The Council of Grand Justices’ Interpretation 499 states: “Because the process of amending the Constitution is the most direct action that reflects and realizes sovereignty, it must be conducted openly and transparently in order to satisfy the condition of rational communication and, hence, lay the proper foundation for a constitutional state.”
Although this interpretation refers to the procedure for amending the Constitution and the restrictions to such amendments, the transparency and rational communication it mentions can be used as a test for the “proper foundation” of any act by the government.
The reason that the cross-strait service trade agreement has caused such a backlash and is seen as being full of flaws and anti-democratic is that the government’s handling of the issue has lacked transparency and rational communication. The government wants to use its legislative majority to ram the agreement through the legislature with a complete disregard for constitutional legitimacy.
Following concerted pressure from the public and concerned businesses, the Chinese Nationalist Party (KMT) is afraid to submit the agreement for a second legislative reading. Now that it is being reviewed by all the legislative committees, the standards for the review have become an issue.
All review standards are connected to one fundamental principle: importance theory. This is the notion that the greater an issue impacts on people’s rights and duties and the more far-reaching its effect on the nation, economy, society and culture, the more stringent the standards to review it should be.
The service trade agreement will have an impact on millions of workers and on 10 million people, including their household members. It will affect 60 to 70 percent of GDP, as well as financial and information security, social welfare and medical care. The legislature must adhere to the strictest of standards when reviewing such an important agreement. In terms of concrete review standards, the following aspects should be taken into consideration as a bare minimum:
First, there are the procedural standards. Without procedure, there will be no room for public participation. Without public participation there will be no rational communication and therefore no legitimacy. Procedural standards can be said to provide a review of the review. It is crucial to the legislature’s democratic legitimacy, which is why the legislature should open up participation and communication channels rather than applying unreasonable restrictions to the times and venues of forums.
The demand being brought forward in civil society that there should be one hearing for each industry is a minimum requirement. If the government cannot do this, it falls short of the most basic requirements of review. It is necessary to introduce a diversified point of view, including ethnic groups, gender groups, workers, environmental groups and young people. All these groups should be given the procedural respect they deserve.
The second issue is information standards. Public transparency without information has been the main weak point in President Ma Ying-jeou (馬英九) and his administration’s handling of the cross-strait issue. Maybe it is because the Cabinet is made up of “top-notch” intellectuals and academics who sincerely believe the Confucian view that “the people may be made to follow a path of action, but they may not be made to understand it,” which arrogant officials always use to refuse to release government information. Or perhaps they are unwilling to release their impact assessments from pure laziness.
Until the government releases an assessment of the impact on employment, culture, gender groups, industry and so on, the legislature should refuse to review the agreement.
Finally, the most difficult issue: substantive criteria. Simply put, every government agency is charged with implementing the Constitution and protecting people’s basic rights.
In the Constitution’s human rights clauses, Chapter 13 — the chapter on fundamental national policy — in the 10th of the additional articles to the Constitution and in the two human rights conventions, the legislature can easily find many important review standards, such as the freedom of publication, cultural diversification, financial stability, guaranteed employment, social security, protection of farmers, information security and so on. These standards help show why procedural participation and sufficient information are so important.
The Ma administration is being cowardly in its handling of the cross-strait service trade agreement and the information it releases is distorted. Furthermore, its arguments supporting the pact do not stand up to scrutiny. If this situation goes on, police violence will be the only thing the government can rely on for support.
Yen Chueh-an is a professor at National Taiwan University’s College of Law and a supervisor of Taiwan Democracy Watch.
Translated by Perry Svensson