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
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