Taiwan is a democracy, and the basic principles underlying democracy are the separation of the executive, the legislature and the judiciary, and the mutual checks and balances thereof. Of these three, it is the checks and balances of the first two, the executive and legislative branches of government, that are the most crucial. This is because they are instrumental in making sure government policy reflects public opinion, and in preventing it from going off in its own direction unchallenged.
President Ma Ying-jeou (馬英九) has been in power for two years, and he has doubled as Chinese Nationalist Party (KMT) chairman since last October. Over the past two years, the power of the legislature has been curbed to the extent that it is losing its ability to effectively keep the government in check or participate in policymaking.
This is cause for much concern. In the recent controversy over US beef imports, the legislature asserted itself, giving the impression it was fulfilling its sentry role, but this was in the face of overwhelming public protest. When it comes to cross-strait policy, however, KMT lawmakers simply let everything pass unchallenged, disdainful even of the legislature’s somewhat reduced role as a rubber-stamp to the government’s whim. This is a serious distortion of the democratic deliberation process that removes a democratic defense line.
Ma expects to sign an economic cooperation framework agreement (ECFA) with China next month. He has given his assurances that it will be subject to the legislative review mechanism, but previous form leads one to suspect this is to be but a token gesture. This not only foreshadows the lack of legitimacy of the agreement, it also risks dealing a serious blow to the sense of trust required for the proper functioning of the democratic rule of law.
The distinction between the concepts of legitimacy and legality has been discussed ever since German sociologist Max Weber posed the question many years ago. Framed by the situation at hand, it may be possible to claim that Article 5 of the Act Governing the Relations between Peoples of the Taiwan Area and the Mainland Area (兩岸人民關係條例) applies, strictly speaking, to cross-strait agreements and the ECFA, when it states that where “content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to ... the Legislative Yuan for record.”
However, at this moment in time, when the government is pushing a particularly pro-China policy, the “legality” appealed to here finds itself in conflict with “legitimacy.” This explains the consistently high level of support among the public for a referendum on the ECFA: If representative democracy falls short of its duty of oversight, the people have little choice but to appeal to direct democracy in a concrete manifestation of “people power.”
The legislature is supposed to protect and preserve democracy, and as such it must scrutinize any policy that could potentially harm national sovereignty or dignity, or indeed the welfare of the public. Furthermore, legislators belonging to the ruling party should not toe the party line as a matter of course, for if they do, they cannot be representing the very electorate that put them where they are.
In addition, many strategists are of the opinion that the will of the populace, as represented by the legislature, is a powerful bargaining chip at the negotiating table. It would therefore be better if the government were to explain to the public what is actually going on, rather than just concentrating on the benefits of an ECFA.