TDB Vol. 2 No. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

TDB Vol. 2 No. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

Recent amendments to the Referendum Act and the Civil Servants Election and Recall Act have taken Taiwan one step closer to achieving direct democracy. Alison Hsiao explains the changes made to the former and shows why some issues remain off-limit.

 

Direct democracy has made strides in Taiwan in the past year, with significant changes made by recent amendments to the Referendum Act (公民投票法) and the Civil Servants Election and Recall Act (公職人員選舉罷免法). By this process, both acts saw the thresholds lowered and technical barriers removed or lessened, which has garnered applause but also created new challenges.

Referendum Act in a birdcage

The Legislative Yuan passed amendments to the Referendum Act on Dec. 12, 2017, unshackling the law from what some referred to as a “birdcage.” The birdcage was mainly due to the law’s “double one-half threshold,” whereby a national referendum could pass only if the number of voters who participated reached at least 50 percent of the electorate in the last presidential election (thereafter simply “electorate”), and at least 50 percent of those who voted did so in favor of the referendum question. Failure to reach either of those conditions would automatically mean that the people have vetoed the referendum question.

Critics had long argued that referendum questions and campaigns could be manipulated to secure the easy rejection of an argument, since failure to even reach the initial threshold — a 50 percent voter turnout — would mean that the proposal is rejected.

For example, a question could be phrased by those who did not want to stop the construction of a nuclear power plant as whether voters want to stop construction of the nuclear power plant (as opposed to whether they want to continue construction). As the 50-percent voter turnout can hardly be reached in a non-election vote in Taiwan, the referendum proposers could win their case by campaigning against casting the vote at all, or, if they did not want to be too brazen, by simply not campaigning.

Threshold to threshold

However, there were hurdles to cross before even getting to the double one-half threshold.

The group/person that proposed to hold a national referendum would need to demonstrate they have the support (in the form of signatures) of at least 0.5 percent of the electorate in the last presidential election (approximately 94,000) in order for that referendum proposal to be sent to the Referendum Review Commission for official appraisal. The Commission has the power to decide whether a proposal can stand. Prior to the amendment, the Act stipulated that the “matters subject to referendum shall be recognized by the Referendum Review Commission.” (The Commission has historically turned down several proposals amid disputes (1)(2).) Only after the Commission gave the green light could a referendum proposal proceed to the second stage of signature collection needed for a referendum to take place. The number of signatures for the second-stage signature drive had to reach 5 percent of the electorate (approximately 940,000).

Besides the sheer number of signatures involved which was said to contribute immensely to the technical barrier, the Referendum Review Commission was also at the center of controversy due to questions over its impartiality (the Commission members were nominated by the Executive Yuan) and its constitutionality (the Commission had substantive power to restrict people’s right to direct democracy).

‘A new page in Taiwan’s democratic development’

The amendments passed in mid-December scrapped the “double one-half threshold,” lowered the number of signatures required, and abolished the Referendum Review Commission (see Table 1 below).

According to the amended law, only 0.01 percent of the electorate’s (approximately 1,879) signatures are now needed for a proposal to be handed to the Central Election Commission, which is now the competent authority in charge of ensuring that matters to be put to a vote comply with the Act. The second-stage signature collecting now needs signatures by only 1.5 percent of that electorate (approximately 280,000) to initiate a referendum.

A referendum is passed when the number of those who voted yes to a referendum question is greater than that of those voted no, and when the former accounts for more than a quarter of the electorate (approximately 4.695 million).

Once a referendum has taken place, regardless of the result, the same referendum item cannot be put to a vote again within two years.

Other major changes include the lowering of the referendum voting age from 20 to 18; allowing the Executive Yuan (with the approval of the Legislative Yuan) to put its policy proposals to a national referendum; and directives that the Central Election Commission set up an electronic system to facilitate the process of signature collecting.

The People Rule Foundation, founded and led by former Democratic Progressive Party (DPP) chairman Lin I-hsiung, who has long advocated for amendments to the Referendum Act, called the changes “a new page in Taiwan’s democratic development” as “people rule” can now be further substantiated.

But Foundation chief executive officer Liu Ming-hsin said the amendments have only met “90 percent of the [foundation’s] expectation.” The “10 percent disappointment,” Liu said, was the exclusion of “territorial change” as a possible referendum item.

 

                                                                                                    Table 1

 

ROC territorial change

Despite the relaxed rules in the amended Referendum Act, the legislature voted to exclude constitutional amendments as items that can be put to a national referendum. Parties had had exchanged heated words on the matter since 2016, when proposals to amend the Act were first tabled.

The ruling Democratic Progressive Party (DPP) maintained that since there are already rules governing amendments to the Constitution in the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), there was no need to include them in the Referendum Act, with DPP Legislator Lee Chun-yi calling the Referendum Act merely a “procedural law.”

New Power Party (NPP) Legislator Huang Kuo-chang, however, pointed out that since the Additional Articles of the Constitution state that the alteration of the national territory should go through a referendum (Article 1), the Referendum Act as a procedural law should not exclude constitutional amendments as possible referendum items. The main opposition Kuomintang (KMT) stood with the DPP on excluding those.

The issue of changing the Republic of China (ROC) boundary has been the object of contention as it hits a raw nerve among many who fear that the territorial claims upheld by the ROC since 1947 — which encompass territory that is larger than what the People’s Republic of China rules and claims — or the ROC’s “inherent” territorial boundary as stated in the ROC Constitution, could be altered if this were put to a referendum. Conversely, by making the territorial boundary stipulated in the Constitution coterminous with that of what is under Taiwan’s current effective rule, which would include Taiwan, the Pescadores, Kinmen and Matsu, Taiwan’s de jure independence (without changing the name of the country) could, according to some, be achieved.

The NPP caucus had also demanded that cross-Strait political negotiations be put in the Act as a referendum item, requiring initiatives for cross-Strait political talks be put to a referendum before any negotiations between the two governments can take place. The NPP’s proposal did not receive majority approval in the legislature.

Application

The NPP and the Social Democratic Party (SDP) have each since proposed and collected the needed number of signatures to pass the first-stage threshold to call a referendum on overturning amendments to the Labor Standards Act, which was also passed recently on Jan. 10 amid controversy and protests.

See also: TDB Vol. 2. No. 2: Taiwan’s Tough Road to Labor Reform

Members of the opposition SDP set up booths to collect signatures to annul the latest amendments to the Labor Standards Act. (photo courtesy of the SDP official Facebook page)

One other group that has hitched the wagon to the new referendum law was the Happiness of the Next Generation Alliance, an anti-same-sex-marriage alliance, which has collected enough signatures and passed the first-stage signature threshold at the end of January for its proposal to define marriage as strictly the union between a man and a woman, this despite a groundbreaking Constitutional Interpretation in May 2017. On Jan. 31, the group announced it had successfully collected more than 3,000 signatures for a referendum proposal that aims to make revisions to gender equality education.

For both issues, there is no easy way through the CEC, which has now taken over the responsibility of reviewing proposals from the now-defunct Referendum Review Commission.

On Feb. 1 the CEC announced that the referendum proposals tabled by the NPP and the anti-gay-marriage group must first be referred to public hearings for clarification on the wording of the proposals before the CEC determines whether the proposals are valid. The NPP called on the CEC not to create technical barriers to stall their proposal, adding that there were no ambiguities or contradictions in its proposal. The Happiness of the Next Generation Alliance convener said they were not surprised about the CEC’s announcement, as the issues have generated much public debate.

The surge in proposals is the result of the expectation that the referendum(s) could be held alongside the nine-in-one local elections on Nov. 24 this year.

 

 

Feature image: From Flickr CC BY 2.0.

TDB Vol. 2. No. 3: Deportations of Taiwanese Suspects to China Violate Rights of Taiwanese

Several countries have deported Taiwanese fraud suspects to China in recent years, a new trend that undermines Taiwan’s sovereignty and raises issues as to the ability of the suspects to receive a fair trial. Olivia Yang looks at this development.

 

Philippine authorities on Jan. 13 arrested 133 Taiwanese and Chinese suspects in a crackdown on telecom scams. While it remains to be seen where the suspects will be deported, over 500 Taiwanese nationals worldwide have been deported to China since 2014, nearly 300 of them last year alone.

The deported Taiwanese have been suspected of working with telecom or cyber fraud rings in countries including Kenya, Malaysia, Cambodia, Armenia, Vietnam, and Spain.

The Spanish National Court last December made two decisions that granted Beijing’s request for 214 Taiwanese and Chinese fraud suspects to be deported to China.

“The international community, except for those countries with which (Taiwan) has diplomatic relations, consider Taiwan to be part of China and take the view that its independence cannot be achieved unilaterally,” reads the Madrid Court’s written ruling.

While the move was “welcomed” by the Chinese side, Taiwan’s Mainland Affairs Council (MAC) “expressed deep regret and dissatisfaction” over the decision.

“[T]he Republic of China (ROC) is a sovereign state. Mainland China must face the fact of the existence of the ROC,” reads a statement from the MAC. “The various tactics used by Beijing to pressure Taiwan in the international arena only increase the resentment of the Taiwan public and are absolutely unacceptable to the people of Taiwan.”

It has yet to be determined how many out of the over 200 suspects arrested in Spain are Taiwanese, said Taiwan’s Ministry of Foreign Affairs (MOFA), since officials have been unable to visit and identify them.

Beijing’s argument

Countries that have sent Taiwanese fraud suspects to China have cited Beijing’s “one China” — often confused with a country’s “one China” policy — in which Beijing maintains that Taiwan is an inalienable part of China. Beijing has also defended the deportations, saying that the victims of the crimes were Chinese citizens, a claim that has been backed by China’s diplomatic allies.

Another argument China uses is that Taiwanese suspects often receive lighter sentences, or none, when sent back to Taiwan.

Twenty suspects arrested in a Malaysian telephone scam case were deported back to Taiwan and then released due to lack of evidence in April 2016. However, after Latvia last year turned down Beijing’s request to send 110 Taiwanese suspects to China, 44 of them on Jan. 20 were charged with aggravated fraud by a Taiwan court.

China, on the other hand, on Dec. 21, 2017 convicted 44 Taiwanese of operating telephone scams from Kenya and Indonesia. Two were sentenced to 15 years in jail, while the remaining 42 received sentences of up to 14 years in jail and fined.

Taiwan’s MOFA has protested against Beijing’s actions and condemned them as violations of human rights, especially in cases like Armenia, where the government “neither released information concerning the case during the investigation nor disclosed the location of the ROC nationals.”

But the objections have had little effect, as overseas Taiwanese suspects are continuously deported to China.

Regarding the 2016 Kenya case, international human rights organization Amnesty International expressed concerns that Taiwanese suspects “face a real risk of human rights violations” when sent to China.

“If deported to China, they could face serious violations of their fair trial rights.There is no doubt Kenya cherishes its relationship with China, but by no means should it sacrifice these individuals’ rights for political expediency, the due process of the law must be respected,” said Victor Odero, Amnesty International’s East Africa Campaigner.

According to the Human Rights Watch 2017 World Report, Taiwanese suspects deported from Armenia, Cambodia, and Kenya, “were given no discernible opportunity to contest their deportations before a competent court in those countries.”

Corruption and politics meddling in China’s legal system

Academics and experts have over the years written extensively on corruption within the Chinese legal system and how politics control law in Beijing.

In a 2016 Foreign Policy article, Jerome A. Cohen, co-director of the U.S.-Asia Law Institute at New York University School of Law, wrote that even though Chinese President Xi Jinping has emphasized the government’s efforts to end corruption within China’s legal system, “in principle the party controls the legal system at every level.”

“Despite his emphasis on ‘rule of law,’ Xi wants local courts reliably to submit to the discipline of the central party and judicial officials. He doesn’t want local judges to be independent of the central government, but he does aim to stop the local influences that distort local judgments,” Cohen wrote.

China’s criminal justice system is also known to violate human rights by denying suspects’ access to family members or lawyers of their own choosing while awaiting trial. There have also been many cases in which the state prevented lawyers from meeting clients or accessing necessary court material.

In March 2017, Taiwanese human rights activist Lee Ming-che disappeared while traveling in China. Chinese authorities later that month confirmed they were detaining Lee on suspicion of “subverting state power.” Lee went on trial in September 2017 in the Yueyang Intermediate People’s Court for attempts to promote human rights and democratic values on social media and messaging platforms. He pleaded guilty and was sentenced five years in jail last November.

The Taiwanese activist was unable to contact his family since his detention. Lee’s lawyer was also appointed by the Chinese court.

On May 29, 2009, China and Taiwan signed a “Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement” which stipulates that each side should “provide facilitation for visits by family members in accordance with each Party’s own rules and regulations.”

After Lee’s verdict was handed down, Taiwan Presidential Office Spokesperson Alex Huang said the manner in which China handled Lee’s case had damaged cross-Strait relations and challenged Taiwanese people’s belief in freedom and democracy.

This development has also raised fears that China may eventually pressure governments worldwide to send to China Taiwanese nationals who are suspected of having committed other types of “crimes” as defined by Chinese law, such as encouraging “separatism.”

Taiwanese human rights activist Lee Ming-che.

 

Top photo: From Flickr CC BY-SA 2.0.

TDB Vol. 2. No. 2: Taiwan’s Tough Road to Labor Reform

After months of confrontation, withdrawal in protest from the New Power Party and opposition from the Chinese Nationalist Party in the legislature, amendments to the Labor Standards Act — the second round since May 2016 — were passed by the ruling Democratic Progressive Party-led Legislative Yuan on Jan. 10. Alison Hsiao explains what the new laws entail.

Reform agenda

Amendments to the Labor Standards Act have been the object of heated debate since President Tsai Ing-wen assumed office in May 2016. During her election campaign, Tsai had proposed “six major labor policies” — reducing total working hours, reversing the trend of low wages, supporting employment for all generations, legislating protections for individuals with atypical work, guaranteeing protections against overwork and occupational injuries, and shaping a fair employment relationship. Since her inauguration, people have closely monitored and tracked how well her administration has done to make good those promises.

With Taiwan’s economy faltering, the wealth gap widening, wages stagnating for nearly two decades and a work environment that had not changed for several years, the need for reform was evident and especially welcome among the younger generations.

Amid partisan disagreement, on Dec. 16 last year the Democratic Progressive Party (DPP)-led legislature passed amendments ensuring “one mandatory day off and one flexible rest day” every seven days (which labor rights groups protested were compromised by the reduction in the number of national holidays by seven). The new law also increased overtime pay for work on rest days and added annual leave days for younger employees with relatively few service years. (See Table 1 below)

On the anniversary of President Tsai’s inauguration, the Ministry of Labor conducted a “self-examination,” declaring that the administration has been making good progress in carrying out labor reform and calling the “one mandatory day off and one flexible holiday” measure “the most evident implementation of the administration’s pledge to lower working hours.”

Amendments to the amendments

The measures nevertheless met strong opposition from business leaders and those who claimed that the strict limitations set by the law deprived workers of the right to work more hours to earn overtime pay.

After Premier William Lai was sworn in, the Executive Yuan began mulling a response in September to the complaints concerning the “inflexibility” of the new rules by again amending the Labor Standards Act. On Nov. 9, it approved a series of proposed amendments that give more flexibility to various types of businesses.

The Legislative Yuan had since become a hotspot for protests outside and scuffles within. But still this did not stop the legislative committee from ramming through the review of the amendments on Dec. 4, sending them to the legislative floor for discussion and cross-caucus negotiations.

On Dec. 23, thousands of labor group and NGO members, activists and students took to the streets, raising placards which read “exhausted” and “end overworking” while accusing the ruling party of making an “about-face” and “betraying labor.” The protest occurred two days after the Cabinet called a press conference stressing that the revisions were made for exceptions, applicable only to industries or businesses that require flexibility and whose exemptions are approved by the government. Quoting a study conducted and published by the National Development Council (NDC) in cooperation with the Chung-hua Institution for Economic Research (CIER), in which both manufacturing and non-manufacturing industries have claimed that the “one mandatory day off and one flexible rest day” measure has negatively affected their operations and costs, Cabinet Spokesperson Hsu Kuo-yung underlined that the new amendments are to “both increase workers’ pay and facilitate a better operational environment for the businesses.”

The Dec. 23 march had been scheduled to end at 5pm, but a group of young protesters refused to disperse, and started a “night guerrilla tactic.” They hurtled around to be chased by the police and randomly stopped at crossroads to cause traffic congestion. The chase ended past midnight when police swarmed the Taipei Main Station East 3 Gate beleaguering the few remaining protesters, who in the end were, together with the lawyers who came to the protesters’ rescue, packed onto the police paddy wagon and “dumped” on the Taipei outskirts. The lawyers called a press conference in the small hours of Dec. 24 and accused police of infringing upon personal freedom and “grossly violating the law.”

An extraordinary legislative session was called for and began on Jan. 5 as the regular legislative session had ended on the last working day of 2017. The New Power Party (NPP) caucus, at the end of the first day of the extraordinary session, blocked the entrance by locking the doors of the legislative floor chamber with iron chains, while Chinese Nationalist Party (KMT) lawmakers, who reportedly also had planned to occupy the chamber, taking actions by stationing themselves outside the chamber with hundreds of amendment motions in an attempt to prevent DPP lawmakers from proposing the Labor Standards Act amendment bill. After the blockade ended 160 minutes later, the NPP legislators moved to the plaza in front of the Presidential Office and started a hunger strike.

Barbed-wire barricades and ad hoc restriction zone set by police around the Presidential Office since Jan. 5 have enraged activists. Some had taken the DPP to task for seemingly reneging on the stance it used to uphold on the Assembly and Parade Act, which was to relax the law and restrict its arbitrary use by the authorities.

On Jan. 8, civic and labor groups again protested outside the Legislative Yuan to pressure lawmakers, with some taking radical actions in hopes of raising further public attention. The NPP caucus, after being evicted from the front plaza of the Presidential Office in the early hours of the same morning, returned to the legislature but withdrew from the cross-caucus negotiations in protest.

Four Unchanged rules and Four Flexibilities’

On the afternoon of Jan. 9, the Legislative Yuan embarked on an 18-hour voting marathon. Legislators from the KMT staged a sit-in in the chamber, wearing headbands and spreading banners that read, “death of labor rights” and “shame of democracy,” while the NPP lawmakers walked out of the chamber all together and declared they would not to participate in any floor discussion and voting regarding the labor law.

The third reading of the amendments was completed on Jan. 10, giving flexibility for negotiations between unions and company management (between workers and management if no union exists) on matters regarding an overtime cap (the rule of 46 hours per month can be extended to 54 hours, although the three-month total of 138 hours remains unchanged), “one fixed day off and one rest day every seven days” (the rule stays but which day should be the fixed day off within the seven days can now be decided through union-management negotiations after government approval for some industries), and the hours of rest between shifts (11-hour-rest is the norm but exceptions could be made to reduce the rest hours to 8 and no less after union-management negotiations and with government approval). (See Table 1 below)

Also unchanged from the 2016 version of the amendments is the 40-hour workweek and overtime pay on rest days.

Infographic issued by the Ministry of Labor after the passage of the amendments. The ministry also released a statement refuting some of the Presidential Office’s Human Rights Consultative Committee members’ claims, published as an opinion piece in a major newspaper, which accused the latest labor law amendments of violating Article 7(d) of the International Covenant on Economic, Social and Cultural Rights. The ministry reiterated that the flexibilities allowed do not sanction overworking as there are conditions to be met and approved by the government. (Picture courtesy: Ministry of Labor)

According to the government, the amendments provide more flexibility with regards to overtime, work schedule arrangements, shift arrangements and annual leave usage.

After passage of the bill, Minister of Labor Lin Mei-chu said the rules are the rules, and that the “exceptions will definitely not become the rules.” Lin was responding to widespread fears that the “flexibility” given to certain industries under certain conditions could result in misuse and exploitation. “The intervals between workers’ rest are not to be reduced without government approval following applications for flexibility and exceptions,” Lin said, adding that the ministry would flesh out supporting measures and mechanisms for curbing violations before March 1, the day the amendments officially take effect.

 

Table 1 Labor Law Amendments

*Before the 2015 40-hour workweek amendment, many were already enjoying two-day weekends because the MOL had made an interpretation of the law in 1998 allowing employers and employees to reach an agreement on swapping “not working the 4 additional work hours every two weeks under the ‘84 hours for every two-week period’ model” for not having days off on the following seven holidays: January 2 (an extension of the New Year’s Day holiday), March 29 (Youth Day), September 28 (Teachers’ Day), October 25 (Taiwan Retrocession Day), October 31 (Chiang Kai-shek’s Birthday), November 12 (Sun Yat-sen’s Birthday), and December 25 (Constitution Day). But not all employers adopted the swapping measure.                                  **Government approval required                                                                                                                                                  *** When the compensatory/annual leaves are not used up, employers are still required to pay accordingly.

TDB Vol. 2 No. 1: BERSIH 2.0: More than Just Street Protests

TDB Vol. 2 No. 1: BERSIH 2.0: More than Just Street Protests

Maria Chin Abdullah, head of the recipient of the 2017 Asia Democracy and Human Rights Award, shares her views on democracy and the role of civic groups with Taiwanese NGOs. Olivia Yang reports.

 

“We are trying to define democracy in Malaysia, to say that it is all right for you to speak up, it’s all right to not fear them. Because once we show fear, we back down, we compromise.”

BERSIH 2.0 Chairperson Maria Chin Abdullah is speaking at a discussion with Taiwan NGOs in Taipei on Dec. 10, 2017. The Malaysia-based coalition had just been presented with the 2017 Asia Democracy and Human Rights Award earlier that day, and proceeded to share her experiences with Taiwan NGOS on how civil societies in Asia advocate for fair and clean elections.

While BERSIH 2.0 is well-known for its sea of bright yellow-clad protesters in the streets of major cities around the world, rallies are not the only approach the coalition takes in expanding civil political participation throughout Malaysia.

“At any time now we can confidently say we can bring 100,000 people to the streets, but it took us 10 years to build up this momentum,” says Maria Chin Abdullah. “The other thing we are saying to the government is that you have to respect rule of law. We are actually challenging them.”

To build more awareness among Malaysians on the importance of civil participation in public affairs, BERSIH 2.0 has come up with new strategies. These include organizing electoral observations, forming a Delineation Action and Research Team (DART), and holding boot camps that provide education on the basics of democracy, elections and mass mobilization.

But the coalition’s efforts have not all been carried out smoothly.

Maria Chin Abdullah says that “as we get more sophisticated in reaching out to people, the state also gets more sophisticated in trying to counter us.”

BERSIH 2.0 Chairperson Maria Chin Abdullah at the 2017 Asia Democracy and Human Rights Award Ceremony. (Photo: 黃謙賢 / TFD).

Pushback from the government is not unexpected; however BERSIH 2.0 is also seeing frustration from the civil society. Sometimes people want quick solutions to changing the government, which is very difficult due to the “uneven” system, says the BERSIH 2.0 chairperson.

“People think that just because they vote they should get the results they want. But it doesn’t work that way.”

While elections in Taiwan are comparatively clean and fair, challenges like vote-buying still exist.

Huang Shiow-duan is a standing board member at Transparency International Chinese Taipei (TICT) and chairperson of Citizen Congress Watch (CCW), a coalition of NGOs that monitors the Legislative Yuan, Taiwan’s Parliament.

During the conversation with BERSIH 2.0, Huang gave examples of how the organizations she is affiliated with are fighting corruption in the island-nation.

From 2013 to 2014, TICT collaborated with the Tainan District Prosecutors Office to produce a series of anti-corruption animated education videos. Huang says it is crucial to start anti-corruption education from a young age, and children can also be more persuasive in communicating information to older generations.

CCW, on the other hand, supervises Taiwan’s parliamentarians by broadcasting legislative sessions and making legislative documents accessible to the public. It also evaluates legislators once every six months and the evaluation report is made public so that civil society, along with legislators, are aware of their performance.

“I don’t think the government will clean itself. It needs supervision. That’s why we need to create a system of separation of power,” says Huang.

Compared to TICT and CCW, Watchout Co. is a younger NGO founded in 2013 with a mission of lowering the threshold of political participation. Being a media platform, Watchout empowers the people by sharing facts and informed opinions in a way that is easy to consume. It also utilizes social media and technology to oversee the government.

But echoing Maria Chin Abdullah, Yu Chih-hao, design and technology lead at Watchout, says that “empowering the people is the ultimate solution — but it’s the toughest solution.”

The main challenges Watchout faces is coming up with methods to free people’s time and minds, and getting other media outlets to distribute its information so the facts flow between different eco-chambers.

Yu nevertheless emphasizes the importance of democratic countries defining their own democracy and learning from each other.

“Practicing democracy in Taiwan is our lifeline,“ says Yu. “It’s one of the factors that differentiate Taiwan from China, and it’s one of the factors that get Taiwan international recognition and respect.”

“Democracy does not happen overnight. Democracy takes time,” says Maria Chin Abdullah. “We are struggling. We are backsliding. But I still believe in the power of the people.”

Top photo:  BERSIH 2.0 Chairperson Maria Chin Abdullah speaking at a discussion with Taiwan NGOs in Taipei on Dec. 10, 2017. (Photo: Olivia Yang).

 

TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

There has been much discussion about the Act on Promoting Transitional Justice since it was passed in early December. The Taiwan Association for Truth and Reconciliation has come up with a Q&A to respond to the myths and controversies concerning the newly passed law and to help put transitional justice in its proper Taiwanese context.

 

1. Why does the transitional justice concerned in the Act only target the Kuomintang (KMT)? This is none other than political vendetta!

Transitional justice is to hold rulers and the state apparatus accountable for their violations of the basic rights of the people and their abuse of state institutions and power. The KMT was the sole ruling party during the Martial Law period and where decision-making and discussion of many policies took place. It is difficult to undertake the project of Taiwan’s transitional justice and rectify the wrongs committed during the Martial Law period without making the party the target.

Post-democratization governments certainly are not immune to taking illegitimate actions that are against the principles of justice, but people living in a democratic society are more aptly equipped with rights guaranteed by the Constitution and protected by mechanisms such as separation of power and checks and balances. When their rights are violated, they have access to both institutional and non-institutional ways to demand a response from the government (appeal, court, petition or social protest).

What “transitional justice” deals with is the political persecution committed before democratization.

2. Taiwan’s transitional justice is purely a political scheme against waishengren and to de-Sinicize Taiwan?

In fact, according to statistical information derived from the number of people receiving state compensation, the percentage of waishengren political victims in the White Terror cases was actually a lot greater than the percentage of ethnic groups in Taiwan’s total population. The case of Shandong exiled students is an example that involved a large number of waishengren. Clearing up the history helps solve certain myths surrounding the ethnic divisions and antagonism. Due to its idiosyncratic history, Taiwan’s democratic transformation was intertwined with a process of change in people’s national identity; the two thereby have often been conflated but should actually be looked into with extra caution.

The core of transitional justice, however, is about how a society faces its history, about making those denying historical traumas and mistakes understand that it would come at a cost. Transitional justice is a task with concrete goals to achieve.

3. Chiang Kai-shek had made contributions to the country as well. Why can’t his contributions be displayed alongside his misdeeds? If not for him, Taiwan would have been taken over by the People’s Republic of China long ago and very likely be overwhelmed by the storm of the Cultural Revolution.

As said in the answer to the first question, transitional justice is to hold rulers and the state apparatus accountable for their past violations, not to write biographies for historical figures. Those political parties and individuals who harbor special feelings for Chiang Kai-shek can continue their support for him.

Nonetheless, the rhetoric of “safeguarding Taiwan (against Chinese aggression)” cannot explain why Chiang perpetuated Martial Law rule even after his control over Taiwan (and offshore islands) was consolidated in the mid-1950s (after the Korean War) and why he targeted the communists, the tangwai/dangwai people and overseas Taiwanese independence activists as “three-in-one enemy” starting in the 1970s. “Protecting the island from falling under communist control” was a propaganda slogan for the ruler to rationalize his use of political repression and carrying out of comprehensive social surveillance during the Martial Law period.

4. The government has been compensating political victims since the 1990s. What else is to be done 30 years after Martial Law was lifted?

Bound by the National Security Act and Constitutional Interpretation No. 272, before the passage of the Act on Transitional Justice, the political victims, despite receiving compensation, were not cleared of their convictions and criminal records, seized properties were not returned, and the KMT archives during the years when the country was ruled by the party-state have not been made public. Even now, we still do not know exactly how many political victims there were during the White Terror. Why were they persecuted? Who should be held accountable? How extensive was the persecuting system? What, if any, have the persecutors done to redeem themselves? What was wrong with Martial Law and the constitutional institutions? The state has to face its own past deeds. Holding the repressive system accountable is much more than simply pointing fingers at Chiang Kai-shek and Chiang Ching-kuo; a lot more needs to be done.

▶︎ See also: TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Discovered in the 1990s, the Liuzhangli graveyard in Taipei was the burial ground for hundreds of White Terror victims. The cemetery was designated a municipal cultural landmark in 2015 (Photo: TATR).

5. The amendments to the Labor Standards Act have been stalled and same-sex marriage legalization (seemingly) mothballed; is the ruling Democratic Progressive Party pushing for transitional justice just to divert public attention?

What we need to do is to work together for the realization of social justice of various kinds rather than elbowing each other out. The passage of the Act on Transitional Justice does not mean that transitional justice has been achieved. The Transitional Justice Promotion Committee has to be overseen and kept from descending into formalism. We need to take this historical opportunity and build a bridge between the past and the future in our era.

6. Granted, the task of transitional justice should be done, but don’t we need to have a sense of proportion by first working hard on improving the economy?

Most of the living political victims are aged. This is probably the only time period in which we live alongside these people. When else but now are we to rectify the past wrongs for them and grant them their historical status? There are things that cannot be bought with money: lost youth, freedom and lives. They could have had a different life, if only Taiwanese society had been free from the decades-long suppression and suffocation. It’s hard to weigh the possibilities they had once owned for their worth, let alone against money.

7. Those political victims were not all innocent. Some of them were underground Chinese Communist Party members who were supposed to be executed.

No one would object to redressing the wrongful charges against the innocent, but the greatest challenge of transitional justice precisely lies in questioning the legitimacy and legality of the laws that the “criminals” had broken during the Martial Law era. How did the state violate the people’s basic rights and deprive the people of their rights under the pretext of maintaining social stability and national security via court-martial and laws? How do we draw the boundary between national security and protection of personal rights? This is a question in need of serious debate even in a democratic society. We can choose to forget and pretend nothing of the sort happened, or we can choose to face the history. Those interested in the debate can find a related extensive discussion on the website of the third constitutional court simulation (in Chinese) that was held in November, 2016.

8. Why are Indigenous peoples and “comfort women” not included in the Act?

Those who support the redressing of historical wrongs are supposed to also be in support of the restoring of justice for Indigenous people and for “comfort women.” Taking other countries’ cases as examples, these two groups deserve separate legislative bills for delicate and thorough handling of their demands, rather than being squeezed with other groups into the same piece of cloth.

The persecution that Indigenous people have been subjected to span different regimes, which requires a more comprehensive examination and solution that goes to the root of the problems stemming from political institutions and existing laws. If not, the same kind of persecution would only reappear in different forms. The issue of “comfort women,” on the other hand, requires the government to negotiate with the Japanese government and demand compensation and an apology.

It is hard to imagine these different forms of violence that require different routes for restoring justice could be dealt with by the same set of rules. Only through different legal and institutional frameworks can these issues be allowed more room for detailed and practical solutions to these complicated problems.

9. The constitutionality of the Act on Transitional Justice is in question?

Whether a law is unconstitutional is up to the grand justices to decide. Insofar as it has not been ruled unconstitutional, a law passed by the legislature is nevertheless effective.

Questions have been raised as to whether the jurisdiction assigned to the Transitional Justice Promotion Committee oversteps the jurisdiction of the judiciary, such as Article 14 of the Act granting the Committee the right to investigate, and Article 15 and Article 16 allowing the Committee to seal documents and materials regarded as evidence and to require those under investigation to speak the truth. According to Constitutional Interpretation No. 613 concerning the operation of an independent agency, the constitutionality of the operation of an independent agency will be upheld “if important matters are determined by means of hearings, if the performance of the execution of its mission is made transparent and public for the purpose of public supervision,” and with the existing “authority of the Legislative Yuan to supervise the operation of the independent agency through legislation and budget review.” Article 19 prohibits damaging of political archives on pain of imprisonment; however, the one who initiates the investigation should still be the prosecutors, as how the offenses of destruction, abandonment, and damage of property are governed in the Criminal Code.

In general, the Committee will be operating in the same way as other independent agencies (e.g. the National Communications Commission and the Fair Trade Commission), exercising its jurisdiction independently, unaffected by the change of premier and having the power of administrative enforcement (one could refer to the Administrative Execution Act for an understanding of how the power is governed). However, the Committee should be as prudent and transparent as possible when exercising these powers, with the Committee making critical decisions by consensus.

10. What is transitional justice anyway? What should be done to achieve it?

Transitional justice” used to be a professional term developed by international academia to refer to how a society that has achieved democratic transition faces and deals with mass human rights violations committed in the past by the state. It has therefore also been termed as “dealing with past wrongs.” The main objective of transitional justice is “Never Again” and to make up for the past sufferings of our fellow countrymen and -women. The core objectives of transitional justice are: seeking the truth, compensating the victims, restoring justice, attaining social reconciliation and preventing the return of state violence.

How is transitional justice done then? The more commonly seen mechanisms include (1) trials and vetting (holding the persecuting system and persecutors accountable); (2) setting up a Truth Committee and sorting and making public the related archives (the state needs to recognize what mistakes it has done); (3) compensating the victims and their families and restoring their reputation; (4) rebuilding the memory (removing/remaking symbols of authoritarianism and cautioning future generations against the return of authoritarianism through museums, memorials and textbooks). Every country has its own distinct way of carrying out transitional justice under different historical/political contexts; there is no “correct way.”

This piece originally appeared in Chinese. Translation by Alison Hsiao

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Nearly a year since a draft bill was introduced in the Legislative Yuan, the Act on Promoting Transitional Justice was passed on Dec. 5, marking an important step in the country’s effort to shed light on and redress past injustices committed during the Martial Law period. Alison Hsiao looks at the Act and its implications.

 

At 21:09 on Dec. 5, Legislative Speaker Su Jia-chyuan struck the gavel and announced the passage of the “Act on Promoting Transitional Justice” (促進轉型正義條例) on the legislative floor, signifying a new beginning for the country’s transitional justice.

Different versions of the bill had been proposed and heated debates on various issues — from the time span covered and the authority granted to the Transitional Justice Promotion Committee to the decision to make indigenous groups’ transitional justice a separate issue not included in the Act — were stoked in the year-long period since the draft bill was introduced in the legislature last year.

The Act that cleared the legislature on Dec. 5 put an end to the battle — temporarily, however, as the opposition Kuomintang (KMT) indicated right after the passage that it would petition for an interpretation of the Constitution on the grounds that some clauses of the Act are unconstitutional.

Covering the period from Aug. 15, 1945 to Nov. 6, 1992, when Martial Law was lifted on the offshore islands of Kinmen and Matsu (five years later than on Taiwan proper), the Act will see the setup of an independent, nine-people Transitional Justice Promotion Committee overseen by the Executive Yuan.

The Committee will be tasked with five main missions: opening up political archives, erasing symbols of authoritarianism and keeping the sites of past injustice, redressing judicial wrongs, restoring the historical truth and promoting social reconciliation, and settling and re-channeling ill-gotten party assets.

Beside the party assets settlement that has already been undertaken, the task that is expected to stir up future debate is the erasing of “symbols that are nostalgic or in memorial of the authoritarian ruler(s) in public buildings and spaces,” written in Article 5 of the Act. It has already been interpreted by some local media as a directive to conduct a house-cleaning removal of references to “Zhong-zheng” (Chiang Kai-shek’s given name) in the names of schools, places and streets. That claim has since been rebutted by Minister of the Interior Yeh Jiunn-rong, who said that it will be up to the Committee to decide.

The Act also stipulates that any institution, group or people evading, refusing or hindering investigations launched under the Act, and political parties and their affiliated organizations refusing to return political archives (determined as relevant by the Committee) to the state will be subject to repeatable penalties of NT$100,000 to NT$500,000 and NT$1 million to NT$5 million respectively. Those who have disposed of, destroyed, damaged or concealed political archives, or have attempted to do so, will be liable to punishment of no more than five years behind bars.

Transitional Justice with Taiwanese Characteristics’

The major breakthrough has been praised by the Taiwan Association of Truth and Reconciliation (TATR), a non-governmental group that has advocated for transitional justice since 2008 and which was directly involved in the legislative process leading to the Act. TATR has lauded the annulling of Article 9 (Paragraph 2) of the National Security Act — passed less than a month before the lifting of the Martial Law in 1987 in Taiwan proper — that prevented political victims convicted of criminal charges by a court martial during the authoritarian period from appealing in the post-martial-law time.

“The Act has made concrete advances on both rectifying past injustices and truth seeking, particularly the former,” the association said on Facebook. “This is a transitional justice model with Taiwanese characteristics.”

Article 6 of the new legislation now demands that the right to appeal for re-investigation be returned to those who “had been subjected to criminal sentencing — resulting in punishments, rehabilitative measures and confiscation of properties — that had violated the constitutional order of liberal democracy and the principle of fair trial during the authoritarian rule.” The cases should not be bound by Article 9 of the National Security Act, the article says, adding that redressing judicial wrongs can be achieved by “identifying the persecutors and holding them accountable, restoring and compensating for the damages to the victims or their families’ reputation and rights, and setting history right and making public the judicial wrongs.”

Two scenarios are considered in Article 6.

Those who have been compensated or had their rights re-instituted in accordance with the February 28 Incident Disposition and Compensation Act (1995) (二二八事件處理及賠償條例), the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (1998) (戒嚴時期不當叛亂暨匪諜審判案件補償條例) and the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (2000) (戒嚴時期人民受損權利回復條例), shall see the related convictions annulled and criminal records expunged, according to the Act, without the need to go through judicial proceedings.

Rendered criminal-record-free without the need to go to court, they can nevertheless still make use of the reinstated right to appeal, TATR President Yeh Hung-ling said. Such individuals can now appeal the convictions of offenses of sedition or treason under Martial Law in order to receive compensation or to secure the return of properties seized as accessory penalty (which was supplementary to the principal penalty of imprisonment or death). Such appeals were not possible before, as the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (Article 4) restricts the right to demand the return of or compensation for confiscated properties to those who are “found innocent.” This very article was literally empty because, when coupled with Article 9 of the National Security Act, no acquittal was possible without the right to appeal in court.

The second scenario involves those cases not covered by the three compensation acts. The new legislation demands they be redressed in the same way if approved by the Committee through a review launched upon the petition of the claimant or initiated by the Committee itself.

Those rare cases are the “controversial” ones, the association said. They include that of Voyue Tosku (杜孝生), a Tsou Aborigine who received a 17-year prison sentence in 1954 for “corruption,” and of Li Ma-dou (李媽兜), whose conviction of sedition/treason “survives the legal review under current laws and rules of evidence” — meaning that he did “by violence commit an overt act” with intent to destroy the state or use illegal means to overthrow the government according to the Criminal Code, and is thereby not compensable under the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period.

The claimants in the second scenario also have the right to appeal in court if their claims are rejected by the Committee, the Act states.

Milestone’

Putting an end to the applicability of Article 9 of the National Security Act is a “milestone” for Taiwan’s transitional justice since the lift of the Martial Law 30 years ago, the TATR said.

“We ask that the Democratic Progressive Party government exercise extra prudence when choosing the members of the Transitional Justice Promotion Committee, and attend to all the indispensable aspects of transitional justice — truth, justice, compensation for and rectification of wrongs, and reconciliation — with a holistic vision,” it added, stressing the need to pass the bill of political archives that has been waiting in the wings of the Legislative Yuan to further clear up the past.

President Tsai Ing-wen, on the next day of the legislative achievement, also called the passage of the Act “a milestone of Taiwan’s freedom and democracy.”

“I’ve said on the day of the 70th anniversary of the 228 Incident this year that the goal of transitional justice is reconciliation, not political vendetta; this is the principle that the government will insist on, as only when the people face the past together can the country move toward the future in unity,” she said.

The president said she “looks forward to the advent of the day when the work of transitional justice is complete and no political party in Taiwan would any longer need to bear the brunt of the country’s criticism against past authoritarian rule.”

“People would no longer harbor hatred against each other, trapped in painful historical memory. Taiwan will transform into a different country, and our democracy will also take a step forward,” she said.

President Tsai Ing-wen addresses victims and families of victims of political repression under Martial Law on International Human Rights Day 2016 (Photo courtesy of the Tsai Ing-wen official Facebook page).

TDB Vol. 1 No. 21: Lee Ming-che Sentencing a Warning to Others (Analysis)

TDB Vol. 1 No. 21: Lee Ming-che Sentencing a Warning to Others (Analysis)

More than the unfair treatment of a man who did nothing wrong, today’s sentencing is another reminder that China has no intention of playing by international rules. It is also a warning that Beijing has cast a much wider net to silence critics and those, Chinese and not, who propose an alternative system of governance in China. J. Michael Cole looks at the significance of today’s ruling.

 

The Yueyang Intermediate People’s Court in Hunan Province today sentenced Taiwanese human rights activist Lee Ming-che to five years’ imprisonment for “subversion of state power” and suspended his political rights for two years, a ruling that Taiwan’s Presidential Office and rights organizations worldwide decried as “unacceptable.”

Lee was arrested in March upon entering China via Macau. After disappearing for several months, he resurfaced in court in Hunan Province in September, where he was accused of collaborating with others in China and on social media to “attack the Chinese government” and promote “Western-style democracy.”

Peng Yuhua, a Chinese citizen who was accused of working with Lee in “organizing, planning and taking action to subvert national authority and overthrow the socialist system,” was sentenced to seven years in prison.

After today’s ruling, Lee said he would not appeal.

Amnesty International, Human Rights Watch and other organizations have described the sentencing as “absolutely outrageous” and a “warning signal” to other activists. In a statement, Taiwan’s Presidential Office wrote that “it is regrettable that the Lee Ming-che case has seriously damaged cross-strait relations and especially challenged Taiwanese people’s persistence and ideals for democracy and freedom.”

Lee is the first Taiwanese national to be sentenced for such a “crime” in China under the new National Security Law which passed on July 1, 2015 and which stipulates that preserving the national sovereignty and territorial integrity of the People’s Republic of China “is a shared obligation of all the Chinese people, including compatriots from Hong Kong, Macao and Taiwan.”

The court’s suspension of Lee’s political rights is no doubt meant to underscore Beijing’s contention that the new National Security Law applies to Taiwanese nationals (whom it regards as PRC citizens) regardless of where the alleged crimes are committed. We should note here that the said crimes Lee is accused of having committed occurred primarily online.

The heavy sentence is also meant to send a loud signal to other activists in Taiwan, Hong Kong and elsewhere that they, too, can now be apprehended and convicted for “crimes endangering national security” and the “people’s democratic dictatorship regime” as (loosely) defined in the Law, irrespective of where the said crimes have been committed, both physically and online.

The heavy sentence is also meant to send a loud signal to other activists in Taiwan, Hong Kong and elsewhere that they, too, can now be apprehended and convicted for “crimes endangering national security” and the “people’s democratic dictatorship regime” as (loosely) defined in the Law, irrespective of where the said crimes have been committed, both physically and online. This development will no doubt have a chilling effect on activists, academics, journalists, officials and artists who may fear that they have, at some point, promoted through their work or personal discussions online notions of democracy or sovereignty that can be construed as criminal in China.

Moreover, the existence of the Law, and now the precedent set by Lee’s arrest and sentencing, provides the means and empowerment for local officials to act independently and to disappear a suspect into the Chinese legal system, out of which it has become increasingly difficult to emerge — even for foreign passport holders. In other words, and as likely was the case with Lee, the arrest and sentencing of non-PRC nationals can now occur without a directive from, or even the knowledge of, the central government.

By targeting Taiwanese nationals and others who are engaged in the promotion of human rights and democracy, Beijing hopes to deter their engagement with likeminded elements in China and limit their ability to cooperate with them in defying CCP authoritarian rule. Thus, besides scaring off outside forces, the move also seeks to further isolate human rights activists in China, who under new rules governing foreign NGOs have already been having a tougher time connecting with the outside world.

More than the unfair treatment of a man who did nothing wrong, today’s sentencing is yet another reminder that China has no intention of playing by international rules. It is also a warning that it has now cast a much wider — and extraterritorial — net in its attempt to silence critics and those, Chinese and not, who propose an alternative, more liberal and democratic system of governance in China.

Photo: Chuyện Việt Nam

TDB Vol. 1 No. 20: Democracy Under Pressure, but Undefeated

TDB Vol. 1 No. 20: Democracy Under Pressure, but Undefeated

Developments over the past two decades are forcing experts to reassess traditional models of the spreading of democracy. With the democratic ‘center’ encountering various difficulties, the ‘peripheries’ may now have a greater role to play to prevent a further global backsliding in democratic practices. This, and other issues, were the subject of a recent lecture in Taipei involving Professor Laurence Whitehead and other experts. Olivia Yang reports.

 

“I think we should celebrate not only that it happened, but that it happened then.”

Thus spoke Professor Laurence Whitehead of Oxford University on the lifting of Martial Law in Taiwan in 1987 during a conference at Academia Sinica on Monday.

“Delay would have changed the dynamics and the meaning of it, and changed the international reputation you have gained,” he said.

To commemorate the 30th anniversary of the lifting of Martial Law in Taiwan, the Taiwan Foundation for Democracy (TFD) collaborated with Academia Sinica, Taiwan’s top research institution, to host a lecture led by Whitehead on Nov. 20.

Professor Laurence Whitehead of Oxford University gives his talk, “Democracy Reassessed: A Twenty-First Century Project under Pressure,” during a conference at Academia Sinica in Taipei on Nov. 20 (Photo: Huang Chien-hsien 黃謙賢 / TFD)

In his speech, titled “Democracy Reassessed: A Twenty-First Century Project under Pressure,” the renowned British political scientist talked about democracy and democratization,and how developments in Taiwan’s democracy over the past 20 years are providing standards and examples that are “positive and encouraging” for the international community.

Whitehead opened his lecture by explaining the “diffusion model” of democratization, which went from “the center to the periphery.” Before the 1990s, he said, it was typical to assume that democratization originated with countries that had long-standing and advanced democratic systems. These democratic concepts would then gradually extend out to other societies at all levels of development.

“That was an unstated but quite influential idea 20, 25 years ago,” Whitehead said.

However, events in the past 20 years — such as the Sept. 11, 2001, terrorist attacks in the U.S. — have shifted Western priorities from liberalization to securitization, he said.

“After 2001, what we saw were such discouraging practices coming from the center,” Whitehead said. “Who would have thought in the 1990s that democracies would be willing to condone torture?”

Many of the older “central countries” that were supposed to serve as examples of democratic quality are also now facing new challenges, and in turn this highlights the faltering of the diffusion model.

“So in general, instead of the kind of diffusion that was hopeful or imagined in the 1990s, we started having a more aggressive or coercive democratization,” he said.“That is to say, the imposition of desired or recommended models of political government through force rather than constructed on the basis of consent from within.”

In addition to the loss of momentum, the community of democracies is also seeing pushback from authoritarian regimes. With the weakening in both international incentives and institutional disciplines of democracy, democracy is under pressure and incomplete democratizations are at a higher risk of “going off the rails,” Whitehead said.

Still, Whitehead maintained that although democracy is under pressure, it is not defeated. More attention should be directed to how democratic diffusion can flow from the peripheries to the center, he said, adding that it is also crucial to understand that diffusion effects are not the only — or even the most — important means by which to bring about democracy.

“If you want to promote democracy in the world, a fundamental essential starting point is to establish and maintain high levels of democratic practices at home to provide the sort of example that makes democracy attractive to your own people and also to other people,” he said. “This is what all genuine democrats should be arguing for in all countries where democracy exists.”

“If you want to promote democracy in the world, a fundamental essential starting point is to establish and maintain high levels of democratic practices at home to provide the sort of example that makes democracy attractive to your own people and also to other people. This is what all genuine democrats should be arguing for in all countries where democracy exists.”

While Taiwan has not been a primary focus of Whitehead’s research, he said his impression is that although the People’s Republic of China currently ejoys strong momentum, the island-nation’s foundation of resilience has also strengthened over the past 20 years. If Taiwan continues to maintain high standards of democracy, it could go on to provide leadership and expertise for other democracies in the long run, he said.

Professor Cheng Tun-jeng of the College of William and Mary in the U.S., one of the two commentators at the lecture, said he agreed with Whitehead’s conclusion that the diffusion model is not the sole means to spread democratization.

Turning to China’s influence, Cheng highlighted three reasons why the authoritarian challenge from Beijing is not as formidable as it seems.

First, luminaries like Daniel Bell who discuss “the beauty or comparative advantage” of the so-called “China model” tend to juxtapose the potential vices of democracies with the potential virtues of authoritarian regimes.

“That only gives a partial characterization of reality, and perhaps a distortion of it at its worst,” Cheng said.

Moreover, most comparative political theories argue that democracy as a form of government is imperfect but improvable, he said, adding that the advantages found in authoritarian regimes need to be “balanced by a number of acute problems inherited in this kind of regime,” including the legitimacy of the government and lack of press freedom.

The second commentator and moderator for the lecture was Wu Yu-shan, distinguished research fellow at the Institute of Political Science at Academia Sinica. Wu said he agreed with Whitehead that “the core is losing its steam” and asked whether the coupling of Western democracies with neo-liberal economic policies was the root of the ostensible erosion of democracy observed in recent years.

In response, Whitehead said the process of democracy building is “a bit separate from the question.”

“We should not go to the other extreme and say if you can’t get your economic performance model right, you can’t have a democracy,” he continued. In fact, “you can have successful democracies which are constructed against neo-liberalism.”

Wu Yu-shan, distinguished research fellow at the Institute of Political Science at Academia Sinica, weighs in (Photo: 黃謙賢 / TFD)

Calling Whitehead’s remarks on Taiwan “very encouraging,” TFD President Hsu Szu-chien said that the significance of holding the lecture was not only to commemorate the struggles that led to Taiwan’s democracy, but also to redefine and reposition democracy.

“When global democracy is backsliding, it is even more exceptional that Taiwan’s democracy is able to firmly persist,” Hsu said.

In his opening remarks for the lecture, Legislative Speaker Su Jia-chyuan, who doubles as chairman of TFD, said that since Martial Law was lifted in Taiwan 30 years ago, democratic appeals have been implemented one by one and there have since been three peaceful alternations of ruling parties.

“But Taiwan’s democratization and reformation is not over,” Su said. “Democratization is not a single event, but a process that continues to evolve. We need to continuously adjust our footsteps for the sustainable development of our country.”

Legislative Speaker and TFD Chairman Su Jia-chyuan makes opening remarks at the lecture (Photo: 黃謙賢 / TFD)

Dr. Hsu Szu-chien, president of the Taiwan Foundation for Democracy, delivers remarks during the lecture (Photo: 黃謙賢 / TFD)

 

TDB Vol. 1 No. 19: Kou Yanding — A Chinese Dissident’s Journey Through Taiwan

TDB Vol. 1 No. 19: Kou Yanding — A Chinese Dissident’s Journey Through Taiwan

After spending a year touring Taiwan and meeting people from all walks of life, Chinese ‘enemy of the state’ Kou Yanding shares her views on change, the power of civil society, and the challenges facing Taiwan as China flexes its muscles. Alison Hsiao reports.

 

Chinese activist Kou Yanding (寇延丁) identified herself as a “public interest advocate” and did not know she was a dissident until she was arrested by Chinese authorities on charges of “inciting subversion of state power,” the same “crime” that has led to the forced disappearance of Taiwanese citizen Lee Ming-che and the arrest of the late Chinese activist Liu Xiaobo.

After arriving in Taiwan last October as a 2017 Democracy and Human Rights Service Fellow at the Taiwan Foundation for Democracy, Kou embarked on a nation-wide tour with assistance from a civil society organization and local groups to exchange thoughts with local Taiwanese and to urge them to know and face up to China.

“Through my interactions with Taiwanese people over the past year, I have discovered that they hold two alternating images of China: either it’s ‘big,’ or it’s ‘bad,’” Kou said during a seminar concluding her tour on Nov. 11. “People either talk about China as a political superpower and a global economic powerhouse, or as a regime that is autocratic and cruel.”

“Lack of understanding of China puts Taiwanese people’s interests at risk,” she said.

‘Enemy of the State’

Kou’s trip to Taiwan began less than two years after she was freed on Feb. 14, 2015, following a 128-day stint in a Chinese jail.

Her detention came as a result of a sweep of arrests targeting Transition Institute, a non-governmental think-tank in Beijing founded in 2007, and the Liren Rural Libraries, also founded in 2007 to promote education in rural areas and shape the rural young into “modern citizens.” In September 2014, the Libraries were shut down and Transition Institute founder Guo Yushan was detained, followed by a wave of detentions of NGO workers, including Kou.

The year 2014 was a sensitive year for Beijing, with Taiwan’s Sunflower Movement and Hong Kong’s Umbrella Revolution erupting only months apart against, respectively, creeping Chinese influence in Taiwan and Beijing’s refusal to grant universal suffrage in Hong Kong. Kou’s detention resulted from her involvement in the two movements and a wave of arrests in response to the printing of material about the Umbrella Movement by a woman in Beijing.

Kou, left, Wu Jieh-min, associate research fellow at the Institute of Sociology at Academia Sinica, and NGO workers from Hong Kong (second from the right) and Taiwan (right), share their views on why Taiwanese should interact with Chinese civil society and cultivate a “Taiwanese viewpoint” of China during a seminar in Taipei on Nov. 11. (Photo courtesy of the Youth Synergy Taiwan Foundation)

In her book, How is an Enemy Made? — Chinese Who Have No Right to Remain Silent, Kou details her 128-day ordeal “through which enemies of the state are manufactured.” During her interrogation she was enlightened by her interrogators (one of whom she nicknamed “pig”), who informed her that she was part of a “subversion scheme” centered on a training camp involving activists from China, Hong Kong and Taiwan. One of the trainers, a convenient fact highlighted by “pig,” was Chien Hsi-chieh, a non-violent resistance advocate, but more importantly, one of the founding members of the Democratic Progressive Party in Taiwan.

Before her involvement in the alleged plot, Kou’s work had always focused more on public welfare. She founded organizations to support people with disabilities in China which today continue to play an active role in areas that were most affected by the 2008 Sichuan earthquake. She focused on grassroots empowerment that even received approval by the Chinese authorities: her Operational Democracy — Bringing Robert’s Rules of Order to the Countryside, was published with permissions in China.

It was not unnatural for a civil society worker in China to eventually look to Hong Kong and Taiwan for precedents and opportunities to share experience. But in 2014, it was more risky than ever to associate with activists from the two places.

Petitions with Chinese characteristics

At every seminar that she held, Kou and the local team that supported her tour in Taiwan screened “Petition” (上訪), a documentary by Chinese director Zhao Liang. The film covers more than a decade and ends in 2008, the year of the Beijing Olympics. In the lead-up to the Games, a petition village — spontaneously built as petitioners stayed in Beijing for years hoping in vain that their cases involving local injustice and gross corruption could be heard by the state’s highest institutions — was torn down.

Almost 10 years have elapsed since the Beijing Olympics, and Chinese President Xi Jinping is said to be cracking down on corruption, one of the main grievances animating the petitioners. Have petitions, a form of appeal to higher ups in government seeking redress that harkens back to feudal China’s “imperial appeal” (gao yu zhuang, 告御狀), had any success in mitigating the longstanding problems with the Chinese system?

“No,” Kou says, emphatically.

“Xi’s anti-graft campaign is selective in that it targets only his opponents,” she said. “The petitions [to Beijing] continue and the most prominent one recently was that by veterans of the People’s Liberation Army.”

Asked if she apprehends returning to China after spending a year in Taiwan revealed the problems plaguing Chinese society, Kou was evasive, but stressed that the Chinese government has “done a successful job drumming up and spreading fear, even in Taiwan.”

“I’ve been very open about what I’ve been doing in Taiwan via my column [on Taiwanese online media Storm Media],” she added, suggesting that there is no need for Chinese law-enforcement authorities to be alarmed by possible “secret activities.”

Taiwanese apathy

Kou says she was stunned by how few people in Taiwan know who Lee Ming-che is, and worried that even fewer wish to know more about China aside from its apparent economic prowess.

“I was really depressed after a seminar [held earlier this year] with a group of young students at a college in central Taiwan, during which only two or three hands were raised after I asked them whether they’d heard of Lee,” Kou told her audience on Nov. 11.

In her column, Kou said she was perplexed by commentaries by Taiwanese describing Lee’s arrest as “his own doing” because he had engaged in activities that are forbidden by the Chinese government.

“It’s unbearable to see that [Taiwanese who enjoy freedom] would use [Beijing’s] logic to explain [the consequences of] your actions,” she wrote. “There are also those who choose not to look at China just because they ‘don’t like China,’ which I consider an extremely childish answer not fitting for an adult.”

“All the progress and reform in China started from the people, from peasants, petitioners and public interest advocates, whose demands got debated by scholars, spread by media and eventually recognized by the institutions.”

The last thing she needs is for Taiwanese to refer to history and politics and explain to her, as some friends and scholars have tried to do, why some Taiwanese behave that way, Kou says. “The point is not about convincing me in oral arguments. The question in the end comes down to how Taiwanese are to face up to their gigantic neighbor.”

But, indeed, how? Kou said she is here to ask the question, not to provide an answer. But an answer was nevertheless implied in her talk on how Chinese civil society is actually more vibrant and active than those who obsess about the omnipresence of the communist regime would think.

If one focuses only on the Chinese Communist Party’s size and might, it is natural that he or she would feel powerless, she says. “But from what I’ve seen from ‘among the people,’ people power is strong, as manifested in the aftermath of the 2008 Sichuan earthquake, where thousands of civic groups mobilized.”

“All the progress and reform in China started from the people, from peasants, petitioners and public interest advocates, whose demands got debated by scholars, spread by media and eventually recognized by the institutions,” Kou said, firm in her belief that change comes from the bottom and through more substantial civil society-to-civil society exchanges with places with robust civil activities, such as Taiwan.

Top photo:  Kou Yanding speaks about China and why Taiwan should care (Photo courtesy of the Youth Synergy Taiwan Foundation).

TDB Vol. 1 No. 18: China’s Expanding Influence in Democracies Around the World

TDB Vol. 1 No. 18: China’s Expanding Influence in Democracies Around the World

China is using its power to undermine democratic institutions and free expression in democracies worldwide. From the harassment of journalists to the removal of thousands of articles in prestigious academic journals, the CCP is rapidly eroding freedoms that we have long taken for granted. Olivia Yang reports.

 

During his three-and-a-half-hour address to the 19th Chinese Communist Party (CCP) Congress on Oct. 18, Chinese President Xi Jinping pledged to make his party more responsive to calls for democracy and justice. But tight security around the congress — human rights lawyers, rights defenders, petitioners and dissidents were arrested nationwide — suggested otherwise. And increasingly, China watchers are warning of Beijing’s accelerating efforts to reinforce and export its anti-democracy beliefs abroad.

One day before the closely watched Party Congress, a press conference was held in Taipei to draw attention to China’s spreading influence in democracies around the world.

Titled “Made in China: Democracy Oscillated and Human Rights Wrecked,” the media event was convened by 17 Taiwanese non-government organizations, including the Taiwan Association for Human Rights, Covenants Watch, Taiwan Support China Human Rights Lawyers Network, Human Rights Network for Tibet and Taiwan, International Tibet Network, and Tibetan Youth Congress.

Beijing has been increasing pressure on international events and organizers to either not extend an invitation to Taiwan or force the island-nation to attend under the name “Chinese Taipei.” Taiwan delegations, research teams, journalists and NGOs have also been barred from entering international meetings and assemblies despite having gained access in the past. These events have included the World Health Assembly (WHA), the Interpol general assembly, the International Civil Aviation Organization (ICAO), the International Labor Organization conference, and others.

Other than interfering with Taiwan’s international affairs, China has been tampering with local events through more direct means. This includes the kidnapping of Taiwanese activist Lee Ming-che in March, influence in Taiwanese media, threats against journalists, and longstanding reliance on pro-unification groups to intimidate civilians, such as the violent assault on student protesters who rallied against the “Sing! China: Shanghai-Taipei Music Festival” which was scheduled to be held at National Taiwan University last month.

Growing international threat

China’s interference is not limited to Taiwan. In August, Chinese authorities demanded Cambridge University Press (CUP) remove 315 articles in China Quarterly, CUP’s China-focused journal, when accessed in China. Around 1,000 e-books were also asked to be taken off from CUP’s Chinese websites. The writings covered issues ranging from the Tiananmen Square protests and the Cultural Revolution to Taiwan and Tibet.

The U.S.-based Association for Asian Studies (AAS) also confirmed the same month that China had requested the censorship of around 100 articles in its Journal of Asian Studies — also published by CUP. It was also learned in early November that Germany-based Springer Nature, the world’s largest academic book publisher, had removed at least 1,000 articles in the Journal of Chinese Political Science and International Politics. The articles in question also contained the keywords “Taiwan,” “Tibet,” and “Cultural Revolution.”

U.K-based CUP reversed its decision to comply with Beijing’s request after receiving widespread criticism, while AAS refused to adhere to Chinese authorities.

Visa denial is an alternative approach China is taking to curb discussion of democracy and human rights.

Canadian Conservative House Leader Candice Bergen in August was denied a visa upon planning to raise questions on human rights on a Canada-China Legislative Association trip. Prominent British human rights activist Benedict Rogers this month was also barred from entering Hong Kong, despite Rogers saying he was making a private trip.

In a more extreme case, leader of the Norwegian Nobel Committee, Berit Reiss-Andersen, was not even allowed to apply for a China visa when she sought to attend the funeral of Nobel Peace Prize Laureate Liu Xiaobo in July.

China has long used visa denials to also rid itself of foreign journalists and academics who are too critical of its repressive policies. In recent years, several foreign journalists have also been denied access to certain sites or regions, and a number of them worldwide have been threatened with legal action for writing about sensitive issues in China. In August this year, Nathan Vanderklippe, the Beijing bureau chief for Canada’s Globe & Mail, was briefly detained by police and his computer was seized while reporting in Xinjiang. For updates on how China meddles and censors media worldwide, see Freedom House’s “China Media Bulletin.”

In recent years, several foreign journalists have also been denied access to certain sites or regions, and a number of them worldwide have been threatened with legal action for writing about sensitive issues in China.

While Beijing authorities had a direct hand in the above occurrences, the Chinese Communist Party is also infiltrating democratic countries through “soft power.”

In May, the Chinese Students and Scholars Association, which has chapters in universities across the U.S., condemned one university for inviting the Dalai Lama to deliver a speech. A few days later, it accused a Chinese student of “not loving China” because she praised U.S. freedom and liberty in her graduation speech.

The following month, Chinese students at Australian universities were reported to be monitoring fellow nationals and keeping the Chinese embassy informed of activities such as human rights protests. Political parties in Australia have also been accused of taking donations from Chinese property developers in recent years, while Chinese state-controlled media giants have sought to influence mainstream Australian media by pushing cooperation deals.

Interference by Chinese officials has also been reported in Canada, such as during a state visit by then-president Hu Jintao, when, according for a former Canadian intelligence officer, a Chinese diplomatic mission mobilized Chinese counter-protesters. Keen on securing a free-trade deal with China, the Liberal Trudeau government has been reluctant to openly criticize Beijing for its human rights violations or activities that undermine Canada’s democracy.

Dr. Anne-Marie Brady of the University of Canterbury, also a prominent expert on Chinese affairs, in September published a research paper examining how China’s soft power is becoming a growing concern for New Zealand and how its effects could be mitigated.

In the executive summary of her study, Brady writes, “The focus of media attention has been on Australia, but the People’s Republic of China’s (PRC) attempts to guide, buy, or coerce political influence abroad are widespread. China’s foreign influence activities are part of a global strategy with almost identical, longstanding approaches, adapted to fit current government policies. They are a core task of China’s united front work; one of the CCP’s famed ‘magic weapons’ that helped bring it to power.”

China’s influence, and by default its nefarious influence on democratic institutions, is also growing through its “One Belt, One Road” initiative and in places like Africa, where it has been cooperating with local media organizations.

Safeguarding democracies

The Australian government is preparing to introduce next month a series of laws covering espionage and foreign political interference. The U.K.’s Foreign Office also summoned China’s ambassador to the U.K. after Rogers was denied entry in Hong Kong. The activist said on Oct. 17 that he will start an NGO to monitor the city’s democracy and human rights.

However, in Canadian MP Bergen’s case, she said Liberal MPs that were also traveling to China for the Canada-China Legislative Association trip did not reply when she asked what measures they would take in response to her visa denial. The group proceeded with the trip without her. Senator Joseph Day, co-chair of the Canada-China Legislative Association, said the group was told by Canadian and Chinese officials it had no choice if it still wanted to go.

When Montreal-based ICAO last year refused to invite Taiwan and blocked Taiwanese reporters from a triennial air safety assembly, Paraguay’s ambassador to Canada, Julio Cesar Arriola Ramirez, told reporters that the ICAO Secretary General, Fang Liu of China, had warned them their microphones would be muted if they tried to speak on behalf of Taiwan.

“The government must make the utmost effort to safeguard Taiwan’s values of democracy and freedom, as well as our way of life.”

In addition to his vow to respond to calls for democracy, Xi also mentioned cross-Strait relations during his report at the 19th CCP Congress, saying China has “a firm will, sufficient faith, and adequate capacity to defeat any intention of ‘Taiwan independence’ in any form.”

“[We will] never allow any person, organization or political party, at any time or in any form, to separate any part of Chinese territory from China,” he said.

In response to Xi’s remarks, Taiwan’s Mainland Affairs Council said in a statement that the unilateral construction of a “one China” on Taiwan was unlikely to gain support from the Taiwanese. Taiwan President Tsai Ing-wen in her National Day address on Oct. 10 also dedicated a passage reminding that the island-nation’s democracy and freedom “only came following the joint efforts of all Taiwanese people.”

“As a result, the government must make the utmost effort to safeguard Taiwan’s values of democracy and freedom, as well as our way of life,” Tsai said.

The president also reiterated that she and Taiwan would not “bow to pressure” from China regarding cross-Strait relations.

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