President Tsai Ing-wen and her administration have made transitional justice a touchstone of her administration’s legal and political reform efforts since the Democratic Progressive Party (DPP) won the presidency and majority seats in the Legislative Yuan in January 2016. A formal apology to indigenous peoples was made by President Tsai in August 2016 and a 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 in August 2016 and the Ill-gotten Party Assets Settlement Committee to handle the Nationalist Party’s illegally obtained assets during its authoritarian rule was established under the Executive Yuan. Among these remarkable transitional justice measures, perhaps the most extraordinary of achievements was the passage of the Act on Promoting Transitional Justice (促進轉型正義條例) on December 5, 2017. As the one-year anniversary of this landmark Act approaches, it is worth reflecting on its significance and original purpose.
The Act created a commission for transitional justice under the Executive Yuan. This Commission has nine members nominated by the premier with the consent of the Legislative Yuan. Most importantly, the Commission has the power to investigate cases involving human rights violation that occurred from the end of Japanese colonial rule on August 15, 1945 to the lifting of the “Martial Law Decree” in Kinmen and Matsu on November 6, 1992. In addition, the Commission is given the power to recover and declassify political archives, to remove and eliminate authoritarian symbols, to correct any judicial wrongdoing, and to promote social reconciliation. To thoroughly investigate the political purges that occurred during the authoritarian period, the Commission has the power to request civil organizations, political parties, private organizations, and individuals to hand over related documents and open relevant archives. In addition, the Commission has the power to remove authoritarian symbols that commemorate dictators.. Furthermore, the power of the Commission can investigate and repurpose ill-gotten political party assets. To avoid power conflicts, it cannot appropriate assets that have already been seized by the Ill-gotten Party Assets Settlement Committee (不當黨產處理委員會).
Perhaps the most significant breakthrough for transitional justice is the Commission’s power to reverse guilty verdicts of those civilians who had been convicted by military tribunals during the White Terror (白色恐怖) Period. During the White Terror Period, Article 8 and Article 9 of the “Martial Law Decree” listed the offenses under which civilians could be tried in military tribunals during periods of emergencies. When the “Martial Law Decree” was lifted in July 1987, those who have been tried by military tribunals appealed to the Supreme Court claiming that under Article 10 of the “Martial Law Decree” (戒嚴令) they were allowed to ask for retrials. However, their appeals were denied by Article 9 of the National Security Act (國家安全法), which prohibited those civilians who had been convicted by military tribunals during the period of the “Martial Law Decree” from filing an appeal. Hence, those people brought their cases to the Constitutional Court of Taiwan. However, the Constitutional Court of Taiwan in JY Interpretation No. 272 used the prohibitively high-bar of “exceptional circumstances” and “the difficulty in gathering and investigating evidence after such a long period of time has elapsed and circumstances have changed, and the need for maintaining the stability of judgments and social order” as reasons to reaffirm the constitutionality of this provision. In effect, this decision blocked victims from seeking justice through judicial remedy. From a legal perspective, those civilians who were tried by military tribunals still remain “guilty” even though most have been compensated by the “Compensation Act for those wrongfully handled rebellion and espionage cases during the Martial Law Decree.” Also, this decision blocked the possibility to initiate criminal prosecutions of former officials who were involved in cases of human rights violations.
The Act created a two-track system that provides a remedy for those cases that have been tried for political reasons and executed by military tribunals during the period of the White Terror. Article 6 of the Act delegates the Commission to reverse guilty verdicts for cases that have been compensated by the “Compensation Act for those wrongfully handled rebellion and espionage cases during the Martial Law Decree,” the “Act to Provide Monetary Reparations for Victims and Their Families of February 28 Incident,” and the “Act governing the Recovery of Damage of Individual Rights during the Period of Martial Law Decree.” In this sense, the Commission has the power to review the legality of those cases and rectify the injustice to those victims who suffered a miscarriage of justice in previous legal proceedings during the authoritarian period. Reexamining those judicial cases can reveal how the previous regime and its leaders in some cases manipulated and abused the judicial system. The Act also requests those who made such wrong trial decisions to take responsibility by giving compensation to victims and restoring their reputation.
Although the Act has made some progress, some questions still remain. For example, Section 1 of Article 6 of the law provides that only criminal cases can be reexamined by the Commission. In other words, civil and administrative cases are excluded from reexamination leaving lands that were illegally expropriated by the former regime during the authoritarian period outside the purview of the Act’s corrective measures. To resolve such oversight, the Commission could inform those who suffered land rights violations when it finds any evidence for retrials during the period of investigation. In addition, although section 2 of Article 6 provides that the Commission has discretionary power to identify the wrongdoers and the scope of their criminal responsibility, it does not list clear criteria to identify wrongdoers. It also does not clearly prescribe what kind of civil, criminal, or administrative liability the wrongdoers shall take. To address perpetrators’ responsibility and protect victims’ rights to know, the Commission shall open archives when it finds those wrongdoers had held official positions during the authoritarian period. Victims also have the right to bring their cases to the court for retrials if the Commission decides to conceal the identity of wrongdoers.
Indeed, the passage of the Act on Promoting Transitional Justice has created a new era for those unsettled issues of transitional justice. The establishment of the Commission has two main functions. The first function is to produce a linear narrative of progress toward constitutionalism and democracy, which consolidates and legitimizes the ruling power of the current government. The second function is to shape collective memory through state-sponsored truth investigation, which can heal historical wounds and further lead to social reconciliation. According to the Act, the Commission is expected to issue its final report within two years. As we are approaching the midpoint of this historic project, it is important to remember that the success or failure of the Commission will shape future transitional justice discourse and its relationship with constitutionalism and democracy in Taiwan.
The main point: As the one-year anniversary of the Act on Promoting Transitional Justice approaches, it is worth reflecting on the Act’s significance and original purpose. The success or failure of the Commission will shape future transitional justice discourse and its relationship with constitutionalism and democracy in Taiwan.