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. 12: Young Activists Fight for Democracy in Asia

TDB Vol. 1 No. 12: Young Activists Fight for Democracy in Asia

Following a nine-day workshop in Taipei, a group of young democracy activists from around Asia elaborated various strategies to tighten regional cooperation and facilitate information-sharing in times of democratic recession. Alison Hsiao reports.

 

At the conclusion of a nine-day Asia Young Leaders for Democracy (AYLD) program hosted by the Taiwan Foundation for Democracy (TFD) in Taipei earlier this month, young participants from around Asia issued a document that is known as the AYLD Declaration. Covering a wide range of issues, the declaration was drafted by the 20 participants, most of whom come from countries that face many challenges in achieving or sustaining democracy.

In itself, the fact that a declaration was issued by a group of young people with different national backgrounds can be hailed as an accomplishment. As many of us know, consensus is rarely the outcome of official region-wide conferences.

Still, adopting a declaration that could be approved by all through a democratic process nevertheless proved challenging, which the young democracy advocates knew all too well from their own experiences back home, where efforts to discredit democracy have been gaining momentum. As the democracy-skeptic camp often argues, efficiency, ostensibly key for development, often suffers from long democratic procedures; so if a trade-off at the expense of democracy is the inevitable cost, then so be it.

Consensus-building isn’t easy, even among ardent supporters of democracy.

“Democracy needs time,” the participants admitted. And as if to prove this, they requested more time to arrive at a final draft of their declaration. Notwithstanding the delays, the young participants were keenly aware that the case for an alternative model to democracy — autocratic governance — is based on a “false promises of economic prosperity and national glory (Clause 1).”

While some efficiency must be sacrificed for the sake of democracy, the “best solution” is not, and never was, what democracy is about, as one participant said during the discussions. Another cited Winston Churchill, who once famously said that “democracy is the worst form of government, except for all the others.”

As democracy is said to be in recession with the rise of “illiberal democracy,” the young democracy leaders responded to the trend with an emphasis on fighting disinformation and extremism (Clause 2 & 3), which serve as incubators for and are the product of illiberal democracy, respectively.

The declaration also contains much evidence that the young democracy leaders fully understand what democracy is not: majoritarianism with the majority having all the say. Votes may be necessary, but deliberation and compromise among groups and people, with members of a program or a community having equal rights and access, are indispensable.

The rights of minority groups and political participation have to be guaranteed (Clause 4 & 5): “All human beings, regardless of their race, ethnicity, gender, disability, age, language, religion, social class, sexual orientation and gender identity, deserve equal rights and equal dignity,” the declaration says, following a debate on whether “women’s political participation” should enjoy a highlighted focus with a separate clause.

“Democracy is the worst form of government, except for all the others.”

“Democracy needs time” could also be taken to mean that the realization of true democracy is a long haul that requires people, especially the young, to resolutely and actively engage in monitoring, maintaining and improving the democracy agendas in their respective countries.

The task, however, can be particularly daunting for those who live in countries where governments wield power without proper checks and where people in general are ignorant about (or nonchalant) human rights violations. Inter-country and regional alliances and cooperation are therefore essential for activists and dissidents for the sharing of hands-on experience and solidarity building.

To this end, the 2017 AYLD participants came up with three action plans to strengthen the network they creatdd during the program and the principles they have vowed to uphold in the declaration.

The Asia News for Democracy has been set up and will serve as a platform for Asia-related news-sharing to enhance regional partners’ understanding and facilitate networking initiatives.

Moreover, two types of workshops have been proposed to promote democracy and its consolidation: a workshop at the country-level on disinformation for schools and organizations to improve young people’s information literacy and skills to combat “fake news”; and regular regional joint workshops to building regional communities and share first-hand information to young human rights defenders, with a focus on cyber security, utilization of new technology, legal training and protest-organizing strategies.

AYLD participants break into small groups as the project drafts its declaration.

The people behind the idea of holding regional workshops also agreed that lessons can be learned not only from what works, but also from failure. Stories of botched-up tactics and flops can be just as educational and rewarding as those touting successes. In the long run, they said, failure can be a series of steps and milestones leading to success.

Two visits by AYLD members — to the Jing-mei Human Rights Memorial and Cultural Park and the Nylon Deng Memorial Museum — drove in the fact that failure can be but a temporary setback. While both sites are dedicated to activists and dissidents who “failed” in the face of an authoritarian regime, today they are now remembered with respect and pride, and the principles they fought for have prevailed over the forces of repression that, at the time, seemed implacable.

TDB Vol. 1 No. 9: Pension Reform: A Bitter but Necessary Pill

TDB Vol. 1 No. 9: Pension Reform: A Bitter but Necessary Pill

When President Tsai Ing-wen (蔡英文) delivered her inauguration speech after being sworn in as Taiwan’s first female president on May 20 last year, she pledged to build a better nation for younger generations. The first and foremost task in fulfilling that goal, she said, is to reform the nation’s cash-trapped pension system that would otherwise go bankrupt within a decade. Stacy Hsu looks into the history of and the many challenges associated with this endeavor.

 

Before the Democratic Progressive Party (DPP)-dominated legislature passed the pension reform bills targeting retired civil servants and public-school teachers amid fierce protests in late June, the country’s pension system was a “political time-bomb” that many leaders before Tsai had tried — and failed — to defuse.

At the center of the problem are two notorious absurdities in the pension schemes of retired military personnel, civil servants and public-school teachers: the so-called 18% preferential interest rate and abnormally high income replacement ratios.

The preferential interest rate can be dated back to as early as 1960, when Taiwan was under authoritarian one-party rule. In light of inflation and the relatively low salary received by public servants back in the day, the Chinese Nationalist Party (KMT) regime issued a series of administrative orders to offer a preferential saving rate on civil servants’ pension payments in a bid to ensure their financial security after retirement.

According to the Examination Yuan, the administrative body in charge of managing public servants, the saving rate has undergone several adjustments since its introduction, from the initial 21.6% to 14.25% in 1970, 16.7% in 1979 (with the rate floor at 14.25%), and then to 18% (also the rate floor) in 1983.

The preferential interest rate was scrapped following the implementation of a new pension system in 1995, which increased civil servants’ pension benefits by allocating part of their monthly income to the pension fund, rather than relying on the government as the sole contributor.

However, it did not quash the controversy surrounding it, as public servants who were hired before 1995 were still entitled to the saving rate after retirement. (The amount of a retiree’s pension payment that is eligible for the interest rate depends on a public servant’s pre-retirement income and number of years of service prior to 1995.)

The meeting minutes of the Presidential Office’s Pension Reform Committee show that as of June last year, approximately NT$462 billion (US$15 billion) in pension payments from about 457,000 public-sector retirees were stored in bank accounts eligible for the 18% interest rating, putting a NT$82 billion dent in government coffers each year.

The committee’s deputy convener, Lin Wan-i (林萬億), estimated that the interest rate would not really become history until 2054.

Though the saving rate had its historical necessity, today it is mostly seen as a remnant of Taiwan’s authoritarian era, one of the roots of social injustice, and a form of political payout by the previous KMT authoritarian regime to cement support among the nation’s civil servants, which has in turn created an uneven playing field for political parties.

Due to the preferential interest rate and/or public-sector employees’ ostensibly “unfair” pension calculation formula, some of their actual income replacement ratios (the percentage of one’s pre-retirement income) could be over 100%. This means they could earn even more in retirement than they did when they were on the workforce.

In 2006, despite leading a minority government, president Chen Shui-bian (陳水扁) of the DPP sought to reform the preferential interest rate. However, instead of gradually phasing out the rate, he only managed to cut down on the amount of pension payment from which a retiree could earn the interest rate by putting a cap on their income replacement ratio.

Chen’s successor, Ma Ying-jeou (馬英九) of the KMT, also made pension reform one of his policy priorities, describing the problem as so dire “people will regret it tomorrow if we do not reform it today.”

The Ma administration established a pension reform task force to solicit public opinions in 2009 before rolling out a draft plan in 2013. Despite the efforts, the plan was stalled at the KMT-dominated legislature at the time — allegedly due to electoral concerns and overwhelming criticism of what president Ma called a “painful decision” to cut year-end bonuses for public-sector retirees in 2012.

Failed efforts by her predecessors and fears of further alienating the DPP among public servants should have deterred President Tsai from making another attempt. Instead, she put pension reform at the forefront of her policies and joined hands with DPP lawmakers in ramming pension reform bills that many deem drastic through the legislature.

Under the bills passed so far, the 18% preferential interest rate will be reduced to zero two years after the bills’ promulgation scheduled for July 2018.

In addition, civil servants and public-school teachers (the draft bill for military personnel is yet to be drawn up) will see their income replacement ratio reduced to 60% within 10 years and ultimately be required to calculate their pension payment based on their average monthly salary in the final 15 years of employment, rather than their last month of service as currently stipulated.

Tsai’s reform success has reflected in her approval ratings. According to a survey by the TVBS poll center on July 12, the president’s support rate has climbed to 29%, from 21% in June.

Such efforts, however, are not without their costs. President Tsai has been shadowed by anti-reform protesters, some of whom have threatened to use violence or to disrupt events such as state visits by foreign presidents or the upcoming 2017 Universiade in Taipei. The KMT and its spin-off, the People First Party, are mulling filing a request for a constitutional interpretation on pension reform legislation.

Just as in other countries, pension reform is almost always a magnet of unpopularity and fierce protests. A good leader will know when to overlook temporary noises and focus on the long-term good.

TDB Vol. 1 No. 7: Sexual and Gender-Based Violence

TDB Vol. 1 No. 7: Sexual and Gender-Based Violence

While Taiwan has made progress in raising the social status of survivors of sexual assault, most victims in Asia are still deprived of a voice. Specialists and victims of sexual and gender-based assault from around the world took part in a workshop organized by the Taiwan Foundation for Democracy last week. Stacy Hsu reports.

 

Standing in front of a packed room full of participants at a workshop on ending sexual and gender-based violence in Asia on May 24 — part of the three-day East Asia Democracy Forum organized by the Taiwan Foundation for Democracy — 18-year-old Taiwanese Victoria Hwang (黃靖茹) electrified her audience with her vivid account of the sexual assaults she suffered at far too young an age.

Hwang was 10 when a close relative raped her at her home. Due to the belief that “the ugly should be kept within the family” and the unfortunate Asian culture that regards sex as a taboo subject at home, Hwang’s parents neither called the perpetrator out nor provided their daughter the emotional comfort she desperately needed.

Instead, they tried to pacify her by saying that the family relative only touched her because “he liked her.” Until this day, Hwang is forced to face her rapist at family reunions every year. The worst part? She has to pretend nothing happened in order to maintain household harmony.

At age 15, Hwang was sexually assaulted by a male friend, to whom she admitted she was attracted. The man also justified his action by saying he had feelings for her. The excruciating realization that she could not turn to her parents for help, or talk to someone about what had happened to her, led to her being diagnosed a year later with post-traumatic stress disorder (PTSD).

Read Your Pain founder Victoria Hwang.

Hwang’s trauma was not only caused by the two people who sexually violated her, but also a patriarchal society’s tendency to silence rape survivors. “If this society does not allow rape victims to tell their truths, they will never acquire the strength and support they need,” Hwang said.

Fortunately for Hwang, she stepped out of the shadows after realizing later that she had to overcome her fears and get her story out there for society to listen and change its traditional mindset. She also initiated a scheme called “Read Your Pain,” which publishes the stories of victims of sexual violence anonymously to help facilitate their healing process and raise awareness of the issue.

The 18-year-old’s successful transition from “a rape survivor to an activist” may seem encouraging, but many more victims of sexual assault remain encumbered by past trauma in the darkest corners of the world.

As Garden of Hope Foundation chief executive officer Chi Hui-jung (紀惠容) said in her opening remarks at the workshop, while Taiwan has made progress in raising the social status of survivors of sexual assault, most victims in Asia are still deprived of a voice.

“How to empower these victims to help them through trauma, and make society realize they are not responsible for what happened to them, are the goals most countries are working towards,” Chi said.

Chi’s views were echoed by Taiwan Foundation for Democracy Vice President Ketty W. Chen (陳婉宜), who believes the entrenched practices of “blaming the victims and assuming they must have done something wrong” are the greatest impediments to an appropriate societal attitude toward sexual violence and their survivors.

Though Taiwan currently has a relatively comprehensive sexual-assault safety net — including prevention campaigns by authorities and women’s rights groups, as well as an administrative mechanism of mandatory reporting of suspicious rape cases — there is still much room for improvement.

The time-consuming legal process for solving sexual abuse cases, coupled with a lack of gender awareness among some judges and prosecutors, can add to the already heavy psychological burden of victims, Chi said.

Chi gave the example of a recent case where a migrant worker was sexually assaulted three times by her employer. “The authorities, convinced of the existence of an emotional bond between the assaulter and the victim, concluded that the sexual acts were consensual and decided not to prosecute the case,” she said.

Education is another aspect that requires more emphasis, said Wang Yue-hao (王玥好), deputy chief executive officer of the Garden of Hope Foundation, singling out the common misconception that most sexual offenses are committed by strangers, while in fact in most cases the perpetrators are acquaintances.

Lee Ping-chang (李炳樟), a specialist at the Ministry of Health and Welfare’s Department of Mental and Oral Health, also warned against the association of rapists with mental illness, saying that less than 10 percent of sex offenders are actually found to have psychological problems.

“That is why we should focus more on monitoring them [sexual assaulters], rather than treating them,” Lee said.

Such a mistaken belief also prevails when people think about violence against women, said Malaysian gender consultant Ivy Josiah, who formerly served as executive director of the Selangor-based Women’s Aid Organization.

“Violence against women is not a mental health issue, but one rooted in gender inequality, power imbalance and discrimination,” said Josiah, adding that alcohol, work-related pressure, or financial difficulties are merely enabling factors of such violence, as opposed to the primary causes.

Malaysian gender consultant Ivy Josiah.

Whether it is sexual or gender-based violence, there was a resounding consensus among the workshop participants that more action by both government and communities is needed to resolve the problem.

All Japan Women’s Shelters Network Assistant Coordinator Yuki Kusano stressed the importance of government funding for shelters for victims of physical violence. According to statistics provided by Kusano, physical violence at the hands of a husband in Japan is the cause of death of a wife every three days.

Kusano said her organization took the initiative in establishing the first shelter for victims with a minority sexual orientation or gender identity (SOGI) in Japan in August 2014, but the project only lasted eight months and fell apart shortly after they ran out of government subsidies.

All Japan Women’s Shelters Network Assistant Coordinator Yuki Kusano.

Although almost every country today provides shelters and emergency hotlines for violence survivors, Josiah said community involvement is still vital to helping battered women and their children.

“While it is easy to find help in a small nation like Taiwan, in big countries like India, you cannot find services everywhere,” Josiah said. “So there is a lot of work to get the community to stand up to provide service to each other.”

As to what can be done next to further combat violence against women, National Democratic Institute for International Affairs gender specialist Crystal Rosario offered an interesting suggestion: Incorporating gender-sensitive elements into soap operas.

Rosario’s idea resonated among many participants, including Josiah, who urged TV producers to come up with popular drama shows that challenge gender stereotypes rather than reinforcing them, as most Korean soap operas tend to do.

Other suggestions included providing interactive and educational touring plays to local community centers, launching campaigns that better engage men on gender equality, and offering re-education for members of society.

Re-education is particularly important at a time when people have started to see sexual assault and domestic violence as social norms, Josiah said, adding she regretted that only sensational news stories, such as one about a woman being raped by 20 men, receive public attention nowadays.

“We should really try to change and challenge this mindset,” she said.

Taiwan Foundation for Democracy vice president Ketty W. Chen.

Women’s group Gabriela secretary-general Joms Salvador.

 

All photos by the Garden of Hope Foundation.

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