Starting Point for Good Faith CCP-DPP Relations
China Times Editorial (Taipei, Taiwan, ROC)
January 26, 2016
Executive Summary: The Cross-Strait Agreement Oversight Regulations must comply with the framework for cross-Strait relations. It must comply with the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. It must comply with the 1992 Consensus. These are matters that the DPP under Chairman Tsai must face. This is the touchstone for the new ruling party under Chairman Tsai.
Full Text Below:
President-elect Tsai Ing-wen recently spoke to reporters. She said the consensus reached in 1992 is a matter of historical record. She said she is willing to jointly safeguard the bilateral exchanges and outcomes of negotiations achieved over the past 20 years, based on this historical fact. She is willing to continue promoting peace, stability and closer cross-Strait relations. Following the election, she and other high-level DPP officials are saying they respect the “spirit” of the 1992 talks. Contrast this with their rhetoric before the election. Back then, they said "The 1992 Consensus is merely one of several options", or refused to recognize the consensus altogether. Tsai Ing-wen has clearly moved closer to the center. For peaceful cross-Strait relations, this is a step in the right direction.
But these are merely philosophical musings. What we need to see is their incorporation into actual policy. Does this ultimately represent real change? An opportunity will arise very soon. Late next month, the new legislature will convene. It will review the Cross-Strait Agreement Oversight Regulations bill. Since the 3/18 student movement, any agreement signed by the two sides must wait for passage of the Oversight Regulations. Unless the ruling DPP choose not to sign any agreements with the other side whatsoever, it must take a stand on the matter.
Some bills failed to pass during the previous legislative session. When the new legislature convenes, these bills will automatically become null and void. We may wish to review some of the Oversight Regulations bills proposed during the previous legislative session, to learn their finer points. Each of these versions have at least two points worth considering. The first is the basis for the legislation, i.e., the definition of cross-Strait relations. The second is the content of the bill, i.e., the extent to which the legislature regulates the negotiation process. In cross-Strait relations, the former is key. Therefore we should examine the various versions to see how they differ.
The KMT version is called the "Taiwan Region and Mainland Region Agreement Protocol and Oversight Regulations". The provisions of Article 1 are explicit: “This article is based on the framework of an existing cross-Strait regulation, the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. It goes one step further, by establishing a Taiwan Region and Mainland Region Agreement Protocol and Oversight Regulations." Therefore, its basis is the Act Governing Relations between the People of the Taiwan Area and the Mainland Area.
Let us look back at the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. The purpose of Article 1 is to ensure the safety and well-being of the people in the Taiwan Area, to regulate exchanges between the Taiwan Area and Mainland Area, and to deal with any legal matters that may arise. Article 2 defines the "Taiwan Area" as Taiwan, Penghu, Kinmen, Matsu and other areas over which the ROC has "Government Jurisdiction". It defines the "Mainland Area" as Republic of China territory outside of the Taiwan Area.
From these two articles alone, we can see the consistency in the ROC Constitution. We can also see the significance of the 1992 Consensus. The Act Governing Relations between the People of the Taiwan Area and the Mainland Area defines our nation's jurisdiction and sovereignty differently. Our jurisdiction applies only to the Taiwan Area. But our “sovereign territory” includes both the "Taiwan Area" and the "Mainland Area". Our declared “sovereign territory” includes both the Taiwan Area and the Mainland Area. This constitutional definition of “sovereign territory” is consistent, and includes all of China's "inherent territory". This concept of sovereign territory is consistent with the 1992 Consensus and one China, different interpretations, under "one China". In other words, according to the ROC Constitution, China's inherent territory, taken as a whole, belongs to the Republic of China. From our standpoint, "different interpretations" means that "one China" refers to the Republic of China.
Sovereignty must be distinguished from jurisdiction. Jurisdiction must not be conflated with sovereignty. The Republic of China's sovereignty and territory must not be confined to Taiwan, Penghu, Kinmen and Matsu. Doing so would violate the ROC Constitution. It would of course, also violate the 1992 Consensus. Upholding the existing framework of the ROC Constitution means adherence to the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, a law of critical importance. The Cross-Strait Agreement Oversight Regulations must be based on these articles. This is essential to our cross-Strait policy path.
During the previous legislative session, Oversight Regulations proposed by the DPP caucus adopted a totally different position. It named its bill the "Taiwan and China Agreement Management Regulations". The purpose of Article 1 was to “regulate agreements concluded between Taiwan and China (hereinafter referred to bilateral agreements) on relevant matters". Article 4 was even more explicit. It referred to equality for the mutual benefit of “both countries”. This version clearly departed from the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. It clearly incorporated the "two states theory" into the name and content of the bill.
The NPP has five seats in the Legislative Yuan. NPP party chairman Huang Kuo-chang reminded the DPP and PFP that they signed a private sector verson of the "Cross-Strait Agreement Oversight Regulations" during the student moment. If they retreat from it, they must explain to the people why. If the majority DPP adopts the student movement version, it means overthrowing the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. It means undermining the constitutional framework, and hence our sovereignty. It means overturning the 1992 Consensus. President elect Tsai and the DPP must be clear about the impact on cross-Strait relations.
The Cross-Strait Agreement Oversight Regulations must comply with the framework for cross-Strait relations. It must comply with the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. It must comply with the 1992 Consensus. These are matters that the DPP under Chairman Tsai must face. This is the touchstone for the new ruling party under Chairman Tsai.
九二會談達成若干共同認知與諒解是歷史的事實， 她願意與大陸共同維護20多年來， 雙方依此一歷史事實所建立的交流、協商成果， 持續推動兩岸關係的和平穩定與發展。 對照她和民進黨其他高階人士於當選後表示尊重九二會談「精神」， 及選前說「九二共識只是一個選項」，或更早先不承認有此共識， 她顯然正逐步往中間靠近；對於兩岸關係未來的和平發展而言， 應是正面的一步。
以後還是要看它放到實際政策上，到底代表了怎樣的不變或改變。 這種機會很快就會來到，就是下月下旬新立法院開議後，有關「 兩岸協議監督條例」的立法。從318學運之後， 兩岸間要簽署任何協議，顯然都必須等待「監督條例」先行通過。 除非民進黨政府未來不再和對岸簽署任何協議， 否則勢必要對此表態。
不妨檢視上屆會期中曾出現過的「監督條例」版本， 來了解其中的奧妙。各版本值得注意之處至少有二， 一是立法的基礎，也就是兩岸關係定位，二是監督的實質內容， 也就是國會監管談判過程的程度。就兩岸關係而言， 前面一個層面是重點之所在， 所以我們可以看看不同版本在這方面有何不同。
，其第一條條文的說明中言明：「本條例係在現行《 台灣地區與大陸地區人民關係條例》之規範架構基礎上， 進一步建構兩岸協議處理及監督機制。」所以其制訂的基礎為《 兩岸人民關係條例》。
其第一條言明立法宗旨為確保台灣地區安全與民眾福祉， 規範台灣地區與大陸地區人民之往來，並處理衍生之法律事件。 第二條則定義「台灣地區」為台灣、澎湖、金門、馬祖及「 政府統治權」所及之其他地區，而將「大陸地區」 定義為台灣地區以外之中華民國「領土」。
九二共識」之意義。《兩岸人民關係條例》把我國的「治權」和「 主權」視為不同的觀念；治權只及於「台灣地區」，而宣示主權的「 領土」則包含「台灣地區」和「大陸地區」。這樣的作法和憲法中「 領土」的定義，也就是包含整個中國的「固有疆域」一致。 此種主權觀念就是「九二共識、一中各表」中所謂的「一中」， 換言之，根據中華民國憲法，中國完整的固有疆域， 其主權屬於中華民國。而所謂「各表」，就是從我方立場來看， 這個「一中」是中華民國。
認為中華民國的主權和領土只限於台、澎、金、馬， 其實就等於把中華民國憲法的基礎架構推翻了， 那當然也就等於推翻了九二共識。所以， 對於中華民國憲法現行架構盡到忠實表達義務的《 兩岸人民關係條例》，是非常重要的指標性法案；「 兩岸協議監督條例」是否立基在這個條例之上， 確實是兩岸政策走向的關鍵。
其名稱為「台灣與中國締結協議處理條例」， 而其第一條立法意旨為「為規範台灣與中國締結協議（ 以下簡稱兩國協議）之相關事宜，特制定本條例。」 其第四條更明言兩國協議應本平等互惠之原則，以保護國民權益， 促進「兩國」之合作。此版本顯然脫離了《兩岸人民關係條例》， 而明確地將「兩國論」表達於法案名稱和內容中。
學運期間民進黨與親民黨都簽字同意民間版「兩岸協議監督條例」， 若現在反悔，必須向民眾交代為什麼改變。 居於多數的民進黨如果採取學運版本，代表推翻了《 兩岸人民關係條例》，推翻憲法的主權架構，也就推翻了九二共識， 對兩岸關係可能造成的衝擊，蔡準總統與民進黨應已有清楚的認知。