[MUSIC]
>> Kharis Templeman: Hello, good afternoon from Stanford University. I'm Karis Templeman, I'm a research fellow here at the Hoover Institution. And it's my pleasure today to introduce our seminar on a very timely topic in Taiwan, Taiwan's Constitutional Court under divided government. We have three distinguished panelists with us today. 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 for a second appearance with us this quarter. And then we have Lev Nachman joining us from National Taiwan University as well. I wanted to just make a couple remarks about why we're holding this event in this format and at this time and provide a little bit of background for what I consider to be a budding constitutional crisis in Taiwan.
So on December 20th of last year, Taiwan's opposition controlled legislature passed an amendment to the Constitutional Court Procedure Act which imposed a 2/3 quorum requirement to hear cases and a 9/15 requirement for invalidating laws. Four days later, the legislature then voted down all seven of President Lai's nominees to the court which left it short of that majority.
There are now only eight sitting justices and under the new amended law they cannot legally meet and adjudicate questions of constitutionality because they are short of that quorum. Nevertheless, the DPP government has asked the court to meet anyway and to rule on the constitutionality of the amendment to the Constitutional Court Procedure Act. So the court is basically in a no win situation right now.
They can accept the case and issue a ruling, in which case the legislature will probably escalate their attacks on the court and on judicial independence. Or they can bow to the legislature's new supermajority requirement and basically concede paralysis in the face of opposition threats until and unless new justices are confirmed. In other words, the court is basically facing a crisis here and it doesn't have an easy or clear way out of this situation.
I'd also note that the Court is only the most obvious victim of a year of escalating partisan warfare between a KMT TPP majority in the legislature and the DPP run executive branch. There are similar power struggles to the one over the court now playing out over other nominally independent bodies including the National Communications Commission, the Fair Trade Commission and the Examination and control uns in Taiwan.
And potentially in the future the Central Election Commission could fall into the same kind of partisan fight. And so basically this period of divided government we're in threatens all of the sort of independent institutions that are supposed to adjudicate partisan grievances in Taiwan. And this potentially is a rising threat to Taiwan's democratic resilience, which as I'm sure most of the audience is aware, is also threatened by the PRC across the strait.
And also this is happening at a pretty delicate time in US Taiwan relations in that we have a new administration that's just come into office and it's unclear what that administration's long term approach is going to be towards China, towards Taiwan, and towards other partners and allies in the region. And so it's hard for me to escape the conclusion right now that divided government is becoming a serious threat to Taiwan's own security.
And so we've been able to assemble a great group to discuss these issues today. Let me give a little more background on our panelists before I turn it over to them to comment on the Constitutional Court paralysis issue. The first speaker we'll have today is Lev Nachman, who's a political scientist and assistant professor at National Taiwan University in Taipei.
He teaches in the Graduate Institute of National Development and he's also a non resident fellow at the Atlantic Council and the National Bureau of Asian Research. Second, we'll turn to Jian Zhilin, who is an associate research professor at Institutum Jurisprudentiae, I hope I said that right, at Academia Sinica. And he's also an associate professor also at the Graduate Institute of National Development at National Taiwan University. He holds an LLM and a JSD from the University of Chicago.
And then batting cleanup for us over here is Wei Tsung Chun. Wade Sung is a faculty member at National University of Singapore, the Faculty of Law there. He specializes in law and economic development, law and politics, and legal history in the context of Greater China. So without further ado, since we've only got an hour for this conversation, let me turn it over to Lev. Basically, can you break down how we got here? How is divided government working or not working in Taiwan over the last year?
>> Lev Nachman: First of all, of course, thank you so much for inviting me to be on the panel. It begins with the 2024 election when we see for the first time in a long time a divided government in Taiwan. And of course, it is a matter of blue versus green.
But the light teal elephant in the room is, of course the Taiwan People's Party, the third party that unless you follow Taiwan domestic politics closely, is sort of this new party that many people outside of our typical circles don't really know much about.
But it is arguably the thing that has sort of led to a lot of the grievances that we see today not necessarily the TPP themselves but more the wedge that they have placed within Taiwan politics so for a little bit of background in 2024 the KMT has a slim majority of seats in the legislative UN they want 52 plus a couple of independent blue leaning voters and the DPP won 51 however you need 57 in order to have a majority in the legislative UN and
the TPP this third party won 8 seats which is third parties go in Taiwan we call kingmaker seat anyone to pass anything they need at least some of those sweet TPP supporter votes and unfortunately the TPP has made it very clear that the core part of their party's ideology is that they oppose practically anything the DPP does which means that more often than not they side with the KMT Their decision to side with the KMT is not always necessarily an ideologically driven alliance but
for the sake of what a lot of the audience is worried about today it does have very ideological 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. Now, the TPP itself, beyond sort of claiming to be above blue green politics, has made it very clear that they are emphatically not above blue green politics.
And in a way that as someone who follows third parties in Taiwan, I have seen the TPP side with the KMT in ways that sort of go beyond typical, you know, enemy of my enemy is my friend. And instead, we're seeing kind of a really strong embrace between the TPP and the kmt. I think the best example is to actually look 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 on Taiwan politics for the last decade.
But he's not the one I'm talking about right now because Koenzha, for those unfamiliar, is currently pending jail time for corruption charges. He's not the first in the TPP to have corruption charges that are going to face jail time, but his role in the party is now incredibly marginalized and kind of put to the side.
Instead, his successor, someone named Huang Guoqang, who, if you follow Taiwan politics for some time, will be a name familiar to you from a formerly very pro independence party, the New Power Party. Huang Guocang himself has jumped ship and has gone from being a very pro independence politician to joining the TPP. And he didn't just join the tpp. He has sort of led the alliance between the TPP and the kmt.
He has joined KMT heavyweights like Fu 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 and saying, I'm here for this. It just makes no ideological sense in Taiwan's context to see Huang Guo Tsang on stage with the KMT. But that's the current world that we're living in. So Huang Guang was just elected party chair of the TPP.
He has inherited spirit, as some of the netizens like to say. And Koenzha, before he went back into jail, made a ringing endorsement for Huang Wu Chang, saying to his followers to follow Huang. Huang himself has a cult of personality following. And in the way that a handful of us thought might happen that Huang Guo Tang would sort of take advantage of the TPP and this very niche role they play in Taiwan politics, he has, in fact, done just that.
And now he is in control of this kingmaker party in Taiwan now, what exactly that's going to look like in the future? Given that he has led the chaotic stoppage of anything from happening in domestic politics, I think that we're gonna see more disruption from the TPP and sort of enabling the KMT's ability to sort of stop things from happening. Just to give some quick, because as a public opinion person, I feel obligated to at least share a couple of public opinion numbers very quickly.
So to speak to sort of the stuff that CAR has talked about, whether it was the Constitutional Court crisis. Whether or not it was the legislative UN reforms earlier this year, the sort of response from civil society and the bluebird movement and the protests that have been breaking out in Taiwan. What our public opinion data shows about support for these things is largely partisan, which isn't very surprising.
If you're green leaning, then you think 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, particularly for the legislative UN and sort of anything that, that seems on the surface to be about supporting balance of power, independents are largely in favor of.
So especially for say like the legislative reforms, when it was going to give legislators a lot of power and take away power from the President, we found that independent voters were largely in favor. Our hypothesis is that for them balance of power is a good thing. Even if the KMT is sort of co-opting that framing, it seems to be effective against a lot of average voters, and we 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: Okay, great. There's a lot to dig into there and I'm looking forward to following 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 this the kind of thing that comes along every few years when the court does something that provokes one party or another?
>> Chien-Chin Lin: 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 briefly introduce the common system. In Taiwan, unlike the UN states, the Constitutional Court justice, they serve a staggered non-renewable term of eight years. And this is important. By eight years, and by staggered, I mean every three or four years, there will be a couple of justices stepping down.
And the reason why the framers decide to make their terms eight years is to ensure that every new president would have the chance to appoint his guy, his or her guys on the bench. In the US, not every American President has this privilege or this power. So this is the, and, and, and of course there are down and you know, downsides of this, this institutional design.
And then one obvious downside is that if win the presidential election, you know, consecutively, twice or thrice, the party essentially controls the constituent court in the sense that every justice will be appointed by the same party, if not by the same president. That's an obvious downside, and that's why we 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. And it happens also when Tsai Ing Wen won the presidential election twice. So essentially, it's weird to say, but essentially, it's actually the norm that the same party would control the constitutional corps for some time.
I don't really worry about that too much is because as I said earlier that the justice served a non renewable term of eight years, which means that their terms are relatively short, so their legacy will not last long. It's very different from the United States. You know, justice stay there for like 30 years. So they only stay on the bench for eight years. But still, you know, if you are in the opposition party like the kmt, you will be unhappy.
And this is particularly the case because the Constitutional Corps control or nominated, I'm not going to use the word control, I'm appointed by the DPP presidents. They actually frustrated the KMT several times in their decisions in the past several years, including transitional justice, including you know, party property, something like this. So the KMT legislators, they were really unhappy 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 that Lev just mentioned, they. They forge an alliance, and basically they can veto any candidates. So that's why the case.
So in order to paralyze the Constitutional Court, they amend the Procedure Act and requiring, as Kharis just mentioned at the very beginning of the introduction, that they require that every constitutional decision should have the consent of 9 justice out of 15. And note that this is actually the worst scenario of a super majority requirement because they asked for a fixed number rather than three-fifths of the Court. And this is very different.
If you ask three-fifths of the court, that means that a court can remain functioning even you have only eight. >> Kharis Templeman: Yeah. >> Chien-Chin Lin: It's fine to ask a super majority requirement for a variety of reasons, although most top courts require simple majority. But it is very different when you ask that there must be nine votes, a fixed nine votes, because, obviously, if your Court has fewer than nine justice, the Court is paralyzed.
So this is why I say that it is arguably constitutional if they amend the law in a way that says you require three-fifths of the sitting justice or three-fifths of the participating Justice. But it is very different when you say you need nine votes no matter how many justice you are on the bench. So that's why I say that the Court basically is essentially paralyzed. And there are several solutions, potential solutions, but the Court, I think, two or three days ago just veto one.
There's one petition by a citizen arguing that the Constitutional Court Procedure Act is unconstitutional because it paralyzed the court. Which means that all the ordinary citizens 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 of the Constitutional Court Procedure Act. So it is unclear whether how the Constitutional Court will see it.
But let me emphasize at the last of my talk is that in the past, the Constitutional Court has declared its procedural role unconstitutional in its own decisions. This happened in the past. It is unclear whether they would do so again this time because it is more polarized, politically-speaking, and it is more sensitive.
But my opinion is that because the Constitutional Court had declared, I think in 1990s or something, had declared their procedural rule unconstitutional, it could be that they will do it again, but it's hard to say. So I guess I will stop here, and any comments and questions, I welcome, thank you. >> Kharis Templeman: Okay, great. Let's go ahead and go to Wei Tsung and get your thoughts on this.
I'm particularly interested in the historical aspect of this, since you've been studying this issue for a long time. You're familiar with some challenges to judicial independence in the 1990s in Taiwan when it was just going through its transition to democracy. And so what's your take on the threat to judicial independence today? >> Weitseng Chen: 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 mind is still a contemporary one, whether Taiwan is facing a crisis. Are we witnessing democratic backsliding like in Korea, Poland, Turkey, Hungary, and India, etc., right? So I guess let me disclose my answer from the beginning. My answer is yes, there is a crisis, right? But it's not so severe that we can call it democratic backsliding. We are not facing a situation as extreme as a coup d'état in Korea just a couple months ago.
And instead the problem lies in the 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 attitude of Constitutional Court towards politics historically, right? So historically, the Constitutional Court justice in Taiwan have 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 Chiang Ching-kuo and Chiang Kai-shek, right? And justice tend to wait and see, align themselves with the dominant political views or public consensus, right? One example is, well, the 1990s Taiwan's Grand Justice ruled that the indefinite tenure of the pre-1949 legislatures, right, violated the democratic principles and they mandate new elections.
And this decision accelerated Taiwan's democratization, leading to a direct legislative election in the 1990s, right? It may have seem bold, right? But it ultimately reflected the dominance of the KMT's reformist factions within the party, right, because I guess Chiang Ching is pretty aware of it. The Chief justice at the time said privately that the justice got a very clear signal from the KMT and started 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, the Court became an unintended referee in all the partisan battles since 2000s, right? And this shift was largely due to the Grand Justice Adjudication Act, right, which has been replaced by the Constitutional Court Procedure Act three years ago, right?
And prior to three years ago, which is 2022, the old act allowed governmental agencies to bring cases to the Court whenever it is unclear whether a law is unconstitutional or not. And this differs from other democracies, including Germany and the US, which emphasize the cases has to be, right? And the justice only rule on cases where individual rights has been violated and exhausted the remedy. But in the case of Taiwan, any governmental agencies were able to bring cases to the justice, right?.
So as a result, the Constitutional Court were forced to resolve many political disputes between governmental agencies and branches. What can they do to avoid political confrontations? Justice used this strategy based on a strategic ambiguity, right? And that is, instead of issuing clear rulings, the Court will use vague language to allow both sides to claim partial victory and move on, right?
One example is the interpretation in 1996, the court refused to state clearly whether KMT's Vice President Lian Zhan could also serve as a Premier and successfully avoiding a direct political confrontation. But that being said, there are two shortcomings for this strategy. A strategic ambiguity approach. And the first shortcoming is.
Well, what if both parties feel they are winners and then the political struggles continue, cuz they try to fight based on their winning position, they selected it selectively interpreted, right? And one example is about the nuclear plan. In 2001, the court declined to issue a clear rulings on whether the DPP's government's unilateral cancellation of the nuclear plan project was constitutional or not, right?
And then both the DPP and the KMT claimed victory based on their readings of the rulings. And then the political deadlock only worsen, right? And the second shortcoming about this strategic ambiguity involves opposite scenarios, right? That is when neither parties feel like a partial winners, but rather a partial losers, retaliation from politicians follow, right?
The best example is the court decisions in 2004 regarding the assassination attempt against President Chen Shui-bian, which helps Chen Shui-bian's narrow election victory. 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 staging his own assassination attempt. As a result, they passed a special law creating a commission with extraordinary investigated powers, right?
And the Court rules that the commission itself was constitutional, but some of his power violated the constitution. What's the consequence, right? Political revenge. Because KMT was very upset, right? So the legislative UN cut off the judicial UN's budget, slashed justice salaries, eliminated their funding for technology, computer research and even tribals. So this experience made justice very determined to avoid sheer political battles in the future.
But paradoxically, this leads to what we ended up with today. 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. Exactly, because the justice do not want to deal with politics. They push for this Constitutional Court Procedure Act, and it introduced two key changes.
One, they restricted the government initiated cases, right? In doing so, the Court hopes to act like German Constitutional Court or the US Supreme Court, focusing on fundamental rights in concrete cases. Rather than resolving these political disputes between governmental branches. And the second new element is they lower the thresholds for declaring unconstitutionality from 2/3 to a simple majority, why?
Because the then Chief Justice Xu Zhongli hoped the Court to be more proactive than before, right? But always be careful for what you wish for, right? Unfortunately, one of the first major cases regarding fundamental rights under the new system is about capital punishment, right? Case that had been stalled for years due to these 2/3 threshold. But now with the new lower threshold, the Court had no excuse to keep delaying it, right? The justice in charge is Justice Huang, right?
Who is a participant actually in Larry Diamond's conference in 2006 at CDDRL. He's a very capable justice. But his progressive decision upset KMT and the general public who is not ready to abolish the capital punishment, right? So this basically led to what we ended up with today, that is judicial paralysis. Historically, just one or two political sensitive cases were enough 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 a few words about my personal evaluation and prediction for the future. So still the first question is, is this judicial paralysis a judicial capture, right? As we witness in the train of democratic recessions? I don't think so, right? Not exactly. I think we are seeing a significantly weakened court in the future, but not captured court.
Judicial capture means the executive branch, right? Takes control over the courts is in Poland, Hungary or India. But in Taiwan, the situation is the opposite, right? The President is not controlling the Court. Instead it is the Legislative Yuan that is weakening the Court's capacity to function for DPP or the President's progressive agenda. And the minority justice now effectively have the veto power and making it very difficult to review case critically. So that's the first.
And secondly, one may wonder would President Lai Ching-te got so frustrated that he will carry out some dramatic unwise political maneuver like declaring the martial law by Korean President Yoon and I don't think so, right? It's not just not possible in Taiwan given the DPP's political climate, but the current large scale recalls that is going on is one of such maneuvers out of DPP's frustration. So the final question is why would it end, right? The crisis.
My view is until the end of this large scale recall movement ends in which both parties will exhaust their political capital, political parties have no incentive on both sides to negotiate about the Court's justice nomination. So I guess to conclude this is a judicial crisis, no doubt about it. Under the new amendment, the Court is more vulnerable to partisan conflicts. But the primary damage will be 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 Even its supremacy, and thereby triggering Democratic backsliding. I guess it remains to be seen. >> Kharis Templeman: Thank you, Wei Tsung. So I actually want to start this discussion by posing the same question to each of you, which is about the critical 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. And I've been surprised in part because they look to me to be more in the green camp than the blue camp 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 willing to pay a pretty high price early on to try to get them on side or at least negotiate an issue by issue coalition of some sort. And so I'm curious from each of you why you think that didn't happen. Is it that President Lai just didn't offer enough, that he was too stubborn, or that the DPP hasn't accepted the fact that they lost their majority in the legislature?
Or is it that the TPP decided that there was no price that the DPP could possibly pay to get them on board with the Lai government? Lev, let me toss it over to you first, and then we'll go to the other two. >> Lev Nachman: Yeah, so I think there's two stories. There's the inside the legislative UN story and there's the outside of legislative UN story. So inside the legislative UN is, you have DPP-TPP dynamics, which are largely driven by Ke Chien-ming and Huang Kuo-chang.
They don't like each other very long time. That dates back to Sunflower Movement 2014, them would have ever in a 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 calling the shots of how the DPP was acting. I mean, the example that we can point to is when there was the moment to vote on the Supreme Court nominee or on the Constitutional Court nominees.
One of the justices that was not the nominee, the Ojingi, William Bly nominated her. But it was Ke Chien-ming that said we're not gonna vote for her. And if you vote for her, you're out of the DPP. So that was kind of Ke Chien-ming calling the shots in the legislative UN, even though the TPP was willing to vote for Liu Jingyi on that issue. But that's a complicated matter for another time.
Outside the legislative un, you have sort of the unavoidable feature of the tpp, which is that they campaign on being anti dpp, and it's a hard sell to their voter base to work with the DPP, especially when 90% of their political advertising during the election was, William Lai is going to make the country worse. They spent very little time talking.
So I think from their voter base's perspective versus why would we work with the DPP that's a little bit harder to assault it to some of their voters. >> Kharis Templeman: Okay, great. Tianzhi, let me change the question slightly and talk about the judicial nominees that Lai put forward. Why didn't he anticipate that they would be rejected by the opposition coalition?
And knowing that they would be, why didn't he try to find some candidates that would be compromised candidates who could win approval? >> Chien-Chin Lin: I don't know. I have been asked these questions multiple times, and to be honest, I don't really have a good answer. It could be that, you know, because in 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.
They will submit a list of candidates of the justice to the President Lai. And this list is not binding in a sense that President Lai could still change from among these candidates. So it's unclear whether why the President Lai still chose this. But so far, as I heard that, because this is not the first time the DPP president facing a hostile Congress. Former President Chen Shui-bian, when he tried to appoint his justice in 2003, the Congress still was controlled by the KMT.
But still he could, you can say, in a sense, successfully appoint I think 11 out of 15. >> Kharis Templeman: Right. >> Chien-Chin Lin: It has been said that Chen was more flexible in that sense compared to Lai. And so I guess Lai thought that he could at least, I don't know, successfully point some of them, if not all of them.
And it turns out, and as Lev just mentioned, that Liu Jingyi was very close, and it's obviously a playhouse strategy that the DDP eventually decided to withdraw its support. So, sorry, I don't really have a good answer to the question. But I think my answer is that President, I thought that he could at least have some of them, if not all of them. >> Kharis Templeman: Okay, so he basically miscalculated then, that's what this- >> Chien-Chin Lin: Yes, miscalculation, I would say.
>> Kharis Templeman: Okay, wait Song, do you have thoughts on the TPP poo's role in all this? >> Weitseng Chen: Well, I guess in light of all these democratic backsliding around the world, right. There's a new item to be added to the dictatorship's playbook. Nowadays, to control the Constitutional Court or High Court is the most efficient way to control the politics. In Poland, the president control the Constitutional Court.
As a result, the court declare any unconstitutional move by the president constitutional right. Or conversely, declare unconstitutional, right, for any constitutional movements carried out by the opposition party. In other words, you don't have to win the majority in the parliament before you can control the system, right? Or at least destroy the system. So I guess either party in Taiwan just shows the similar dynamics, right? So that's the institutional from an institutional design perspective.
And for, of course, there are always some principle and 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, doesn't get along with Ke 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 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 of the Sidai Li Liang, the people's power. And then there was a debate within the new party then, right. They said, well, they didn't get sufficient respect by DPP, right. Even though they are supposed to be the kingmaker parties, right.
So they are going through a soul searching process, you know, what's the value for the third party, Right. A new party in Taiwan. So I guess that's why Huang not tried 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 other side, which is I guess understandable. Right, but still one of the main cause of partisan conflicts nowadays. >> Kharis Templeman: 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 or thoughts on this? >> Larry Diamond: Well, I have a couple questions that are interrelated. This is all happening at a time of I think pretty obviously manifest rising danger for Taiwan security. And if we're geopolitically. There was just an article in the Economist recently about how many countries.
Virtually majority of the UN have signed up completely to the PRC's claim of legitimacy basically to do anything it wants to Taiwan. The security situation is obviously very concerning in terms of the gradual extension of PRC. MRCilitary activity around the perimeter of various kinds and just the March toward the 2027 magic date for readiness of the PLA. It's all pretty alarming. And I listen to this and it just kind of sounds like whistling while Rome burns.
It seems to this politically nonpartisan and dispassionate observer that there's a variety of possible compromises, one of which would be along the lines of what happens in other democracies. There's a wide variety of practices in these sort of circumstances. They get together, they negotiate. One side nominates four Justices, the other side nominates three Justices. They recognize neither has complete power now, and they put a mix of Justices on the bench and they move forward.
Are there any talks? Is there no recognition of the gravity of the surrounding circumstances? And is there anyone, the Bar association, any neutral agency that could mediate this political dispute? >> Kharis Templeman: Yeah, Lev, you want to kick us off? >> Lev Nachman: Sure. So I think it's worth noting that there's quite a few people, especially from the green leaning camp, who have very much Highlighted that this isn't just a matter of democracy, it's messy.
It's a matter of no, we're freezing our own country's institutions. At a time when the PRC has made it increasingly clear that their ambitions for Taiwan are becoming more and more imminent. So Taiwan, as I know everyone here knows, doesn't have the luxury of time to just sort of figure this out as we go along. The more Taiwan becomes paralyzed, the easier the PRC has to sell itself to the world. And importantly to I think a lot of blue leaning voters in Taiwan there.
There were protests by the Taiwan Bar association against this. There was protest, there have been protests pretty much nonstop Protests against all of this have started since before Lai was president. And unfortunately a lot of the protests had to be partisan. So if you're green leaning, you're at the protests and if you're blue leaning, you're not at the protests. The way that these protests are now sort of manifesting is through recalls.
So the parties have decided that the best way to channel this sort of civil society energy is to try to recall each other's politicians. I don't think that's a particularly effective solution to any of this, but that is the solution that the parties are going with. I think that there's a lot of people who do recognize, Larry, your frustration of why is there no possibility to compromise. But no, I do not think that there is a real drive by either party to compromise.
Instead both are looking for retaliatory measures like recalls >> Kharis Templeman: Tianju. >> Chien-Chin Lin: Yeah, of course as Larry just said, there are some calls that ask or that urge President Lai to nominate more neutral guys. Some even suggest that he should nominate former President Ma Ying Jeou and former President Tsai Ing Wen to the bench. Because they have law degrees and they are former just like friends like.
But I'm not sure if this works because as that or some Weijin just mentioned that tthe KMT just vetoed all nominations including some that are perceived neutral and some are career judges. They are on the ordinary course for their lives and they. And one of them even support or even I would say even support death penalty which is consistent with what KMT is but still she got voted down.
So it's not really and I guess it's not really like so long as you nominate nominate neutral guys, you will got, you will got a full bench. It's not necessary, it's not guaranteed. And the other issue is that because the legislature is they vote on candidates one by one. S they do not vote on them in a package which means that if you nominate like you know three blue guys and four green guys.
Let's say it could end up the MT legislatures they simply you know voted down the four guys the four green guys instead of so there's no guarantee that the exchange would be successful I guess that's one risk President I was estimating so that's my take.
>> Kharis Templeman: Okay Wei Tang >> Weitseng Chen: I respond to Larry I guess I just emphasized my point which is in the past both in Taiwan and South Korea the Constitutional Court plays a crucial role as a referee in this partisan conflicts right. 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 and budgets and then later on the Constitutional Court stood up right and say well this kind of law that made Constitutional Court non functionable is unconstitutional, right? So they sell themselves, and this time, same, all right? I know there's a debate within the court whether they should use the similar approach, right? Saying, well, this kind of super majority 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 they are to deal with politics, the more vulnerable they become, all right? That's the situation now. So, I guess it's a pure political negotiation instead of judicial issue at this moment. But, given the current large scale recalls across the country, both parties have no incentive to sit down and to talk, all right? That's not the ideal situation.
>> Kharis Templeman: So let me, I want to kind of step back and put this in historical perspective. We've brought up the Chen Shui-bian era a fair amount, which is the one other time we had divided government. And that era has, I think, a well deserved reputation as being quite chaotic, featuring deep political polarization. I don't know if we're at Chen Shui Bian levels 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 of institutional reform during that era. There was the creation of these independent commissions, the change in the Constitutional Court Organic Act. Is there room for some kind of broader institutional reform that would change a bunch of things at the same time that both sides could get behind? Is there, at least in theory, the possibility?
Because it seems to me right now the institutions of the ROC on Taiwan are not well designed for an opposition controlling the legislature and the ruling party, just controlling the executive. And that should be obvious to everybody. And so I'm wondering if there is a kind of grand bargain that could get Taiwan out of this particular stalemate right now. >> Lev Nachman: So, unfortunately, there are institutional changes being made, but they're arguably counterproductive.
So, you know, yeah, you know, you do have institutional changes to the legislative UI now where legislators have more powers now, you know, you have changes to the courts and you know, there's debates about the nc, the NCC that we talked about, and we don't even need to bring up the budget. 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 gonna meet 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? I mean, which seems to me like a very reasonable compromise on some level. But I just, I worry that partisan politics are going to kick in and that the mood these days is just to be as retaliatory and aggressive as possible. And I hope that there is space for that. But these days it doesn't seem particularly likely.
>> Kharis Templeman: Yeah, okay. Jianzhi. >> Chien-Chin Lin: 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 reform is that you may consider raising the threshold, the decision making 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 during the Chen Shui-bian era.
Which is why the Taiwan Congressional court was considered as more neutral at that time, because it required the consent of two-thirds. Which means that you can say arguably green 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 sure that there will not be radical opinions of the court because you need to compromise under a two super majority threshold.
And on the other hand, two thirds is okay in the sense that it keeps the work functioning or at least it will not be paralyzed. It could delay, could make the quorum less efficient because you need a two thirds and there will be some negotiation between those justice of different at different spectrums. And this is why the current, or you can say the Congress was hostile to the constituent court, because currently or before the amendment, it requires a simple majority.
And when it requires simple majority, you can say the court is more likely or more vulnerable to the accusation of partisanship or something like this. And also I think the easiest way to institutional 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. But two-third is a number that was considerate. That's my two cents. >> Kharis Templeman: Great.
Let me get Admiral Ellis in here for the last question, and then we'll do one final wrap up. >> Admiral Ellis: Yeah, thanks Carson, and thanks to the panelists. A great conversation and one that has been very enlightening for me. Can you hear me? All right, I see my picture is frozen. My question is the old saying in the US Is all politics are local. In Taiwan, no politics are local.
As Larry said in his remarks, they're global, and they're playing out in a court that perhaps the people of Taiwan are not aware of or particularly concerned about.
But. But I think very much they should be, because those of us that are friends of Taiwan, and I certainly count myself in that camp after decades of that relationship, have always admired and touted the independent character, the stable democracy, the model for the region, if not the world, the ranking in the global democratic indexes and the like. This is making that conversation a lot more difficult. Is there a popular awareness of this? Do the parties speak for the people?
Are people concerned about the optics associated with this? Particularly in a time where you could perhaps candidly say we have a US Administration that's prone to snap decisions and quick policy judgments and the like, that might tend in ways that have dramatic and perhaps unappreciated consequences. Again, that's not all on the shoulders of the people of Taiwan or its legislators or its judicial system, for that matter.
But the grand bargain that Lev was talking about, whether it's constitutional reform, or judicial interpretation, or, heaven forbid, political consensus, and as an American, I'm certainly not arguing that we're a paragon of virtue in that. Is there any sense that this is more serious 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 that perhaps aren't fully appreciated? I'd welcome your perspective on that. Thank you.
>> Kharis Templeman: And since I didn't get to Weitzeng on the last round, let me start with you, Weitzeng, your thoughts. >> Weitseng Chen: 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 high court judge yesterday.
Today and ask him to compare the partisan conflicts now to 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 for both parties to fight until the final end. And one reason is from his perspective, is about misinformation. For example, some people are calling for open trial for KE Wenzhe, the former chairperson of TPP.
And literally no one understand what is that about, it's open a public trial all the time ever since for Mossa trial in 1979. But this kind of misinformation has to be dealt with, 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 perspective means of information. >> Kharis Templeman: [INAUDIBLE], your final thoughts?
>> Chien-Chin Lin: Yeah, I just mentioned a bit that I think one issue I'm concerning is about absentee voting. I think the TPP and arguably the PMT are trying to advance or to propose absentee voting in Taiwan, which I don't think is a good idea given that there are like millions of Taiwanese living and working in mainland China. And there are a bunch of questions associated 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, the P claim essentially can get 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 last word with this panel? >> Lev Nachman: Yeah, super fast.
You know, I asked a colleague of mine, you know, is this normal chaos in Taiwan or is this a kind of a special kind of chaos in Taiwan? And I think we kind of came to the conclusion that we're getting towards special chaos, not because, you know, the challenges we're seeing are new to Taiwan. We see fights in the legislators, we've seen extreme partisanship. It's the timing of the geopolitics that Taiwan currently exists, whether it's the United States or whether it's the prc.
This is not a good time for Taiwan to have to deal with these issues. Ideally, we would deal with these things at a more stable geopolitical time, but Taiwan unfortunately doesn't have that luxury today. And I think that's what makes this feel more chaotic than normal, is that we're having to fix institutions in Taiwan at a time with so much geopolitical uncertainty.
>> Kharis Templeman: All right, well, the Taiwanese have to end on a more positive note, have a remarkable pattern over the years of muddling through and finding a way to survive a lot of chaos and ambiguity over the decades. So I hope that's what ends up happening in this particular moment as well. Just want to thank our audience for sticking with us tonight. You've been listening to the project on 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's Constitutional Court under divided government. Thanks again. I'm Karas Templeman, I'm wishing you all good night. >> Admiral Ellis: Thank you all. >> Weitseng Chen: Thank you. >> Larry Diamond: Thank you.