Taiwan’s new anti-infiltration law seeks to curb Chinese communist influence, but it may end up hurting democracy
While supporters point to Chinese misinformation campaigns to justify the law and point to its narrow scope, the way it was rushed through and the chilling effect it will have on freedom of speech and cross-strait exchanges are cause for concern
With less than two weeks to go before Taiwan’s presidential and general elections, the Democratic Progressive Party rammed its anti-infiltration law through the legislature in 34 days. Its opponents have derided the rushed process as an election ploy.
Inspired by the US Justice Department ordering Chinese state media to register as “foreign agents” under the Foreign Agents Registration Act, Taiwan’s new law is the last leg of DPP-sponsored anti-China legislation that included five amendments to various national security laws in 2019. The anti-infiltration bill gained momentum after Hong Kong’s anti-extradition bill protests and the defection of self-proclaimed Chinese spy Wang Liqiang to Australia in late November.
The sweeping legislation criminalises those who help “external hostile forces” organise political activities, disrupt social order or lobby lawmakers. The crimes carry a maximum sentence of a NT$10 million (US$334,688) fine and five years in prison.
Although the bill does not specify what constitutes “external hostile forces”, the elephant in the room is Beijing’s propaganda machine. Taiwanese President Tsai Ing-wen’s party is positioning itself as the protector of the island’s sovereignty against the threat of Beijing, which does not rule out seeking unification by force.
The DPP proposed the law on November 27 and denied the Beijing-friendly Kuomintang’s counterproposal of an “anti-annexation law” on December 6. On December 14, Tsai announced that the law must be passed on December 31.
The proponents of the law point to research by the Digital Society Project of the University of Gothenburg, Sweden, which found Taiwan the most exposed to misinformation disseminated by foreign governments among over 170 countriessurveyed.
They argue that the term “external hostile forces” has already appeared in other Taiwanese legislation, such as its criminal code and national secrets protection law. “External hostile forces” are defined as a country or group that engages in war or a military confrontation against Taiwan and that advocates non-peaceful means to endanger Taiwan’s sovereignty. “Hostility” refers to a continuous state rather than isolated incidents, such as the 2013 fishing boat conflict between the Philippines and Taiwan.
The bill’s supporters also say it narrowly targets areas central to the democratic process, such as lobbying, political contributions, election campaigns and political rallies. Ordinary people would not be implicated simply because of their dealings with Chinese people or institutions.
Meanwhile, critics of the bill say its language is too broad and vague and can be used to ensnare political opponents, creating an atmosphere reminiscent of the era of “ white terror ” when Taiwan was under the martial law. They fear it could seriously impinge on the freedom of speech that is the linchpin of Taiwan’s democracy.
Han Kuo-yu, the KMT’s presidential candidate, in a televised debate on December 29, criticised the legislation for violating due process, comparing the proposed law to a time bomb tied around every Taiwanese’s neck with the DPP holding the controls.
People’s First Party’s presidential candidate James Soong Chu-yu said at a televised policy presentation on December 27 that, if passed, he would have violated the bill because, at the instruction of Tsai, he had twice attended Asia-Pacific Economic Cooperation meetings and held exchanges with Chinese President Xi Jinping. Tsai responded that the law would not apply to those situations.
But this has not assuaged the concerns of many Taiwanese with ties to China. The Cross-Strait Peace Development Forum estimated in October 2016 that up to 2 million Taiwanese were living, working or studying on the mainland.
The bill has, in particular, raised anxiety in Taiwan’s business community, with one businessman comparing its effect to Hong Kong’s now withdrawn extradition bill and Foxconn founder Terry Gou Tai-ming criticising the rush to pass the law without deliberation. The law went through neither committee reviews nor a public comment period.
Lin Por-fong, chairman of Taiwan’s Chinese National Association of Industry and Commerce, explained to Business Weekly how Taiwanese companies establish a foothold in China. They seek membership to a local Taiwan Business Association, which is typically chaired by a Taiwanese businessman, with the vice-chair being the director of the local Taiwan Affairs Office.
To win the support of Chinese local governments, Taiwanese businessmen often invite local officials to attend meetings or business forums. Mainland officials inevitably make comments that toe the party line or promote policies. Finally, most Taiwanese businessmen invest in China to take advantage of tax concessions and other Chinese government incentives. All these involve mainland people, organisations and money.
According to a poll released by the pro-DPP Cross-Strait Policy Association on December 17, 57 per cent of Taiwanese supported the passage of the anti-infiltration law and only 25.8 per cent disapproved. But opponents of the law consider this result a reflection of the DPP’s manipulation of the bill to fan a “red scare”.
Ultimately, given the lack of clarity on how the law will be administered and which agencies the implementation falls under, the law is likely to have a chilling effect on free speech and ordinary cross-strait exchanges, especially if it comes under the purview of the National Security Bureau.
In response, the KMT plans to launch a constitutional challenge and is likely to stress the law’s passage without proper deliberation to mobilise undecided voters and those who may have otherwise sat out the election. The focus of the elections will shift from candidates’ qualifications to formulaic debates on cross-strait relations.
Taiwan’s democracy is young and hard won. The threat of political infiltration is real. But Taiwanese should have confidence in democratic processes and refuse to surrender to mass paranoia about undue political influence.
Regardless of which party gains more votes as a result of this controversy, the hasty passage of the ill-considered anti-infiltration law is a loss to Taiwan’s democracy.
Chiu-Ti Jansen, with advanced degrees from Yale and Columbia, is the founder of multimedia platform China Happenings and a former corporate partner of international law firm Sidley Austin