Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements

Brian Jones

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317157144
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Rarely do acts of civil disobedience come in such grand fashion as Taiwan's Sunflower Movement and Hong Kong's Umbrella Movement. The two protests came in regions and jurisdictions that many have underestimated as regards furthering notions of political speech, democratisation, and testing the limits of authority. This book breaks down these two movements and explores their complex legal and political significance. The collection brings together some of Asia's, and especially Taiwan and Hong Kong's, most prolific writers, many of whom are internationally recognised experts in their respective fields, to address the legal and political significance of both movements, including the complex questions they posed as regards democracy, rule of law, authority, and freedom of speech. Given that occupational type protests have become a prominent method for protesters to make their cases to both citizens and governments, exploring the legalities of these significant protests and establishing best practices will be important to future movements, wherever they may transpire. With this in mind, the book does not stop at implications for Taiwan and Hong Kong, but talks about its subject matter from a comparative, international perspective.

PART 1

The Taiwan Sunflower Movement

1 Confrontational contestation and democratic compromise

The Sunflower Movement and its aftermath

Brian Christopher Jones* Yen-Tu Su⁺

Introduction

Clashes over visions of democratic governance can oftentimes be epic and lasting. The Taiwan Sunflower Movement (the Movement) of March and April 2014 ensured these clashes would be epic – whether they will be lasting is yet to be seen. After Kuomintang (KMT) lawmakers pushed a Taiwan–China service trade pact through the legislative process within a matter of seconds, members of the Movement (the Sunflowers) broke through police barricades to occupy the Legislative Chamber, where they would reside for 24 days. In essence the Movement, which even came as a surprise to the opposition Democratic Progressive Party (DPP), decisively challenged the Ma administration and the KMT’s version of a “winner-take-all” democracy, providing a competing vision based around deliberation, participation, and Taiwan’s sovereignty. It is not unusual to have competing visions of democracy within a given democratic polity. Indeed, democracy is in constant tension with itself, and it often means different things to different people. The Sunflower Movement and its short-term aftermath nonetheless hold promise in becoming an intriguing story for democratic theory – a story about how, after a peaceful yet dramatic confrontation which went one step further than usual protests, people holding very different democratic convictions can still live together in peace and resolve their differences through a democratic political process.

This chapter explores the significance and implications of the Sunflower Movement for democracy in Taiwan and pro-democracy protests elsewhere. Specifically, we are interested not only in whether and how the Movement can be justified in democratic terms but also in which scenario this episode in Taiwan’s democratic history will end – either a protracted legal–political confrontation or a regenerative democratic peace. We attempt two major inquiries in this piece: (1) to account for the democratic significance of the Sunflower Movement with a theory of confrontational contestation and (2) to make the case for non-prosecution of the Sunflowers on the part of the (KMT) Ma administration as a democratic compromise for the sake of fostering democratic peace in Taiwan. While there are apparent inconsistencies or tensions in calling for both contestation and compromise, we hope to demonstrate how they can complement one another as the yin and yang that keep democracy alive and well in Taiwan and elsewhere.

The Sunflower Movement as confrontational contestation

One central issue of the normative discourse surrounding the Sunflower Movement has to do with its democratic credentials: all things considered, is the Movement a democratic, non-democratic or anti-democratic action? The answer to this question is the key to understanding the causes and consequences of the Sunflower Movement, although the answer appears to depend on whom you ask. For some, especially for the (KMT) Ma administration and their sympathisers, the Sunflowers illegally hijacked the legislative process and thereby put Taiwan’s democracy in jeopardy. For others, including many Sunflowers, the Movement constituted a democratic self-revision without which tomorrow’s Taiwan could resemble today’s Hong Kong. The outcome of the presidential and parliamentary elections held in January 2016 indicated that, for the time being, the people of Taiwan seemed to side with the Sunflowers’ side. A disinterested and cautious observer might want to take a middle-of-the-road position by suggesting that the occupation is a non-democratic measure, and only history can tell whether the Movement is positive or negative for Taiwan’s democracy. There is much to be said about the virtues of striving for being fair-minded and taking a long-term perspective. But democracy is a history in and of itself,¹ and the very project of democracy compels that we the contemporaries make our own judgement call – right here, right now.

How we conceptualise the Sunflowers’ occupation – including the 24-day occupation of the Legislative Chamber (along with the peripheral streets), and the short-lived occupation of the neighbouring Executive Yuan – also affects our thinking about the place of the Movement vis-à-vis democracy in Taiwan and beyond. Viewing the occupation as an exercise of civil disobedience, for instance, might prompt us to argue for or against the Movement as a liberal cause, by which the minorities (as represented by the Sunflowers) seek to counteract what the majority (as represented by the government) has done wrong. However, we think the Sunflowers’ occupation comes closer to exemplify what Daniel Markovits terms as democratic disobedience, the goal of which is to ensure that a well-functioning democratic process corrects the perceived democratic deficits in the law and politics of the day.² The normative justification for the Movement is better cast in democratic terms, because doing so better captures the mind-set of many Sunflowers – that they were “defending democracy”. In addition, in light of the dismal approval ratings of the Ma administration and the KMT-led legislature, it is far from indisputable that they stood for the political majority in Taiwan. The Sunflower Movement often spoke in the name of “we the people” and enjoyed fairly strong public support during their occupation.³ It appeared to be more of a majoritarian uprising than a counter-majoritarian resistance.

Democratic citizen unrest has been given a number of labels throughout the years: “protest”, “civil disobedience”, “dissent”, “people power”,⁴ and the relatively newly minted “direct action”.⁵ Nevertheless, given how the Sunflower events transpired, and especially given the equally dramatic ending of the legislative occupation, labelling the events merely a form of disobedience would be inadequate. In an attempt to alleviate these problems and to designate the unique nature of the events, herein we use the phrase “confrontational contestation”. The “contestation” portion is borrowed from Philip Pettit⁶ and refers to a citizenry actively contesting the nature of their democracy through political engagement.⁷ The “confrontational” part of our phrase is also important and primarily refers to the fact that many contemporary contestatory actions are not necessarily confrontational. Yet the twenty-first century has seen a new wave of protests that are examples of actively confrontational disobedience (i.e. occupying public places, such as streets, parks, and buildings); the Arab Spring protests and the Occupy Wall Street movement are two of the most significant examples. Although, not all these incidents amount to a “confrontational contestation”.

Pettit discusses aspects of civil disobedience when confronting the ideas and issues about the legitimacy of a political order. Ultimately he concludes that if the current regime is legitimate, then “attempts to change unjust laws should be restricted to measures that are consistent with the regime’s remaining in place”.⁸ This would seem to encapsulate the Sunflower Movement, which indeed decided to act within the confines of the current regime. However, Pettit also maintains that civil disobedience campaigns should not involve “taking the law into your own hands”, and that the recognition of “the state as the appropriate arbiter of legal issues” is essential to challenging the laws.⁹ The Movement’s actions may have run contrary to this proposition to some extent. After all, by occupying the legislature for 24 days, the Sunflowers arguably took the law into their own hands—at least for the time being. And while the Sunflowers certainly engaged in disobedience, they may have gone one step further than what Pettit would recommend for dissenters within a legitimate political order. Nevertheless, we argue that democratic contestation cannot rule out a priori the use of confrontational yet peaceful disobedience.

The idea of confrontational contestation can also be understood as a revision of the ideas of civil and democratic disobedience. Deficiencies in the liberal view of civil disobedience¹⁰ have been around for years, and recent commentators have become more wary of such a view. Raffaele Laudani notes that from “Rawls’s perspective, the whole element of challenging the political order is completely absent”, and that civil disobedience ultimately becomes a “sui generis ‘appeal’ to the majority so that they ‘reconsider’, in the name of a common sense of justice, their decisions made”.¹¹ Laudani further criticises this perspective as “unable to find a real space of intervention”, noting that liberal justification for acts of civil disobedience are possible “only ex post, after its compatibility with the current system has been verified”.¹² Tony Milligan also notes that Rawls’s account of civil disobedience does not take into consideration issues outwith basic human liberties, such as economic, environmental, or animal rights protests, which make “it ill-suited as a tool for analysing and understanding key instances of twenty-first-century protest and dissent”.¹³

Conversely, republican democratic disobedience revolves around the processes of democracy rather than any perceived democratic ideals. Markovits claims that democratic disobedience arose because an important form of political engagement has emerged that “cannot be understood through the prevailing theoretical accounts of legal and political authority”.¹⁴ In particular, he notes that “[i]t aims to render plausible the counterintuitive claim that disobeying the laws of the democratic state can serve democracy. Indeed, the argument casts democratic disobedience as an unavoidable, integral part of a well-functioning democratic process” (emphasis added).¹⁵ One of the keys to the republican, democracy-enhancing vision is seen in what Markovits labels a “democratic deficit”.¹⁶ This occurs when democratic governments open themselves up to deficits of democratic legitimacy. This description of republican disobedience likely categorises the Sunflower Movement as an example of republican democratic disobedience. Indeed, “the republican view opens up the possibility that political disobedience may be democratically justified even when it cannot be cast as protecting basic r...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• PART 1 The Taiwan Sunflower Movement
• PART 2 The Hong Kong Umbrella Movement
• PART 3 Comparative elements involving Taiwan and Hong Kong
• PART 4 Wider perspectives on the movements
• Index