The controversy over whether revising regulations to prohibit “risky” beef imports could override a recently signed protocol with the US illustrates the delicate matter of Taiwan’s sovereignty, analysts said.
Taiwan recently signed a protocol with the US to expand market access from boneless beef of cattle younger than 30 months to include bone-in beef and other beef products that have not been contaminated with “specific risk materials.”
Responding to a public outcry over the lifting of the ban on bovine offal and ground beef amid fears of bovine spongiform encephalopathy (BSE), commonly known as mad-cow disease, the government said it would change import inspection procedures to effectively block the products.
Dissatisfied with the remedial measures and mainly citing legality concerns, lawmakers across party lines vowed to amend the Act Governing Food Sanitation (食品衛生管理法) by yesterday to address what they considered flaws in the protocol.
But legislators have yet to reach a consensus on the details after President Ma Ying-jeou (馬英九) urged the Chinese Nationalist Party (KMT) caucus not to make changes that would violate the protocol.
The debate has raised questions of whether treaties, agreements, protocols or accords with other countries are subject to legislative approval and whether international deals carry higher authority than domestic legislation where they conflict.
The Taiwan-US beef protocol is just the latest in a string of deals that have highlighted this dispute, following nine cross-strait pacts signed with China under the current administration.
In the case of US beef, National Security Council (NSC) Secretary-General Su Chi (蘇起) said the protocol should override the law.
“That is the way I think, and those who hold different opinions should feel free to seek a constitutional interpretation” from the Council of Grand Justices, Su said.
Hsu Chih-hsiung (許志雄), a specialist on constitutional law, said Su’s conclusion revealed his poor understanding of jurisprudence.
“If an international deal is above domestic law, could it be that it is also above the Constitution?” he asked.
A treaty requires legislative approval to make it valid with the same authority as law, Hsu said, adding that “the protocol is neither a treaty nor has it been approved by the legislature.”
From the perspective of constitutional law, the handling of the protocol should not have bypassed the legislature.
Because it did so, “there is no way that the protocol can take precedence over domestic legislation,” he said.
The grand justices made their views clear on related issues in Interpretation No. 329, said Chang Wen-chen (張文貞), an associate law professor at National Taiwan University.
The 1993 interpretation explained the meaning of “treaty” in the Constitution and what kind of agreement should be sent to the legislature for deliberation.
In the interpretation, the justices expanded the meaning of “treaty” to include “administrative agreements” whose contents involve matters that are important to the nation and the rights and duties of the people. The justices said these agreements, unless authorized by law or determined by the legislature in advance, should be sent to the legislature for deliberation, Chang said.
The status of treaties and administrative agreements — a matter the Constitution does not explicitly address — is also clarified in the interpretation. They “hold the same status as the law” when they are either approved by the legislature in advance or ratified by it afterwards, Chang said.
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