Taiwan Politics Review – Constitutional Court rules on LY powers

Significant developments over the past month: Constitutional Court rules on Legislative Yuan powers as well as the death penalty, China reacts to President Lai’s comments about cross-straits relations, Taiwan People’s Party Chairman Ko Wen-je remains detained in corruption investigation, Taiwan former president’s travel, and more…

By Ross Darrell Feingold

Constitutional Court rules on expansion of Legislative Yuan powers
On 25 October 2024, in ruling 113 Nian Xian Pan Zi Number 9 (113年憲判字第9號) (available in Mandarin, along with a press release in Mandarin that summarises the ruling), the Constitutional Court ruled that most of the expanded powers passed by the Legislative Yuan majority this past May are unconstitutional. According to the ruling, it is unconstitutional to permit investigative committees in the Legislative Yuan to request information from officials, military personnel and representatives of public or private entities (though the court ruled that Legislative Yuan committees may conduct investigations into matters "significantly related to specific proposals" that fall within its powers as per the Constitution), and the imposition of penalties on individuals who refuse to hand over information or attend hearings, or those who give false testimony, are also unconstitutional. The Constitutional Court also ruled that the Legislative Yuan cannot require the president to give a state of the nation address to the legislature and then take questions from legislators.

Chinese Nationalist Party (or Kuomintang, KMT) and Taiwan People’s Party (TPP) legislators in May combined to pass revisions to several laws, expanding the Legislative Yuan’s investigatory powers as well as requiring the president to deliver an address to the Legislative Yuan and take questions from legislators (see Taiwan Politics Review, 20 August, 2024). The Presidential Office, Executive Yuan (or cabinet), Democratic Progressive Party (DPP) legislative caucus and Control Yuan each filed separate actions at the Constitutional Court seeking an interpretation on the constitutionality of the new powers.

Analysis: The current fifteen justices of the Constitutional Court were all nominated by former President Tsai Ing-wen’s (蔡英文) during her two terms in office, and confirmed by a DPP majority in the Legislative Yuan. The ruling is consistent with an injunction the court issued on 19 July 2024 and comes as no surprise. Regardless, it is a political victory for President Lai Ching-te (賴清德) as well as his governing team in the Executive Yuan, the DPP legislative caucus, and Control Yuan, and it is a political defeat for the KMT and TPP. Following the ruling, a Presidential Office spokesperson said that President Lai is willing to deliver a state of the nation address to the Legislative Yuan, subject to a cross-party consensus.

The ruling also removes the possibility, for now, that Legislative Yuan committees can demand private industry representatives to appear for questioning.

Lai’s two speech references to China, followed by a China military exercise
On 5 October 2024, President Lai, in a speech at a National Day event, said that it is "impossible" for the People's Republic of China (PRC) to be the "motherland" of the Republic of China (ROC) because the ROC was established before the PRC. Subsequently on National Day, 10 October 2024, President Lai reiterated that China and Taiwan are not subordinate to each other, said that China has no right to represent Taiwan, and called on China “to take up its international responsibilities”. The National Day speech is available in English and Mandarin.

China’s Taiwan Affairs Office called the motherland remarks “a separatist fallacy that is just old wine in a new bottle” (video with English subtitles is on CCTV’s YouTube channel) and the Global Times called the National Day speech a “a poison pill wrapped in cellophane” and described President Lai as someone who “proclaims himself ‘pragmatic Taiwan independence worker,’ but in fact he is a ‘pragmatic war instigator’”.

On 14 October 2024, China held a one day exercise Joint Sword 2024B (聯合利劍—2024B) in which its military surrounded Taiwan, though experts debate whether it was launched as a response to Lai’s speech or was directed at testing its ability to deny Japan and the United States access to the air and waters around Taiwan in the event of hostilities.

The United States Department of State issued a press release criticizing China for its [military exercise] as a response to what the State Department called a “routine speech”. Statements of concern were also issued by the European Union External Action Service, the United Kingdom, and Japan.

On 24 October 2024, the Mainland Affairs Council released a poll that showed 68.8% of respondents support President Lai 's statement that "the Republic of China has already put down roots in Taiwan, Penghu, Kinmen, and Matsu, and the ROC and the People's Republic of China (PRC, China's official name) are not subordinate to each other".

Analysis: Any time Taiwan’s president, premier, minister of the Mainland Affairs Council, or chairman of the Straits Exchange Foundation (among other officials) alters a reference to China, it makes news in Taiwan and is accompanied by criticism from China. Hence, the reaction to Lai’s “motherland” comment. Lai’s comment on National Day that the two sides are not subordinate to each other is, by now, an often-repeated statement that former President Tsai Ing-wen (蔡英文) began to use in public speeches.

Generally, Lai has not varied from the “Four Commitments” enunciated by then-President Tsai in her 2021 National Day address: “…our enduring commitment to a free and democratic constitutional system, our commitment that the Republic of China and the People's Republic of China should not be subordinate to each other, our commitment to resist annexation or encroachment upon our sovereignty, and our commitment that the future of the Republic of China (Taiwan) must be decided in accordance with the will of the Taiwanese people”.

Legislative Yuan budget impasse
On 22 October 2024, Premier Cho Jung-tai (卓榮泰) proposed to increase funding for compensation to Indigenous peoples for a logging ban, as requested by opposition lawmakers, in a bid to break a long standoff over the 2025 central government budget plan. Cho stressed that the "concession" by the executive branch would be a one-off "exception." KMT and TPP lawmakers had demanded that the government budget funding needed to support logging ban compensation as a prerequisite for initiating the review of the entire central government proposed budget. Under amendments to the Logging Ban Compensation for Lands Reserved for Indigenous Peoples Act enacted by the Legislature in June, compensation for logging bans on Indigenous lands was increased to NT$60,000 (US$1,856) per hectare, but the proposed central government budget for 2025 only provided compensation of NT$30,000 per hectare.

The issue has kept the NT$3.33 trillion 2025 central government budget from passing its first reading, with opposition lawmakers having voted it down five times since the new Legislative Yuan session began on 20 September 2024.

In a further effort to end the impasse, on 24 October 2024, Legislative Yuan Speaker Daniel Han (韓國瑜) and Premier Cho agreed that the premier will take questions from legislators about the budget on 1 November 2024 and 5 November 2024.

Analysis: Although the KMT legislative caucus may genuinely be worried about the lack of funding for the logging programme, compared to the overall budget the dollar amounts in dispute are small, and if there is one duty compared to all others that the Legislative Yuan must fulfil, it is passing the budget on time. It is unlikely that the KMT and TPP want to pay the political cost for a delayed budget.

Keelung mayor recall effort fails
On 13 October 2024, an election was held in Keelung City to recall Mayor George Hsieh Kuo-liang (謝國梁) (KMT). Citizens had launched the recall ostensibly out of anger at the way Hsieh’s municipal administration handled the operating rights of a property known as the Keelung E-Square Mall.

Hsieh was elected in the 26 November 2022 election with 52.92% of the vote, and followed the tenure of Mayor Lin You-chang (林右昌) (DPP), who was elected in 2014 (with 53.15% of the vote) and re-elected in 2018 (with 54.14% of the vote).

According to data published by the Central Election Commission, there were 310,797 eligible voters, and 156,776 voted (a turnout of 50.44%), with 69,934 voting yes to recall, and 86,014 voting no to recall. By comparison, turnout in the Kaohsiung City election on 6 June 2020 to recall incumbent Mayor Daniel Han (韓國語) was 42.14% (though Han had encouraged his supporters to boycott the recall vote).

Subsequent to the election, a KMT legislator said they will make an effort to change the Public Officials Election and Recall Act (available in English and Mandarin) to tighten rules on the signature-collection process before a recall vote can be held.

Analysis: Recent recall elections have targeted elected officials at various levels of government. The side that is targeted typically accuses the civic organisations that launch the recall as being fronts for the opposite political party, which the opposite political party always denies and instead emphasizes the grass roots nature of the effort. As to the results, the DPP and KMT each have a mixed record; each has had recall victories and defeats.

Core Pacific City / Ko Wen-je investigation
On 23 October 2024, the Taipei District Court said it will decide whether to extend the detention of real estate tycoon Sheen Ching-jing (沈慶京) by 30 October 2024, when Sheen’s two month initial detention expires. Sheen, founder and chairman of the Core Pacific Group, has been held incommunicado since 30 August 2024 after prosecutors convinced the Taipei District Court, they have reason to believe he bribed Taipei City government officials to approve expansion of the floor area ratio in the redevelopment of the Core Pacific City shopping mall into an office complex. Earlier in October, a DPP City Councillor and KMT City Councillor separately called on Ko to tell the truth about the chain of events.

On 28 October 2024, the Taipei District Court approved an extension to detain Taipei City Councillor Angela Ying Hsiao-wei (應曉薇) for another two months; Ying allegedly received funds from Sheen with which to bribe city government officials. Pending at the beginning of November is prosecutors’ request to extend former Mayor Ko Wen-je (柯文哲), and former Deputy Mayor Pong Cheng-sheng’s (彭振聲) detention.

Analysis: Despite the enormous amount of allegedly leaked inside information that some television talk shows or newspapers report, it still remains speculative whether Ko himself received a bribe to approve the increase in the floor area ratio. For now, the TPP’s legislators and its voters continue to believe in Ko’s innocence, and in recent weeks support for the TPP rose slightly (see below).

Politicians detained, searched
On 18 September 2024, media reported that the district office of New Taipei City Councillor Pai Pei-ju (⽩珮茹) (KMT - 11th Constituency) was searched as part of an investigation into misuse of funds meant for staff salaries. On 20 September 2024, a court approved the detention of New Taipei City Court Lin Ming-jen (林銘仁) (DPP - 7th Constituency) for alleged misuse of funds meant for staff salaries. On 30 September 2024, a court approved the detention of Kaohsiung City Councillor Huang Shao-ting (黃紹庭) (KMT - 8th Constituency), also for misuse of staff salaries.

On 23 October 2023, media reported that former Taiwan Solidarity Union legislator Lo Chih-ming (羅志明) was acquitted recently on charges of developing a Chinese spy network in Taiwan.

On 24 October 2024, following a prosecutor’s search of 32 locations, a court rejected a request by prosecutors to detain five individuals, including former politician Chen Chi-yu (陳啟昱) in connection with alleged fraud at state-linked green energy enterprises in Tainan. Chen is the chairman of Taiyen Green Energy, the company at the centre of the investigation which is a subsidiary of government-controlled Taiyen Group. Chen previously served as a Kaohsiung County Councillor, a legislator representing Kaohsiung County, and as deputy mayor of Kaohsiung City (post-merger with Kaohsiung County).

Analysis: Misuse of staff salaries seems to be an endemic problem among legislators and local government councillors. It also appears to be a problem with all three of the major political parties rather than exclusive to a single party. It’s good to see that for this crime, prosecutors are willing to investigate elected representatives from all parties.

Straits Exchange Foundation proposes new consensus with China, new chairman named
On 15 October 2024, Straits Exchange Foundation (SEF) Secretary-General Luo Wen-jia (羅文嘉) publicly proposed to meet China on Matsu Island at the “Nangan 26 Site” (南竿26據點, a former defence fortification). Luo said that Taiwan and China can discuss a "Two Six Consensus” to replace the "1992 Consensus".

On 18 October 2024, the Mainland Affairs Council selected Frank Wu (吳豐山), a former Control Yuan member, to succeed acting SEF Chairman Rock Hsu (許勝雄). Hsu took over on an acting basis when the newly named chairman Cheng Wen-tsan (鄭文燦) resigned after he was charged in a corruption case related to his tenure as Taoyuan City Mayor (see Taiwan Politics Review, 16 July, 2024). Wu has had a long career in media, and also served in the now defunct National Assembly.

Analysis: On 16 October 2024, Taiwan Affairs Office spokesperson Chen Binhua (陳斌華) said at a press conference that the "1992 consensus" is the "clear path," adding that it was "unnecessary to create the so-called 'Two Six Consensus.'" Thus, it appears unlikely that Luo’s suggestion will come to fruition.