On ‘Legal Norms’ in Taiwanese Politics

In the first of a three-part exploration, Stéphane Corcuff addresses the challenges in finding common ground on ‘legal norms’ in the context of recent social activism

Several of the social movements that have enlivened Taiwanese politics since President Ma Ying-jeou’s (馬英九) election in 2008 have repeatedly invoked the word fa (法). In their rhetoric, fa is sometimes general and covers a wide spectrum; on other occasions it is more specific, invoking in some cases a specific law or regulation, in others, “law and order,” “relevant laws and regulations,” or even “the constitution.”

For the sake of clarity, we translate fa as meaning “legal norms” (la règle de droit in French). At the same time, a variety of actors including the state, political parties, other segments of the population or the press also invoke fa, but do so in a different way, despite the occasional apparent rhetorical proximity. They may also invoke fa to oppose or criticize such movements.

Obviously, the diverse invocations by protesters and their response by their opponents must be reconnected to each other, so as to provide a clearer picture of how the somehow ambiguous status of “legal norms” in Taiwan’s political system can actually play a role in public debates, which is perhaps as important as other core issues such as ethnicity, China-centric or Taiwan-centric consciousness, Taiwan’s geopolitical predicament, or economic, social, and environmental issues.

This article is the first in a three-part series that explores the questions of “Renewed social movements in Taiwan,” “The omnipresent invocation of the legal norms” and “The ambiguity of the legal norms and Taiwan’s political debate” in the context of legal norms.

Renewed social movements in Taiwan

Three types of social movements will be use to illustrate the phenomenon of civic mobilization: those seeking social justice, those opposing increasingly close cooperation with China, and those opposing the fourth nuclear power plant. It goes without saying that many other examples could have been chosen, and each of them would undoubtedly bring new perspectives on the invocation of fa by social movements and in the institutional/societal response.

Urban renewal and land reconversion

One example of movements asking for more social justice is encapsulated by popular protests over urban renewal projects (都市更新 dushi gengxin) or the change of status of agricultural land into industrial or residential land (土地變更 tudi biangeng). In the first case, promoters, according to the Law on urban renewal (都市更新條例 dushi gengxin tiaoli), can buy land and have buildings demolished if they obtain the agreement of 70 percent of the owners. In the second case, a process of public expropriation (土地徵收 tudi zhengshou) is necessary. In the two cases, some of the owners can be dispossessed of their land and their homes. Several movements have emerged in recent years to assist the victims of urban renewal.

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The remains of Taipei’s Huaguang Community. Photo: J. Michael Cole / Thinking Taiwan

The Huaguang Community (華光社區) in downtown Taipei was mostly composed of Mainlander civil servants living in government-built dormitories, as well as former Mainlander soldiers who arrived in Taiwan with Chiang Kai-shek (蔣介石) at the end of the Chinese civil war. Most people lived in precarious barracks. Over the years, some have died or have sold their rudimentary homes to local Taiwanese, leading to a more ethnically mixed community. People used to visit the neighborhood to purchase simple and cheap antiques, or to chat with old, sometimes disoriented Waishengren. Huaguang was one of those so-called juancun (眷村), or villages of military residents, of Taiwan. [1] While land was becoming increasingly scarce in Taiwan, Huaguang was designated in 2006 as a target for urban renewal, and its residents were suddenly accused of “illegally occupying public land” (違法佔據國有土地weifa zhanju guoyou tudi). The land, first confiscated from the Japanese by the Chinese Nationalist Party (KMT) in 1945, was then given to the Ministry of Finance, which for decades had never opposed the presence of the residents, as the poor soldiers, victims of the Chinese civil war, had been brought to Taiwan by the KMT. The community was evacuated between 2011 and 2013, when the demolitions began.

The Shaoshing Community (紹興社區), also in downtown Taipei, is equally composed of Mainlanders, who this time live mostly in old-Japanese houses. [2] As with the residents of Huaguang, they occupied the land and houses for decades, and were faithful supporters of the KMT regime, only this time they lived on land that belonged to National Taiwan University. Suddenly they, too, were accused of illegally occupying the land. Some still resist. Others have gone. Gradually, however, the Shaoshing Community is disappearing.

The movement opposing the Wenlin yuan (文林苑) condominium project in Shilin District (士林), on an area designated in 1999 as another target of urban renewal, was also highly mediatized. A majority of the 36 households concerned were able to force out, using the law, a minority of owners who desired to stay and resisted until the demolitions began in March 2013. In this case, just as in the next two cases, students, associations, lawyers and ordinary people supported the Wang family, who eventually lost their homes.

Another case that received a lot a publicity and led to two suicides in 2010 and 2013 was the expropriation in Dapu Township (大埔), Miaoli County, of residents who were forced to relocate in order to pave the way for the fourth extension of the Hsinchu Science Park.

A last case was the extension work on the Mass Rapid Transit System in New Taipei City (新北), which led to the tearing down of a sanatorium in Xinzhuang (新莊) to make room for a large installation for the storage and repair of subway cars. Hardly anyone had heard of the Losheng Sanatorium (樂生療養院) until a social movement was formed after Taipei City’s Department Of Rapid Transit Systems (DORTS) announced in 1994 its intention to construct the depot. Protesters drew attention to two unwelcome consequences of the project: The relocation of several hundreds former leper residents, many old and with no place to go as they had spent their entire lives there in relative isolation from the world; and the destruction of a group of elegant buildings dating back from the Japanese 1930s architectural modernity in Taiwan. A compromise was found in 2007, and DORTS was allowed to destroy some of the buildings, while the rest were protected. While militants initially insisted that patients were going to loose homes to get impersonal hospital rooms designed only for short medical stays, the lepers are now growing much older, which is increasingly becoming a reason justifying their stay permanently in a hospital that, on the other hand, has accepted to de facto turn itself in a medical residence for older people. [3]

Social unrest regarding the new development of cross-strait relations

A second type of movement involves the invocation of legal norms in social and political disputes. This ongoing movement, which has taken many shapes, opposes since 2008 the rapid development of contacts and negotiations with China under President Ma. For instance, visits by emissaries have led the government to compromise on the issue of state and sovereignty symbols. As the People’s Republic of China (PRC) does not recognize the existence of the Republic of China (ROC), the KMT decided to take away the flag of the regime to please the envoys, a gesture that has irritated militants of Taiwan independence, or those who are simply opposed to the PRC’s growing influence over Taiwanese politics. As a consequence, the ROC flag, based on the KMT’s own flag, and for this reason, unwelcome by pro-independence movement, has somewhat gained credit, as least as a modus vivendi, in moderate pro-independence circles, and they brandish it to counter what they perceive as the KMT’s gradual abandonment of the sovereignty of the regime.

We should note that throughout the development of the movement defending Taiwan’s sovereignty since 2008, youth has not necessarily made a compromise on the flag (as well as the name of the regime), as many of them identify with it as the official flag of Taiwan and the ROC, which in their eyes does not include “Mainland” China. In other words, the ROC flag is simply the symbol of Taiwan being independent from China, which KMT socialization has taught them to identify with. Meanwhile, a counter movement, which usually involves a smaller number of older people, purportedly seeks to “defend the Republic” by showing support for the KMT, which has nevertheless actively engaged in an ever-closer cooperation with the PRC and the Chinese Communist Party (CCP). Using the same flag, those groups brandish it in a way to show that they are the real defenders of the nation against the students and the militants, whom they suspect of planning the destruction of the ROC, to replace it with a Republic of Taiwan [4].

Adding to the resentment provoked by the forced, and sometimes violent, removal of ROC flags purposely put by militants on the street sides and flyovers on the trajectory of official convoys, were increasingly worrying scenes such as mobs of unknown, violent persons, likely gang members, sent to disrupt small student demonstrations in front of hotels where Chinese envoys are staying. Assembly with or without previous notice, removal of flags, confrontation with police and gangster raids all raise legal issues regarding the assembly and parade law, protection by the state of its symbols of sovereignty (although the Criminal Code actually forbids the defamation of state symbols, the law tends to be enforced in the breach with it is the KMT that engages in the removal of national flags) and the question of how to fine-tune the use of police violence to limit, control, or repress demonstrations.

Another type of legal issues raised by the ongoing movement stems from the conditions of negotiation, legal examination and parliamentary approval of agreements signed across the Strait by negotiators of both sides. This is one of Taiwan’s most complex legal issues, as we will see in Part 2. The details and bottom lines of the negotiations were never first disclosed to the public or elected bodies. While this may have been normal in the early years when legislators from 1947 had yet to be re-elected, such a lack of transparency and accountability is no longer acceptable under the democratic standards set after the general elections of 1992 and the direct popular election of the president in 1996, which decisively helped Taiwan advance on the democratic path. Obscurity in negotiations and the absence of parliamentary supervision, examination and ratification were hence the main arguments of the Sunflower Movement launched on March 18, 2014. Invocations of legal rules were constant, as was the call for the creation of a proper supervisory mechanism.

Opposing the fourth nuclear plant

The last movement we turn to in order to typify invocations to legal norms is the three-decade-long movement to resist the construction of a fourth nuclear plant in Taiwan, in the seaside village of Gongliao (貢寮), northeast of Taiwan, where the plant was to be created. The government in 1980 first proposed the project. In 1985, residents of Gongliao started to protest, and this was soon followed by the Chernobyl nuclear disaster in 1986. The Legislative Yuan nevertheless voted a first budget in 1992. A controversial local referendum was organized in Gongliao in 1994, in which 96,45% of residents expressed their opposition to the nuclear power plant. Another plebiscite organized by the Democratic Progressive Party (DPP)-run Greater Taipei in 1996, showed a small majority of 51,5% opposing the plant. While the debate soured, the KMT, which held a majority of seats in the legislature, nevertheless voted all at once six years of budgeting for construction of the plant.

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A young participant flashes a banner at an anti-nuclear protest in Taipei. Photo: J. Michael Cole / Thinking Taiwan

In 2000, after being elected, but hampered by a minority of seats in the legislature, President Chen Shui-bian (陳水扁) ordered the construction be stopped, a move that antagonized a KMT that was already upset after its defeat in the election. The KMT launched a destitution vote, while the constitution stipulates that a president cannot be impeached in its first year of his or her mandate. [5] Confronted with this constitutional barrier, the KMT asked the Council of Grand Justices for a constitutional interpretation. In interpretation No. 520 issued in January 2001, the Grand Justices ruled the decision unconstitutional, because the government had not sought the legislature’s approval.

Though protests and initiatives have never stopped, the movement remained limited in the size of the population it could mobilize. But two recent events gave a strong impetus to the “Anti-Nuclear 4 Movement” (反核四運動). The first was the March 11 Fukushima disaster in Japan, which reminded everyone of the dangers of having nuclear plants exposed to strong natural risks, such as earthquakes and tsunamis, a risk that applies to all three existing nuclear plants and the nearly complete fourth one.

The Sunflower Movement was perhaps the real changing factor in the anti-nuclear movement, as it gave a strong impetus to opponents of President Ma’s policies on a wide range of controversies, from social issues to cross-strait relations, taxes to nuclear energy. It should not come as a surprise then that the anti-nuclear movement, which quickly joined the student protests outside the legislature in March and April 2014, found in the movement such a strong impetus. The high-profile hunger strike led by Lin I-hsiung (林義雄), a longtime militant against “Nuclear 4,” was launched precisely after this unprecedented event had deeply shaken the Ma presidency.

In those different movements (urban renewal-related social issues; cross-straits politics and representative democracy; and nuclear power and the civil protection of populations against man-made disasters), the invocation of legal norms by different actors has been constant. We can distinguish at least three major types on invocations: Some denounce the non-respect of laws and human rights by the state, the army or the police; some attack the demonstrations for not respecting the rule of law, for disrupting social peace and impeding the normal functioning of representative democracy; some denounce the existing state of laws and regulations and call for the adoptions of new legal norms, either because of the inexistence of a crucial law or legal mechanism; or because of an unsatisfactory, incomplete or unfair law; or because it is considered that the whole legal order in Taiwan must be reestablished, starting from the fundamental law, the Constitution.

1 For a short visual documentary on Huaguang, please visit http://www.alvaroarregui.com/huaguangcommunity/

2 A documentary about the project has been launched in 2012 by a team of students of the University of Toronto, among them Betty Hsieh and David Wang, entitled The Home Promised. For more information, please visit http://thehomepromised.com/ A law professor of NTU, Chang Wen-chen 張文貞 explains very clearly the delicate legal issues http://www.youtube.com/watch?v=9MES7mdlhYc and why their forced relocation appears in contradiction with international covenants signed by Taiwan.

3 I thank Sylvie Ragueneau of Fu-jen University for the latest developments on the situation facing the residents.

4 The uses and misuses of the flag as a dialectical debate between the two camps goes back to 2008. The latest example occurred two days ago in Taipei, with KMT and New Party militants “defending democracy” against the “chaos” led by the recent students movements. See J. Michael Cole, http://fareasternpotato.blogspot.tw/2014/05/new-may-fourth-movement-bares-its-few.html

5 See 崔愫欣 Tsui Su-hsin’s documentary 貢寮你好嗎?(Gongliao, are you OK ?) http://www.youtube.com/watch?v=tIOs5L2uwro and her blog http://souhim.blogspot.tw/

Stéphane Corcuff is an associate professor of political science, University of Lyon, France, and a researcher at the French Center for Research on Contemporary China (CEFC).

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