The opposition’s attempt to hold a referendum on the Economic Cooperation Framework Agreement (ECFA) has been repeatedly blocked by the Referendum Review Committee (RRC). Neither has the ECFA been properly monitored in the legislature, as the government has refused, contrary to established practice, to submit it to the relevant legislative review committee.
The agreement went through a second reading during a special legislative session yesterday, and its passage was a foregone conclusion. The government proposed that the premier was first to report the case to the legislature, which was to be followed by a clause-by-clause review, a vote and possible additional resolutions. From a certain perspective, this was a laudable development.
However, yesterday’s reading was the first time the agreement had been subjected to a clause-by-clause review, and the legislature was only able to vote on the agreement as a whole, without the option of voting on an alternative version. This does nothing to reassure us about the government’s intention to hold a detailed review. Such maneuvers, done for the sake of administrative convenience, may hinder the establishment of a democratic oversight mechanism on foreign policy matters in the long term.
Why couldn’t this clause-by-clause review have happened at the legislative committee level, as is the usual practice?
The effectiveness of such a review during a second reading is somewhat limited. According to articles 54 to 59 of the Act Governing the Legislature’s Exercise of Power (立法院職權行使法), if the ECFA had been sent to the legislative committee beforehand, the Legislative Yuan could have invited government officials and members of the public, including representatives of the industries expected to be affected and any experts and academics that might be able to contribute, to attend the first reading. This would have enabled them to solicit a more comprehensive basket of opinions, facilitating a more informed conclusion.
However, there is no such provision for a second reading. By blocking a clause-by-clause review until it has already entered the second reading, the government has effectively shielded the ECFA from public scrutiny.
A clause-by-clause review was deemed unnecessary during the second reading of Taiwan’s four previous free-trade agreements (FTAs). Why should it be any different this time?
If the passage of the ECFA was so urgent that the committee review stage was skipped, why subsequently allow a clause-by-clause review in a second reading.
Why are they having a detailed review at this stage, again against convention?
It just goes to show the executive’s arrogance when it comes to dealing with the legislature.
There is something deeply suspicious about the insistence that the ECFA could only be passed in its entirety, forgoing clause-by-clause scrutiny and without having first been submitted to a legislative committee.
It is true that the majority of legislation has, indeed, been dealt with as a completed entity by the time it comes to the second reading, but that is because it had already been through a systematic process, which the ECFA has been denied. That is, it had already been submitted to a legislative committee and a detailed report made available to subsequent legislative readings. No such report exists for the ECFA.
Worse still, if any of the motions are thought to problematic, one reading may be inadequate. Even in a second reading there could be outstanding questions on specific clauses. The US-Taiwan Agreement on Mutual Legal Assistance in Criminal Matters (台美刑事司法互助協定), for example, was passed in the second reading, but only with a number of unresolved issues attached.
If any problematic clauses are discovered in the second reading it makes little sense to reject earmarking these specific clauses for further deliberation. If legislators are to do their jobs properly, they should not discount the possibility of sending the entire agreement back to the review stage, as is required in Article 9.3 of the Act Governing the Legislature’s Exercise of Power.
The ECFA has been the subject of much dispute, and these legislative sessions are without doubt the most formal review mechanism. However, the government has invented an entirely new procedure for the ECFA, first refusing to send it to the review committee and then announcing it can only be passed as an entire package, without any amendments. This ad hoc process has made effective oversight virtually impossible.
I believe it is important for the legislature to set up a dedicated oversight mechanism for cross-strait agreements. Also, it should be possible for any contentious clauses in the ECFA to be earmarked for further deliberation, or for the whole agreement to be re-submitted for review.
Chiang Huang-chih is a professor of law at National Taiwan University.
TRANSLATED BY EDDY CHANG AND PAUL COOPER
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