Jerome A. Cohen and Yu-Jie Chen. ECFA And Taiwan’s Political System. SCMP (South China Morning Post)

July 7, 2010

Taiwan politics is in turmoil about the Economic Cooperation Framework Agreement (ECFA) signed last week with China. Although ECFA promises to benefit Taiwan’s economy, the island’s politicians have been engaged in heated debate over how the Legislature should consider whether to approve this thirteenth agreement between Taiwan’s “semi-official” Straits Exchange Foundation (SEF) and China’s “semi-official” Association for Relations Across the Taiwan Strait (ARATS). This useful debate, and the current inter-party negotiations that it has spawned, offers a chance for Taiwan to improve its democratic institutions and transparency and bridge the gap between bitterly-divided political parties concerning the process of concluding future agreements with China.

Amid the arguments over the appropriate legislative review process, it is easy to lose sight of the Ma Ying-jeou administration’s real accomplishment in dealing with China. During the past two years, despite the Chinese government’s desire to avoid either acknowledging the legitimacy of the Republic of China on Taiwan or weakening Beijing’s claim to sovereignty over the island, SEF has concluded a series of important agreements with ARATS without agreeing to Beijing’s “one China” principle. And ECFA shows institutional development in cross-strait relations by providing, for the first time, for establishing trade offices, monitoring agreement implementation, settling relevant disputes, terminating the agreement and organizing a facilitating bilateral joint committee.

Yet ECFA’s importance has made it impossible for the Ma administration to further postpone the sensitive problem of the allocation of power between the Executive and Legislative branches in dealing with the mainland. From the outset of its cross-strait negotiations, the Executive branch has sought to minimize the role of the Legislature. The Ma administration did not submit any of its first dozen agreements with China for substantive legislative review since it claimed that no legislative amendments were needed to implement these agreements. Because ECFA’s implementation requires amendments of related legislation, the Executive branch had to submit ECFA for review. Yet it has been striving to limit the scope of this review in order to prevent the Legislature’s modification of the agreement and to avoid delaying the scheduled January 1, 2011 start.

Taiwan’s Constitution, laws and judicial interpretations offer little guidance about legislative review of cross-strait commitments. President Ma, his Nationalist Party (KMT) cabinet and the KMT caucus that dominates the Legislature have invoked a range of domestic, foreign and international analogies in support of their argument that the Legislature should only engage in “wholesale review” that permits it to accept or reject ECFA in its entirety but not to modify individual clauses. ECFA, they claim, is the functional equivalent of a treaty, which in Taiwan practice is generally accorded merely wholesale review. The opposition Democratic Progressive Party (DPP) has argued for clause by clause review that would allow possible amendment of each clause.

The Executive branch argues that such detailed review would be inconsistent with international practice in legislative review of trade agreements, render its negotiations meaningless and discourage other countries from concluding a free trade agreement ( FTA) with it. The DPP, led by Ms. Tsai Ing-wen, an expert on international trade law, responds that, to the extent such practice exists, it is usually part of a political process in which the legislature authorizes negotiations in advance, monitors their progress and sometimes even takes part in them. This is clearly not what happened regarding ECFA, even though Wang Jin-pyng, Speaker of the Legislature and former KMT vice chairman, suggested such arrangements as early as 2008.

Moreover, as pointed out by several knowledgeable sources, including Speaker Wang, the Legislature has already conducted clause by clause reviews of several FTAs with Central American countries, without insisting on changes. It has even conducted detailed review of a copyright agreement with the United States and demanded changes, but later withdrew its demands under Executive pressure. The Legislature has also revised a domestic law to press for Executive renegotiation of a beef import agreement with the U.S.

Important cross-strait agreements, which are more politically sensitive than any of those documents, deserve the same degree of legislative scrutiny, at least in the absence of early legislative supervision of the process. The Legislature should therefore be able to propose amendments to ECFA if necessary, in accordance with its existing practice. The Executive can then assess whether these demands warrant SEF’s renegotiation with ARATS or another effort by the Executive to persuade the Legislature to relent.

In Tuesday’s inter-party negotiation, Speaker Wang suggested a compromise to allow ECFA to be reviewed clause by clause in the relevant committee. The KMT and DPP  representatives would then be able to propose amendments, but the amendments  would only be voted on as a whole rather than separately. Both parties were still considering the suggestion at the time this article went to press.

In view of the current partisan political climate, the concern that clause by clause review might substantially delay ECFA’s approval should not be overlooked. If the DPP acts reasonably and constructively in the review, rather than engage in the obstructionist tactics that the KMT fears, it will gain public support.

One hopes the Executive has learned its lesson from this difficult chapter and will work with the Legislature to set up suitable arrangements for earlier and better Executive-Legislative collaboration in future negotiations with the mainland. Closer Executive-Legislative collaboration is likely to bring about better functioning of Taiwan’s political system, as well as increase the legitimacy of cross-strait agreements. It will also give the opposition party a role in monitoring the process and perhaps start to bridge KMT-DPP differences over how to deal with the mainland.

Whatever review process is deemed appropriate for the especially delicate problems raised by cross-strait relations need not control the review process for Taiwan’s FTAs. The Legislature is free to adapt its procedures to the needs of FTA negotiations just as it is free to deal with the unique features of cross-strait relations.

An edited version of this article appeared in the South China Morning Post on July 7, 2010 under the title “Smart Politics“, and in Chinese on July 8, 2010 in the China Times. (繁体中文

Professor Jerome A. Cohen is co-director of NYU School of Law’s US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. Yu-Jie Chen is a Taiwan lawyer and senior research fellow of US-Asia Law Institute. See also www.usali.org