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Too many cooks are spoiling the beef hot pot

The government is further deregulating US beef imports to allow cow organs, spinal cords and ground beef. In light of the risk posed by such products, however, it has tacitly allowed or even encouraged local governments to boycott such imports. The central government has simply passed the buck to the local level. Instead of cutting off supplies at the point of import — customs — the government wants the public to try to avoid the products. It’s unbelievable.

Fortunately, our democratic system has separated the powers of the government and limited the powers of the executive and the legislative branches. This means that the legislature can amend the Act Governing Food Sanitation (食品衛生管理法) and list brains, spinal cords, internal organs and ground meat products from areas with “mad cow disease” as dangerous materials and ban their importation.

Some officials say, however, that the Taiwan-US protocol on expanding beef imports has greater binding force than domestic legislation, and that the executive branch must follow the agreement even if the legislature amends the law. Such a claim is wrong.

First, Article 10 of the Rules Governing the Processing of Treaties and Agreements (條約及協定處理準則) states: “Agreements shall be submitted to the Executive Yuan for review within 30 days of signing ... They shall be submitted to the Legislative Yuan only for reference after entering into force.” The beef protocol only has to be submitted to the legislature for its reference. The legislature does not have to review and vote on it, nor does the president have to sign or promulgate it. This shows that it is not a “law,” but merely a regulation, and its legal force does not surpass that of a law.

Second, the Council of Grand Justices’ Constitutional Interpretation No. 329 said some agreements, regardless of their type and even if they do not require a decision by the legislature, may still be legally binding treaties. Such agreements, however, are restricted to those authorized in law or pre-determined by the legislature, or agreements whose contents are the same as domestic legislation. The new protocol does not fall within this scope, and it was signed in violation of a legislative resolution.

The biggest problem with amending the law is that this would violate the 18th item of the protocol, where Taiwan recognizes that such products are not “specified risk materials” (SRMs) and therefore allows their importation. But the import of such products has been controversial since 2005. The protocol came into effect immediately, forcing Taiwan to further deregulate its markets to include SRMs, in addition to bone-in beef.

A resolution that does not allow the items the executive branch has agreed to may alleviate criticism from other countries about Taiwan’s breach of good faith. The forced importation of such materials will put new pressure on Japan and South Korea. Because Tokyo and Seoul can understand the pressure on Taipei, however, Taiwan may not necessarily face criticism.

Finally, amending the law to ban the importation of entrails could remove the damage to Taiwan’s rights imposed by the agreement while only causing minor damage to the US. The US would continue to benefit from selling boneless or bone-in beef to Taiwan. If Washington chooses to retaliate, it would be in violation of the principle of proportionality.

Restricting the importation of SRMs through democratic legislative procedures is in line with Taiwanese legislation, and it would only affect a minor portion of US rights, leaving the US room to maneuver. If Washington insists on retaliating, Taiwan would still be able to make an argument for its position.



Chiang Huang-chih is a law professor at National Taiwan University.

TRANSLATED BY EDDY CHANG
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