This is the second of Ching-Lun (Al) Liu’s two-part series on militant democracy, see our archive for June for part one!
Militant Democracy vis-à-vis external threat – a case study of Taiwan
By Ching-Lun (Al) Liu
Militant Democracy and Taiwan
The previous post has elucidated the controversies surrounding the concept of militant democracy as well as its practices in Germany – where the notion was first developed. As a relatively young democracy not dissimilar to Germany in the 1930s, Taiwan faces challenges of potentially subversive parties and speech. The circumstances are further interwoven with external elements. This second and final post presents the historical and political backdrop that have enabled these potential threats to propagate, followed by a legal examination on whether militant measures analogous to those of Germany’s would be feasible in Taiwan’s environment.
1. Political and legal reality –militant democracy in Taiwan
Upon the defeat in the Chinese Civil War, the Chinese Nationalist Party Kuomintang (KMT) retreated to Taiwan along with 1.5 million refugees from China. Martial law was then enacted in the same year and lasted for 38 years until 1987. During this period, civil and political rights were severely oppressed. It was not until the 1990s that the process of democratisation did kickstart, which, fortunately, has been relatively peaceful. The democratic transition has commonly been hailed as a rare success story in Asia.
However, the influence from China – both political and economic – has become a significant liability to Taiwan’s democratic institutions over the years. Research has shown that China’s alleged interference in Taiwan’s domestic politics has been a long-term continuity. Starting as early as the first ever presidential election in 1996, these well-documented attempts to support the more pro-China political parties in elections and to sway public opinions have recently garnered considerable attention after the municipal elections in 2018. Of China’s multifaceted operations, the schemes investigated are the potentially subversive parties and the information warfare – the two subjects most heavily discussed within the Taiwanese context.
1.1 Pro-Beijing political parties
As a pluralistic democracy, Taiwan hosts a large number of parties of different ideologies, some of them pro-unification with the PRC. Of which the most representative example would be the Chinese Unity Promotion Party (CUPP). Clinging on a pro-Beijing agenda, the CUPP has placed itself in the spotlight of contention in recent years for mobilising pro-Beijing demonstrations in Taiwan and several clashes with pro-independence protester. However, one distinction such pro-unification parties possess that sets them apart from the extreme right/left wing examples in Germany is the lack of an overt and explicit anti-democratic discourse. The agenda of unification with China they promote is the doctrine of ‘one country, two systems’ currently applied to Hong Kong and Macau, whereby ‘Taiwan’s way of life’ would be guaranteed after the eventual unification. The legal analysis on the potential party proscription in Taiwan, therefore, focuses on the complications which have resulted from this absence of an overtly anti-democracy rhetoric under the practices of an unorthodox Constitution.
1.2 Information warfare
Information warfare has been familiar in the West since the Cold War. The proliferation of the internet, social media, and smartphones has only further advanced their penetration. From the Brexit referendum to the 2016 US elections, alleged manipulation has been diffusely observed in some of the oldest democracies in human history. Dubbed a hybrid force, these top-down operations involve coordination of multiple state and non-state actors, and are adept at transmitting emotional appeal through both traditional media outlets and online social networks, attempting to subvert reality by spreading lies and logical fallacies, thereby creating an ‘information fatigue’. The well-documented Chinese ‘sharp power’ scheme of similar characteristics not only troubles Taiwan, but also Western democracies with large communities of Chinese diaspora such as Australia.
China’s reported machineries in Taiwan are highly varied. In the arena of traditional media, the business interests in China of owners of certain media outlets and their financing from China have proven to be detrimental to Taiwan’s press freedom. By co-opting the Taiwanese media sector with various economic incentives such as provision of financial resources in the Chinese circulation, advertising, and threatening to deny continuation of such interests, China shapes the so-called ‘fourth estate’ into its local collaborators. It is fairly common for tv news stations such as CTi or TVBS or newspapers such as China Times to broadcast or publish nearly identical content as the Chinese state-controlled media outlets. These media outlets adjust their news editing principles to cater to Beijing’s preferential viewpoints.Findings have prompted the current government and several civil society organisations to propose legal mechanisms to fight back against the dissemination of mis-/disinformation. Akin to militant restrictions on freedom of expression, backlashes have ensued.
2. Legal analysis – Are militant measures feasible in Taiwan?
On the account of tumultuous Cross-Strait relations and Taiwan’s contested statehood, Taiwan is not an official contracting state of any existing international human rights instrument. However, legislature incorporated the two key UN Covenants in 2009. Under this incorporation, the ICCPR and the ICESCR are binding treaties to Taiwan. In addition, the guarantee of fundamental rights is listed in articles 7 to 24 of the Taiwanese Constitution. The subsequent legal analysis on party proscription and restrictions on freedom of speech will centre these legal documents as well as draw a parallel to the fore-cited German examples.
2.1 The banning of political parties – the Taiwanese Constitution and anti-democratic discourse
The Taiwanese legal system models itself on the German legal system in a number of aspects. The militant instrument of party proscription would be one such exemplification. Paragraph 5 of article 5 of the Additional Articles of the Constitution (hereinafter Additional Articles) reads: ‘A political party shall be considered unconstitutional if its goals or activities endanger the existence of the Republic of China or the nation’s free and democratic constitutional order’.The body responsible for such duty is regulated in paragraph 4 of the same article: ‘The grand justices of the Judicial Yuan shall … form a Constitutional Court to adjudicate matters relating to …the dissolution of unconstitutional political parties.’
Two paramount distinctions between the legal implications of the two systems remain. The first is the fact that article 5 of the Addition Articles has never been invoked by the Grand Justices ever since its adoption in 1992. Therefore, unlike the FCC’s decisions in the 1950s, Taiwan does not have any existing precedent with regard to party proscription. The only instance where the Grand Justices addressed the issue relating to subversive political parties was the Judicial Interpretation No 644 in 2008. Here, the Grand Justices declared the provision prohibiting the establishment of associations that advocate Communism or the partition of national territory unconstitutional. The reasoning behind the Court’s decision was the disproportionate infringement of the ex-ante review against the constitutional protection of free speech and freedom of association.
While this case does provide certain perspectives on the Court’s point of view with regard to political parties as such, the scope of the case remains limited as it only addressed the constitutionality of an ex-ante review.
The second distinction lies in the delicate position of Taiwan’s legal status. According to the Constitution of the Republic of China (hereinafter ROC Constitution), the lawful territory of the country includes the entirety of Mainland China in addition to the free area of Taiwan, and the preamble of the Additional Articles even reads ‘to meet the prerequisites of the nation prior to national reunification’ (under ROC Constitution’s terms). These unexpected consequences of the Chinese Civil War and of the ongoing troubled Cross-Strait relations render the constitutional proscription of parties such as CUPP essentially impossible since the agenda of parties as such is, ironically, constitutional.
Another caveat with respect to the constitutional party proscription would be the ‘potentiality’ doctrine employed in NPD II. Putting aside the fore-cited constitutional dilemma, as of 2019, the only official positions occupied by the CUPP is a position of the head of a village. The party is represented at neither the national level nor the municipal level. Following the ‘potentiality’ doctrine introduced by the German FCC in NPD II, CUPP is even less possible to challenge the existing free democratic order of Taiwan.
However, soft militant measures are not out of the discussion. While the Taiwanese Constitution is not equipped with the financial instruments of paragraphs 3 and 4 of article 21 of GG, the door of legislation is still open. One potential trajectory to follow is Australia’s Espionage and Foreign Interference Act 2018. In 2018, Australia passed extensive legislation imposing a reporting obligation with respect to foreign donations, modelled partly after the US Foreign Agent Registry Act. Similar pleas have been made in Taiwan in order to counter the PRC’s influence and in early 2020, an Anti-infiltration Act was promulgated by the President. The content of the new act mainly focuses on political donations, lobbying, and aiding in elections, and violators of the act would face up to five years in prison and a large sum of fine. The actual efficacy of the act, however, remains to be seen.
2.2 Restrictions on the right to freedom of expression
Akin to paragraph 3 of article 19 of the ICCPR, grounds on which freedom of expression can be restricted also exist in the Taiwanese Constitution, albeit in a different form. Article 11 of the Constitution guarantees the freedom of speech, teaching, writing and publication the people enjoy, whereas the restrictions are regulated in article 23 – a generalised provision for all the articulated fundamental rights:
All the freedoms and rights enumerated in the preceding articles shall not be restricted by law except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.
With regard to the restraint on freedom of expression, the existing case law of the Constitutional Court only concerns subjects such as obscenity (Judicial Interpretation No 617) or defamation (No 509). There has not been any case at the Constitutional Court level concerning fake or distorted news, and the cases of the authorities responding to it rarely go beyond the sporadic administrative fines on news stations by the National Communications Commission (hereinafter NCC) for failing to comply with the fact-verification mechanism. Analogous to the United States, Taiwan does not have regulations governing hate speech or subversive speech. The criminal and civil restrictions on freedom of expression are limited to defamation, protection of privacy, and leakages of confidential information.
Operations against mis-/disinformation such as the proposal of a new Defense Security Act as well as NCC’s recent administrative fines on news outlets have both received backlashes from the oppositions and certain civil society members. On the opposite end of the spectrum, the vocal advocates for regulations on fake or distorted news based on the ground of the poor performance and efficacy of existing mechanisms tend to most prominently reference Germany’s Netzdurchsetzungsgesetz (NetzDG).
The drafting of an act similar to NetzDG would face at least two obstacles. The first would be the prospective human rights violations. While a human rights body akin to the European system does not exist in Asia, freedom of speech is nonetheless enshrined in the Taiwanese Constitution, and concerns of infringement would definitely arise if the government ultimately decides to draft a comparable bill. The removal of the illegal content is problematic as the identification of what is ‘legal’ requires an examination on the context. The deadline provided would leave the online intermediaries no other option than to simply delete any flagged content through context-insensitive automated systems. Such interference against the freedom of expression is considered unnecessary and disproportionate by many and essentially brings us back to Accetti and Zuckerman’s query of the inherent arbitrariness of militant democracy. This fear of a ‘chilling effect’ rings particularly true in Taiwan given the traumatic history under a military dictatorship.
The second hurdle, and perhaps the hardest to overcome, would be the efficacy of a NetzDG-inspired bill. Having only been in effect for less than two years, it remains too early to draw definitive conclusions on the Act’s impact in Germany, but one easily noticeable loophole would be its limited capacity over closed online networks such as WhatsApp and LINE. The latter has always been far and away the most widely-used online networking application in Taiwan. Since the format of these messaging applications does not allow removal of false content, the government intervention would inevitably fall into the construction of a backdoor. One recent example would be India’s new IT Act which requires WhatsApp to break its end-to-end encryption. The Act is consequently criticised for its grave encroachment of the right to privacy and freedom of expression.
The awkward functioning of these legal mechanisms leads to perhaps the least controversial device to fight against subversive expressions and information warfare. Rather than censoring allegedly harmful speech and thereby risking encroachment of the right to the freedom of expression, the preferred remedy is to add more speech to the marketplace of ideas. Unfortunately, thanks to the dominance of social media, the closed system created by algorithms render it increasingly difficult for countering speech to infiltrate these groups consists of similarly-minded users, as they are often fundamentally oriented towards a rejection of the counterspeech instead of its embrace.
Contrary to the constitutional dissolution of subversive parties, the responses from all actors towards subversive speech or information warfare have been more chaotic and less confident. The reason to that is perhaps how deeply ingrained media networks are our lives. For those who have kickstarted the process of counteracting the information warfare, the upshot remains uncertain.
Advocated by Karl Löwenstein, the conception of militant democracy has been discussed extensively for decades. Much of the debate seems to centre around the arbitrary line drawn to define militant measures – what makes A an enemy and B a friend? 
One prominent militant instrument would be that of party proscription prescribed in article 21 of GG. Incidentally, Taiwan’s tangled constitutional law and precarious legal position render its application even more complicated as the targeted political parties advocating for unification with the PRC are technically not anti-constitutional. The line between governing fake news in order to defend democracy and intrusion of the fundamental right of free expression (as well as privacy) is even more delicate. The existing mechanisms in liberal democracies are all very much criticised, whereas the less intrusive measures, such as the promotion of media literacy, tend to be perceived as ‘too little too late’ in this day and age. The solution to this predicament is consequently even more challenging to find.
One common theme these militant propositions share is that they tend to be the products of turbulent political events. Be it shocking election and referendum results, the sudden rise of unfathomable populist figures, or miscellaneous upsetting political incidents, emotionalism ought to be the problem we tackle instead of the cloud that manipulates our judgement. The self-defense of a democracy should be governed by rationality and intelligently coordinated amongst the state, non-state actors, and most importantly, the sensible citizens living in the democracy, not rage and bipartisanship.
 Frank Muyard, ‘Taiwanese National Identity, Cross-Strait Economic Interaction, and the Integration Paradigm’ in Peter CY Chow (ed), National Identity and Economic Interest (Palgrave Macmillan 2012), 153-186.
 Karl Ho and others, ‘Valence politics and electoral choice in a new democracy: The case of Taiwan’ (2013) 32 Electoral Studies 476.
 Sabrina Habich-Sobiegalla and Stefan Fleischauer, ‘The Shadow of China over Taiwan’s Democracy’ (2017) 1 Journal of Current Chinese Affairs 3, 5.
 Referring to the psychological warfare of the People’s Republic of China’s missile tests in the run-up of the 1996 presidential election, the first direct presidential election in Taiwanese history. See Andrew Scobell, ‘Show of Force: Chinese Soldiers, Statesmen, and the 1995-1996 Taiwan Strait Crisis’ (2000) 115(2) Political Sci Q 227.
 James Michael Cole, ‘Pro-unification Groups, Triad Members Threaten Hong Kong Activist Joshua Wang, Legislators in Taiwan’ (Taiwan Sentinel, 7 January 2017) <https://sentinel.tw/pro-unification-hk-tw/> accessed 22 April 2019.
 Jeanette Ka-yee Yuen, ‘The Myth of Greater China? Hong Kong as a prototype of Taiwan for Unification’ (2014) 5 Taiwan in Comparative Perspective 134, 135.
 TS Allen and AJ Moore, ‘Victory without Casualties: Russia’s Information Operations’ (2018) 48(1) Parameters 59, 61.
 Patrick Wintour, ‘Russian bid to influence Brexit vote detailed in new US Senate report’ The Guardian (10 January 2018) <www.theguardian.com/world/2018/jan/10/russian-influence-brexit-vote-detailed-us-senate-report> accessed 22 April 2019; Scott Shane, ‘The Fake Americans Russia Created to Influence the Election’ New York Times (7 September 2017) <www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html> accessed 22 April 2019.
 Allen and Moore (n 41) 66-67.
 Refers to the influence efforts from authoritarian states, such as China and Russia, through the lens of soft power; See Christopher Walker and Jessica Ludwig, ‘The Meaning of Sharp Power’ (Foreign Affairs, 16 November 2017) <www.foreignaffairs.com/articles/china/2017-11-16/meaning-sharp-power> accessed 23 April 2019; Clive Hamilton, Silent Invasion: China’s Influence in Australia (Hardie Grant Books 2018) 12-15.
 Jaw-Nian Huang, ‘The China Factor in Taiwan’s Media: Outsourcing Chinese Censorship Abroad’ (2017) 2017/3 China Perspectives 27, 28.
 Freedom House, Freedom of the Press Report (2017) <https://freedomhouse.org/report/freedom-press/2017/taiwan> accessed 23 April 2019.
 Examples include omitting ‘sensitive’ topics ranging from the 1989 Tiananmen Square Protests, the Taiwanese Independence, to the ongoing tension in Tibet and Xinjiang, and promote perspectives enhancing China’s image such as the benefits in cross-strait exchanges, China’s economic development, and the ‘reunification’ agenda; Huang (n 45) 31; Yimou Lee and I-Hwa Cheng, ‘Paid ‘news’: China using Taiwan media to win hearts and minds on island – sources’ Reuters (Taipei, 9 August 2019) < www.reuters.com/article/us-taiwan-china-media-insight/paid-news-china-using-taiwan-media-to-win-hearts-and-minds-on-island-sources-idUSKCN1UZ0I4> accessed 15 January 2020.
 Margaret K. Lewis, ‘Taiwan’s Human Rights Revolution and China’s Devolution’ The Diplomat (3 October 2017) <https://thediplomat.com/2017/10/taiwans-human-rights-revolution-and-chinas-devolution/> accessed 23 April 2019.
 Technically called the Constitution of the Republic of China, however, for the purpose of convenience and in order to avoid confusion, the document will be addressed as the Taiwanese Constitution hereinafter.
 Additional Articles of the Constitution of the Republic of China (Taiwan), art 5, para 5.
 ibid art 5, para 4.
 Judicial Interpretation No 644 <http://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=644> accessed 23 April 2019; The highest judicial authority of the central government of Taiwan. Its authorities and duties are stipulated in article 77 and 78 of the Constitution.
 Additional Articles of the Constitution of the Republic of China <https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=A0000002> accessed 23 April 2019.
 A German constitutional case where the FCC decided against banning the Communist party by virtue of its lack of ‘potential’ to subvert the German democracy. See Article I.
 Damian Cave and Jacqueline Williams, ‘Australian Law Targets Foreign Interference. China Is Not Pleased’ New York Times (Sydney, 28 June 2018) <www.nytimes.com/2018/06/28/world/australia/australia-security-laws-foreign-interference.html> accessed 23 April 2019.
 Nick Aspinwall, ‘Taiwan Passes Anti-Infiltration Act Ahead of Election Amid Opposition Protests’ The Diplomat (03 January 2020) <https://thediplomat.com/2020/01/taiwan-passes-anti-infiltration-act-ahead-of-election-amid-opposition-protests/> accessed 19 February 2020.
 Constitution of the Republic of China (Taiwan), Article 23.
 Judicial Interpretation No 617 <https://law.moj.gov.tw/LawClass/ExContent.aspx?ty=C&CC=D&CNO=617> accessed 23 April 2019; Judicial Interpretation No 509 <https://law.moj.gov.tw/LawClass/ExContent.aspx?ty=C&CC=D&CNO=509> accessed 23 April 2019.
 Article 27 of the Satellite Broadcasting Act imposes a duty of ‘fact verification’ and ‘principles of fairness’ on broadcast news stations. See <https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=P0050013> accessed 23 April 2019.
 Huang Jie (黃捷) ‘保防法草案 洩密中國7年刑起跳 [7 years minimum for information leakage to China according to the draft Defense Security Act]’ Liberty Times (Taipei, 10 October 2017) <https://news.ltn.com.tw/news/focus/paper/1142272> accessed 23 April 2019.
 In addition to the fact-verification mechanism of the Satellite Broadcasting Act, the right to correction, the right to reply, and the prohibition of product placement in news broadcast are stipulated in the Radio and Television Act. See Ho Chi-Sen (何吉森), ‘假新聞之監理與治理探討 [Governing and managing fake news]’ (2018) 8(2) JCRP 1, 4.
 Wolfgang Schulz, ‘Regulating Intermediaries to Protect Privacy Online – the Case of the German NetzDG’ (2018) HIIG Discussion Paper Series 5-6, 8.
 Carlo Invernizzi Accetti and Ian Zuckerman, ‘What’s Wrong with Militant Democracy’, (2017) 65(1s) Political Studies 182, 183.
 Jacob McHangama & Jonas Parello-Plesner,‘Taiwan’s Disinformation Solution’ (The American Interest, 6 February 2020) <www.the-american-interest.com/2020/02/06/taiwans-disinformation-solution/> accessed 19 February 2020.
 According to LINE’s report, round 90% of the Taiwanese population use LINE.
 Catherine Chapman, ‘To regulate content, India takes an axe to consumer privacy’ (The Daily Swig, 9 January 2019) <https://portswigger.net/daily-swig/to-regulate-content-india-takes-an-axe-to-consumer-privacy> accessed 23 April 2019.
 Kurt Wagner, ‘WhatsApp is at risk in India. So are free speech and encryption’ (Recode, 19 February 2019) <www.recode.net/2019/2/19/18224084/india-intermediary-guidelines-laws-free-speech-encryption-whatsapp> accessed 23 April 2019.
 Whitney v California 274 US 357 (1927); Philip M Napoli, ‘What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble’ (2018) 70(1) Fed Commun Law J 57, 58.
 ibid 68-87.
 Giovanni Capoccia, ‘Militant Democracy: The Institutional Bases of Democratic Self-Preservation’ (2013) 9 Annual Review of Law and Social Science 207, 219-220; Accetti and Zuckerman (n 30) 183.
 Ko Tin-yau, ‘How fake news led to suicide for Taiwan representative in Osaka’ EJ Insight (19 September 2018) <www.ejinsight.com/20180919-how-fake-news-led-to-suicide-of-taiwan-representative-in-osaka/> accessed 23 April 2019.