Taiwan: Framing Cross-Strait Relations

Taiwan’s newly elected parliament is debating a draft bill that sets up a mechanism that would allow the government to scrutinize cross-strait agreements. And yet again, parliamentary debate touches on the most existential questions of Taiwan’s sovereignty in limbo.

Closer scrutiny and legislative supervision of cross-strait relations was demanded by students and activists who occupied Taiwan’s legislature, the Legislative Yuan, in 2014 in protest against the “black box” negotiations over a cross-strait service trade agreement. Those protesters, later dubbed the Sunflower Movement, made increased legislative oversight one of their key demands.

Shortly after the end of the Sunflower Movement, the executive body of government, the Executive Yuan, published a draft Cross-Strait Agreement Supervisory Act (CSASA). The bill, in short, ensures that the Mainland Affairs Council (MAC), which negotiates on behalf of Taiwan, reports to various parts of the government and legislature in several phases. But it also allows the Legislative Yuan to refuse to ratify a cross-strait agreement on the basis of national security.

The Executive Yuan’s draft bill was shelved because it did not improve transparency or public participation – the main concerns of the Sunflower Movement. “It simply institutionalizes public hearings which are so late in the process that they are largely meaningless,” says Michael Fahey, an attorney with Taipei-based law firm Winkler Partners.

But the first-ever parliament not ruled by the KMT has put similar legislation back on the table. In the past few weeks, five alternative draft bills were submitted to an internal review committee, of which two have now been withdrawn. 

Delicate Questions

While the goal of the supervisory mechanism legislation is very pragmatic, it has yet again raised delicate questions about Taiwan’s status. It is the first time that Taiwan’s newly elected parliament has to walk the tightrope of cross-strait relations.

DPP legislators, for example, proposed bills that said negotiations were held under the framework of “cross-strait relations,” referring to the different political authorities of the Republic of China government on the one hand and the People’s Republic of China government on the other. But a draft proposed by NPP legislator Huang Kuo-chang refers to “our country and the People’s Republic of China” – implying an agreement reached between two states rather than two political authorities.

This may seem to be semantics but in the context of Taiwan this is an important distinction. China and the KMT maintain that both sides agreed in 1992 that there is only “one China,” which includes Taiwan, but that both sides agree to differ on the respective interpretation. The KMT brought the Republic of China government to Taiwan as a government-in-exile in 1949 assuming it would return to the mainland with the defeat of the Communists. That never happened and the historical legacy has had a profound impact on Taiwan’s politics, even as the island has evolved into a vibrant constitutional democracy.

In the January elections, the KMT lost its majority in the Legislative Yuan for the first time since it came to the island. The DPP and the NPP, victors in the elections, have both indicated that they do not recognize the “1992 consensus.” This has alarmed Beijing.

Chinese President Xi Jinping has indicated that he will “resolutely contain” any assertion of Taiwanese sovereignty. “We will adhere to the 1992 Consensus as a political foundation, and continuously advance the peaceful development of Cross-Strait ties,” said Xi on March 5, at the annual session of the National People’s Congress in Beijing.

The NPP, which arose out of the Sunflower Movement, is naturally leaning more toward taking a more assertive stance towards China. “If we continue what [the] KMT left it’s meaningless for us to form a new government and to elect a new congress. I think people have spoken loud and clear what they think of the Ma administration’s China policy in the January election,” says NPP chairman Huang Kuo-chang.

Huang believes that it is time to take the first step in delineating that a cross-strait agreement is concluded between “our nation” and the PRC. “I am not saying we should declare independence right away, I understand how dangerous and unrealistic that is. But I do believe it is time for us to take the first step on the path to establishing a normal country.”

He admits that it is perhaps not the most pragmatic option, as China’s power expands. “But think about what kind of world we want to live in. I do not want to live in a world where if you are powerful enough you can do whatever you want, even if it violates fundamental [United Nations] principles we tried so hard to establish over the past several decades,” he says.

Other Taiwan independence activists support Huang Kuo-chang’s idea, as they believe that a more vague notion of “cross-strait relations” would reaffirm the belief that Taiwan is a part of China and blur Taiwan’s sovereignty even further.

But as much as the NPP is performing a civil society watchdog role in the Legislative Yuan, it only holds five seats. The DPP’s will is probably going to be law. And DPP legislator Yu Mei-nu is taking a more pragmatic stance, in line with her party, preserving the ambiguous status quo by opting for a more vague “cross-strait relations.” Her draft defines the parties as “the government of Republic of China, Taiwan” and “the government of People’s Republic of China, Mainland.”

“Although some drafts refer to Taiwan and China are parts of two countries, my version avoids the theory of two countries, because the Ma Ying-jeou’s administration declared that they don’t recognize the sovereignty of the other side, and don’t interfere with their governance,” says Yu. “We do not want to touch on the issue of sovereignty, which has just meant that each has their own government, their own people, the government of the Republic of China and the government of the People’s Republic of China.”

When the DPP amended a reference to “Taiwan” in a draft bill to “Taiwan Area” and “Mainland Area,” a civil activist in support of Taiwanese independence, Lin Yi-fang, went on a hunger strike outside DPP party headquarters for a week in March. The DPP amended the reference because it said that “Taiwan Area” was more in line with the constitution of the ROC.

Following that line of argument, Huang Kuo-chang’s draft, which distinctly refers to “our country and the People’s Republic of China,” would not be in line with the constitution. But that might be more a political decision. “It is not facially unconstitutional although it is arguably contrary to the spirit of the Constitution, particularly the ​Additional Articles of the Constitution of the Republic of China, which provide for a ‘free area’ of the Republic of China and the ‘Mainland Area’,” says attorney Michael Fahey.

Huang replies that these Additional Articles were passed by the now-abolished National Assembly, a body of representatives that were put in office in China. “How could a group of people not elected by Taiwanese people amend the constitution?” asks Huang. “That amendment is contrary to the founding principle of our constitution. Because according to our constitution the sovereignty of this country belong to its people. The sovereignty of this country belong to the 23 million people in Taiwan right now, it does not include the people on Mainland China, otherwise it would become absurd.”

But that would bring us back right to the start of the problem – a Catch-22.

In terms of content, drafts proposed by the DPP and NPP drafts are more aligned, although the NPP’s version is more expansive in the active consultative role of NGOs and the Legislative Yuan during the negotiation process. The drafts also allow the Legislative Yuan to make amendments and add terms rather than merely ratify or reject the agreement on the basis of national security, which was proposed in the Executive Yuan’s draft. Yu Mei-nu also introduced a “treason clause,” under which negotiators would be subject to imprisonment if they violate Taiwan’s sovereignty.

Perhaps it was an unnecessary showdown between NPP and DPP legislators. The official DPP caucus draft bill has not yet been presented, and that draft will have much more political weight because it will have President-elect Tsai Ing-wen’s seal of approval. In the end, the DPP’s draft bill will probably refer to the vague and ambiguous “cross-strait relations.” But the dynamics between the DPP and the NPP on this issue are a mere prelude to the undoubtedly many debates on cross-strait issues yet to come.