Taiwan's politics is in turmoil about the Economic Co-operation Framework Agreement (ECFA) signed last week with the mainland. Although the agreement 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 13th agreement between Taiwan's 'semi-official' Straits Exchange Foundation (SEF) and the mainland's 'semi-official' Association for Relations Across the Taiwan Strait (Arats). This useful debate, and the current inter-party negotiations it has spawned, offers a chance for Taiwan to improve its democratic institutions and transparency, and bridge the gap between bitterly divided political parties over the process of concluding future agreements with the mainland.
Amid the arguments about the appropriate legislative review process, it is easy to lose sight of the Ma Ying-jeou administration's real accomplishment in dealing with Beijing. During the past two years, despite the mainland 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, the SEF has concluded a series of important agreements with Arats without agreeing to Beijing's 'one China' principle. And the latest agreement allows for 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 organising a facilitating bilateral joint committee.
Yet the trade pact'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 minimise the legislature's role. The Ma administration did not submit any of its first dozen agreements with Beijing for substantive legislative review since it claimed no legislative amendments were needed to implement these agreements. Because the ECFA's implementation requires amendments of related legislation, the executive branch had to submit it for review. Yet it has been striving to limit the review's scope to prevent the legislature from modifying the agreement and to avoid delaying its start, scheduled for January 1.
Taiwan's constitution, laws and judicial interpretations offer little guidance about legislative review of cross-strait commitments. President Ma, his Kuomintang cabinet and the KMT caucus that dominates the legislature have invoked a range of domestic, foreign and international analogies to support their argument that the legislature should only engage in 'wholesale review' that permits it to accept or reject the ECFA in its entirety but not to modify individual clauses.
The agreement, they claim, is the functional equivalent of a treaty, which in Taiwanese practice is generally accorded wholesale review. The opposition Democratic Progressive Party (DPP) has argued for a clause-by-clause review that would allow possible amendment of each clause.
The executive branch argues that this would be inconsistent with international practice in legislative review of trade agreements, render its negotiations meaningless and discourage others from concluding a free-trade agreement. The DPP, led by Dr Tsai Ing-wen, an expert on international trade law, says that, to the extent that such practice exists, it is usually part of a political process in which the legislature authorises negotiations in advance, monitors their progress and sometimes even takes part. This is clearly not what happened with the trade pact, even though Wang Jin-pyng, speaker of the legislature and former KMT vice-chairman, suggested such arrangements as early as 2008.