April 4, 2014
Mac News Release No. 38
The Mainland Affairs Council (MAC) stated that a Liberty Times report today (April 4, 2014) citing scholar’s claims that the "Executive Yuan version [of the cross-strait agreement supervisory act] allows [the Executive Yuan] to act at its discretion and lacks substantive oversight" among other misperceptions is unacceptable. The Executive Yuan version of the bill specifies that the executive branch shall fully communicate and consult with the Legislative Yuan President and Vice President, ruling and opposition party members, related committees and conveners or members at the four stages of "negotiation issue formation," "operational talks on negotiation issues," "before signing the agreement," and "after signing the agreement. ” The draft also stipulates that the views of related parties in the Legislative Yuan shall serve as references in the agreement negotiations, signing and implementation; once cross-strait agreements have been signed, they shall be submitted to the Legislative Yuan either for review or record as mandated by law, where the Legislative Yuan may exercise full supervisory powers consistent with the constitutional principle of separation of powers.
In the news report, the scholar claimed that the private sector’s draft version regulating conclusion of agreement adopts similar provisions in Korea's law on the conclusion of commercial treaties. The MAC responded that Article 6 of the Executive Yuan version of the bill also specifies that the executive branch shall explain the issues, objectives, timetable, scope and preliminary plans for cross-strait negotiations to congress at the negotiation issue formation stage, whereby the opinions of congress shall be regarded as important references at the negotiations. As for Korea's law on the conclusion of commercial treaties, firstly, this law is only applicable to "commercial treaties" and not to all treaties and international agreements. Secondly, unlike the bill proposed by the private-sector, the Korean law does not stipulate for congress to amend agreements conclusions, add clauses or reservations, nor does it stipulate for negotiations to be terminated in the event that agreement plan changes are not approved by at least two-thirds of the legislators. The provisions in the private-sector bill would by no doubt empower the legislature command over the executive branch in consultations and negotiations, and would also expose Taiwan's hand in negotiations, increasing difficulty of practical operations in consultations and negotiations.
The scholar further stated in the report, that cross-strait agreements concern the people's basic rights and obligations and include matters requiring parliamentary approval, as stipulated in the Constitution. The MAC responded that parliamentary approval applies to important affairs of state that must be prescribed by law or be in accordance to resolutions of the Legislative Yuan, yet the Act Governing Relations between the People of the Taiwan Area and the Mainland Area and the Executive Yuan version of the bill (Articles 14 and 15) already specify that, where a cross-strait agreement has content concerning legislative amendment or which should be prescribed by law, shall be submitted along with relevant draft amendments or bills to the Legislative Yuan for review and shall only come into effect upon the Legislative Yuan's approval. This is already in accordance with the intention of the constitutional principle in requiring parliamentary approval. Parliamentary approval does not grant the Legislative Yuan power to command or replace the executive branch's authority in external negotiations and consultations.
With respect to public concerns over whether the supervisory act would apply to the Cross-Strait Trade in Services Agreement, the MAC stated that if, in the future, the legislation of the supervisory act is approved by the legislature, the four-stage communication process under the supervisory act would not be applied to the Cross-Strait Trade in Services Agreement since the agreement has already been submitted to Legislative Yuan for associated procedures in accordance to the law. Rather, it would be submitted directly to the Legislative Yuan for review according to the related provisions on Legislative Yuan review procedures. The executive branch shall fully respect the future outcome of the legislature's review.