In June last year, President Ma Ying-jeou’s (馬英九) administration announced that it had signed a cross-strait service trade agreement with the People’s Republic of China (PRC). This set off ongoing public protests that grow louder every day. The criticism of the agreement can be divided into two basic categories.
The first is criticism that the negotiation leading up to the agreement and the signing lacked transparency: Not only was the public never consulted, the legislature was also kept in the dark.
The second category is criticism that the agreement is unfair and will have a great negative effect on the nation’s industrial development, distributive justice, social security and democratic mechanisms.
The criticism has not ended with the government’s propaganda and the public hearings arranged by the legislature. The reason for this is closely related to what is perceived as an emptiness in the public hearings, the formalistic hyperbole of the propaganda and the government’s inability to respond to public concerns.
It is also a reflection of a legal shortcoming that poses a major threat to the nation’s constitutional democracy. There is next to no deliberation and oversight of the negotiation and signing of cross-strait agreements.
Upon what law and procedure is the legislature to base its review of the agreement? The frightening answer is that no one knows, even after the last public hearing on Monday.
The legislature may have issued a resolution to review the agreement, which the Cabinet submitted for its reference last year, but the current Act Governing the Legislative Yuan’s Power (立法院職權行使法) offers no explicit basis for reviewing something that has been submitted for the legislature’s reference only, nor does it specify a method or procedure for deliberations.
It is precisely because of this that empty formal deliberations in the legislature and the Cabinet’s overbearing arbitrariness follow every agreement that the government has concluded with China.
For example, the Cross-Strait Bilateral Investment Protection and Promotion Agreement (海峽兩岸投資保障和促進協議) that the government signed with China in August 2012 was submitted to the legislature for its reference.
Although the legislature adopted a resolution to review the agreement, the Cabinet — arbitrarily and without the legislature’s having reviewed it — treated the agreement as having been reviewed and passed.
In January last year, the Cabinet informed China that the “domestic procedure” had been completed, upon which the agreement took effect. The Cabinet invoked Article 61 of the Act Governing the Legislative Yuan’s Power, which states that a legislative committee must complete its review of an administrative order within three months of its submission for review, and that if that period is exceeded without the review having been completed, the submission will be treated as if it had been passed.
The preposterous result of this disorderly legal application is that cross-strait agreements and administrative orders are deemed to be equal, which seriously harms Taiwan’s democratic order.
Regardless of how the relationship between Taiwan and the PRC is defined, it cannot be denied that cross-strait agreements will greatly affect the public’s rights and interests and have a far-reaching effect on the nation’s prospects and development.