Facing an escalating threat from China, Taiwan could head into a constitutional crisis

Opposing political parties in Taiwan are wrangling over constitutional issues at a time when the threat of invasion, or encirclement, rises from neighboring China.

When Taiwan’s President Lai Ching-te was elected earlier this year, he promised to increase defense spending to counter the increasingly bold demonstrations of force from the Chinese military.

But an opposition coalition, which controls the legislature, sees many of President Lai’s proposed reforms as provocative to Beijing.

Just days before President Lai Ching-te took office back in May, tensions in the legislature led to some of the worst violence in years. Lawmakers shoved, punched and even threw each other down from the podium. Five of them were later hospitalized. 

The main issue was a package of bills proposed by the Chinese Nationalist Party, or the KMT, and its main ally, the Taiwan Peoples’ Party, which would have greatly expanded the legislature’s power to investigate the presidency. It would have also given the legislature power to fine, or even jail, government officials. 

The opposition had the numbers to ram the bill through Congress. But soon after the brawl, a large group of protesters assembled outside the legislature to oppose the violence and how the bills were being rushed through the legislative process. They argued that the passage of these bills would compromise Taiwan’s democracy.

The protesters called themselves the “Bluebird Movement,” which held several rallies outside the legislature in late May and early June, at least one of which drew more than 50,000 protesters. Despite the opposition on the streets, the majority parties successfully brought their bills all the way through the legislative process. But before they could take effect, the constitutional court stepped in and began a review of the entire legislative package in July.

On Friday, the Bluebird Movement won a major victory when the court ruled most of the controversial bills were unconstitutional. 

Lin Szu-ming, a legislator from the KMT, said that the rulings were proof that judicial independence in Taiwan is dead.

“The courts and the ruling party have joined hands,” he said. “The constitutional court justices have challenged public opinion and seized the legislature’s weapons to check executive power.” 

The ruling Democratic Progressive Party chief whip, Ker Chien-ming, called on the opposition to accept the court’s decision, saying, “The opposition parties are still making political attacks. … We don’t see how the constitutional system will work if they maintain this attitude.”

Chien Pei-hsin was at the Bluebird protests in May. When asked about her feelings on the constitutional court’s judgment, she said she was relieved that the bills didn’t make it to law. 

“I wouldn’t say I’m terribly happy, but at least in the short term, Taiwan won’t fall into chaos,” Chien said.

It’s guarded optimism. Lawyer KC Yang feels the same way. He’s the chief editor of a legal news outlet called the Plain Law Movement. 

“For me, the judgment means that everything was reversed back to the starting point in May,” Yang said. He said that despite their best efforts, the legislature didn’t walk away with much new power over Lai’s administration. 

But Lai didn’t have much power to begin with, according to Paul Jobin, a sociologist at Taiwan’s Academia Sinica.

“There are a lot of things that Lai cannot do because of the situation with parliament, and we knew that from the time he was elected,” Jobin said. “We find ourselves in a puzzling situation where the so-called ‘ruling party’ cannot rule due to the opposition coalition taking control of parliament.”

If that wasn’t enough trouble for the Lai administration, seven of the constitutional court’s 15 justices reached the end of their terms on Oct. 31.

President Lai’s administration has already nominated justices to replace them, but the opposition isn’t cooperating, according to lawyer KC Yang. Instead, the opposition coalition is refusing to confirm Lai’s preferred justices. This means the court will be short of half its members while the nomination process drags on. 

In parallel, the opposition coalition is reviewing proposed legislation mandating that at least 10 constitutional court justices have to vote on a ruling for it to take effect. 

While the nomination process is delayed, “this amendment will de facto stop any new ruling made by the constitutional court,” Yang said. 

The Judicial Yuan, which oversees all of Taiwan’s court systems, raised concerns that the proposed legislation would complicate the essential process of judicial review and hinder the effective functioning of the constitutional court.

Several human rights and legal services organizations have signaled their opposition to the bill as well, arguing that it politicizes the judicial branch of government. However, KMT legislator Weng Hsiao-ling, who proposed the bill, argued it would bring Taiwan’s legal standards closer in line with nations like Japan and France and that the court needed a framework to prevent a minority of eight judges from making judicial decisions while the remainder of the justices have yet to be confirmed. 

Constitutional law expert at Academia Sinica Su Yen-Tu is especially concerned about this. 

The opposition’s “ultimate objective is to make sure that the constitutional court can no longer get in their way in the future,” Su said.

Opposition politicians say they were elected to a legislative majority to represent the people, and the constitutional court should not serve as a barrier to the popular will. But Su worries about a potential constitutional crisis down the road. 

“Another political storm is coming to Taiwan,” Su said. “And the resilience of Taiwan’s constitutional court, as well as our liberal constitutional democracy, will be seriously tested.”

For now, both sides are digging in, and Taiwan’s ability to defend itself may hang in the balance.