| |
More tangled tales of Taiwan
politics
By Laurence Eyton
TAIPEI - Having taken a week off for the Lunar
New Year Holiday, Taiwan's presidential election
campaign resumed this week with a row as bitter as the
unusually wintry weather. The argument is once again
over the referendum that President Chen Shui-bian has
timed to coincide with the presidential poll on March
20.
Hardly anyone is talking about the
presidency, however. It's all about the "security"
referendum on China's missiles aimed at the island, and
the opposition is frantically try to scratch it.
The protagonists are the popular mayor of
Taipei, Ma Ying-jeou of the once all-powerful Kuomintang
(KMT), vs the rest of the Democratic Progressive Party
(DPP) cabinet.
Ma doubles as secretary general
of the campaign headquarters of the opposition so-called
"pan-blue alliance" presidential ticket of KMT chairman
Lien Chan and People First Party (PFP) chairman James
Soong (vice president). Ma has been deputized to lead
the fight against the referendum. For this he has two
excellent qualifications.
He is, compared with
other KMT grandees, both youthful and, at least in
northern Taiwan, popular. He is seen as a
next-generation leader rather than one of yesterday's
men - the unfortunate image of the candidates
themselves. Ma has also won election as Taipei mayor
twice, and he is considered to have good credentials as
a constitutional democrat. As a result, the pan-blues
hope that by using Ma their opposition to the referendum
will seem principled rather than a manifestation of the
pan-blues' conservatism, pro-China leanings - Beijing
hates the referendum - and anti-democratic past. (The
pan-blue designation refers to the color of the KMT
emblem.)
The basis of Ma's attack on the
referendum is that it is simply illegal.
When
the legislation allowing referendums to be held in
Taiwan was passed by the pan-blue-dominated legislature
at the end of November, one of the more puzzling items
in the bill was Article 17, which allows the president
to call a referendum "whenever the country is faced by
an external threat that could interfere with national
sovereignty".
At the time hardly anybody paid
attention to this clause, if only because they assumed
that if Taiwan were facing such a threat then people
would have better things to do than worry about a
referendum. The joke at the time was that people would
be expected to vote on their way to the air-raid
shelters.
Given that the passage of the bill was
entirely a result of a pan-blue effort, it is an
interesting indication of their sloppy lawmaking that
this now bitterly contested clause managed to make its
way through the bill's third reading. Indeed at the time
of the bill's passage, there were protests that a number
of the pan-blues' amendments contradicted one another
and undermined the bill. This, however, was casually
dismissed by the legislative Speaker, Wang Jyng-ping,
who is also a vice chairman of the KMT, as something
that could be fixed later.
The president's
brazen opportunism
What nobody appreciated at the
time was the brazen opportunism of the president. Chen
had originally wanted to conduct a referendum at the
same time as the presidential election on whether voters
want Taiwan to join the World Health Organization (WHO),
or some such lesser topic. (WHO membership is only open
to nations, and Beijing holds the China seat.) In
passing the bill, however, the pan-blues had removed the
right of the executive to call referendums for any other
reason than an Article 17 threat. In all other
situations, the legislature was to decide whether a
referendum motion should go ahead.
The pan-blues
thought this would contain Chen; in fact it forced him
to up the ante by finding a pretext under Article 17 on
which to call a referendum under his own authority. The
pretext was China's missiles. There are 496 of them
pointed at Taiwan, a clear and present danger if ever
there was one, Chen said, and one that justifies a call
for a referendum by the president under Article 17.
The circuitous path by which a compromise has
been thrashed out between Chen's ambitions and
Washington's worries about the possible destabilizing
effect of the referendum on cross-Strait relations has
already been covered by Asia Times Online. What is new
is that US approval of Chen's referendum questions -
much toned-down, incidentally, from his original vision
- the pan-blues are out on a limb.
They had
hoped that US opposition to Chen's plan would force him
to drop it; throughout December and early January the
tenor of their attacks on the plan was that it was
wrecking relations with Washington. Now they no longer
have this argument. Meanwhile their allies in Beijing
are simply furious that any referendum of any kind is
likely to happen at all. And Beijing at last has made it
quite plain that the reason it is so unhappy is that it
sees the referendum mechanism as a way for Taiwanese to
reject reunification.
This is, of course, quite
true; it is why Chen has said the holding a referendum,
instituting and incorporating it into the political
culture of Taiwan, is more important to him than his
re-election. And it is also why radicals in the
pro-independence camp have argued that the passage and
use of any referendum law, no matter how eviscerated it
was in the legislature by the pan-blues, was a triumph
for Taiwanese separatists.
That it was the
pan-blues who passed this law is one of the greatest
ironies of modern Taiwanese politics.
Stop
the referendum without alienating voters
So what
do the pan-blues do now? The problem is that they are
faced with two tasks that are by no means complementary.
The first is to stop the referendum. The second is to
win the presidential election. The more effort they
devote to one, the less likely they are to succeed in
the other. They need the referendum to be stopped soon
and in a way that will not alienate voters.
The
first idea was to ask for a referendum boycott by
local-government leaders, whose offices work with the
Central Election Commission and set up the facilities
for elections.
At a meeting on Monday of
pan-blue local-government chiefs, chaired incidentally
not by Ma but by Lien and Song themselves, ideas were
mooted such as simply refusing to make provision for
referendum ballots to be cast or counted and asking
voters at polling stations not to fill out a referendum
ballot form.
But in two hours of argument, it
appears that hardliners backing these proposals lost out
to moderates who pointed out that that such actions were
not only illegal, a violation of their responsibilities
as public functionaries, but that requesting officials
to decide what people can and can't vote for was
outrageously - and to the voters' minds, probably
offensively - anti-democratic.
All the
local-government heads would agree on was a statement
that the referendum had "serious flaws in its legality
and necessity".
The failure of this initiative
lies behind Ma's current tack of seeking to have the
referendum declared illegal. By this he means that the
grounds on which Chen is calling the referendum simply
do not fall into the category laid down in Article 17.
Ma argues that Taiwan is not facing "an external threat
that could interfere with national sovereignty" simply
because China has missiles pointed in its direction.
Nonsense, says President Chen. If having a gun
at your head isn't an external threat, what is?
Who decides an Article 17 threat?
So
far these rhetorical positions are totally predictable.
But there is an interesting legal nicety that underlies
Ma's debate, namely: Who has the right to determine just
when circumstances meet those envisaged in Article 17?
Article 17 itself does not lay down conditions, nor are
they defined elsewhere. So how does one determine when
the conditions have been met?
The government
argues that the Referendum Law makes it quite explicit
that it is simply up to the president. To which Ma, a
Harvard Law School alumnus, has riposted that it is a
basic constitutional principle that there should be
checks to prevent the arbitrary use of authority.
Usually such checks take the form of having something
proposed by one body and approved, or not, by another.
Surely the government does not mean to claim that there
is no restraint on the president's right to call a
referendum under Article 17, Ma argues. There is not an
"external threat" just because the president says there
is; surely some other body has to approve this as well.
A fine point for which the government has a
ready answer: The cabinet approves the president's
referendum proposal. The problem here is that, while the
president technically only appoints the premier, who in
turn appoints the rest of the cabinet, thus allowing -
in theory - a constitutional distinction between the
president's office and the cabinet, in reality everyone
knows that cabinet posts are the president's to give. As
a result, cabinet review of the president's proposal
amounts to little more than having the president's
placemen acclaim his idea, which hardly meets exacting
democratic standards of checks and balances.
Ma
argues that there must be referral to a body that is not
beholden to the president - such as the Referendum
Review Committee of the legislature, which vets and can
veto all other referendum proposals - or there has to be
an objective definition of what is a grave external
threat. As to what this might be, Ma suggested in the
cabinet meeting on Wednesday that the criteria might be
met if the president has called a state of emergency.
The cabinet meeting rapidly degenerated into a
shouting match over these proposals between Ma and the
DPP mayor of Kaohsiung, Frank Hsieh (the mayors of these
two cities are allowed to take part in weekly cabinet
meetings). The government is opposed to Ma's suggestions
for the simple reason that the Referendum Review
Committee is controlled by the pan-blues, while a
state-of-emergency declaration has to be confirmed by
the legislature, also in pan-blue hands.
Ironies abound on both sides
The
resulting situation is rich in ironies. On the one hand
is Ma, the poster boy for a party with a long and
inglorious history of ignoring the country's
constitution - and which many Taiwanese consider far to
cozy with the anti-democrats in Beijing - trying to stop
the referendum on a nicety of constitutional democratic
theory.
On the other hand is the government -
many of whose members were jailed by the KMT during four
decades of martial law and suspension of the
constitution because of their pro-democracy activism -
which is now prepared to ride roughshod over the finer
points of democratic principle for the sake of the
greater goal of holding the referendum.
The
obvious solution might be to let the Council of Grand
Justices, the court body that interprets the
constitution, rule on the legality of the referendum
proposal. One problem is that the council does not work
swiftly, and the election is likely to be long over
before a ruling is reached. (Of course, the US Supreme
Court is hardly renowned for speed, but it can make
decisions fast enough when it has to, as demonstrated by
the 2000 Florida recount debacle and George W Bush's
subsequent elevation to the presidency.)
So far
there has been talk of seeking the council's
interpretation, but there has yet to be a formal
petition. Pan-blue sources grumble about the time
element - there are fewer then 60 days before the
election/referendum - but pro-DPP sources suggest that
they believe Chen's actions are legal based on the
poorly drafted Referendum Law.
For this the
pan-blues have only themselves to blame, and they know
it. Now they think they can win over more public opinion
by Ma's denouncing the referendum's "illegality" than by
actually putting it to the test and risking a possible,
even likely, legal defeat within days of the
presidential election. And that would aid Chen's
re-election.
(Copyright 2004 Asia Times Online
Co, Ltd. All rights reserved. Please contact content@atimes.com for
information on our sales and syndication policies.)
|
| |
|
|
 |
|
