Cross-straits agreements monitoring framework

On Monday, June 23, I participated in a conference on legislative oversight at the Brookings Institute in Washington DC. The conference received quite a bit of media coverage, though not necessarily on the topic of legislative oversight. Keynote speaker Su Chi criticized the legislature’s current internal rules, especially the practice of caucus consultations (政黨協商). Caucus consultations are supposedly the darkest corner of Taiwan’s political system. They thwart the will of the majority, enhance corruption, make Speaker Wang into a dictator, erode traditional values of honesty, chastity, and filial piety, and make ice cream taste bitter. (Maybe I’m remembering Su’s talk a bit incorrectly.) Of course, this is all part of the Ma government’s ongoing campaign to purge Wang and tighten its grip over the legislature in an effort to push through its version of the Services Trade Agreement (and other legislation). Caucus consultations[1] are an easy target, but calling for their abolition is more about political infighting than improving the legislative process. I’m not a big fan of caucus consultations, but they exist within a certain context. In order to eliminate this step, you have to also overhaul several other parts of the legislative process. I’ll discuss that some other time in some other post. For now, I’ll note that no one at the Brookings conference disagreed with Su Chi because we were discussing legislative oversight, not caucus consultations.

 

In this post, I’m going to summarize my presentation. I was asked to discuss the pros and cons of various proposals for the Cross-Straits Agreements Monitoring Framework 兩岸協議監督條例 (CSAMF).

The first thing I learned in preparing for the talk was that oversight may mean something very different in Taiwan than in the US context. In American politics, oversight refers to how Congress monitors, guides, and controls the executive branch as the executive wields the powers delegated to it by Congress. Congress is the source of authority, typically writing a law saying that the executive may do something in order to achieve a certain goal. As such, oversight involves defining policy goals. In Taiwan, most people do not see oversight in the same terms. The Executive Yuan (EY) is given much broader authority to define policy goals, and many people consider the Legislative Yuan’s (LY) job simply to be to scrutinize EY actions in order to ensure that there is no corruption or other obvious failing in implementation. Scrutiny is, of course, also a critical element in American notions of oversight, but the power to set policy goals is much more important. I am not arguing that there is a consensus either in Taiwan or in the USA, but merely that actors in the USA are much more likely to see the legislature’s attempts to guide politics as legitimate than their counterparts in Taiwan.

This basic philosophical question of the appropriate balance of power between the legislature and the executive is evident in the various CSAMF bills. As of last week, five bills had been introduced since the beginning of April, by the EY, TSU, You Mei-nu 尤美女, Li Ying-yuan 李應元, and Chiang Chi-chen 江啟臣. The DPP introduced a bill in January, but that was long before the Sunflower Movement changed everything. The DPP has promised to introduce a new bill, but they had not done so before I left for DC last Saturday.

Of the five current bills, the two most important are the EY bill and the You bill. You is a DPP party list legislator, and the bill was cosigned by most members of the DPP caucus, but this is not a DPP bill. Rather, the You bill represents the Sunflower Movement. It was written primarily by Lai Chung-chiang, a lawyer closely associated with the students, and it presents the Sunflower vision of a strong legislature. Lai explicitly modeled his bill on the American and Korean practices, taking the strongest powers of the legislature from each country. In the Sunflower bill (as I will call it from here on), the legislature is active at every step of the process, laying out goals, deciding how the process will unfold, and actively managing the negotiations. This is in marked contrast to the EY bill, which states explicitly in the proposal that the EY has the power to decide and execute policy and the LY only has the power to oversee (ie: scrutinize) and ratify. In fact, the EY bill does more to restrict the LY than to empower it.

We do not yet have a DPP bill, but based on my limited discussions I will speculate about the DPP’s stance. Remember that this is speculation and may not correctly represent the DPP’s actual positions.

On the philosophical question of an appropriate balance of power between the LY and EY, I got the impression that the DPP wants the legislature to be stronger than it currently is, but not that much stronger.  Fundamentally, the DPP seems to accept the idea that the EY should lead the policy process.

 

Let’s look at several concrete aspects of the various bills.

All the bills suggest that the EY has the responsibility to report to the LY.  In the EY bill, this is basically the only responsibility the EY has toward the LY.  The EY bill states that the EY has the responsibility to report, explain, and answer questions.  It does not indicate that the EY has any responsibility to heed the reactions to these reports.  Rather, the impression is simply that the EY is informing; the communication seems to be in one direction only.  The Sunflower bill looks quite different.  It states that the LY can require the EY to report at several stages.  Note that now the LY has the initiative to require the report. Moreover, the LY can reject the report or require changes to the EY’s policy direction. Rather than simply listening passively, the LY is an equal (maybe dominant) partner determining the policy line. Further, the Sunflower bill provides for administrative and civil penalties if bureaucrats ignore LY instructions.

 

One of the thorniest questions is how to deal with associated legislation. Currently, if other changes can be made by executive order, the EY can simply inform the LY of the associated legal changes. These items are sent to the LY “for record” (備查案). Such items are typically read out in committee, but that is all that needs to be done. No vote is taken. The EY makes the decision as to which items can be handled by executive order and which need a law to be amended. This is a fairly large gray area, and the Ma administration has used its leeway aggressively. For example, all of the agreements made before ECFA was signed were simply sent to the legislature for record. This caused quite a bit of consternation to many in the green camp who felt that such important changes needed the approval of the legislature. (Don’t blame Ma for the current rules. They were set up for maximum short-term flexibility under President Chen, whose team was infamously unable to see into the future. This is an important point to remember when the new set of rules is made.)

The EY basically maintains the current system. However, it further strengthens the EY position by adding a time limit to items sent for record. Under the EY bill, if the LY doesn’t process items for record within six months, they are automatically considered approved. That is, the LY cannot passively stall; if it wants to reject an agreement it has to actively vote against it. (A bill introduced by KMT legislator Chiang Chi-chen 江啟臣 is even more extreme: All of the associated legislation is to be considered along with the main agreement, and all of it is voted on in a single package vote.)

The Sunflower bill is radically different. It explicitly says that the main agreement cannot go into effect until all associated legislation is passed, and there is no time limit for this to occur. The EY can still decide what is sent to the LY for record, but the LY can change any item from for record to for consideration (審查案)(requiring a vote) with only a 1/3 vote. Moreover, if the legislature does not process a for record item within three months, it automatically becomes a for consideration item. In short, the LY can passively veto any agreement simply by refusing to act on associated legislation.

The DPP position is unclear. My impression is that the DPP’s main concern is simply to expand the range of items sent as for consideration. That is, anything that really matters should need the active approval of the legislature.

 

Both the EY and Sunflower bill allow for bodies other than the LY to engage in oversight. The EY bill stresses the importance of national security, and insists that every agreement should be thoroughly reviewed by the National Security Council and also by expert committees. There are two interesting points here. One, the EY bill gives more oversight power to these bodies than to the LY. Whereas the LY is only allowed to listen to reports, the NSC and expert bodies are supposed to weigh in with concrete suggestions that the EY must then take into account. Two, if you don’t already trust the EY, these bodies won’t reassure you very much. The NSC is appointed by the president, so if the president strongly wants something to pass, the NSC probably will not stand in the way. The expert bodies are to have 30 members. 27 will be appointed by parties proportional to their legislative delegations, and the other three will be appointed by the EY. That is, the EY will have a reinforced majority on these expert bodies. (At any rate, expert bodies generally don’t cause problems for the authorities.) In sum, the EY claims that citizens should feel confident that any security issues will be carefully considered by the EY and its allies.

(One wonders if the drive for “security” is really cover for lack of transparency.)

The Sunflower bill places less emphasis on security and more on impact assessments, especially economic, environmental, and human rights impacts. It does this by empowering the LY to hold a series of public hearings, inviting a variety of societal actors to express their opinions. Note that the LY, not the EY, is running the process in this version. This strategy is directly taken from the US Congress, which places great importance on setting up “fire alarms.” (Congress empowers constituents to be able to investigate proposed legislation and alert it whenever they see something that they don’t like. This way members of Congress don’t have to do the hard work themselves.)

 

Should the legislature have the right to demand changes to an agreement and/or reopening of negotiations? The EY bill states that the LY has the power to accept or reject, not to amend. This position is based on the idea that in multilateral international agreements, any demand for amendments would require reopening negotiations with all signatories, many of whom may already have started their own ratification process. In such cases, demands for amendment are tantamount to rejection.

This logic is a bit disingenuous in the case of cross-straits agreements. Agreements between Taiwan and China are bilateral, not multilateral. If one side demands a change, there is nothing to stop the other side from accepting that change or demanding its own counterchanges. The multilateral necessity for an up or down vote is simply not present.

The Lai bill clearly rejects the EY position. The LY is given the power to demand revisions at every stage. Before the negotiations start, the LY can demand changes to the goals. During negotiations, the LY can demand changes. After the agreement has been signed, the LY can demand that the negotiations be reopened.

The DPP position seems to be somewhere in the middle. The LY should be able to ask for changes. However, practically speaking, this power is unlikely to be used. What the DPP really wants is for the EY to listen to LY demands (formally or informally) earlier in the process and to incorporate LY positions into its own goals. That is, the EY and LY need more communication.

 

Finally, there is the question of whether political agreements should be treated differently from economic agreements. In the EY bill, there is no distinction. In the Sunflower bill, the threshold is much higher for anything that touches on questions of sovereignty (and a host of other “important” categories). These agreements would need 3/4 approval in the legislature, and then they would need to be approved by the general public in a referendum.

 

Regardless of whether the legislature approves the Services Trade Agreement, a monitoring framework is needed. My personal opinion is that the EY bill gives far too much leeway to the EY. It is only a slight exaggeration to say that there is more “oversight” in the title of the EY bill than in all the actual articles combined. The LY needs to be involved in order to legitimize the process. Much of the controversy over the current Services Trade Agreement has been caused precisely because the EY seems insistent on monopolizing the entire process. At the same time, I do not think it is practical or desirable to set up an American-style co-equal partnership between the LY and EY. The LY simply doesn’t have the capacity at present to negotiate agreements, and I worry about whether individual legislators would be able to extract too many concessions for their own personal gain. The system will work best if the EY leads the process but also allows a substantial amount of input and supervision from the LY.

 

 

[1] I have translated政黨協商 as Inter-Party Negotiations. My colleague Fang-yi Chiou prefers Party Negotiation Mechanism. I will stick with Su Chi’s term in this post.

2 Responses to “Cross-straits agreements monitoring framework”

  1. clnc Says:

    Thanks for sharing your insights. A side-issued but interesting article from the Atlantic may be related to your comments on Su Chi’s criticism: http://www.theatlantic.com/magazine/archive/2014/09/the-transparency-trap/375074/

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