If we look at the legislature’s past reviews of international treaties, the first thing that becomes apparent is that almost all bilateral treaties have been subject to a standardized legislative review process. In other words, they were submitted to the relevant legislative committee for clause-by-clause review, instead of proceeding directly to a second reading.
The 2003 free-trade agreement (FTA) between Taiwan and the Republic of Panama is similar in nature to the Economic Cooperation Framework Agreement (ECFA) recently signed by Taiwan and China. As it happens, that particular FTA did proceed directly to a second reading. However, at the time there was broad public consensus that such an agreement should be signed with one of Taiwan’s longest diplomatic allies to further strengthen bilateral relations.
Furthermore, the legislature had little choice in the matter because the Taiwanese and Panamanian presidents had already signed the FTA before it was sent to the legislature, and they promised it would come into effect on Jan. 1, 2004. This arrangement did not give the legislature sufficient time to review the FTA properly.
In light of this situation, the legislature obediently approved the FTA, but passed a resolution declaring the signing process imperfect because of administrative flaws. This called on the government to respect constitutional procedures when signing agreements in future and also stated that when ministries or commissions under the Cabinet sign bilateral or multilateral treaties or agreements with a foreign counterpart, they should adhere to procedures laid down in Article 63 of the Constitution, which grants legislators the ultimate power to decide such cases by legislative vote. In the event of emergencies or where special conditions pertain, the resolution urged the government to obtain legislative authorization in advance.
When it comes to the ECFA, there is still no public consensus and no urgency. Despite this, those in power, still chose to manipulate legislative procedure, aided by the Chinese Nationalist Party’s (KMT) majority in that body. This begs the question how many problems remain hidden in the agreement because of the decision to avoid review by the relevant committee?
The ECFA is certain to have a dramatic impact on Taiwan, but whether that will be positive or negative remains to be seen and is the subject of much heated debate. Given the contentious nature of the deal, it should be reviewed on a clause-by-clause basis. Unfortunately, the legislature meekly ceded its right to monitor the ECFA. Such negligence on the part of the Ma administration is regrettable and a blow to democracy.
What is most worrying about this development is that after the KMT and the Chinese Communist Party decided the ECFA was a good agreement, the Taiwanese public were denied the opportunity to express their opinion on the deal. To add insult to injury, the KMT has put party loyalty before the interests of the nation by agreeing to rubber stamp the ECFA without a proper legislative review.
The legislature, which represents public opinion, has been unwilling or unable to monitor and review cross-strait affairs on behalf of the Taiwanese public. Therefore, holding a referendum in order to avoid an administrative dictatorship and legislative dereliction of duty is not only reasonable, but also the only option available.
Taiwan’s democracy is the product of years of struggle and sacrifice, it must not be sacrificed on the altar of political expediency for what are at best questionable gains.
Chiang Huang-chih is a professor in the Department of Law at National Taiwan University.
TRANSLATED BY EDDY CHANG
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