Monday, April 07, 2014

Taiwan Voice Twofer + links

House near Jiaxian.

Taiwan Voice has been rocking the protests with a great flow of information. For those of you who aren't connected to Taiwan Voice via Facebook, here are two from today below the READ MORE link, one from a former Grand Justice (=Supreme Court) about the rightness of the Sunflower Movement and one from Liberty Times on the hollow cross-strait oversight bill the Executive Yuan is pushing, which basically strips out the role of the Legislative Yuan in overseeing agreements.
Daily Links:
Former Justice of the Council of Grand Justices Hsu Tsung-li: Students in the ‪#‎SunflowerMovement‬ should be free from prosecution for the takeover of Parliament according to the Principle of Last Resort.
Ever since students took over the Legislative Yuan on the night on March 18, the Sunflower Movement has instigated controversy over the legitimacy of the students’ bold move. President Ma Ying-jeou stated publicly that he is resolute in punishing the students according to law. Hsu Tsung-li, a former justice at the Council of Grand Justices and current professor at the School of Law of National Taiwan University, said in a posted article last night on Facebook that he thought the actions of the students’ occupation of the legislature “followed the principle of last resort.”

Hsu Tsung-li also mentioned the unalterable situation of the breach in law committed through the reviewing process by the legislature on March 18. Expectations for the legislature to exercise autonomy would lead to a fallacy of circular reasoning based on the inner mechanism of majority rule. Furthermore, justices to the Council of Grand Justices do not have the authority to scrutinize the internal audit procedure of the legislature based on its own laws. As such, this allows the interpretation of the actions of the students as pertaining to the principle of last resort.

Others in the field believe that the students could have turned to other legal alternatives; for example, demanding a Constitutional Interpretation of Justice of the Constitutional Court, requesting the Justices to review the legitimacy of the process to determine whether or not the pact counts as passed or last of all, as a last resort, asking for a temporary punishment to be given. Hsu Tsung-li, however, doubts if “demanding a Constitutional Interpretation of Justice of the Constitutional Court would be a possible method of legal remedy.”

Hsu reminds readers, “The Three Acts of National Security [including the National Security Act, the Assembly and Parade Act and the Civil Associations Act] were also forcefully passed amid vicious fights among the legislators in 1994, very similar to the circumstance on March 18th, both leaving the audience in shock. Nonetheless, Justice Yuan Interpretation No.342 later maintained that the flaw in the process was not prominent and ruled that the Parliament should negotiate a solution between itself.” He added that, “According to the previous Interpretations, it would be foolish and considered a waste of social resources to request another Interpretation which could only yield the same result. How can we believe that requesting a Constitutional Interpretation of Justice would be a fruitful legal remedy? How can we demand people to suppress waves of anger towards the 30 seconds of murmuring and patiently wait for the interpretation? Not to mention that based on past experience, there would be no hope of winning the case; and even if we take the temporary punishment system into account, it would be swiftly rebutted by the chief judges on grounds of destined failure and overly heavy social costs.”

Near the end of his article, Hsu stated solemnly that, “It is not recommendable to occupy the Parliament, no matter which party is ruling. Only in extreme cases can it be justified and therefore should never be imitated readily.”

Translated by: Rose Li
Photo credit: Liberty Times archive
Source: Liberty Times

Proposed Executive Yuan bill will legalize Chang’s behavior, legislates secrecy, and offers no real monitoring power, according to academics ‪#‎SunflowerMovement‬

The student movement against the Cross-Strait Service Trade Agreement (CSSTA) called a “Citizen’s Assembly” in the Legislative Yuan chambers yesterday to deliberate on proposed legislation to establish a monitoring mechanism for cross strait agreements. Participating academics questioned the lack of real monitoring power given to the legislature in the Executive Yuan’s draft of the bill, calling out the Executive Yuan for “legislating secrecy” and “legitimizing Chang Ching-chung’s behavior.” Chang Ching-chung is the KMT legislator and chair of the committee that called the agreement to have been reviewed, for which the student led the students to occupy the legislature.

No real legislative monitoring power in the Executive Yuan bill

Student leader Lin Fei-fan said that the results of the Citizen’s Assembly will be collated and organized into a single statement, in the hopes that the Executive Yuan and lawmakers on both sides will offer concrete, point-by-point responses.

Academia Sinica Associate Research Professor Huang Kuo-chang, who opened the session, criticized the Executive Yuan draft bill for giving the executive excessive power in all four phases of its process. Under that draft, the Executive Yuan would only need to report its actions to the Legislative Yuan without having to accept any input from the legislature. An agreement, once signed, would only require legislative review if laws would need to be amended, and would only need to be filed with the legislature otherwise. The legislature would have no power to change an agreement or attach any additional articles. Huang also lambasted the process for filing agreements with the legislature as “legitimizing Chang Ching-chung’s behavior.”

Huang pointed out that the the draft of the bill proposed by non-government groups centers on a required action plan before any cross strait agreements are negotiated. The legislature will participate in the making of the action plan, and can give legally binding advice. The government will be required to publicly release draft versions of any agreement and impact assessment reports; the private sector will also be given the opportunity to provide drafts of its own. Hearings should be held if there are major differences between government and private versions. The Legislative Yuan will be able to amend or add to the agreement during review, and in which case the government must restart negotiations.

Raymond Chen-en Sung, a legal advisor to the Overseas Fisheries Development Council and a Ph. D. candidate at Oxford University, criticized the Executive Yuan draft bill as “legislating secrecy”. He questioned why cross strait agreements must be limited to the framework provided by the laws on the two sides, arguing that as both sides are WTO members, negotiations could proceed on a member-to-member basis.

National security review in Executive Yuan’s draft: more opportunity for secrecy

Sung said that the legislature would become a purely passive participant under the framework of the Executive Yuan draft. He also questioned if the draft’s national security review mechanism would just represent more opportunity for secrecy. He argued that the filing mechanism described in the draft should at least require the executive orders involved to be enumerated, instead of the executive being allowed to file whatever they please with the legislature.

The students and other participants in the Citizen’s Assembly formed ten breakout groups to deliberate the bill, each of which gave a presentation of their findings. Lu Chia-hua, the session’s volunteer moderator and a graduate student of political science at National Taiwan University, was charged with collating and organizing the results of the groups’ discussions. The findings of two other sessions held outside the legislative chambers will be added to the final statement that will be sent to the Legislative Yuan and to the Executive Yuan.

The students’ suggestions for the draft bills and the CSSTA included: Taiwan-China agreements should be considered state-to-state or equal agreements; a mechanism for referendums should be included; a mechanism for public participation and monitoring should be included; a third-party arbitration mechanism should be introduced in the case of irreconcilable differences between the two draft versions; the government should offer more comprehensive support for impacted and vulnerable industries; information and national security should be the top priority for any cross-strait agreements; and elected representatives should be guided by public opinion instead of party discipline.

Translated by John Chen from the article with additional explanations in English by the editor:
Source: Liberty Times
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