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A ‘Chinese’ affair:
scrutiny needed
By Chen Rong-jye 陳榮傑
The recent signing of a cross-strait service trade agreement, following
closed-door negotiations has caused an uproar in Taiwan. President Ma Ying-jeou
(馬英九) says that if the agreement falls through, it will have a big negative
impact on Taiwan’s credibility in the international community.
In making such a threat, Ma is either taking the public for fools, or he is
fooling himself. Ma is in the habit of saying that both sides of the Taiwan
Strait belong to the same country. If that is so, any cross-strait agreement
must be a domestic “Chinese” affair, and in that case, what does it have to do
with “credibility in the international community?”
In its annual reports to the US Congress in recent years, the US-China Economic
and Security Review Commission says that Taiwan has become economically reliant
on China, and that this reliance is desirable from China’s point of view.
While the US views trade relations across the Taiwan Strait from a strategic
height, Ma is more concerned with the idea that China is offering concessions
for Taiwan’s benefit and with establishing a historic legacy for his presidency.
To this end, he is not shy of pushing the legislature around by telling
lawmakers to approve the service trade pact in its entirety, without making any
amendments.
Ma deserves to be condemned for abusing his authority in this way.
According to Article 63 of the Constitution of the Republic of China, “The
Legislative Yuan shall have the power to decide by resolution upon … bills
concerning … treaties and other important affairs of the State.”
Article 5 of the Act Governing Relations between the People of the Taiwan Area
and the Mainland Area (臺灣地區與大陸地區人民關係條例) says: “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.”
Given that the legislature has constitutional and statutory powers to
scrutinize, consider and vote on the service trade agreement, what mandate does
Ma have to say that lawmakers can express their opinions about the agreement,
but cannot amend it?
Most people in Taiwan agree that Ma is an incompetent leader. While some might
forgive a nation’s leader for being incapable, if he leads the country off in
the wrong direction, with disastrous consequences, that is definitely not
forgivable.
Let us remember how Ma flashed victory Vs and shouted: “We’ve won” when the
results of the presidential election came out.
From then on, he has been headed in the wrong direction, and he has forgotten
that a president only has authority because the public entrust him with it.
To make matters worse, Ma’s close associates showed their “loyalty to the
leader” by parroting his claim that it is not accepted international practice
for legislators to scrutinize an international agreement clause by clause.
However, a quick look at well-established practices in other countries shows
that this claim is completely false.
There are dozens of names for international agreements. With regard to how they
are considered by legislatures, they are divided into executive agreements and
treaties. Treaties, in the broad sense, no matter what they are called, come
under the category of “bills concerning treaties,” referred to in Article 36 of
the Constitution, and, as the article says, they have to be submitted to the
legislature for consideration.
In some countries, the constitution even requires a two-thirds majority in the
legislature for treaties to be approved.
Executive agreements, on the other hand, do not have to be considered by the
legislature, but this does require authorization through an enabling act. In
Taiwan, air transport agreements and tax exemption agreements, for example, are
classed as executive agreements. In general, executive agreements come into
force the day they are signed.
After treaties are signed, they are still subject to ratification — a process
involving close scrutiny and final approval by the legislature. For the most
formal treaties, after they have been approved by the legislature, the head of
state is required to issue an instrument of ratification as a mark of solemnity.
This is the accepted procedure for concluding treaties in the international
community, which has evolved from state practices over the centuries.
If a legislature examines a treaty or agreement and finds it not to be in the
nation’s interest, it may reject it altogether.
Examples of this include the US Senate’s rejection of two treaties — the Treaty
of Versailles and the UN Convention on the Law of the Sea.
If the legislature does not reject a treaty in its totality, it may approve it
with conditions attached.
In some countries, the legislature may choose to set a treaty bill aside by
delaying its consideration indefinitely, leaving it up to the executive branch
to withdraw it. In the US, the executive has withdrawn at least 85 treaty bills
up till now.
Approval with conditions attached includes amendments, reservations,
understandings, interpretations and declarations.
In the case of multilateral treaties, reservations are most commonly applied.
Then the executive has to decide whether to accept the conditions attached by
the legislature. If it accepts them, it will reopen negotiations on the
provisions of the treaty, or, if it rejects them, the treaty will automatically
become null and void.
In 2002, the US Congress passed the bipartisan Trade Promotion Authority Act,
authorizing the president to negotiate trade agreements. On condition that
Congress would set the objectives of the negotiations, and that the executive
would consult fully with Congress and the business community during the course
of negotiations, Congress agreed to give treaty bills speedy consideration and
vote them up or down in their entirety.
Later on, the impact that trade agreements have on US domestic businesses and
the nation’s employment market led to this authorizing act expiring in 2007.
Given that no authority such as that previously delegated by the US Trade
Promotion Authority Act is applicable in the case of the cross-strait service
trade agreement, and that the government departments responsible for negotiating
the agreement did not fully consult with the legislature, business and other
interested parties, the agreement must undergo close scrutiny in the Legislative
Yuan.
Chen Rong-jye is a former secretary-general of the Straits Exchange
Foundation.
Translated by Julian Clegg
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