Be Responsible to History: Approve the Trade in Services Agreement

Be Responsible to History: Approve the Trade in Services Agreement
China Times editorial (Taipei, Taiwan, Republic of China)
A Translation
March 12, 2014

Summary: Were there inadequate communications regarding the trade in services agreement beforehand? Will the agreement cause shocks to certain industries? The fact remains Taiwan cannot afford to retreat into itself. Time is not on our side. Everyone in the ruling party, including President Ma, Chiang Yi-hua, Wang Jin-pyng, as well as legislators from both parties, must answer to history. Let the trade in services agreement go into effect, asap.

Full text below:

Sixteeen public hearings have been held. The cross-strait trade in services agreement has finally entered the legislative review stage. The ruling and opposition parties in the legislature remain poles apart. Although numerous public hearings have been held, the participants remain at loggerheads. Each side has its own arguments, and little agreement is possible.

During today's review, the two camps will probably remain at loggerheads. They may even engage in physical confrontations. Scuffles would be no surprise. If the legislature becomes the arena for such a democratic farce, the result will be a huge embarrassment. The public will feel regret. Lawmakers are elected to office through the democratic process. Yet they forsake rational debate. They forsake communication and consultation. They forsake parliamentary democracy. Instead they resort to violence and bullying. In the end, neither the government nor the opposition will win. The public and the nation howeer will lose.

The review of the trade in services agreement has led to six months of ruling vs. opposition party confrontations. Remaining cool has been difficult. There is little room for rationality. Consider the controversy that has surrounded the agreement. The review has provoked intense controversy. Outside circumstances have changed dramatically. Much must be clarified to avoid a complete loss.

First, the trade in services agreement has provoked numerous controversies. The most urgent controversy concerns the nature of the trade in services agreement. Is the agreement a law? If it is, the legislature has constitutional authority. It should review the issues one by one. Is the agreement an executive order which the Executive Yuan merely copied the Legislative Yuan for reference? If it is, then according to the Legislative Yuan Exercise of Powers Law legislators may review the agreement. But they must do so within six months. Is the trade in services agreement a treaty? If it is, then the contents of the agreement may be reviewed one at a time. But the agreement must be approved or rejected, in toto. The text of the agreement cannot be changed.

The trade in services agreement is not a law drafted by the Mainland Affairs Council. Nor of course, is it an executive order, issued by the MAC. Rather, it is an agreement signed with the government on the other side. Therefore it must be classified as a treaty. The legislature claims that the agreement has a significant impact, therefore the text of the agreement must be reviewed. But the legislature may not modify the agreement unilaterally. Consider the most famous case in the international arena. When World War I ended in 1918, a peace conference was convened in Paris. U.S. President Woodrow Wilson attended the conference. He adopted the draft Treaty of Versailles. But the Congress of the United States failed to approve it. Therefore the United States did not sign it and did not join the League of Nations.

The Legislative Yuan is reviewing the trade in services agreement. If it makes additions or deletions, it will be in violation of international treaty conventions. Also, the Legislative Yuan Cross-Strait Relations Ordinance contains clear stipulations regarding agreements signed between the two sides. If the contents need not be amended by legal custom, they may be approved by the Executive Yuan. They may then inform the Legislative Yuan, merely for the record. For future reference, the Legislative Yuan has already exceeded the six month time limit for review of the trade in services agreement. No wonder some argue that the trade in services agreement is already in force. The legislature is in violation of the law when it begins reviewing the agreement today. The results of its review should also be considered invalid.

Consider the matter cooly. The legislature has only now begun reviewing the trade in services agreement. It boasts that it has the right to decide whether the agreement lives or dies. This is in violation of international conventions. It is also legally dubious. The trade in services agreement has generated much controversy. Leave aside the partisan confrontation and opportunistic hype. The failure of the administration to communicate in advance with the legislative branch was a major mistake. Many more cross-strait agreements need to be promoted. Let this be a learning experience. Let this become a guide for the future. We hope the executive branch has learned its lesson. It must win the support of the legislative branch during negotiations. It must not clash with the other side during negotiations, only to be second guessed from within. The trade in services agreement must go into effect without further ado. If necessary, the Executive Yuan must have the guts to ram it through. It must declare that the trade in services agreement is already in force, in accordance with the law.

The external situation remains changeable. We dare not delay. Early last year the trade in services draft agreement was initialed. Taiwan was the envy of others who wanted to enter the Mainland market, especially the Republic of Korea. To avoid falling behind, Korea accelerated negotiations over the Mainland China-Korea Free Trade Agreement. It expects to sign trade in services, trade in goods, and investment cooperation agreements this year. If Taiwan is still bickering by then, it it will find itself at a disadvantage relative to South Korea in the Mainland market. This confirms what Minister of Economic Affairs Chang Chia-chu said about Taiwan. It will not longer even rate.

Were there inadequate communications regarding the trade in services agreement beforehand? Will the agreement cause shocks to certain industries? The fact remains Taiwan cannot afford to retreat into itself. Time is not on our side. Everyone in the ruling party, including President Ma, Chiang Yi-hua, Wang Jin-pyng, as well as legislators from both parties, must answer to history. Let the trade in services agreement go into effect, asap.

社論－為歷史負責 讓服貿協議早日生效
稍後再讀
中國時報 編輯部 2014年03月12日 04:10

在辦完了16場的公聽會之後，《兩岸服務貿易協議》終於要在今天正式進入立法院委員會審查階段，由於立院朝野政黨對於《服貿協議》的評價南轅北轍，即使舉辦了多場次的公聽會，與會人士也是各執一詞，各說各話而難有交集。

一般研判，今天的審查會雙方陣營不只劍拔弩張，甚至出現肢體對抗，相互扭打的場面也不令人意外，立院果真出現這種民主鬧劇，將會令人感到汗顏，但國人無疑將更遺憾，何以經由民主投票產生的立法委員，竟然捨理性論辯、溝通協調的議會民主程序而不為，竟然要淪落到以暴力相向。最終不只朝野沒有贏家，全民和國家更是最大輸家。

《服貿協議》的審查，經過這大半年來朝野間的相激相盪，其實已很難有心平氣和、理性審議的空間。但是綜觀過去圍繞《服貿協議》審查所引發的諸多爭議，以及外部情勢的消長變化，還是有必要做些釐清與提醒；以免陷入全盤皆輸之局。

首先，針對《服貿協議》所引發的爭議事項，最應該探討的，乃是有關《服貿協議》定位的問題。如果它算是法律案，則自然是立法院的憲法職權，理應逐條、逐項的討論、審議。如果它只算是行政院送請立法院查照的行政命令，依《立法院職權行使法》的規定，立委雖可經一定程序將之交付審查；不過，如循此途徑，卻有至少要在6個月內完成的條文規定。又或者如果把《服貿協議》視為是條約案，則即使可以逐條審視其內容，但最後只能全案通過或不予背書，並不能比照法律案更改協議內容。

循此，由於《服貿協議》並非陸委會自己草擬的法律條文，當然更非陸委會所訂法律之下的行政命令，而是與對岸政府所簽署的協議，固然定位上應屬條約案。否則立法院即使以影響重大為由，要就協議內文逐條檢視討論，但卻不應片面單方的修改協議內容。這在國際上最著名的案例，莫過於1918年第一次世界大戰結束後召開巴黎和會時，和會參採美國總統威爾遜的倡議草擬《凡爾賽條約》，但最後卻因國會沒有批准，以致美國並未簽約及加入國聯組織。

立法院審議《服貿協議》，如果進行條文內容的增刪，不只與條約案審議的國際通則有違。另外，經立院立法的《兩岸關係條例》，也明訂兩岸間簽署之協議，內容若涉及法律之修正或無須予以法律訂之者，主管機關只需報請行政院核定，並送立法院備查即可。而果真循備查的途徑，則《服貿協議》送達立院早已超過6個月的審查時限，無怪乎有一種論點認為《服貿協議》已經生效，立法院今天才要開始審查根本就是違法，則本來的審查結果也應屬無效。

平情而論，立法院此際才展開《服貿協議》的審查，並且揚言握有生殺予奪之權，不只有違反國際通則的爭議，更要面對合法性的質疑。不過，從《服貿協議》這一次引發這麼大的爭議，撇開政黨對立與藉機炒作之外，行政部門事前未能與立法部門有效溝通也是敗筆。鑑於兩岸今後尚有諸多協議要推動，所謂前事不忘，後事之師，我們期盼行政部門今後應引以為鑑，要注意取得立法部門的支持，作為談判的後盾，而不是陷入既要與對手談判折衝，又要在內部面對質疑杯葛的內外交困之局。不過，服貿協議的早日生效事不宜遲，必要時行政院須有壯士斷腕的勇氣，依法宣布《服貿協議》業已生效。

須知外部情勢的消長變化不容我們拖延。當去年初《服貿協議》草簽之際，台灣曾是其他想要積極進入大陸市場國家豔羨的對象。最顯著的就是南韓，為免落後形勢，只好加快「中」韓自由貿易協定的談判，預計今年完成簽署服務貿易、貨品貿易、投資合作等一步到位的協議。台灣如果還在爭吵不休，則相對於韓國，在大陸市場的競爭更將處在不利地位。如此倒真應驗了經濟部長張家祝所說，台灣可真是什麼咖都不是了。

不論《服貿協議》是否有事前溝通不足之處，或者是會造成個別產業何等的衝擊影響，但是台灣沒有自我閉關的條件，同時時間更不站在我們這邊。執政黨從馬總統及江宜樺、王金平兩位院長到全體黨籍立委，都應秉持對歷史負責的態度，讓《服貿協議》早日生效。