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.
Based on the fundamental values of constitutional democracy, the legislature must write a complete set of laws to clearly regulate cross-strait talks and negotiations, including deliberative procedures, oversight mechanisms and limits to the signing of agreements.
The Cabinet must not be allowed to continue its opaque operations and avoid substantive democratic deliberation and oversight.
The problem with the legal oversight of cross-strait agreements being undermined is nothing new. The governing and opposition parties as well as the Cabinet and the legislature understand the negative effects of this situation and that the issues affected by cross-strait agreements are expanding, sparking increasingly intense opposition. The controversy over the opaque handling of the service trade agreement is a case in point.
The legislature has adopted a resolution to review and vote on each individual article of the service trade agreement, but without clear rules for deliberation and even if the lack of a legal basis for the legislature’s resolution is ignored, the legislature has no way to engage in meaningful deliberation.
Can the legislature attach conditions or time limits to the deregulation of industries? To what extent would doing so be legally binding? Is the legislature allowed to amend pledges pertaining to specific industries? Is it allowed to restrain the Cabinet?
There are no clear regulations to answer any of these questions.
Even more outrageously, there have been reports that the Chinese Nationalist Party (KMT) will adopt an absurd procedure to force the agreement’s passage: reviewing it, but not letting it pass through the three legislative readings. This highlights the great harm that the lack of regulations for the signing and deliberation of cross-strait agreements will cause the nation’s constitutional democracy.
With this lack of clear legal regulations, the government completely ignores the protests against its opaque handling of the service trade agreement and is currently engaged in negotiating a cross-strait trade in goods agreement in the same manner.
Lawmakers have procrastinated for far too long over the legislation for the supervision of cross-strait agreements. This has turned the Cabinet into an uncontrollable monster that constantly tramples roughshod over democratic values in its arbitrary signing of cross-strait agreements.
Unless the legislature is planning to once again relegate itself, reducing itself to a rubber stamp, there is no question that its most pressing issue is to complete the formulation of the regulations for the signing, review and oversight of cross-strait agreements.
Given the lack of a clear baseline and strict procedures, the arbitrary review of the service trade agreement in a discretionary procedure worked out in a haphazard manner will hurt the core values of Taiwan’s democracy and rule of law, in an irresponsible betrayal of the legislature’s duties under the Constitution.
Huang Kuo-chang is an associate research fellow at the Academia Sinica’s Institutum Iurisprudentiae.
Translated by Perry Svensson
Because much of what former US president Donald Trump says is unhinged and histrionic, it is tempting to dismiss all of it as bunk. Yet the potential future president has a populist knack for sounding alarums that resonate with the zeitgeist — for example, with growing anxiety about World War III and nuclear Armageddon. “We’re a failing nation,” Trump ranted during his US presidential debate against US Vice President Kamala Harris in one particularly meandering answer (the one that also recycled urban myths about immigrants eating cats). “And what, what’s going on here, you’re going to end up in World War
Earlier this month in Newsweek, President William Lai (賴清德) challenged the People’s Republic of China (PRC) to retake the territories lost to Russia in the 19th century rather than invade Taiwan. He stated: “If it is for the sake of territorial integrity, why doesn’t [the PRC] take back the lands occupied by Russia that were signed over in the treaty of Aigun?” This was a brilliant political move to finally state openly what many Chinese in both China and Taiwan have long been thinking about the lost territories in the Russian far east: The Russian far east should be “theirs.” Granted, Lai issued
On Tuesday, President William Lai (賴清德) met with a delegation from the Hoover Institution, a think tank based at Stanford University in California, to discuss strengthening US-Taiwan relations and enhancing peace and stability in the region. The delegation was led by James Ellis Jr, co-chair of the institution’s Taiwan in the Indo-Pacific Region project and former commander of the US Strategic Command. It also included former Australian minister for foreign affairs Marise Payne, influential US academics and other former policymakers. Think tank diplomacy is an important component of Taiwan’s efforts to maintain high-level dialogue with other nations with which it does
On Sept. 2, Elbridge Colby, former deputy assistant secretary of defense for strategy and force development, wrote an article for the Wall Street Journal called “The US and Taiwan Must Change Course” that defends his position that the US and Taiwan are not doing enough to deter the People’s Republic of China (PRC) from taking Taiwan. Colby is correct, of course: the US and Taiwan need to do a lot more or the PRC will invade Taiwan like Russia did against Ukraine. The US and Taiwan have failed to prepare properly to deter war. The blame must fall on politicians and policymakers