W(h)ither the Idea of Publicness? Besieged Democratic Legitimacy Under the Extraconstitutional Hybrid Regulation Across the Taiwan Strait
University of Pennsylvania East Asia Law Review, Vol. 7, pp. 221-55, 2011
35 Pages Posted: 10 Nov 2011 Last revised: 2 Sep 2012
Hybrid regulatory bodies have been credited for functioning as an institutional bypass around the bureaucratic procedures and providing expedient responses to the changing needs of administrative governance. As hybrid regulatory bodies are utilized in transnational regulation, however, concerns have arisen over the lack of transparency and the evasion of accountability in the face of their informality and flexibility. This article aims to explore the issues surrounding the democratic legitimacy of transnational hybrid administration through a case study of the Cross-Straits Economic Cooperation Committee (CSECC) provided in the Economic Cooperation Framework Agreement between the Straits Exchange Foundation and the Association for Relations Across the Taiwan Straits, two private legal bodies on behalf of Taiwan and China, respectively. I argue that the CSECC is deliberately designed to avoid the institutional features associated with the idea of publicness. Both traditional constitutional design and global administrative law fall short of restoring the idea of publicness to transnational hybrid administration in the hybrid cross-strait economic regulation. As a result, the idea of publicness is withering away in the cross-strait economic regulation, laying siege to the democratic legitimacy of the extraconstitutional hybrid administration across the Taiwan Strait.
Keywords: hybrid regulation, global administrative law, publicness, transnational regulation and separation of powers, democratic control of executive power, Cross-Straits Economic Cooperation Committee (CSECC), Economic Cooperation Framework Agreement (ECFA), Taiwan, China, cross-strait relations
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