The discourse on transitional justice has expanded and spread globally in recent decades and has drawn much scholarly discussion as dozens of new-born democratic governments have attempted to deal with their past wrongdoings after the ending of long-periods of authoritarian rule or armed conflict, and move forward to a brighter future. Various forms of transitional justice mechanism have been adopted in addressing past systemic wrongs and massive human rights violations. Such mechanisms include criminal trials, truth commissions, institutional reform (such as lustration and vetting), compensation, amnesty, and access to historical archives. Taiwan is no exception to this trend. This is the first of three articles that will address the evolution of transitional justice in Taiwan.
Taiwan was ruled by the nationalist government (Kuomintang, KMT)—an authoritarian regime—for almost four decades before it initiated a democratic transition in the late 1980s after the lifting of the “Martial Law Decree” (戒嚴令). During the long period of authoritarian governance, the Constitution of the Republic of China (ROC), written in 1945, was suspended by the 1949 “Martial Law Decree” and the “Temporary Provisions Effective during the Period of National Mobilization for the Suppression of Communist Rebellion” (also known as Temporary Provisions) (動員戡亂時期臨時條款). In addition, to consolidate its own power, the ROC government, the army, and all civil institutions were brought under the centralized leadership of the KMT regime through the implementation of the Temporary Provisions and the Marital Law Decree. A widespread and enhanced security system also was created to suppress political dissents and any anti-government activities. Consequently, institutionalized human rights violations perpetrated the whole society under such an authoritarian rule. The most notorious atrocities were the “February 28 Incident” in 1947 , and the so-called “White Terror” (白色恐怖) that reached a peak in the 1950s and 1960s. It is believed that many political dissidents were tortured, forcibly disappeared, or even killed in this period.
Taiwan confronted transitional justice issues since its democratization was initiated in the late 1980s. To respond to the social outcry, public apologies were made by the new democratic governments that were successively elected, and victims were provided with—in varying degrees—monetary compensation and their reputation was restored. For example, legislations regarding monetary compensation for the victims of the ‘February 28 Incident’ and those wrongly charged during the decades of the Martial Law Decree were passed by the Legislative Yuan (equivalent to the US Congress) in 1995 and 1998 respectively. However, perpetrators of the most serious human rights violations have never been named or punished. In addition, until now, the government has never formally issued a report of what really happened during the ‘White Terror Period’. The amount of monetary compensation was also criticized for not being very generous. In addition, what to do with the KMT’s illegal assets, which undermines fair competition among political parties in the process of democratization, remains a controversial issue that has not been addressed adequately.
Such limited development of transitional justice changed when the opposition party, the Democratic Progressive Party (DPP), won presidency and majority seats in the Legislative Yuan for the first time in January 2016. Numerous transitional justice measures were passed one after another by President Tsai Ing-wen and her administration. For example, a formal apology to indigenous peoples was made by President Tsai Ing-wen in August 2016 and later the transitional justice commission for indigenous people was created under the Office of the President. In addition, the “Act on Governing the Handling of Illegally Seized Assets by Political Parties and Their Affiliated Organizations” (政黨及其附隨組織不當取得財產處理條例) was passed by the Legislative Yuan, and the Ill-gotten Party Assets Settlement Committee (不當黨產處理委員會), created to handle KMT’s illegally obtained assets during its authoritarian rule, was soon established under the Executive Yuan. In addition, this May, the Legislative Yuan passed the Act on Promoting Transitional Justice that creates one commission under the Executive Yuan. According to the new law, this commission is given the power to recover political archives, to eliminate authoritarian symbols, to correct past judicial wrongs, and to promote social reconciliation.
While the Tsai administration appears committed to transitional justice, some of its measures still face challenges from the backlash of Taiwan’s authoritarian legacy. The recent case of the National Women’s League (婦聯會) is a salient example. For a long time, the National Women’s League has been criticized for its close relationship with the KMT and its illegal profits from tax revenues. Considering the organization’s charitable contribution in such areas as social welfare, medical care, and education, the Ministry of Interior imposed transparency measures than freeze its assets or dissolving it. However, it is regrettable that the National Women’s League finally rejected to sign this contract after holding a general meeting. The Ill-gotten Party Assets Settlement Committee therefore recently decided that the National Women’s League is a KMT’s affiliated organization. However, this decision is expected to be brought to the court by the National Women’s League soon.
The case of the National Women’s League shows that the authoritarian legacy still is a main challenge to transitional justice development. It is not a surprising situation, particularly when democratization in Taiwan was dominated by the KMT regime through political negotiation with opposition parties. Although such type of political transformation was praised as a peaceful transition and facilitated regime change, it unavoidably confined the choices of transitional justice since the KMT elites still remain politically powerful even after democracy was introduced. Under such political climate, it is very difficult to bring top-ranking military and political figures to justice and to dismantle a four-decade long authoritarian regime. Also, investigation into past wrongdoings inevitably encounters various obstacles. Since the KMT party has less willingness to respond for its past wrongdoings, its political dominance and its authoritarian legacy have been seen to pose challenges to the development of transitional justice. For example, several legislations that attempted to address the accountability and truth of the past wrongs have been blocked or dismissed by the KMT party when it hold majority seats at the Legislative Yuan.
While the resistance of authoritarian legacy still exists in Taiwan, the active involvement of civil society, and the recent incorporation of international human rights regime into Taiwan’s legal system, may provide some solutions to alleviate such authoritarian resistance. As other countries, civil society groups in Taiwan work hard to fight for transitional justice and human rights issues. Their constant protest facilitated the undertakings of various transitional justice policies and measures.
The main point: Although transitional justice in Taiwan is still challenged by authoritarian resistance in the course of democratization, recent active civic engagement on transitional justice, and the incorporation of international human rights into Taiwan’s legal system, have been seen to provide some solutions and make positive impacts on transitional justice reforms launched by the DPP after winning the presidency and parliament majority seats in January 2016.
 Before the imposition of the Martial Law Decree in 1949, the “February 28 Incident” was the first case in which massive human rights violation took place in Taiwan since the nationalist government took over Taiwan in 1945. The incident happened when the police killed a Taiwanese woman who was selling cigarettes without official authorization, sparking a brutal state massacre. Some people view this incident where Taiwanese elites were killed, as a way for the authoritarian government in power to silence the Taiwanese society for decades.The detailed story of the ‘February 28 Incident’ can be found: Steven Phillips, “Between Assimilation and Independence: Taiwanese Political Aspirations under Nationalist Chinese Rule, 1945-1948,” in Taiwan: A New History, Murray A. Rubinstein ed., 2015, 292-296.