If the Legislative Yuan Amends ECFA Line by Line, It Can Forget About Signing FTAsChina Times editorial (Taipei, Taiwan, ROC)
July 6, 2010
Taipei and Beijing have signed the cross-strait economic cooperation framework (ECFA), and two agreements to protect intellectual property rights. Is the Legislative Yuan permitted to consider these on a line by line basis? Much fuss has been made over grudges between Ma Ying-jeou and Wang JIng-pyn. But suppose relations between the Speaker of the Legislative Yuan and the President were chummy? Would that mean ECFA could pass without a legislative review? During the Two Yings Debate Ma Ying-jeou declared that he would submit ECFA to the legislature for review. The only issue was sort of review it should be subjected to. To be fair, it is not the president's place to micro-manage the workings of the legislature. But Ma is also the ruling party chairman. Therefore the real question is how large a role should the ruling party play in the legislature.
Are the many agreements between Taipei and Beijing accords, treaties, or international agreements? Must they be sent to the Legislative Yuan for review? Seventeen years ago the signing of four agreements following the Koo-Wang talks provoked controversy. The ruling and opposition parties were of one mind then. They upheld the authority of the legislature. Several prominent legislators have petitioned for a constitutional interpretation. They include KMT heavyweights, Kuan Chung, the President of the Examination Yuan, New Party legislators, Jaw Shau-kong, a KMT consultant for the five cities mayoral campaigns, and Ker Chien-ming, the DPP's highest-ranking cadre. The Grand Justices' Interpretation Number 329 was laughable. It stated that treaties and agreements must be submitted to the Legislative Yuan for review, but that whether ECFA must be sent to the Legislative Yuan for review was "not within the scope of this particular interpretation." In other words, they left the problem unresolved.
But is the problem really insoluble? The Grand Justices said that ECFA was not within the scope of Interpretation Number 329. Their reasons were simple. First, the Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area is clearly defined. The Legislative Yuan must either "review" it, or "be kept informed." Either way, it must be submitted to the Legislative Yuan. Even if it is merely "being kept informed," the legislature can decide that it must be reviewed. Secondly, the Grand Justices implied that whether ECFA is an international treaty or agreement is a hot button issue, and that it wants nothing to do with it.
In fact, the same time the Grand Justices' interpretation emerged, others opined that the Judicial Yuan should not have accepted a petition to begin with. The Republic of China's international plight is unique and difficult. Foreign agreements are supposed to be the purview of the executive branch. Foreign agreements should not be submitted to the Legislative Yuan for review. To do so would be inconsistent with the intent of the constitution. If they must be sent to the legislature for review before they are signed, the national interest may at risk. That said, the Grand Justice believe the executive and legislative branches have legal means by which they can settle disputes. In short, if the Legislative Yuan really does not approve of the agreement or treaty the executive branch has negotiated, it can simply veto it. The Executive Yuan must either accept or reject within 10 days. If this fails, the premier simply resigns.
ECFA has been submitted to the Legislative Yuan for "review." The executive branch can hardly ask the Legislative Yuan not to review the bill line by line. But this is different from domestic legislation or the budget. Those can be changed or deleted by legislators at will. Treaties, agreements, or cross-Strait agreements are the prerogative of sovereign and independent nations. Only after long and difficult negotiations, and both sides make gains and concessions, can one arrive at a final decision. Unilaterally modifying one or two items may undermine the two parties' best interests. That is why for years, the Legislative Yuan has never violated precedent, why it has never made line by line changes. At most it has resolved that the executive should improve the agreement on its own initiative. This shows respect for the larger interests of the nation as a whole.
DPP Chairman Tsai Ing-wen has attempted to refute President Ma Ying-jeou. She cited an FTA signed by the ROC with El Salvador, which was subjected to line by line review. She took unfair advantage of the KMT. When the Chen regime was in office, KMT legislators may have had a majority. But they could hardly refuse to approve a bill involving international agreements. The precedent of not refusing to approve bills involving international agreements was shattered with US beef imports. Screaming Democratic Progressive Party legislators were not the only ones resposible for violating established precedents. Many Blue Camp legislators were party to it as well. In the end, the Executive Yuan could not accept the Legislative Yuan's resolution. It re-negotiated the agreement with Washington, reducing the number of U.S. beef parts that could be imported.
Wang Jing-pyn is an experienced speaker of the legislator. He understands what the Legislative Yuan can and cannot do. The Legislative Yuan may insist on reviewing ECFA on a line by line basis. But it should not attempt to rewrite it line by line. Legislators may attempt to change the contents merely to gratify their own whims. But they will not be able to implement it on a piecemeal basis. At best, talks will have to be restarted. At worst, the consequences are unthinkable. One can forget about signing any FTAs with other nations. Given the U.S. beef fiasco, no nation one cares to mention is going to tolerate having the legislature overturn its agreements. Not Japan, not South Korea, and not Singapore.
When the Legislative Yuan tried to overturn the U.S. beef agreement, 30 DPP legislators were not enough. And so it is with ECFA. ECFA cannot be overturned unless KMT legislators share DPP objections. If this is the case, the Kuomintang would not be out of line to impose party discipline. As speaker Wang Jing-pyn must remain strictly neutral. But as a legislator without portfolio Wang represents the KMT and must fulfill his duties as legislator. The legislature will soon hold an emergency session. If the relationship between the ruling party and the ruling administration has not been clarified, one need not wait for the results of the five cities mayoral elections, and Ma Ying-jeou might as well resign as party chairman.