Poor legislation can have profound consequences in any country, but the stakes are even higher in Taiwan, in the light of the People’s Republic of China (PRC)’s attempts to undermine its democracy. The new Democratic Progressive Party administration of President Lai Ching-te is currently confronting an opposition-controlled Legislative Yuan that seeks to rebalance power away from the executive branch of government to Taiwan’s parliament. While generally sound, several provisions in the proposed package open the door for PRC influence or capture of public institutions, putting at risk the institutions and civic freedom that distinguish Taiwan from its authoritarian neighbor.
Lawmaking is a difficult process. Legislators must consider not only the law’s objectives — for example, enhanced legislative oversight — but also the law’s potential externalities. Does the law contain loopholes that undermine its intent? Might it enable individuals or organizations to weaponize the law for nefarious ends?
Fortunately, democracies have processes to avoid negative externalities. Legislative committees engage in detailed reviews, legislative research bodies provide input on possible impacts, public debate enables legislators to consider public and expert opinion, and in bicameral systems, the two chambers negotiate and compromise.
These efforts take time. Indeed, one complaint about democracies is their lethargy compared to fast-moving authoritarian systems that feature compliant legislatures (if they even have them). But time-consuming legislation is a feature of democracy, not a bug.
However, sometimes the democratic process is accelerated and steps are skipped. While there are times when urgency is needed, the result is typically poor lawmaking. And this is the process currently playing out in the chamber of Taiwan’s Legislative Yuan as that body rushes through a raft of legislative oversight laws.
The overall intention of these laws is reasonable. Most of the laws’ language fits within global democratic norms. Taiwan lacks the formal mechanisms for the legislature to conduct proper oversight of the executive; the right kind of law would strengthen Taiwan’s democratic system.
Yet there are two fatal flaws with how the Legislative Yuan is pursuing these reforms: the speed and the details.
Shortly after the president’s inauguration, the Legislative Yuan determined that these legislative oversight laws are urgent priorities. Yet Taiwan has thrived without these laws for decades. They are needed, but there is no urgency that demands the process be accelerated by rushing the bills through committee, skipping public readings, or forcing a vote as soon as possible.
Indeed, it is because of the speed at which these laws have moved that the potential consequences are so problematic. Observers are right to focus on the broad language in the draft that would enable a small number of legislators to require civil servants to testify, creating too low a bar for finding them in contempt and fining them.
Even more concerning is the scope and ease afforded to the Legislative Yuan for investigations of almost any type, even of non-governmental entities in the civic and private sectors. Embedded within the proposed reforms is a nongovernmental law eerily similar to those used by authoritarians around the world to wage lawfare against civil society. Civil society organizations could face politically motivated investigations and shutdown as a result.
Democracy works when there is a balance between the state and society. Civil society’s role is to check the power of the state and hold its officials and institutions accountable. By definition, the civic sector is separate from the state. Government control over civil society risks a dangerous step backward for Taiwan’s democracy.
For instance, the draft legislation could enable small groups of PRC-friendly lawmakers to audit the internal records of Taiwanese civic groups monitoring Chinese Communist Party propaganda and disinformation online. Such actions would have a chilling effect on the fundamental freedoms that have been central to Taiwan’s democratic resilience.
The current protests against these laws have been substantial, with more than 100,000 citizens taking to the streets. They still pale in comparison to the 2014 Sunflower Movement, which successfully stopped the Cross-Strait Service Trade Agreement, a trade pact which would have made Taiwan’s economy even more dependent on China.
The Legislative Yuan should have learned an important lesson from that experience: elected officials must listen to the public not only on election day, but during the legislative process, to build consensus and enshrine laws that have public support.
Unfortunately, many parliamentarians apparently believe the mistake in 2014 was moving too slowly, not that the law itself was problematic. Now the Legislative Yuan is trying to move before the public can fully mobilize against the proposed laws. When a legislature’s goal is not to educate the citizenry but to move more quickly than it can react, it illustrates that politicians understand their legislation is potentially problematic. This could set a precedent that fosters mistrust and leads to democratic backsliding in Taiwan that would pose a risk to its national security.