Archive for the ‘constitutional system’ Category

The Caretaker Cabinet

January 22, 2016

While I’m waiting for the Central Election Commission to release the full election results in Excel form (as opposed to having to cut and paste each results from each town or polling station into my own spreadsheet), let’s take a break from analyzing election results. Instead, today’s topic is whether Tsai Ing-wen should agree to form a caretaker government.

I think it is an awful idea. I think Tsai is handling the situation perfectly by refusing to form a caretaker cabinet, proposing a bill to govern the transition of power during the lame duck period, and insisting that appointing the cabinet is still the president’s prerogative. However, there seems to be a growing call for her to take over immediately. Let me explain why I think this is a bad idea.

This problem should be considered from two angles: legal and political. From a legal perspective, the constitution sets out a four year fixed presidential term. There is no mention of a caretaker government, and the president’s formal powers are not diminished during the period between the election and the inauguration of the next president. Many people will argue that there is a new expression of public opinion that has removed the president’s mandate. However, mandates are ambiguous. It is impossible to know exactly what message, if any, the electorate collectively intended to send. Thus, constitutions make no mention of mandates. Legally, we need only be concerned that a majority in the legislature will have significantly different preferences than the president. This tension is played out in the struggle for the control of the cabinet, where most of the concrete government policies are determined.

The cabinet is appointed by the president. (Technically, only the premier is appointed by the president, and the premier then appoints the rest of the cabinet. In practice, the president determines the makeup of the entire cabinet.) Many people have pointed to the French model of cohabitation and suggested that the cabinet should be responsible to the legislative majority. However, there is a critical distinction between the French semi-presidential system and the Taiwanese semi-presidential system. In France, the president nominates the premier, who must be confirmed by the legislature. In Taiwan, the president appoints the premier, and no confirmation vote is necessary. This difference fundamentally changes the relationship between the executive and the legislature. In France, the legislative majority always forms the cabinet. In Taiwan’s only previous period of divided government, from 2000 to 2008, the legislative majority never formed the cabinet. The same pattern happens again and again in countries all over the world.

In Taiwan, the constitution gives the legislature the right to vote no confidence in the premier. If this happens, the premier resigns, and the president simply appoints a new premier. (The president could dissolve the legislature and call for new elections, but that is almost unthinkable during a lame duck period following a decisive electoral result.) The constitution thus empowers the president to appoint a cabinet that will implement his favored policies, so long as those actions are not so clearly against the preferences of the legislative majority that the legislative majority is moved to use its nuclear option. In the current situation, the legislative majority will not allow the cabinet very much freedom of action, so the cabinet will be constrained mostly to routine business. If the cabinet tries to make on any controversial or important decision, such as applying to join the AIIB, negotiating a Trade in Goods agreement with China, or approving the takeover of a Taiwanese high tech company by a Chinese company, the legislature can simply vote no-confidence and block the move.

Some people are calling for President Ma and Vice President Wu to appoint Tsai as Premier and then resign. Since the premier takes over the presidency if both the presidency and vice presidency are vacated, this would lead to Tsai taking office as president four months early. This is a terrible solution. Systems in which orderly transitions of power cannot be handled through routine procedures are systems with weak constitutional orders. When a president steps down early, this is always a clear signal to the rest of the world of a country in crisis and democratic system on the brink of collapse. That is not the signal that Taiwan wants to send out.

Tsai also has to think about a possible second term in which she might not have a legislative majority. She probably doesn’t want to weaken the presidency.

If the four month lame duck period is indeed problematic, Taiwan should handle it calmly and carefully. After considering the lessons of this year’s experience, Taiwan should put together a comprehensive reform package to institutionalize smooth power transitions. This might involve constitutional reform, so it will need a high degree of consensus.


That’s enough legal stuff. The political arguments are much more interesting. To put it bluntly, these calls for Tsai to take power immediately are a trap.


Tsai is not ready to take power. She has spent the past few months campaigning, not preparing for office. These are very different purposes. She needs a month or two to put together her governing team, plan out her concrete agenda, listen to detailed briefings from government agencies so she can get up to speed on specific policy questions, and engage in unofficial diplomacy with the USA, China, Japan, and others. She could probably also use a little rest.

Once Tsai takes power, there will be public expectations for her to govern. If she appoints an interim cabinet, even if she is not the premier, the public will expect it to immediately start implementing her agenda. However, she won’t have complete power yet. President Ma will still control important levers of power, and her team won’t be able to completely dominate the political arena. Imagine if she sends a team to negotiate with China and President Ma undermines the mission by screaming loudly that the DPP should respect the 92 Consensus (a position that he reiterated today). Or imagine that Ma uses the intelligence networks to leak information that might undermine a policy proposal. The interim cabinet might be dragged down in nasty fights, and Ma manages to block things it might look ineffective. Tsai’s popularity and mandate will slowly be eroded away. By the time she takes office, she might not have any honeymoon period left.

She is much better off simply waiting on the sidelines and letting the Ma government take responsibility for a period of relative inaction. If pressure builds up for her to act forcefully and dynamically when she takes office, Great! She can prepare a broad agenda, have everything ready to go on Day 1, and take power in a whirlwind of energy and action. This will allow her to make maximum use of her honeymoon period, and it might even extend that period.

[In American politics, all presidents are judged by their first hundred days. This is because President Roosevelt pushed through a slew of fundamental reform legislation during his first hundred days in 1933. These legislative acts formed the core of the New Deal, which fundamentally transformed the nature of American government. What most people don’t remember is that Roosevelt also had a four month lame duck period, and during the winter of 1933 the American economy sank into a deeper and deeper depression. Roosevelt ignored calls to take office early and waited calmly as public pressure for action mounted. When he took office, he was able to use that pressure to push through his agenda. By not grabbing at power, he was ultimately able to achieve far more of his political program.]


One of the things on Tsai’s agenda is constitutional reform. She wants to change the electoral system and lower the voting age. If the transition period turns out to be rough, this will provide added pressure for constitutional changes in order to rectify legislative and presidential terms. She might be able to work all her proposals together into a single package that would have a better chance of passing. In other words, a messy transition in the short term could be useful as a way of achieving the constitutional reform necessary to produce a better political system for the long term.


I think the KMT (and it is mostly blue voices clamoring for her to take power immediately) is trying to tempt Tsai into a political trap by enticing her with immediate power. If she is a ruthless, calculating, determined idealistic politician who wants to fundamentally transform Taiwan, she will continue to resist these calls.