Taiwan is one of the world’s political entities that does not possess full status as a country. This group of countries has to put up with all sorts of unfair treatment and are told to become observers, or accept some other “special” status in international organizations to “learn on the job.” They have to grin and bear it as they are told what to do by UN-appointed government bodies.
However, back home, they are able to share their hatred for the same enemies and can overcome petty differences to pursue their ultimate goal of independence.
The Taiwanese government is the only exception to this. As if it was not enough that the current government does not want to pursue independence, it constantly uses the abnormal situation of the nation to deal with anyone who thinks differently. The ways in which it does so include coming up with excuses to implement a martial law-like authoritarian rule, depriving the public of freedom of speech and the right to live where they want. It also threatens any public expressions of independence or self-determination.
The government’s latest trick is aimed at escaping public monitoring. To pull this off, it says that the cross-strait service trade agreement is not an agreement between two countries and that the legislature therefore has no right to review the agreement clause-by-clause, but can only pass it in toto or not at all. This is all done to avoid President Ma Ying-jeou (馬英九) losing the trust of his friends in Beijing.
In the past, many of the international agreements between Taiwan and countries without official diplomatic ties with Taiwan were not treaties, even when such agreements involved important national issues or the rights or duties of the public.
For example, when freedoms of the air were negotiated between Taiwan and Malaysia, the two private entities Malaysia Airlines and the Taipei Airlines Association signed the necessary documents. The flight agreements between Taiwan and Hong Kong do not even have a name and are referred to as “the arrangement for air transportation between Taiwan and Hong Kong.”
Although not called treaties, such agreements are the result of conflict reduction over sovereignty. They may at times represent a trading of the sovereignty and rights of a whole population in exchange for economic benefits enjoyed by certain vested industries and people.
The public, who are directly affected by such agreements, have the right to approve them by reviewing and giving feedback before they come into effect. This is also why the Council of Grand Justices’ Constitutional Interpretation No. 329 was forced to take the same position.
Consider Interpretation No. 329, which states: “Agreements concluded between Taiwan and mainland China are not international agreements to which this interpretation relates. It should also be noted that whether or not these agreements should be sent to the Legislation [sic] Yuan for deliberation is not included in this interpretation.”
While the grand justices stuck their heads in the sand and avoided the sensitive issue of relations between Taiwan and China, they did not say that cross-strait agreements will not be subject to judicial monitoring as a result. The legislature could draw up a set of regulations for handling cross-strait treaties or directly make the trade agreement into a legal case and review it as such, making it a special law. A simpler approach that would also be feasible would be to make the treaty act that is currently being reviewed applicable to the clauses of cross-strait agreements.
Would this make Taiwanese lose trust in the government? Of course not. This is because all countries that have signed agreements with Taiwan, including China, know they have to avoid calling agreements with Taiwan “agreements between countries.” They understand that Taiwan is not a normal country and that it has its own special way of ratifying agreements, which means agreements will not take effect automatically. If Taiwan’s leaders continue to make promises they cannot keep and brag about how they have the administrative power to make decisions, they are not only inviting ridicule from their counterparts, they are also betraying the trust of Taiwanese.
Chris Huang is an associate professor in National Tsing Hua University’s Institute of Law for Science and Technology.
Translated by Drew Cameron
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