legal and constitutional arguments

On Friday, the Taipei District Court issued an injunction temporarily stopping the KMT from revoking Speaker Wang Jin-pyng’s party membership.  I tried to write about it then, but I didn’t finish any coherent ideas before leaving on a mini-vacation with a bad internet connection.  That was probably fortunate, since I’ve had a chance to think about things before I write them.

I originally thought the court made a bad decision that would have bad consequences for Taiwan’s democracy.  Now I think the court probably made the right decision, but it will still have bad effects.  I’m going to go through what happened in the legal case, why the decision was reasonable, why it think it was a bad decision for democracy, and briefly discuss constitutional arguments about expelling Wang and separation of powers.

(Keep in mind that I am not a lawyer and have no legal training.  I might be making some basic mistakes in my discussion of how the law works.)

Wang brought a civil suit in the Taipei District Court.  Political parties are governed under the Civil Associations Act 人民團體法, and this is the basic problem.  Membership in a political party is considered just like membership in any other association.  I think this means that legally, a party membership is no different than membership in a charity, a glass producers association, a softball enthusiasts club, a temple group, or any other association.  Wang argued that the status of his membership in the KMT was still unsure and the immediate revocation of his membership would cause him irreparable damage since there would be no way to restore him to the legislature (and the speakership) if he won his appeal.  The court agreed and issued a temporary injunction preventing the KMT from taking action until Wang’s case was decided.  In making this decision, the court treated his party membership as a type of private property.  The court was not considering the impact on the association, whether Wang was guilty of the allegations, whether he should lose his seat in the legislature, constitutional arguments about anything, or whether a delay in executing the decision would benefit Wang.  This was simply a matter of whether immediately revoking Wang’s property rights over his party membership would cause him irreparable damage.  To me, that is a terrible way to think about a case like this, but I think the court was probably right in considering things from that angle and coming to the conclusion that it would impact Wang negatively and irreversibly.

The other, less reported, part of the decision was the point that Wang’s membership status was unclear.  Why was it unclear?  The KMT party rules spelled out a procedure for revoking party for revoking party rules.  They did not violate these procedures.  Wang’s lawyers made two arguments.  First, the KMT had not allowed him to appeal before executing the punishment.  However, party rules clearly stated that, while he had the right to appeal, the punishment would be valid during the appeal period.  Thus according to party rules, Wang should immediately lose his party membership and any privileges that went with it.  Second, Wang’s lawyers argued that the KMT’s punishment was unfairly heavy.  In previous recent cases, KMT members have been formally indicted and/or convicted, and they have not lost their party membership.  Wang has neither been indicted nor convicted of anything.  The party has not taken time to objectively establish any set of damning facts, yet it has still given Wang its heaviest penalty.  The court press release did not explain its decision, but I think it must have accepted one or both of these arguments.  After talking with a friend with some legal training and reading various media reports, I think the second argument is probably the key one.  The Civil Associations Act says that organizations are not allowed to make rules for single individuals; they have to use the same rules for everyone.

The injunction is supposed to put a temporary halt to the KMT’s efforts; it is not supposed to indicate that Wang is right or wrong.  However, Wang will remain in the speaker’s chair until the legal case is decided.  No one seems to know how long this will be.  At the quickest, a higher court could overturn the injunction as early as next week.  At the slowest, various commentators have suggested that the full appeals process could easily stretch out over two or three years.  In other words, Wang could finish out this legislative term as speaker before the case is resolved. Yesterday Wang’s lawyer said he thought it would take about five months for the case to be decided.  So we might be in for a protracted scorched-earth political struggle lasting for two years, or the whole thing might be over in a few days.  My guess is that the political struggle will determine a winner and/or loser before the legal battle is finished, but that is just a guess.

I do not like the legal decision to stop the KMT from revoking Wang’s party membership at all.  The judges may have made a reasonable decision based on the case at hand, but the implication is that parties no longer have the right to discipline their members.  The problem is that political parties should not be regulated as if they were ordinary civic associations.  Membership in a political party is not a property right.

Parties deal in trust.  In every election, they ask voters to trust them with political power.  Arguably, the most important asset any party has is its party image.  For democracy to work, parties must be given full control to shape their images as they see best.  If a party believes that a member is harming that image, it should have the right to sever all associations with that member.  I don’t think that the party even needs to be able to justify its decision in legal terms.  Image is a subjective concept, and the party makes a subjective decision about what helps that image and what harms it.  For example, the KMT might have decided that the damage to its image was much smaller in the Lai Su-ru 賴素如 case than in the Wang Jin-pyng case.  In the Lai case, there were concrete accusations of bribery and formal indictments.  However, Lai is merely a Taipei City Councilor.  They might subjectively decide that a relatively bad deed by a relatively unimportant member is not that harmful to the overall party image.  In contrast, Wang’s criminally less serious case might have done more damage because Wang is such an important figure in the KMT.  I personally Lai damaged the KMT party image more than Wang, but my opinion shouldn’t matter.  The KMT should be free to take any disciplinary actions that it believes will benefit its party image, and they should not need to justify those actions to a judge.

They should need to justify those actions to the general electorate, however.  If the KMT wants to engage in vicious internal purges against popular party members, that should be their prerogative.  However, they should be prepared to lose elections when they do so for superficial reasons.  If the KMT can’t persuade the general public that Wang was dirty and the electorate instead comes to believe that this was nothing more than a political purge of one leader against another, it is the electorate’s responsibility to punish or reward this behavior.

Instead, the courts have ruled that they are the arbiters of whether a party should be able to discipline its members.  In 2010, the KMT tried to revoke the membership of Hsu Shu-po 許舒博, a party list legislator, because he had been convicted of corruption by a lower court.  Hsu sued to stop the action, and the court (incredibly!) ruled that the KMT’s action was unreasonable since Hsu’s case was still being appealed and had not yet been finalized.  Because the appellate courts had not yet conclusively determined that Hsu was legally corrupt, the judge decided that the KMT could not be sure that Hsu had harmed the party’s image.  Therefore, the judge issued an injunction stopping the KMT from kicking Hsu out of the party, and Hsu eventually served out the rest of the term in the legislature.  (Because of Hsu’s case, the KMT changed its rules so that the party’s decision would take effect immediately instead of waiting until the party’s appeals process was completed.)  This is ridiculous!  It only makes sense if you think of party membership as a property right and the removal of party membership as depriving a person of property.  If you think of a party as an organization carefully nurturing a collective image, it is completely illogical.  Voters certainly don’t wait until all the legal appeals are exhausted before considering whether they should make any political judgments.  Moreover, what if Hsu had done something completely legal but politically damaging, such as repeatedly vote against his party?  Would the courts decide that he wasn’t harming the KMT’s party image because no court had convicted him?  Why should the courts even be involved in such a decision?  This should be the purview of the party, and the voters should be responsible for approving or rejecting the party’s decision.  Political decisions should be made according to political logic, and they should be judged though political processes.

Unfortunately, the courts did not defer to party judgments because they were considering the case according to the Civil Associations Act.  There is no Political Parties Law to instruct them to treat parties differently.  I believe many different drafts of the Political Parties Bill have been introduced, but none has passed.  This is probably because members of the legislature don’t want a Political Parties Law.  There is probably some key clause in all the bills that would restrict their freedom of action or restrain them in some way.  It might be about money.  It might also be that they want the courts to think of their legislative seats as private property rather than as delegations of power from voters or a party.  The current case should highlight the need for a Political Parties Law, but it probably won’t.  Since most people support Wang against Ma, the Taipei District Court is a popular one.  My argument about party discipline is coming from Ma’s side.  Since Ma is losing the war of public opinion, concerns about parties’ needs to be able to discipline themselves are also on the losing side.  Hopefully the next time the court steps in and stops a party from expelling a member, the member will be less sympathetic to the public.

In recent days, a number of prominent legal scholars have made two prominent constitutional arguments.  First, some suggest that party list legislators should be allowed to keep their seat in the legislature even if they lose their party membership.  Second, President Ma’s efforts to remove Speaker Wang from his position violate the principle of separation of powers.  I think both of these arguments are wrong.

The first argument is a bit bewildering to me.  As I understand it, the argument says that party list legislators are not merely representatives of their party.  The voters consider the individual names on the party list when they decide how to cast their party list ballots, so the individuals have a bit of legitimacy based on non-party factors.  Revoking their party membership does not revoke the voters’ delegation of power to them, since voters voted, at least in part, for them as individuals.  Thus, they should not be stripped of their seats but should be allowed to continue serving as independent legislators.  In Germany, when the Green Party tried to expel a list legislator in 1988, a judge used this logic to rule that he should keep his seat.

I am not a lawyer, and I don’t always understand legal logic.  However, I can claim some expertise in electoral systems, and I have never seen this sort of logic used to explain how closed list proportional representation systems should or do operate.  In a closed list PR system, the voter marks a vote for a political party.  In some countries, a few names are listed on the ballot next to the party name (I am not aware of any cases in which the complete list is presented), but the vote is for the party, not for the names.  The voter has no way of indicating which name he or she likes or dislikes.  Moreover, the order of the names is fixed in advance by the parties.  If the party already has enough votes for twelve seats, one more vote will help only the 13th person on the list get a little closer to winning.  It doesn’t matter whether the voter really likes the 7th person or the 15th person better.  Moreover, voters can only guess whether it will be the 13th, 15th, or 18th person who is on the bubble.  In other words, voters really can’t vote for individuals on a closed list.

Empirically, we have pretty good evidence that voters do not try to vote for individuals.  The Taiwan Election and Democracy Surveys (TEDS) are the standard academic datasets for election studies in Taiwan.  After both the 2008 and 2012 elections, survey respondents were asked if they could name anyone on any party lists.  Very few people could.  I don’t remember the numbers, but I believe it was fewer than 20% who could even name one person.  Most people who named someone named Wang Jin-pyng.  However, this should not be taken as an indication that voters delegated personal power to Wang.  Many of the people who named him did not vote for the KMT.  At any rate, since he was listed at #1 and the KMT eventually elected 16 members, his election was assured; voters could not do anything to help him or prevent him from winning.  Instead, people voted for a particular party list based on the whole party, not because they wanted to delegate power to a particular legislative candidate.  This finding is general.  Voters around the world rarely know who the individual candidates are anywhere that closed lists are used.  With closed lists, voters vote for parties, not individuals.

In fact, the primary argument justifying the use of closed lists is precisely that they create strong political parties that can constrain individual members and act cohesively.  The ability to discipline members by stripping their seats or giving them a lousy spot on the list is central to the logic of the system.  Voters vote for parties, parties put individuals into offices, parties oversee those individuals and ensure that they act as the party intends, and voters judge parties on the results.  If the individuals are allowed to flaunt party discipline, the system breaks down.

As far as the German judge goes, I simply don’t care.  Just because one German judge made a terrible argument based on a flawed understanding of representation does not mean that Taiwan is obliged to follow his awful precedent.  Why in the world should we accept the ludicrous idea that party representatives are not actually representatives of the party?

The second argument is far less stupid.  The constitution lays out a system with separation of powers, and the president tried to remove the speaker of the legislature.  This strikes many people as fundamentally wrong.  The executive branch should not be able to dictate to the legislative branch.  Indeed, one of the primary achievements of democratization in Taiwan was creating a legislature that could say no to the president.  Today’s Taipei Times has a more detailed summary of this argument.

I understand why people instinctively don’t like seeing the president bully the speaker, but I think this argument is ultimately flawed because it fails to consider the centrality of parties in democratic politics.  One of the most important books in the past generation informing our understanding of presidentialism is titled Presidentialism and Democracy in Latin America (Shugart and Wattenberg, eds. 1997).  The book makes the point that presidents generally enjoy two types of power.  The constitution grants them certain formal powers that they wield as president.  In addition, most presidents are the formal or informal leader of a political party, and this yields a set of partisan powers that they wield as party leader.  Interestingly, presidents with the strongest set of constitutional powers often have weak partisan powers and vice versa.  Critically, the most stable and successful democracies tend to be those with presidents who have weak constitutional but strong partisan powers.  Presidents with strong constitutional powers but weak partisan powers try to ram things through the legislature regardless of whether they have any support there.  However, those decisions are commonly blocked by an incalcitrant legislature or reversed by the next imperial president, and some results include gridlock, vitriolic rhetoric, wild policy reversals, and impeachments.  Presidents with weak constitutional powers but strong partisan powers are able to operate more smoothly because they have a solid block of footsoldiers in the legislature.  Presidents are also constrained from taking actions that are too radical because they need to consider the electoral fortunes of those footsoldiers, even if the president himself will not be running for re-election.  Moreover, laws enacted with the full approval of the legislature are more likely to remain in force after the president leaves office.  In short, the executive and legislature are not always independent actors.  The system operates best when they are linked together by political parties.

Taiwan is fortunate to have strong parties paired with a constitutionally weak president.  The president has no decree powers, so he cannot unilaterally make a law.  He has a very weak veto, only a package veto which the legislature can override with a mere majority.  The executive branch can introduce bills, but they have no special status in the legislative process.  The major exception is that Taiwan’s president has fairly strong control over the national budget.  However, as the 2001 showdown over nuclear power demonstrated, when the president faces a determined majority opposition in the legislature, the legislature will win.  Taiwan’s president cannot simply command the legislature; he has to persuade it to do his bidding.  This is where the partisan powers come in.  The president can use softer tactics, such as communication through the party legislative caucus or appealing to the public to give him more footsoldiers in the next election, or harder tactics, such as threatening to withhold nominations from unruly members in the next election.  By doing such things, the president can help channel the disparate energies and ambitions of the diverse set of party members toward a specific set of political goals.

Of course the president might abuse his partisan powers by employing them for a goal that many or most of the party members do not want.  Arguably, that is what has happened in the current case.  If this happens, it is the party’s responsibility to constrain the president.  In the current case, if KMT legislators and other party members are worried that Ma’s actions will harm them electorally, they should probably take some action to strip him of some of his partisan powers during this month’s party congress.  For example, they might implicitly repudiate him by requiring the Central Standing Committee to affirm all disciplinary measures, or they might explicitly repudiate him by standing up and applauding when Wang walks into the room.  Either way, a clear message would be sent that Ma does not fully control the party, and Ma would be politically hobbled for the rest of his presidency.  The KMT might be able to restore its tarnished image by turning to a new set of leaders to fight the 2016 campaign.

The important point here is that partisan powers are a critical and legitimate element in presidential politics.  The fact that Ma has used his partisan powers to interfere with the inner workings of the legislature is not a violation of separation of powers.

In fact, from one point of view, there is no such thing as a pure separation of powers.  The executive branch has a lot of legislative powers, including the right to introduce bills, and the right to veto.  The legislative branch has some executive powers, such as the right oversee the workings of the executive branch by demanding that bureaucrats regularly report to the legislature on their activities.  Both branches also have some judicial powers as well.  Thus contrary to popular belief, the constitution does not actually establish a system with separated powers; it shares the powers among the branches of government.  From this point of view, criticizing the president for interfering in the legislative branch does not make sense.  The president is, by order of the constitution, a legitimate player in the legislative branch.

Another way to think about the idea that there is something wrong with the president trying to remove the speaker is to think about an alternate world in which Speaker Wang had been elected in a district.  Suppose people in Wang’s district were dissatisfied with his performance and wanted to recall him.  If he were actually recalled, he would lose his seat and, of course, the speaker’s chair.  No one thinks this would be illegitimate.  The voters of the district elected him and delegated power to him.  They also had the right to remove him from power.  Similarly, in the real world, the Taiwanese voters gave sixteen party list seats to the KMT and the KMT entrusted one of these seats to Wang.  When Wang acted in a way that the KMT did not approve of, it tried to take the seat back, just as voters could try to recall their district representative.

Of course, what really rankles some people is that Wang is not just another party list legislator, he is the speaker.  But why is he the speaker?  The KMT has already “interfered” in the legislature’s internal business by nominated Wang as speaker and then using its party powers to ensure that all KMT legislators voted for Wang and ratified the party choice.  Somehow it is not seen as illegitimate when the party puts the speaker in power, but it is illegitimate to try to remove him.

By now my basic points should be clear: parties are legitimate and critical actors in the democratic process, and they should have the freedom to discipline their own members.  If they do so irresponsibly, it is up to the voters to punish them.  I personally do not buy Ma’s assertion that Wang’s supposed illegal lobbying was the most embarrassing day in the party’s history, and it seems that most of the public does not buy it either.  However, if the KMT bought the argument, that should be sufficient.  If they want to plunge their party into internal chaos, that should be their choice to make.  I think they are doing serious damage to their party image and future electoral prospects, but apparently they do not agree.

One Response to “legal and constitutional arguments”

  1. Carlos Says:

    You make a good point. I think it’s better for Taiwan if Wang maintains his seat for now, but as you say, it’s not how things should work.

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