders from above. They are telling all of us to pay attention, understand the choice, make a sober decision based on society’s best interests, and to follow the legal processes for making such a decision.
However, this implies limits. They can stay in the legislature only as long as necessary to focus society’s attention on the substantive content of the CSSTA. Moreover, they cannot demand that the legislature must pass or not pass various items. The power to legislate belongs to the 113 elected legislators and to them only.
When the students demand that the CSSTA be withdrawn and renegotiated, or that a supervisory law must be passed before the CSSTA can be passed, they are crossing a line. When they make substantive demands like this, they are effectively claiming a higher legitimacy than the legislature itself. Note that those types of demands are entirely proper when they are made on the street. However, when protesters inside the legislature make those same demands and refuse to allow the legislature to resume operations until those demands are met, they are holding democracy hostage. This is where I get off the train.
Ultimately, a critical sticking point for me is that the KMT won the 2012 elections. They have a legitimate majority in the legislature. Many people are arguing that Ma and the KMT have betrayed the voters’ intentions, but I’m having a hard time accepting that argument.
Ma (and his whole party) ran for re-election trumpeting the achievements of his first term and promising to continue on the same path. ECFA was the most important achievement of the first term. CSSTA is an extension and continuation of ECFA. There is a very good argument to be made that CSSTA is exactly what the voters should have expected Ma to do when they voted to re-elect him (and his party) in 2012. This is not the proposed peace agreement. Ma explicitly stepped away from that, promising that he would not sign a peace agreement except under very specific conditions. He never said anything similar about not wanting to further deepen the economic relationship. Ma won the election, and elections have consequences.
Over the years, I have heard people in many countries justify what I considered to be anti-democratic movements by claiming that the very essence of the country was in danger. I rejected those arguments, usually with quite a bit of disdain. I’m starting to have a little more appreciation for just how difficult it can be to stick to democratic ideals in the face of a policy direction that you strongly disagree with. Still, I prefer to lose the immediate political fight and save the democratic structure.
When I started writing this post, I believed the students were still on the acceptable side of the (very fuzzy) line. However, their demands were becoming more substantive and less about democratic procedure, and they were getting dangerously close to the line. I haven’t had time to digest tonight’s events at the EY which are still unfolding, but I think it is getting closer and closer to the time when students should leave the government institutions and take their protests back to the streets while they still can. It is very difficult to quit while you are ahead, and I fear they have missed their opportunity.
The students have walked right into a trap. Storming the Executive Yuan is a terrible strategic mistake. This will probably be the point when public opinion turns against them. At the very least, the students will begin to be divided by vicious factional infighting among doves and hawks about tactics.
I was at the legislature last night, and the EY was tightly guarded. How in the world have the students been able to get in so easily. It almost makes me wonder if it was left open on purpose to tantalize the students. Ma et al would have known that the EY would be an irresistible target for hardline students.
The KMT may just have been smart enough to let the students destroy themselves.
I hope I’m wrong.
On the lighter side, I can’t stop thinking about Scooby Doo. Scooby Doo is one of my favorite childhood cartoons. In it, a group of teenagers and their dog, Scooby Doo, solve a series of mysteries. At the end of every mystery, they unmask the villain who always exclaims, “and I’d have gotten away with it too, if it weren’t for you meddling kids!”
President Ma seemed to have this fight won. The DPP was going to protest loudly and ineffectively, and the KMT caucus was going to follow orders and pass the Cross Straits Services Trade Agreement. We’ve seen this soap opera before, and we know how it usually ends.
And then the students stepped in and changed everything. If the CSSTA eventually doesn’t pass, Ma will be justified in echoing a host of thwarted schemers:
The irony is that these students were only ready to take on such a monumental task because Ma has been training them for two years. They’ve been practicing and learning how to run large scale protests. Chris Wang at Taipei Times has written a very good story today making exactly this point.
Scooby Dooby Doo!
So let’s see. Has anything much happened this week in Taiwan politics?
- The legislature controversially passed the Cross Straits Service Trade Agreement, perhaps the most important issue to come before the legislature in the six years of Ma’s presidency, through committee by extremely questionable means. Ma had explicitly ordered his party to pass the damn thing, and he didn’t care how. The committee convener obliged by sneaking off to corner and whispering his decision into a microphone inside his jacket.
- Student groups rushed the Legislative Yuan, expelled police, set up in the main chamber, repelled several attempts to dislodge them the first night, settled in for the long haul, and electrified the whole society.
- The court ruled that Speaker Wang should retain his KMT membership, thus ensuring he will continue as speaker of the Legislative Yuan. Ma’s attempted purge of Wang was the cause of last year’s September Strife.
- A different court convicted the Special Prosecutor of illegally leaking information to President Ma. The information in question was precisely the evidence used to justify Ma’s attempt to purge Wang.
- The Council of Grand Justices ruled that the Assembly and Parade Act is unconstitutional. This is a ruling that opposition parties have been seeking for years.
- The tenth anniversary of the assassination attempt on President Chen on the eve of the 2004 presidential election was this week.
- Ma tried to convent the heads of the five branches of government (Executive, Legislative, Judicial, Control, and Examination) to discuss solutions to resolve the disorder in the legislature. Speaker Wang refused to attend.
Other than that, nothing much happened this week. (Unless I’ve forgotten something else!)