ECFA: Prior Deliberation, or Prior Negotiation?

ECFA: Prior Deliberation, or Prior Negotiation?
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
March 23, 2009

When President Ma Ying-jeou and Premier Wen Jiabao talk about CECA, they treat it as a fait accompli. They act as if the arrow is already nocked and the bow already drawn. Some people have proposed that ECFA be sent to the Legislative Yuan for deliberation prior to negotiation with the other side. Their proposal presents serious problems, both for the rule of law and for practical negotiations.

Prior deliberation by the Legislative Yuan reverses normal procedure. It also presents practical obstacles. A consensus has yet to be reached with the other side. The Executive Yuan does not even know the other side's views. All that can be sent to the Legislative Yuan for deliberation at the moment is a rough draft. That is all the Legislative Yuan would have to deliberate on. Any such deliberation would have no real significance. Also, if one insists on prior deliberation and subsequent negotiation, any version that has undergone prior deliberation by the Legislative Yuan would bind the Executive Yuan hand and foot. The Executive Yuan would have to force the other side to accept its terms, lock, stock, and barrel. If this is the case, how can one possibly negotiate?

If one insists on prior deliberation and subsequent negotiation, any disagreement with the other side over anything, even tiny changes in the language, would require the submission of the measure to the Legislative Yuan for another round of prior deliberation and subsequent negotiation. How can one possibly negotiate while going back and forth in such a manner? Also, prior deliberation by the Legislative Yuan would allow the other side to see all our internal contradictions, to see whether they had any room for bargaining. It would present a serious obstacle to practical negotiations.

Prior deliberation and subsequent negotiation is contrary to constitutional jurisprudence, and inconsistent with the principle of the separation of powers. Leave aside for the moment whether the setting of mainland policy is the prerogative of the President. At least the negotiation of mainland policy is an Executive power. That much is certain. Similar examples include negotiating treaties with foreign countries. These are of course negotiated by the Ministry of Foreign Affairs. The results of talks, i.e., draft treaties, are then submitted to the Legislative Yuan for approval, in accordance with the Constitution, and go into effect only upon adoption. This separation of powers between the Executive and the Legislature is part of the constitution's checks and balances. If the Legislative Yuan insists on prior deliberation of the government's treaties with foreign countries, that constitutes an infringement of the Executive by the Legislature.

By the same token, suppose negotiations with the other side must be submitted to the Legislative Yuan for prior deliberation, then turned over to the Executive Yuan for "negotiation" with the other side. Suppose any disagreements must be sent back to the Legislative Yuan for further deliberation. That would be tantamount to the Legislative Yuan conducting negotiations with the other side through the Executive Yuan. That would be tantamount to the Legislative Yuan replacing the Executive Yuan. That would be unconstitutional and would undermine the principle of the separation of powers.

Based on existing ordinances pertaining to cross-Strait relations, prior deliberation and subsequent negotiation also conflicts with the law. In other words, such a proposal would be illegal. Article V, Item 1, of the Articles on Cross-Strait Relations, states that "agencies authorized to sign draft agreements will send them to the Executive Yuan for approval." Article V, Item 2, states that the content of such agreements shall be classified as legal or illegal. Those classified as illegal will require amendment by the Legislative Yuan. Those classified as legal will be sent to the Legislative Yuan for deliberation. The law is crystal clear on this. It contains no provision for prior deliberation and subsequent negotiation.

Furthermore, if the outcome of negotiations over cross-Strait economic and trade cooperation agreements involves direct trade or the introduction of mainland workers, all resolutions must be sent to the Legislative Yuan before implementation, regardless of whether the law has been amended. Article 95 of the Articles on Cross-Strait Relations states that the Legislative Yuan's failure to pass a resolution within one month shall be construed as consent. Our previous agreement to allow direct flights was handled in accordance to just such procedures. They involved prior negotiation and subsequent deliberation, not prior deliberation and subsequent negotiation. Furthermore, according to the Organic Law of the Legislative Yuan and the Law Governing the Legislative Yuan`s Power, prior deliberation and subsequent negotiation has no basis in law.

Of course when signing ECFA-related cross-Strait agreements, the government should seek public consensus. On the one hand, the government should take the initiative to explain its position. On the other hand, it should encourage the airing and hearing of public opinions. The Legislative Yuan must not engage in "prior deliberation." But during the formulation of policy, it must respond to the opinions of all people and all parties, and convey these opinions to the ruling administration. Only then can uphold the rule of law while drawing upon collective wisdom.

Cross-Strait economic and trade cooperation agreements are not a panacea for our political and economic plight. Opponents can of course raise objections. But insisting on "prior deliberation and subsequent negotitation," is not merely illegal, it is unconducive to substantive cross-Strait talks.

ECFA：先審後簽或先簽後審？
【聯合報╱社論】
2009.03.23 03:58 am

馬總統談ＥＣＦＡ，溫總理談ＣＥＣＡ，儼然已是箭在弦上，蓄勢待發。有人主張，ＥＣＦＡ應先送立法院審議，再與對岸協商。但不論就法制或談判實務言，此議皆待商榷。

立法院先審議，在流程上前後顛倒，在談判實務上恐也窒礙難行。既然尚未與對岸協商，行政部門亦尚不知對岸的意見，若真要送到立法院審查，就只能送出我方草擬的議題和主張，而立法院所能「審議」的也限於這部分。這樣的審議，並無實質意義。然而，倘若真要「先審後談」，經立法院先審議通過一個約本，行政部門將隻字都動不得，亦即必須強迫對岸照單全收，倘係如此，如何協商談判？

若是先審後談，則對岸對約本有任何不同意或增減的部分，那怕只是文字修正，皆須再跑一遍「送立法院審議通過、再與對岸協商」的程序；如此反覆往返，如何談判？何況，在立法院先審議的過程中，我方的立場、內部折衝的矛盾情形，有無迴旋空間等等，皆將被對岸窺察得一清二楚，這在談判實務上恐怕窒礙難行。

先審後談，亦違背憲政法理，牴觸權力分立的原則。暫不論大陸政策是否屬總統職權，但大陸政策的協商談判是行政權的一部分，這是可以確定的。類似的例子：與外國談判條約，當然是政府外交部門去談，談出的結果（條約草案），再依憲法送交立法院議決，通過之後生效。這是行政立法兩權分立相互制衡的憲政架構。倘若政府要與外國談判條約，立法院堅持我方草案先送立法院審議通過，則恐是立法權侵越了行政權。

同理，與對岸談判，若是立法院先審議、先決定了約本，再交給行政部門與對岸「談判」，有不同意的地方送回立法院再議，等於是立法院透過行政部門間接和對岸談判，亦即立法院取代了行政部門，這是違憲的主張，破壞了權力分立的原則。

再從現行兩岸關係條例的法律規範來看，先審後談的主張亦是與法不合，也就是說這種主張是違法的。兩岸條例對兩岸協議的規範方式，在程序上先規定「受託簽署協議機構將草案送行政院同意始得簽署」（第五條第一項）；再將簽妥的協議內容區分為是否涉及法律修正，涉及法律修正者送立法院審議，無涉修法者行政院核定之後送立法院備查（第五條第二項）。法律規定得十分明白，並無先審後談的規定。

除此之外，倘若兩岸經貿合作協議的談判結果，我方將同意直接通商或者引進大陸勞工，不論是否涉及修法，在實施之前，都必須先送立法院決議；立法院會期內一個月未為決議視為同意（兩岸條例第九十五條）。此前我方同意直航，就是依此法定程序辦理。也就是先談後審，而非先審後談。再依立法院職權行使法以及議事規則，「先審後談」的主張亦於法無據，不可自創法律。

當然，簽訂ＥＣＦＡ之類的兩岸協議，政府應當盡量尋求全民共識。有關當局一方面應製作說帖，主動說明；另一方面亦應廣開言路，以聽證會等方式採擇民意。立法院雖不宜「先審」，但在形成政策的過程中，必然亦可將各界民意及黨派主張反映、傳達給行政當局。如此，既可維護法制，亦能集思廣益。

兩岸經貿合作協議未必是解決政經困境的萬靈丹，反對者亦大可提出異議主張。但若在程序上堅持「先審後談」，則非但是違法主張，且恐極不利於兩岸談判之實務。