President Ma Ying-jeou (馬英九) says a report will be made to the legislature before and after each round of talks on the economic cooperation framework agreement (ECFA), and that he will ask officials involved in talks to report to the legislature on a monthly basis. Furthermore, he believes that once an ECFA has been signed, it should be reviewed by the legislature.
This might blur the division of responsibilities between administrative expertise and the legislature’s supervisory and controlling roles, which would not benefit international negotiations.
International exchanges require professionalism and confidentiality, but the over-involvement of legislators serving different interests may put confidentiality at risk and undermine division of responsibilities.
Judging from international practice, international negotiations should be handled by an informed and competent administration.
Article 5, Paragraph 1 of the Act Governing Relations between the Peoples of the Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例) states that: “The institution, private organization, or any other non-profit juristic person entrusted to execute an agreement in accordance with Paragraph 3 of Article 4 or Paragraph 2 of Article 4-2 shall submit the draft agreement through the entrusting authorities to the Executive Yuan for approval before its execution of the agreement.”
The law does not require that the Cabinet report to the legislature prior to talks. Instead, it follows international practice and factors in specialization. Flexibility and confidentiality should be left to the Cabinet as much as possible.
Second, Constitutional Interpretation No. 329 skirts the issue of whether cross-strait deals should be submitted for examination, but Article 5, paragraph 2 of the Act Governing Relations between the Peoples of the Taiwan Area and the Mainland Area states that: “Where the content of the agreement requires any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement through the Executive Yuan to the Legislative Yuan for consideration within 30 days after the execution of the agreement.”
In terms of the pacts, “where its content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to the Executive Yuan for approval and to the Legislative Yuan for record, with a confidential procedure if necessary.”
The procedure varies depending on the nature of the pact. As yet it is unclear whether legal amendments or new legislation will be required for the ECFA, so it is unclear whether it must be reviewed by the legislature.
In a democracy, the legislature and the Cabinet each have their own remit. The legislature’s role is that of a supervisor rather than a policy or decision-maker.
The legislature does not have a say in cross-strait talks. Provisions for supervision after the fact — legislative record and review — must be strengthened. This is especially apparent in Article 95 of the cross-strait act, which states that: “if the Legislative Yuan fails to adopt any resolution within one month after the request during its session, the consent is deemed granted.”
Taiwan and China will sign other pacts, many of which are likely to be technical in nature. If would be difficult to report all negotiations to the legislature. Furthermore, confidentiality and flexibility may be lost.
The government is not trying to improve the system. Instead, it is hesitating in the face of domestic pressure. This plants the seeds for problems in future international talks.
Chiang Huang-chih is a professor of law at National Taiwan University.
TRANSLATED BY JENS KASTNER
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