Liberty Times (LT): You demonstrated on April 15 against the Democratic Progressive Party’s (DPP) proposed bill. Why?
Lin Fei-fan (林飛帆): We will refrain from describing the DPP’s draft bill on monitoring cross-strait negotiations and agreements as being as bad as the Chinese Nationalist Party’s (KMT); this must be noted. However, the DPP’s version has fallen short of the expectations set by the civic groups’ version of the draft. In particular, the DPP had not made good on its promises to the 318 movement [also known as the Sunflower movement].
On that Friday, the DPP responded with a 3,000-word statement, but without making any promise to address the six major flaws of its bill.
Photo: Fang Pin-chao, Taipei Times
In the DPP’s version, it initially said “an agreement is to come into effect automatically if the legislature fails to approve the deal by the deadline.
While the DPP has since modified the wording to read: “Committee review should be completed within 90 days, and that which is not completed in the stated period, is submitted to legislative plenary session to decide,” Article 12 and Article 13 of the DPP’s draft bill still retain the rule of “reference” (bei cha, 備查), which esentially suggested the “Chang Ching-chung clause” could still be effect.
The reasoning is that under the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例) and Article 61 of the Act Governing the Exercise of Legislative Power (立法院職權行使法), a cross-strait agreement that has been submitted to committee for longer than three months is considered to have completed its review.
In other words, even if the DPP’s version of the supervisory articles had been in effect two years ago [when the controversial cross-strait service trade agreement was under review], then-Chinese Nationalist Party (KMT) legislator Chang Ching-chung (張慶忠) could still have rammed through the passage of the agreement in 30 seconds on the grounds that it should automatically take effect after it sat idle in the legislature for three months.
The DPP’s statement said: “With regard to the rule of reference, it applies ‘only’ to cases where agreements already implemented [which the legislature had fully reviewed] require additional supplementary negotiations, or a continuance of ongoing negotiations.”
However, after perusing the DPP bill, we find no language limiting the application of the rule of reference to some scenarios and not others. A verbal guarantee not backed by written legal code cannot be expected to have any effect in preventing future administrations from exploiting this loophole.
Not to mention that its so-called “additional supplementary negotiations, or a continuance of ongoing negotiations” involve many important matters that should still be subject to committee review, rather than reference.
The DPP’s version was also completely silent on the content of the impact evaluations, the ways in which citizens and interested parties might participate or how the legislature might review the studies.
Therefore, we demand that impact evaluation studies must take account of the following:
First, the government’s Impact Evaluation Report and Response Plan must include administrative policy, budget cases, sources of funding and supporting legislation and executive regulations that are integrated as a package and are based on the impact report’s actual statistical data and projections.
The government also must submit, in conjunction with the agreement, an Impact Evaluation Report and Response Plan. It should be finished papers containing concrete proposals, not a general “directive of response.” When the signed agreement’s text is different from the its draft, they must undergo supplementation or correction.
And if the findings of civic groups’ impact evaluation reports differs substantially from the government’s version, the Legislative Yuan must hold public hearings to account for the difference, and the legislature may, after a vote, reject the government’s Impact Evaluation Report and Response Plan.
We also demand the impact evaluation studies ought to clearly specify the government’s responsibility to implement its proposed response plan, and that necessary adjustments must be made to the Act of Providing Support in Response to Trade Liberalization (因應貿易自由化調整支援條例).
Another issue with the DPP’s version is that it named “political topics” in its list of negotiable issues as per Paragraph 1, Article 2, but it had not excluded, or mandated specific democratic checks to regulate, the negotiation of issues such as peace agreements or military mutual-trust mechanisms [with China] that would meaningfully change Taiwan’s sovereign status. This omission is worrisome.
The DPP statement said: “This bill is not concerned with political negotiations on sovereignty-related issues or peace agreement. Since political negotiations that potentially involve sovereignty-related issues or peace treaty could have vast and profound impact on all levels, they should be decided by the entire people, as is their fundamental right.”
However, if the DPP will not engage in negotiations involving sovereignty-related issues or a peace treaty, why does it not spell out those limits in its draft? On the contrary, the DPP bill as it is written does not exclude any issues that concern national sovereignty or security from its list of topics that could be included in potential negotiation agendas. In short, empty words are not enough to reassure the public.
Perhaps some will say the DPP would not “sell out Taiwan,” and that it is impossible for it to conduct political negotiations with China.
However, transfer of power is a common occurrence in democracies, and the bill on monitoring cross-strait agreements is meant to set an enduring democratic restraint on any government’s conduct in negotiating with China. Therefore, the DPP’s position as the ruling party should not be taken for granted in drafting the law.
The Chinese government’s precondition for dialogue is: “Both sides of the Taiwan Strait belong to one China.”
It will exert great pressure on Taiwan government, regardless of which party is at the helm.
The civic groups’ version of the bill on monitoring cross-strait agreements provides stricter democratic checks on negotiations pertaining to sovereignty, including peace treaty and military mutual-trust arrangements, because it sees the necessity in creating an umbrella of safety to protect the president and the governing party from those pressures, and to better safeguard Taiwan’s democracy and the Taiwanese rights to self-determination in the future.
Another issue with the DPP’s vesion is that it did not only use the terms of “Taiwan Area” and “Mainland Area,” but also made the draft inherit the erroneous national definition that was stipulated by the Act Governing Relations between the People of the Taiwan Area and the Mainland Area.
The Act Governing Relations between the People of the Taiwan Area and the Mainland Area states: “This Act is specially enacted for the purposes of ... regulating dealings between the peoples of the Taiwan Area and the Mainland Area ... arising there from before national unification ... ‘Taiwan Area’ refers to Taiwan, Penghu, Kinmen, Matsu, and any other area under the effective control of the government ... and ‘Mainland Area’ refers to the territory of the Republic of China outside the Taiwan Area.’”
The DPP statement said: “This legislation is made with an eye to avoiding exacerbating controversy, and in issues involving the name of the nation and its definition, it provides continuity with the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, in accordance to the framework of the Constitution of the Republic of China (ROC), which is the greatest consensus of Taiwanese society.”
I am frankly astonished by this statement. Is the DPP not aware that Taiwanese strongly object to the framework of “one country, two regions,” and had demanded its abolition from every level of the law, up to the Constitution of the ROC? In what way is the DPP’s position today not exactly the same as the position that President Ma Ying-jeou (馬英九) administration has reiterated time and again?
Another issue with the DPP vesion is that although it mentioned “the participation of the people,” it actually made the mechanisms of public participation ill-defined, in the name of executive discretion, to the point that they could be used to exclude public participation.
Article 7 of the DPP’s version bore an uncanny resemblance to Article 7 of the Executive Yuan’s version, in that it treated “promotion and public affair exercises” as synonymous with public participation.
Article 7 of the DPP’s version said: “[The government should] actively plan and implement effective and practicable measures in communicating with concerned parties.”
What then is the channel for public participation? When should hearings and public hearings take place? Those questions are not answered in the DPP’s version.
Its “Explanation for the Law” merely said: “Effective measures should be taken according to practical experience, including public hearings, hearings, interviews with affected businesses, consultation with affected unions or public opinion surveys.”
The vague language in the DPP’s version would permit a redux of the absurdities that happened during the cross-strait service trade agreement negotiations, when the government claimed, following three telephone calls to the president of the garment laundry union, that it performed due diligence in communicating with the industries.
Meanwhile, the DPP’s version did not include statutes that would apply the law retroactively or to ongoing negotiations.
Therefore, the DPP’s version is not applicable to the service trade agreement and the trade-in-goods agreement, which are “being negotiated” or “signed without completing legislative review,” and we are forced to accept the results of the Ma administration’s negotiations.
How does that differ in any way from the KMTgovernment’s stance? Does the DPP think it had kept its campaign pledges to the people?
The proposed bill on monitoring cross-strait agreements must include statutes that allow their application retroactively to agreements already signed or to ongoing negotiations to address those concerns, instead of leaving them to the devices of the executive branch, or case-by-case decisions by bureaucrats.
The only demand of the 318 movement that both the governing party and opposition party could agree to at the time was to legislate the supervisory articles before conducting reviews.
Is the DPP trying to say that the law that is finally being legislated is to have no bearing on the service trade agreement and trade-in-goods agreement anyway? I believe that many friends will, like myself, find the DPP response unfathomable.
LT: The DPP said its proposed version would equip the legislature with supervisory power that essentially means the agreement that the government signs in the future would be one that is approved by the legislature. What are your thoughts?
Lin: From the DPP’s latest response, it is apparent it did not address its draft’s flaws, including its fatal flaw — the lack of legal mechanisms to allow ex post facto application to agreements already signed and to ongoing negotiations.
The DPP said it would listen to public opinion in the legislative process, but it only pledged to hold public hearings. While we are glad to know the voice of the people is to be considered in those hearings, the DPP is already the majority in the legislature, and is to become the governing party on May 20, so what we expect from the DPP is that it should clarify its position on cross-strait policy and economic trade.
As such, we demand the opening of trilateral dialogue [between the DPP, New Power Party and civic groups] in public debate.
The purpose of debate is not to add to polarization.
Instead, we hope that open debate might clarify the DPP’s policy objectives or the pressures that are brought to bear against it so that the people might know the problems that lay ahead, and to leave a historical record for posterity.
In the quest by Taiwanese for democracy, transparency, political participation, independent nationhood and dignity, they have a need to know the severe challenges that confront Taiwan.
The proposed bill on monitoring cross-strait agreements is a turning point in Taiwan’s democratic development. It is essential to the democratic right of the Taiwanese to self-determination, to the nation’s self-definition and the direction of its development of international economy. We cannot afford to take this issue lightly.
Translated by Jonathan Chin
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