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The role of lawmakers in realizing an
ECFA
By Chiang Huang-chih 姜皇池
Monday, Feb 08, 2010, Page 8
President Ma Ying-jeou (馬英九) says a report will be made to the legislature
before and after each round of talks on the economic cooperation framework
agreement (ECFA), and that he will ask officials involved in talks to report to
the legislature on a monthly basis. Furthermore, he believes that once an ECFA
has been signed, it should be reviewed by the legislature.
This might blur the division of responsibilities between administrative
expertise and the legislature’s supervisory and controlling roles, which would
not benefit international negotiations.
International exchanges require professionalism and confidentiality, but the
over-involvement of legislators serving different interests may put
confidentiality at risk and undermine division of responsibilities.
Judging from international practice, international negotiations should be
handled by an informed and competent administration.
Article 5, Paragraph 1 of the Act Governing Relations between the Peoples of the
Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例) states that: “The
institution, private organization, or any other non-profit juristic person
entrusted to execute an agreement in accordance with Paragraph 3 of Article 4 or
Paragraph 2 of Article 4-2 shall submit the draft agreement through the
entrusting authorities to the Executive Yuan for approval before its execution
of the agreement.”
The law does not require that the Cabinet report to the legislature prior to
talks. Instead, it follows international practice and factors in specialization.
Flexibility and confidentiality should be left to the Cabinet as much as
possible.
Second, Constitutional Interpretation No. 329 skirts the issue of whether
cross-strait deals should be submitted for examination, but Article 5, paragraph
2 of the Act Governing Relations between the Peoples of the Taiwan Area and the
Mainland Area states that: “Where the content of the agreement requires any
amendment to laws or any new legislation, the administration authorities of the
agreement shall submit the agreement through the Executive Yuan to the
Legislative Yuan for consideration within 30 days after the execution of the
agreement.”
In terms of the pacts, “where its content does not require any amendment to laws
or any new legislation, the administration authorities of the agreement shall
submit the agreement to the Executive Yuan for approval and to the Legislative
Yuan for record, with a confidential procedure if necessary.”
The procedure varies depending on the nature of the pact. As yet it is unclear
whether legal amendments or new legislation will be required for the ECFA, so it
is unclear whether it must be reviewed by the legislature.
In a democracy, the legislature and the Cabinet each have their own remit. The
legislature’s role is that of a supervisor rather than a policy or
decision-maker.
The legislature does not have a say in cross-strait talks. Provisions for
supervision after the fact — legislative record and review — must be
strengthened. This is especially apparent in Article 95 of the cross-strait act,
which states that: “if the Legislative Yuan fails to adopt any resolution within
one month after the request during its session, the consent is deemed granted.”
Taiwan and China will sign other pacts, many of which are likely to be technical
in nature. If would be difficult to report all negotiations to the legislature.
Furthermore, confidentiality and flexibility may be lost.
The government is not trying to improve the system. Instead, it is hesitating in
the face of domestic pressure. This plants the seeds for problems in future
international talks.
Chiang Huang-chih is a professor of law at National Taiwan
University.
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