On March 13 President William Lai (賴清德) gave a national security speech noting the 20th year since the passing of China’s Anti-Secession Law (反分裂國家法) in March 2005 that laid the legal groundwork for an invasion of Taiwan. That law, and other subsequent ones, are merely political theater created by the Chinese Communist Party (CCP) to have something to point to so they can claim “we have to do it, it is the law.”
The president’s speech was somber and said: “By its actions, China already satisfies the definition of a ‘foreign hostile force’ as provided in the Anti-Infiltration Act, which unlike the Chinese law has democratic legitimacy. We have no choice but to take even more proactive measures.”
Lai’s proposals have received a lot of attention, both positive and negative. While many of the details have yet to be worked out, it appears to be a mix of proposals that are long overdue, though implementing some may be a real challenge.
Photo: Lin Cheng-hung, Taipei Times
Many elements will require legal changes, and may also face legal challenges, which could be another stumbling block.
The opposition restored an earlier minimum quorum standard for the Constitutional Court, while also vetoing all of the president’s picks for the court, leaving it unable to meet that quorum and therefore currently paralyzed.
While writing this column, the president put forth new candidates for the court. While the smaller Taiwan People’s Party’s (TPP) reaction initially was not very positive, the Chinese Nationalist Party (KMT) in a statement said they would “responsibly review” the nominees and would “select impartial and appropriate nominees to be the grand justices to allow the Constitutional Court to resume its normal operations.”
With 35 recall campaigns in the second stage and potentially up to four more on the way, the KMT should choose to be more reasonable this time on the nominees and Lai’s upcoming national security proposals to dampen down the anger over these issues that is fuelling voter turnout in those campaigns.
However, so far the KMT and especially KMT caucus convener Fu Kun-chi (傅?萁) have shown no signs of heeding rational political strategy in spite of the recall facing him.
THE KMT’S REFERENDUM RESPONSE
One element to this discussion is that the CCP views itself at war with Taiwan — and the West more broadly — now, not in a hypothetical future. They practice a whole of society “unrestricted war” that is already well advanced, even if the guns are still only being fired very near Taiwan during military exercises.
This style of war was a major reason the CCP was able to defeat the larger, better-armed KMT forces and drive them to Taiwan in the first place. Unfortunately today’s KMT appears to have forgotten that and has worked to undermine Lai’s efforts.
The most controversial proposal was to revive military courts. The KMT responded with plans for a referendum against “martial law” which is worded this way:
“President Lai Ching-te has positioned the other side of the strait as a hostile foreign force, and people are worried that the two sides will enter a quasi-war state. Do you agree that the government should avoid war and not let Taiwan become Ukraine, where martial law is implemented, young people die and homes are destroyed?”
Notice they avoided the use of the word “China,” and ignored the obvious facts that Beijing is unambiguously hostile and that we are already in a state of “quasi-war.”
Also note that they are pinning all the blame for the cross-strait hostility on the president while leaving the CCP blameless. None of those threatening military exercises held by the People’s Liberation Army (PLA), PLA Navy and PLA Air Forces are “hostile” according to this formulation by the KMT.
It also implies that the government is currently not avoiding war, while blaming the Ukrainians and martial law for young people dying and homes destroyed, not the Russians.
This signals that they intend to block Lai’s national security agenda.
It is another sign the KMT are continuing to follow a politically suicidal path of boosting recall voter turnout.
Anger and fear that the KMT is undermining national security and constitutional government are the primary drivers of the recalls, and the KMT appears to be doubling down on this as their brand.
MILITARY COURT PROPOSALS
Though details are still being worked out, initial indications are that the revived military courts would have more safeguards and would be more limited than the ones abolished in 2013 in the wake of mass protests following the heatstroke death of Army Corporal Hung Chung-chiu (洪仲丘).
The voice of the protests calling for the courts to be disbanded — and future New Power Party founder and lawmaker — was his sister, Hung Tzu-yung (洪慈庸). She is in favor of the president’s plan.
What we know so far about the plans are a far cry from the KMT’s “martial law” claim.
The Ministry of National Defense (MND) said that active-duty military officers who commit offenses listed in Part 2 of the Criminal Code of the Armed Forces (陸海空軍刑法), such as offenses against allegiance to the nation, would face military trials, while crimes listed in Part 3 of the code would be handled by the (civilian) judiciary.
That specifically means that cases such as Hung’s death would not fall under the military courts, as well as general criminal offenses.
It would mean that espionage and treason cases would come under the military courts. Spying cases last year were three times higher last year than in 2021 and 28 active-duty and 15 retired members of the armed forces were charged with suspicion of involvement in spying for China last year according to numbers presented in the president’s speech.
For years there has been frustration at the light sentences given out by civilian courts for espionage and treason. These courts are not professionally equipped to handle these sorts of cases.
It also makes sense to have military courts considering that — unlike in most countries — the Military Police is an independent branch of the military. Incidentally, the pink lotus emblem of the Military Police is described on their Web site as representing “MP’s pure and untarnished characteristic, reflecting how a lotus flower is grown out of mud, yet is not spoiled by it.”
Many experts also cite that this would help clear out backlogs of cases in the civilian courts.
WHAT IT COMES DOWN TO
The MND said it would create organizational acts to regulate the new authorities and uphold their independence, as well as create a personnel management act to regulate the appointments, dismissals, promotions, transfers and evaluations of military judges that is based on the Judges Act (法官法) to ensure fairness and independence.
They also said they would comprehensively examine and amend the Military Trial Act (軍事審判法) in accordance with the principle of fair trials and legitimate legal procedures, while also ensuring human rights, upholding military discipline and safeguarding national security.
This means that as long as the KMT and TPP caucuses remain on their current path none of this is going to happen.
That is unless they successfully push enough voters into voting them out.
Donovan’s Deep Dives is a regular column by Courtney Donovan Smith (石東文) who writes in-depth analysis on everything about Taiwan’s political scene and geopolitics. Donovan is also the central Taiwan correspondent at ICRT FM100 Radio News, co-publisher of Compass Magazine, co-founder Taiwan Report (report.tw) and former chair of the Taichung American Chamber of Commerce. Follow him on X: @donovan_smith.
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