Cross-strait negotiations have always been clouded by big words and baseless talk. There are no observers and no oversight.
After student-led protesters occupied the legislative chamber and hundreds of thousands of people took to the streets of Taipei over the lack of transparency regarding the cross-strait service trade agreement, the Cabinet finally released a draft act for processing and monitoring agreements between Taiwan and China.
Unfortunately, closer inspection of the draft shows that it not only eliminates all room for negotiation and differences of opinion that existed in the past, but it is also an attempt to legalize the recent underhanded and arbitrary actions of the administrative organs.
Article 15 of the draft, which pertains to procedures for critical examination of cross-strait agreements, and Article 16, which pertains to procedures for putting such agreements on record for future reference, essentially involve taking Article 5 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (兩岸人民關係條例) and dressing it up in a more attractive manner. This is the main problem with the draft.
Item 1 of Article 16 states that: “When an agreement requires neither the amendment of laws nor new laws to regulate it, it should, after being submitted to the legislature, be reported at a legislative meeting.”
Whether an agreement requires the amendment of laws or new laws to regulate it should be decided by the Cabinet.
While the second item of Article 16 has other applicable regulations, which state that if more than 15 legislators believe a certain agreement involves the amendment of laws or requires new laws to regulate it, it can be sent to the legislature for review. However, sending something to the legislature for review is not the same thing as a deliberation, because a review is restricted to ascertain whether the agreement violates or contradicts the law, requires a change to current law or should be regulated in law.
More important is that the review process must be completed within three months. If it is not completed by that time, the review period can under special circumstances be extended once. However, once that period is over, the agreement will be deemed as having been reviewed and passed and will come into effect immediately.
It would seem that the question of whether an agreement violates or contradicts a law or requires a change to current law should be easily determined on objective grounds, but in practice, such things are debatable. Current cross-strait agreements show that in the short space of five years, only two of the 21 cross-strait agreements signed — the Economic Cooperation Framework Agreement and one other — have been deliberated on. All others were handled according to the procedures for record and future reference following an administrative order, and were never deliberated on. When it comes to agreements on issues like cross-strait judicial cooperation, sea transport, air transport and other types of transport and communications, as well as issues like climatic and geological research, which are all closely linked to national security, the constitutionally protected principle of legal reservation should have been applied.
Still, all these agreements were simply placed on record for reference, which shows just how much room there is for maneuvering when it comes to the actual practice of such laws.