Archives play an important role in the prosecution of justice and all transitional justice mechanisms. Archives provide evidence that can be vital to finding perpetrators of serious past human rights violations. Without access to archives, prosecution against wrongdoers will be very difficult. Access to archives is also a necessary tool to reveal the truth. For victims of human rights violations, information from the archives are the only source to know what really happened. Indeed, the families have a right to know the fate of their loved ones, whether violations occurred, and every member of society have a right to know their common history. This right obligates the state to search for those who are missing and preserve the archives to promote public knowledge to help forge a historically accurate narrative of Taiwan’s past.
Taiwan was ruled by the Nationalist government (Kuomintang, KMT) for almost four decades before its democratization in the 1980s. To consolidate its ruling power, the KMT regime not only used the “Martial Law Decree” (戒嚴令), which suspended the Constitution of the Republic of China (ROC), but established a well-functioning security state to suppress political dissents and any anti-government activities. Under authoritarian rule, secrecy as a way of life was bolstered by many repressive laws that prevented the release and distribution of information about the activity of the security forces, as well as their human rights violations.
When Taiwan peacefully and successfully transitioned from a one-party authoritarian regime into a full-fledged constitutional democracy after the lifting of the “Martial Law Decree” in 1987, its democratization facilitated the opening of institutional space to address past human right violations through several large-scale constitutional and political reforms. Shaped by a negotiated-transition and authoritarian legacy, a compensation-oriented policy was made to address the issues of transitional justice. Monetary compensation legislation 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 (the equivalent to Congress) in 1995 and 1998 respectively. Authorized by the above two laws, two foundations were established to provide financial compensation for the victims and families of the “February 28 Incident” and the “White Terror Period.”
In 1999, the Archives Act (檔案法) was passed by the Legislative Yuan to identify, manage, and preserve historical archives. Since August 2000, the Bureau of National Archive (國家發展委員會檔案管理局) began to centralize the archives of other government institutions. Hence, some historical documents about the “February 28 Incident” and the “White Terror Period” were made accessible to the public. A commission was created under the Executive Yuan as early as 1995 to investigate the “February 28 Incident.” Despite the notable progress, the truth remained elusive. While the commission’s investigation accounted for the political context of the “February 28 Incident” and explained the reasons behind the conflict between Taiwanese elites and the ruling administration, it did not assess who should be held responsible for the incident.
There are multiple constraints that would explain why the truth investigation and documentation about the “February 28 Incident” and the “White Terror Period” encountered so many hurdles. The first reason is the legal restrictions on public access to the archives. Due to privacy concerns, the Bureau of National Archive imposes several restrictions to archive usage, which infringes on the right of victims and their families to seek truth. For example, Article 22 of the Archives Act provides that the national archives shall be open no later than after 30 years of creation. However, the Bureau of National Archives often uses Article 18 of the Archives Act on the protection of the public interest and the privacy and rights of the third parties to reject archives disclosure applications. In addition, the Classified National Security Information Protection Act（國家機密保護法）also imposes several legal restrictions on public access of the confidential archives. Also, the Personal Information Protection Act (個人資料保護法) places further limits on the disclosure of personal information as a reason to refuse access to archival documents. Another reason is that two foundations charged with victim compensation have no investigative power, which makes it difficult for them to locate and obtain documents related to the human rights violations about the “February 28 Incident” and the “White Terror Period.”
Since January 2016, there have been several legislative proposals to reform archive usage after the Democratic Progressive Party won the presidency and became the majority in the Legislative Yuan. The first significant progress was made in December 2017 with the passage of the “Act on Promoting Transitional Justice” (促進轉型正義條例). This new act confers the Commission on Promoting Transitional Justice (促進轉型正義委員會) a wide range of power to collect all available documents relating to human rights violations occurred during the “February 28 Incident” and the “White Terror Period.” In addition, the Commission also has power to fine individuals, political parties, and government officials when they obstruct truth investigations or remove, destruct, conceal, and falsify related documents.
Since the lifting of Martial Law in 1987, the Taiwan government has not formally issued a finding on the truth of the “White Terror Period.” Therefore, it is still unclear who perpetrated state violence and how many victims were tortured, imprisoned, or even executed during the authoritarian period. The current scope of the truth investigation also lacks a gender perspective as there are no comprehensive documents about historical accounts of women’s victimization under authoritarian rule. This lack of a comprehensive truth investigation of past wrongdoings makes the current discourse on transitional justice an easy target of political manipulation that could impede social reconciliation. Immediate legal reforms on access to the national archives could offer opportunities to usher in a new era for transitional justice by building a foundation for a historically accurate and comprehensive collective memory, hence a new narrative for Taiwan’s future.
The main point: Despite significant progress in transitional justice, limitations on access to the national archives, which can facilitate a comprehensive truth investigation of past wrongdoings, make the current discourse on transitional justice an easy target of political manipulation.