Oversight and public debate needed By Tseng Chien-yuan (曾建元)

Thursday, Dec 24, 2009, Page 8

The fourth round of talks between Straits Exchange Foundation Chairman Chiang Pin-kung (江丙坤) and Association for Relations Across the Taiwan Strait Chairman Chen Yunlin (陳雲林) is taking place in Taichung. The talks cover quarantine inspections of agricultural products, avoidance of double taxation, fishery labor services cooperation, cooperation in standard inspections and mutual recognition of certification.

The legal nature of routine agreements reached at cross-strait talks is equivalent to that of administrative agreements. They do not have the binding status of law, which means that in case of conflict, the conflicting part of the agreement will be invalid unless it is amended so that it conforms with the law.

The second paragraph of Article 5 of the Act Governing Relations between the Peoples of the Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例) states: “Where the content of the agreement requires any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement through the Executive Yuan to the Legislative Yuan for consideration within 30 days after the execution of the agreement; where its content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to the Executive Yuan for approval and to the Legislative Yuan for record, with a confidential procedure if necessary.”

This means that if a cross-strait agreement involves legal issues, the Cross-Strait Relations Act only allows the implementation of the pact by way of legal amendment. It cannot become legally binding immediately in the same way that a treaty does.

If the government does not submit a cross-strait agreement to the legislature, any part of the pact that violates the law should be subjected to judicial review and declared invalid.

However, talks on an economic cooperation framework agreement (ECFA) or a peace agreement are of a different nature. These talks focus on issues that are defined by the cross-strait legal relationship. The main point is that the formal text and the legal force these pacts would entail would involve the cross-strait sovereignty dispute.

Unless the People’s Republic of China changes its “one China” standpoint, these issues will lead to great political concern in Taiwan over worries that Taiwan will lose its sovereignty and national status.

Therefore, if the Taiwanese were allowed to participate in the establishment of an economic or sovereignty framework agreement — fundamental cross-strait agreements — through a fair referendum, and if the government were also willing to open up public debate about these agreements, only then would it be possible to build public confidence in the peaceful development of cross-strait relations, and only then would further collective action to declare de jure independence for Taiwan no longer be a pressing matter.

Tseng Chien-yuan is an associate professor of public administration at Chung Hua University and a member of Taiwan Thinktank.

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