The Constitutional Ambiguity of Cross-Strait Agreements
At the heart of the current conflict in Taiwan over the Cross-Strait Services Trade Agreement (CSSTA)  (兩岸服務貿易協議) is a legal dispute, possibly even a constitutional one. Despite its role in igniting the student occupation of the legislature, there's not much English-language coverage of the legal questions.  (Student protestors and riot police make for better news copy--who knew?!)  Nevertheless, most of the materials at issue are publicly available online, so I think it's useful to gather these in one place, along with my take*.  If you need some background on the conflict, see my previous post.

The first thing to note is it's not clear from precedent whether agreements signed with the PRC under the Economic Cooperation Framework Agreement (ECFA) (兩岸經濟合作架構協議) require legislative approval to take effect--because there is no precedent!  The Ma administration has argued that the CSSTA is technically an Executive Order (行政命令), not a law or treaty.  Furthermore, because it does not require the adoption of new legislation or amendments to existing legislation, the agreement does not require legislative ratification to take effect.

Second, the CSSTA (in Chinese here) is technically an "annex" to the ECFA (text here; special website is here). As with all agreements governing cross-Strait relations, ECFA and the subsequent CSSTA have to be negotiated and signed by the "non-governmental" bodies set up to avoid the question of Taiwan's legal status vis-a-vis the People's Republic of China. These are the Straits Exchange Foundation (SEF) (海峽交流基金會) on the Taiwan side and the Association for Relations across the Taiwan Strait (ARATS) (海峽兩岸關係協會) on the PRC side. The legal authority for negotiating cross-Strait agreements is delegated to SEF from Taiwan's Mainland Affairs Council (MAC), as specified in Article 4-2 of the Act Governing Relations between Peoples of the Taiwan Area and Mainland Area (臺灣地區與大陸地區人民關係條例). That Act is available in its entirety online, in English (here too) and in Chinese.  

The key articles relevant to the current dispute are in Chapter I, Articles 4 and 5.  Article 5 requires that agreements be submitted to the LY "for record" if no new laws or amendments to laws are needed.  If new laws or amendments to existing laws are required by the agreement, then it must be submitted to the legislature "for consideration."

"For Record" vs. "For Consideration" (備查與審議)
That leaves the question of what submitting to the LY "for record" and "for consideration" means.  From Article 5, the Chinese for "for record" is beicha (備查)--literally, “for future reference." The Chinese for "for consideration" is shenyi (審議).  In practice, these terms indicate what the status quo is: if an executive order is submitted "for record", the legislature must review and either approve, reject or change the order within 90 days of its submission; if it does not, the order takes effect automatically.  Thus, no action means the executive order stands. If an executive order requires new legislation, it also requires "consideration".  If the legislature "considers" and takes no action, then the order does not take effect, and nothing changes. To use a more technical term, the reversion point in bargaining between the branches favors the executive under "for record" and the legislature under "for consideration" submissions.     

The difference between these two procedures is the crux of the conflict over the CSSTA.  The Ma administration's argument is that the cross-Strait Relations Act plus the ECFA is all the legal authority it needs to sign and implement the CSSTA.  Any regulatory changes agreed to under the ECFA structure are administrative in nature, and can be implemented via executive order.  And at face value, that's what Article 5 says: no new laws or amendments, no need for legislative approval.

The counter-argument (spelled out nicely here, in Chinese) is that ECFA itself is either a "prospective treaty" (準條約) or an "administrative agreement" (行政協定), but not a law passed by the legislature (立法院通過的法律), an act of authorization (授權法), or an organic law (組織法). So agreements reached by the SEF under ECFA authority cannot be treated like executive orders, because the SEF is not a formal administrative body.  As a consequence, the CSSTA should be submitted to the legislature "for consideration" as a treaty, just like the ECFA was, and like the recently passed New Zealand and Singapore free trade agreements were.  

A Legal Mess
Now, here's where things get messy.  Neither side in this dispute has an airtight legal argument.  After the agreement was signed in June 2013, the Ma administration wanted to submit the CSSTA to the legislature as an executive order, "for record." The opposition camp opposed that, of course, but Ma's position also raised concerns among KMT and PFP legislators. Speaker Wang Jin-pyng then negotiated an agreement among the party caucuses, including representatives of the KMT, to treat the agreement as "for consideration"--i.e. requiring legislative approval to take effect--and moreover, to review and vote separately on each item in the agreement. Once that decision was made, the agreement's review became subject to all the procedural rules in the LY that govern legislation. When Chang Ching-chung asserted that the 90 day deadline for review had passed, he was contradicting his own legislative caucus's position that the agreement would be treated like a treaty, not an executive order.

But on the other hand, if one reads the actual Act from which the SEF's negotiating authority is drawn, it explicitly says that no legislative approval is needed if an agreement can be enforced without new or amended laws.  Here is Article 5, in English:

If we take this language at face value, then as long as the CSSTA does not require new laws or amendments, it can take effect as an executive order--no legislative approval required.  From that perspective, the willingness of the KMT caucus to treat the CSSTA as needing to be ratified by the legislature looks like a significant concession. 

Given how controversial anything related to cross-Strait relations is in Taiwan, there is a strong normative argument for getting agreements ratified by the Legislative Yuan before they take effect.  But the legal argument is much less clear-cut--just look at Article 5.  And that ambiguity is a big problem for everyone, because it undercuts the legitimacy of cross-Strait policy-making, whether or not the CSSTA passes.  


Shouldn't the Courts Resolve Legal Conflicts?
In an ideal world, the question of whether the CSSTA is an "executive order" would be resolved by the Council of Grand Justices, Taiwan's constitutional court.  It's unfortunate the issue wasn't put before them, and I'm not really sure why--probably a combination of several reasons: the long time it takes to get a court decision, the Ma administration's haste to get the CSSTA through the legislature, the timing of the student occupation of the LY, and the court's own desire to stay out of partisan conflicts.  At any rate, that option appears to be precluded now, and Taiwan's democracy is worse off for it.   

Nevertheless, there may be a silver lining here.  The Ma administration has belatedly appeared to acknowledge the legitimacy problem surrounding cross-Strait negotiations, and has proposed changes that would strengthen legislative oversight.  The students occupying the legislature have proposed their own mechanisms for oversight. If some version of those gets adopted--including, crucially, a requirement that cross-Strait agreements be ratified by the legislature to take effect--then at least some of Taiwan's democratic institutions might actually come out of this crisis with a bit more legitimacy in the long run. And that's something people of all political stripes in Taiwan ought to approve of.

* A caveat: I'm not a lawyer or an expert on ROC constitutional law.  If you are an expert on ROC constitutional law, then by all means weigh in in the comments and tell me where I've gone wrong.

24 years after the beginning of the "Wild Lily Movement" (野百合學運), a spontaneous student protest that galvanized Taiwan’s political elite behind far-reaching democratic reforms, student-led protestors have again attempted to weigh in on Taiwan’s political future. About 9pm local time on Tuesday, March 18, students in Taipei suddenly climbed the gates of the Legislative Yuan compound, took over the floor and barred the doors of Taiwan's national legislature. Attempts by police to remove them failed, and by Wednesday night a crowd estimated at more than 50,000 had gathered near the legislature to support the students.  The student protests were in reaction to the contentious item currently before the legislature to approve the Cross-Strait Service Trade Agreement (海峽兩岸服務貿易協議). 

Coverage of the sit-in is available from media outlets across the political spectrum. For starters, here's the generally pro-government China Post and (in Chinese) the KMT-friendly United Daily News on the protests, and here's the pro-opposition and DPP-friendly Taipei Times and (in Chinese) Liberty Times.    Updates in English on the events, including a live stream of the floor of the Legislative Yuan, can be found at Ketagalan Media.  The protests have now attracted significant coverage abroad, as well, including in the Washington Post, Bloomberg, the New York Times Sinosphere blog, and Buzzfeed. There is also good reaction from bloggers here, here, and here.

Rather than repeat what can be found at those links, I thought I’d tackle three questions raised by the occupation of the legislature that haven't gotten sufficient attention:

1.  How did we get here?
2.  Why is this a big deal, or is it?
3.  What are the deeper implications for Taiwan's democracy?

Separate posts follow.

A Trade Agreement with China Becomes a Political Flashpoint

The trade agreement (link in Chinese; h/t Ketagalan Media) was signed on June 21, 2013 between the leaders of the Straits Exchange Foundation (SEF) and the Association for Relations Across the Taiwan Strait (ARATS), which manage the "unofficial" relationship between Taiwan and the People's Republic of China.  The agreement follows the Economic Cooperation Framework Agreement (ECFA) successfully concluded and ratified by the legislature in 2010 during Ma Ying-jeou's first term. The services agreement would would open up some of Taiwan's services industries, notably its financial sector, to mainland Chinese investment, and vise versa. 

The Legislative Yuan: Where Presidential Priorities Go to Die?
The services agreement is the top legislative priority of the Ma Ying-jeou administration, but it has faced determined opposition from the DPP, which has been attempting to block the bill in the Legislative Yuan.  Since the KMT controls a majority in the legislature (64/113, or 57%, to the DPP’s 40/113 or 35%), the DPP would lose a straight-up party-line vote. So instead, the party has tried to keep the agreement off the legislative agenda, bottle it up in committee, and otherwise slow down the legislative process using whatever tactics it can, in hopes that the political dynamics will eventually shift in its favor. By stalling, the pact may become increasingly unpopular among the public and soften support from KMT legislators enough to put in doubt its final passage.

So far, this strategy has worked surprisingly well. In contrast to the ECFA, which passed the legislature less than two months after it was signed, the services agreement has languished. When the agreement was signed in June, there was some question about whether it even had to be approved by the legislature to take effect--because the agreement does not require any amendments to laws or new legislation, it could be treated as an executive regulation under Article 5 of the Cross-Strait Relations Act (台灣地區與大陸地區人民關係條例), in which case it comes into effect 90 days after legislative review commences.  

Given how controversial the pact was, and the concerns expressed by lawmakers not only from the pan-greens but from the KMT and PFP as well, the Ma administration had little choice but to submit the agreement to the legislature and hold a formal vote.  Rather than an expedited review and an up-or-down vote on the agreement as a single package, as Ma had wanted, Speaker Wang Jin-pyng quickly negotiated a cross-party agreement* to conduct an item-by-item review, which ensured that the services trade agreement not only would have to win legislative approval but also be subject to an extended and acrimonious set of politically damaging hearings and votes. (Incidentally, this probably was the main reason President Ma attempted unsuccessfully to purge Speaker Wang from the KMT and force him out of the legislature in September.)

In September the bill was referred to the Internal Administration Committee, which scheduled 16 separate hearings lasting until March 10. With KMT legislative leaders threatening to push for an extra session in January to bring the bill to the floor, Wang Jin-pyng negotiated another cross-party agreement to postpone the review process until after March 10, when the last hearing was scheduled to take place. 

The Latest Maneuvering
On March 7, the DPP played its next card. The DPP convening member on the Internal Administration Committee, Chen Chi-mai (陳其邁), unexpectedly scheduled a formal review of the agreement to take place in the committee the next week. According to legislative precedent, the convener who places the item on the agenda for the first time is allowed to chair the review; thus, the DPP was now in control of the committee's proceedings. The KMT caucus cried foul, complaining that because they had already conceded to an extensive set of hearings and line-item roll-call votes, the DPP should not have attempted to seize the committee chair as well; the KMT caucus whip Lin Hung-chih (林鴻池) also argued that since the bill was initiated by the KMT, by rights its convener, the KMT legislator Chang Ching-chung (張慶忠), should chair the review. 

That set up a battle to establish control over the chairman's seat. Several DPP members camped out overnight in the meeting room, and as legislative clerks tried to add legislators' names to a sign-in sheet to speak on the morning of March 12, verbal and then physical altercations broke out. The committee meeting descended into shouting matches and a prolonged standoff between KMT and DPP legislators, and it was eventually adjourned without ever having begun. The next day's committee proceedings immediately broke down as well.  When the committee reconvened on Monday, March 17, the dysfunction continued. Pan-green legislators physically occupied the meeting room's podium to prevent Chang Ching-chung from calling the meeting to order, and after three hours he called off the meeting and unilaterally declared that the services pact had cleared the committee and would go to the legislative floor for a second reading. He justified that action by arguing that the review of the agreement had not been completed by the committee within the required 90 days.
 
The DPP claimed Chang's action violated the previous cross-party agreement to allow a full committee review of the pact, and in response the party's members boycotted the legislature's plenary session on Tuesday, forcing adjournment and a return to the cross-party negotiation committee (政黨協商) headed by Speaker Wang.*  The students' occupation of the legislative floor beginning Tuesday night means that the bill's consideration is stalled for the moment, although the KMT continues to threaten that the Executive Yuan could simply declare the agreement in effect as an executive regulation, bypassing the legislative process altogether as the Ma administration hoped to do back in June. 

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*[As an aside, one of the interesting aspects of this process is how it illustrates the importance of Speaker Wang and the Cross-Party Negotiation Committee, or 政黨協商, to the effective functioning of the legislature. None of the news reports I have seen emphasize just how difficult it has been for the KMT to get bills passed in the LY without first having a cross-party agreement. The DPP's ability to cause chaos and effectively prevent the legislature from conducting business--akin to a filibuster--gives it a veto over legislation despite the KMT's comfortable majority.  This is a feature of Taiwan's legislature that deserves a lot more attention than it is getting in the English-language media.]

The Student-Led Occupation is a Big Deal for Taiwanese Politics

For years there have been daily protests near the legislature in Taipei. And there are frequent demonstrations, and scuffles, by legislators on the floor of the Legislative Yuan. But this confrontation is different. I cannot recall another time in recent history when protestors have actually invaded the legislature and prevented sessions from being called to order. For that reason alone, this student movement is an important development.

The Cross-Strait Trade Agreement is Not Just about Trade
It's also a big deal because it potentially broadens the challenges to the Ma administration’s vision of closer economic integration with the People’s Republic of China. The involvement of students, in particular, could move the framing of the services agreement bill from just another partisan fight to a deeper battle over Taiwan's economic future, and its democracy.  And on those points, there are clear concerns.

This may be almost too obvious to mention, but the chief worry driving much of the energy against the bill is that it represents further commitment to economic integration with the People's Republic of China--the same China that is an unabashedly authoritarian state, a rising military power in East Asia, an economic behemoth, and a regime vowing to bring Taiwan under its political control, by force if necessary. It's also a state whose leaders are clearly uncomfortable with the way democracy works in Taiwan. The formula they have offered for unification, the "one country two systems" plan under which the PRC administers Hong Kong, doesn't look very appealing right now to most Taiwanese, especially given the lengths Beijing has gone to avoid popular elections of Hong Kong leaders. 

The Ma administration may well be right in thinking Taiwan can reap economic gains without making political concessions to the PRC. But it hasn't made that case effectively to the large majority of Taiwanese who oppose closer political integration. Instead, the cross-Strait services trade agreement has become a focal point for that opposition: the cross-Strait agreements have never been solely about trade, but they risk becoming solely about politics.  And even when the conversation is about trade, the Ma administration hasn't helped its case. All free-trade agreements create winners and losers, and Ma has focused on the forecast economic benefits without mentioning the losses. There is not much of a plan to compensate those whose livelihoods would be negatively affected under the agreement, or even to demonstrate that the administration is concerned about these people. With rising inequality, soaring housing prices, and an increasing youth unemployment rate, this does not appear to be a wise political strategy.  

Political Realignment in the Cards?
Finally, the student protest is a big deal because it could represent the leading edge of a political realignment in Taiwan, from a national cleavage to an economic one. The same students who are occupying the legislature are among those whose economic futures do not look particularly bright right now. With its opposition to the cross-Strait agreement, the DPP is tapping into increasingly vulnerable segments of society that do not stand to gain from free trade agreements, whether with China or elsewhere. 

It's not clear how much of this protectionist streak is due to the "China factor" in Taiwanese politics, and how much is due to a fundamental opposition to further opening Taiwanese markets. The evidence from the legislature is mixed: the vociferous opposition there to US beef and pork imports, for instance, ostensibly on health grounds, stands in contrast to the smooth passage of free trade agreements with New Zealand and Singapore in the past year, and to the DPP's official support for the Trans-Pacific Partnership. But the potential is there for the DPP to move toward a more populist stance on trade and other economic issues, and to win votes with it.

Student Activism is a Good Sign

There are reasons to be heartened by the student-led occupation of the legislature. One of the signature features of Taiwan's democratic transition was the positive role played by civil society organizations. Taiwan's diverse, vibrant, and politically active civil groups have been important in broadening political participation in government and serving as watchdogs for administrative initiatives. So it is encouraging to see a resurgence of activism, especially among younger generations who have been increasingly apathetic over the last decade.

The Ma Administration's Wrong-footed Response
Yet, as Dafydd Fell notes in this editorial, the Ma administration has been really bad at responding to concerns raised by these groups. The KMT, especially the big-business-friendly and technocratic elite favored by President Ma in the Executive Yuan, retains a strong inclination toward top-down policy-making that, to put it charitably, borders on paternalism. The Ma administration has a consistent pattern of disregard for democratic procedures designed to allow civil society organizations to raise questions about government policies, and statements by executive officials about popular protests have often been remarkably tone-deaf.  

The administration's response so far to the occupation of the legislature follows this same pattern, and it has reinforced the already strong public impression that President Ma is politically inept. Ma did not publicly acknowledge the occupation of the legislature, but did attend meetings of the KMT Central Standing Committee and the Cabinet, where he reportedly praised the KMT legislative caucus and stated the administration's determination to win passage of the agreement by June. In the absence of any public statement by President Ma, members of his government started sounding off on the protestors, including the head of the Control Yuan, Wang Chien-hsien (王建煊), who called the students "ignorant" and "used by politicians," and said they needed to be forgiven, "for they know not what they do."  On Thursday, the Premier of the Executive Yuan, Jiang Yi-huah (江宜樺), asserted that the students were poorly informed and being misled and used by the DPP, and the KMT caucus whip Lin Hung-chih argued the students were "trampling on the dignity of the legislature and the people of Taiwan."  

By contrast, the response from Speaker Wang was much more measured, and, critically, ruled out for now the use of police to remove protestors by force.  Given Wang's key position in the legislature, and his ability to mediate between the two main political camps, it appears that President Ma will once again be in the awkward position of depending on Wang get the agreement approved. Thus, the student protestors have at minimum succeeded in strengthening the hand of the legislature vis-a-vis the executive branch.  I have mixed feelings about that outcome, but in comparative perspective it's not obviously a bad thing for democracy to have an assertive legislature consistently able to stand up to a presidential executive.

Troubling Democratic Implications: Not Presidential Overreach, but Governmental Paralysis
That said, some of the more outraged reactions to the KMT’s "undemocratic" attempts to get this agreement approved seem a bit hyperbolic to me.  It's worth noting a couple things about this legislative outcome that are a bit odd, and worrying from the perspective of effective governance.  

First,  the KMT controls a majority of the seats in the Legislative Yuan.  Moreover, approval for the agreement is the top legislative priority of the Ma administration right now. And President Ma also doubles as the chairman of the KMT, from which he can threaten to expel any KMT legislators who vote against the pact. And yet the agreement is still tied up in the legislative process, and has been since June. 

To me, this episode demonstrates an under-appreciated fact about Taiwan's legislature--that minority parties are quite powerful. Think about this: on a bill that's the top priority of the ruling party's chairman, and with complete control over the executive branch and a comfortable majority in the Legislative Yuan, the KMT cannot get what it wants without some cooperation from the opposition!  Whether or not you think that is a good thing in this particular case, it is troubling in a broader, systematic perspective. Many observers thought Ma Ying-jeou's victory in 2008 would usher in a new period of more effective executive-legislative cooperation; that hasn't happened anywhere near as frequently as predicted. 

Viewed in this light, the attempt by Chang Ching-chung to bring the bill to the floor for the second reading looks more like normal maneuvering via arcane parliamentary procedure than an unprecedented "illegal action".  This kind of thing is common in democratic parliaments around the world; so are roll-call votes that require party members to support the party line. What's more worrying from an institutional perspective is that legislative procedures have once again broken down over a contentious issue, and that there's ambiguity about something as basic as who should be able to chair the committee reviewing the most important piece of business this legislature will face. 
     
Finally, the pact is the result of a bilateral negotiation, and the method of its review and potential approval has implications well beyond trade issues or cross-Strait relations.  Amending it would require negotiations to be reopened, which is effectively the same as killing the deal. It is for this reason American presidents have to get Fast Track Authority from the US Senate in order to conclude free trade agreements--Fast Track ensures that any deal reached in negotiations will not be filibustered and cannot be amended, only be put to an up-or-down vote. Even if one thinks most trade agreements are terrible for Taiwan, the precedent set by the legislature's insistence on line-by-line review of agreements is really problematic: no country’s negotiators will believe that Taiwan is able to commit to deals that it signs. Taiwan already has huge disadvantages in its international relations--if it wants to be taken seriously as a good-faith ally or counterpart, it needs to be able to promise that its negotiators can deliver an up-or-down vote on any agreements they strike, as President Ma has tried to argue, without much success. The continued insistence by legislators that trade agreements be subject to renegotiation after they are signed is not in Taiwan's long-term interest.