If the Legislative Yuan Amends ECFA Line by Line, It Can Forget About Signing FTAsChina Times editorial (Taipei, Taiwan, ROC)
A Translation
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.


中時電子報 新聞
中國時報 　2010.07.06
社論－立院若逐條修改ECFA 也不必簽FTA了
本報訊

為了兩岸簽署經濟合作架構（ＥＣＦＡ）、及智財權保護兩項協議，送立法院到底能不能逐條審議，政壇又不斷在馬、王心結上做文章，難道國會議長與總統關係深厚，兩岸協議就能迴避審查嗎？馬英九早在ＥＣＦＡ雙英辯論時就宣告，一定送立法院審議，差別僅在於如何審查的議事程序。持平而論，總統對國會議事沒有指三道四的空間，但若是執政黨主席的身分，那就得看黨政運作平台到底能發揮多少功能。

兩岸之間的各種協議，到底是否比照條約或國際協定，交付立法院議決？早在十七年前，辜汪會談簽署四項協議時即引發爭議，當時，立法院朝野有志一同，伸張國會職權，數得出名字的立委都連署此一聲請釋憲案，包括國民黨重量級立委、現任考試院長關中，新黨立委、現任國民黨五都選戰顧問趙少康，還有民進黨最資深的幹事長柯建銘，大法官做成第三二九號解釋文，好笑的是，大法官解釋諸種型態與樣貌的條約、協定，當然要送立法院審議後，對於兩岸間協議是否該送立法院審議，竟以「不在本解釋範圍之內」帶過，讓這個老問題依舊無解。

但真的無解嗎？大法官之認定兩岸協議不在三二九號解釋範圍之內，理由很簡單：第一，兩岸人民關係條例已有明確規範，不是「審議」就是「查照」，但都得送立法院，即使是備查案，立委若獲多數共識經院會決議還是可改為審查案；第二，大法官隱而不宣的是，兩岸協議到底是不是國與國之間的條約或協定？屬高度政治性問題，不碰可也。

事實上，這號解釋出爐同時，還有不同意見書，認為司法院根本不該接受聲請釋憲案，因為台灣國際處境特殊且困難，涉外事務全部交由行政授權，不經立法院審議，於憲法意旨不符，但若全部送國會審議後才能簽定，又恐有危及國家利益之虞。但即使如此，大法官認為，行政、立法兩院還是有依法解決爭端的途徑。簡言之，立法院若真的不同意談判所簽署的協定或條約，可議決否決之，行政院收到否決案之後，十日內必須選擇接受或覆議，若覆議不成，很簡單，閣揆請辭走人！

ＥＣＦＡ既送立法院「審議」，行政部門很難要求立法院不可以逐條審查，但是，與國內法律案或預算案不同，立委改了就改了，刪了就刪了，條約、協定或兩岸之間的協議，都是主權獨立國家間的合意行為，經過一番漫長、甚至艱鉅的談判，彼此互有斬獲和退讓，才得以拍板定案，單方面修改其中一、二內容，都可能影響彼此考量的利益。因此，過去多少年來，立法院審查條約案或協定案，從來沒有破壞前例，進行個別條文或內容的更動，頂多附帶決議要求行政機關改善，這也是對國家整體利益的尊重。

民進黨主席蔡英文反駁馬英九總統，並舉出實例指台、薩簽定ＦＴＡ就是逐條審查，可謂大吃國民黨豆腐，因為扁政府執政時代，國民黨立委即使多數，也不會在國會杯葛涉外議案。但是，國會審查涉外議案的慣例，卻在審查美牛進口議定書時破壞了，破壞慣例的不只是罵聲衝天的民進黨立委，還有為數甚眾的藍營立委，最後讓行政院不能不接受立法院的議決，重新與美方磋商，減少了美牛進口的品項。

王金平是資歷深厚的國會議長，他不會不了解立法院可做與不宜做的事。立法院或許可以堅持選擇逐條審查ＥＣＦＡ，卻不宜逐條修改其內容，因為立委為了自己爽而增刪的內容，都不可能片面落實，最好的情況就是重啟談判，一個弄不好，就是甭談了，接下來與他國間的ＦＴＡ也不必奢想了，有美牛的前例，日本、南韓、新加坡…，隨便數吧，沒有哪一個國家能忍受與台灣談好的事，到了立法院翻盤。

就像美牛協定，立法院真要翻盤，靠區區卅席不到的民進黨立委是不可能的，除非國民黨立委對ＥＣＦＡ內容別有想法，果若如此，國民黨祭出黨紀也不為過。王金平是必須嚴守議事中立的國會議長，但也是政黨不分區立委，是代表國民黨的政黨角色執行立委職務，立法院臨時會召開在即，黨政運作若還不能把話講清楚，不必等到五都選後，馬英九這個黨主席不兼也罷。