TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

There has been much discussion about the Act on Promoting Transitional Justice since it was passed in early December. The Taiwan Association for Truth and Reconciliation has come up with a Q&A to respond to the myths and controversies concerning the newly passed law and to help put transitional justice in its proper Taiwanese context.

 

1. Why does the transitional justice concerned in the Act only target the Kuomintang (KMT)? This is none other than political vendetta!

Transitional justice is to hold rulers and the state apparatus accountable for their violations of the basic rights of the people and their abuse of state institutions and power. The KMT was the sole ruling party during the Martial Law period and where decision-making and discussion of many policies took place. It is difficult to undertake the project of Taiwan’s transitional justice and rectify the wrongs committed during the Martial Law period without making the party the target.

Post-democratization governments certainly are not immune to taking illegitimate actions that are against the principles of justice, but people living in a democratic society are more aptly equipped with rights guaranteed by the Constitution and protected by mechanisms such as separation of power and checks and balances. When their rights are violated, they have access to both institutional and non-institutional ways to demand a response from the government (appeal, court, petition or social protest).

What “transitional justice” deals with is the political persecution committed before democratization.

2. Taiwan’s transitional justice is purely a political scheme against waishengren and to de-Sinicize Taiwan?

In fact, according to statistical information derived from the number of people receiving state compensation, the percentage of waishengren political victims in the White Terror cases was actually a lot greater than the percentage of ethnic groups in Taiwan’s total population. The case of Shandong exiled students is an example that involved a large number of waishengren. Clearing up the history helps solve certain myths surrounding the ethnic divisions and antagonism. Due to its idiosyncratic history, Taiwan’s democratic transformation was intertwined with a process of change in people’s national identity; the two thereby have often been conflated but should actually be looked into with extra caution.

The core of transitional justice, however, is about how a society faces its history, about making those denying historical traumas and mistakes understand that it would come at a cost. Transitional justice is a task with concrete goals to achieve.

3. Chiang Kai-shek had made contributions to the country as well. Why can’t his contributions be displayed alongside his misdeeds? If not for him, Taiwan would have been taken over by the People’s Republic of China long ago and very likely be overwhelmed by the storm of the Cultural Revolution.

As said in the answer to the first question, transitional justice is to hold rulers and the state apparatus accountable for their past violations, not to write biographies for historical figures. Those political parties and individuals who harbor special feelings for Chiang Kai-shek can continue their support for him.

Nonetheless, the rhetoric of “safeguarding Taiwan (against Chinese aggression)” cannot explain why Chiang perpetuated Martial Law rule even after his control over Taiwan (and offshore islands) was consolidated in the mid-1950s (after the Korean War) and why he targeted the communists, the tangwai/dangwai people and overseas Taiwanese independence activists as “three-in-one enemy” starting in the 1970s. “Protecting the island from falling under communist control” was a propaganda slogan for the ruler to rationalize his use of political repression and carrying out of comprehensive social surveillance during the Martial Law period.

4. The government has been compensating political victims since the 1990s. What else is to be done 30 years after Martial Law was lifted?

Bound by the National Security Act and Constitutional Interpretation No. 272, before the passage of the Act on Transitional Justice, the political victims, despite receiving compensation, were not cleared of their convictions and criminal records, seized properties were not returned, and the KMT archives during the years when the country was ruled by the party-state have not been made public. Even now, we still do not know exactly how many political victims there were during the White Terror. Why were they persecuted? Who should be held accountable? How extensive was the persecuting system? What, if any, have the persecutors done to redeem themselves? What was wrong with Martial Law and the constitutional institutions? The state has to face its own past deeds. Holding the repressive system accountable is much more than simply pointing fingers at Chiang Kai-shek and Chiang Ching-kuo; a lot more needs to be done.

▶︎ See also: TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Discovered in the 1990s, the Liuzhangli graveyard in Taipei was the burial ground for hundreds of White Terror victims. The cemetery was designated a municipal cultural landmark in 2015 (Photo: TATR).

5. The amendments to the Labor Standards Act have been stalled and same-sex marriage legalization (seemingly) mothballed; is the ruling Democratic Progressive Party pushing for transitional justice just to divert public attention?

What we need to do is to work together for the realization of social justice of various kinds rather than elbowing each other out. The passage of the Act on Transitional Justice does not mean that transitional justice has been achieved. The Transitional Justice Promotion Committee has to be overseen and kept from descending into formalism. We need to take this historical opportunity and build a bridge between the past and the future in our era.

6. Granted, the task of transitional justice should be done, but don’t we need to have a sense of proportion by first working hard on improving the economy?

Most of the living political victims are aged. This is probably the only time period in which we live alongside these people. When else but now are we to rectify the past wrongs for them and grant them their historical status? There are things that cannot be bought with money: lost youth, freedom and lives. They could have had a different life, if only Taiwanese society had been free from the decades-long suppression and suffocation. It’s hard to weigh the possibilities they had once owned for their worth, let alone against money.

7. Those political victims were not all innocent. Some of them were underground Chinese Communist Party members who were supposed to be executed.

No one would object to redressing the wrongful charges against the innocent, but the greatest challenge of transitional justice precisely lies in questioning the legitimacy and legality of the laws that the “criminals” had broken during the Martial Law era. How did the state violate the people’s basic rights and deprive the people of their rights under the pretext of maintaining social stability and national security via court-martial and laws? How do we draw the boundary between national security and protection of personal rights? This is a question in need of serious debate even in a democratic society. We can choose to forget and pretend nothing of the sort happened, or we can choose to face the history. Those interested in the debate can find a related extensive discussion on the website of the third constitutional court simulation (in Chinese) that was held in November, 2016.

8. Why are Indigenous peoples and “comfort women” not included in the Act?

Those who support the redressing of historical wrongs are supposed to also be in support of the restoring of justice for Indigenous people and for “comfort women.” Taking other countries’ cases as examples, these two groups deserve separate legislative bills for delicate and thorough handling of their demands, rather than being squeezed with other groups into the same piece of cloth.

The persecution that Indigenous people have been subjected to span different regimes, which requires a more comprehensive examination and solution that goes to the root of the problems stemming from political institutions and existing laws. If not, the same kind of persecution would only reappear in different forms. The issue of “comfort women,” on the other hand, requires the government to negotiate with the Japanese government and demand compensation and an apology.

It is hard to imagine these different forms of violence that require different routes for restoring justice could be dealt with by the same set of rules. Only through different legal and institutional frameworks can these issues be allowed more room for detailed and practical solutions to these complicated problems.

9. The constitutionality of the Act on Transitional Justice is in question?

Whether a law is unconstitutional is up to the grand justices to decide. Insofar as it has not been ruled unconstitutional, a law passed by the legislature is nevertheless effective.

Questions have been raised as to whether the jurisdiction assigned to the Transitional Justice Promotion Committee oversteps the jurisdiction of the judiciary, such as Article 14 of the Act granting the Committee the right to investigate, and Article 15 and Article 16 allowing the Committee to seal documents and materials regarded as evidence and to require those under investigation to speak the truth. According to Constitutional Interpretation No. 613 concerning the operation of an independent agency, the constitutionality of the operation of an independent agency will be upheld “if important matters are determined by means of hearings, if the performance of the execution of its mission is made transparent and public for the purpose of public supervision,” and with the existing “authority of the Legislative Yuan to supervise the operation of the independent agency through legislation and budget review.” Article 19 prohibits damaging of political archives on pain of imprisonment; however, the one who initiates the investigation should still be the prosecutors, as how the offenses of destruction, abandonment, and damage of property are governed in the Criminal Code.

In general, the Committee will be operating in the same way as other independent agencies (e.g. the National Communications Commission and the Fair Trade Commission), exercising its jurisdiction independently, unaffected by the change of premier and having the power of administrative enforcement (one could refer to the Administrative Execution Act for an understanding of how the power is governed). However, the Committee should be as prudent and transparent as possible when exercising these powers, with the Committee making critical decisions by consensus.

10. What is transitional justice anyway? What should be done to achieve it?

Transitional justice” used to be a professional term developed by international academia to refer to how a society that has achieved democratic transition faces and deals with mass human rights violations committed in the past by the state. It has therefore also been termed as “dealing with past wrongs.” The main objective of transitional justice is “Never Again” and to make up for the past sufferings of our fellow countrymen and -women. The core objectives of transitional justice are: seeking the truth, compensating the victims, restoring justice, attaining social reconciliation and preventing the return of state violence.

How is transitional justice done then? The more commonly seen mechanisms include (1) trials and vetting (holding the persecuting system and persecutors accountable); (2) setting up a Truth Committee and sorting and making public the related archives (the state needs to recognize what mistakes it has done); (3) compensating the victims and their families and restoring their reputation; (4) rebuilding the memory (removing/remaking symbols of authoritarianism and cautioning future generations against the return of authoritarianism through museums, memorials and textbooks). Every country has its own distinct way of carrying out transitional justice under different historical/political contexts; there is no “correct way.”

This piece originally appeared in Chinese. Translation by Alison Hsiao

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Nearly a year since a draft bill was introduced in the Legislative Yuan, the Act on Promoting Transitional Justice was passed on Dec. 5, marking an important step in the country’s effort to shed light on and redress past injustices committed during the Martial Law period. Alison Hsiao looks at the Act and its implications.

 

At 21:09 on Dec. 5, Legislative Speaker Su Jia-chyuan struck the gavel and announced the passage of the “Act on Promoting Transitional Justice” (促進轉型正義條例) on the legislative floor, signifying a new beginning for the country’s transitional justice.

Different versions of the bill had been proposed and heated debates on various issues — from the time span covered and the authority granted to the Transitional Justice Promotion Committee to the decision to make indigenous groups’ transitional justice a separate issue not included in the Act — were stoked in the year-long period since the draft bill was introduced in the legislature last year.

The Act that cleared the legislature on Dec. 5 put an end to the battle — temporarily, however, as the opposition Kuomintang (KMT) indicated right after the passage that it would petition for an interpretation of the Constitution on the grounds that some clauses of the Act are unconstitutional.

Covering the period from Aug. 15, 1945 to Nov. 6, 1992, when Martial Law was lifted on the offshore islands of Kinmen and Matsu (five years later than on Taiwan proper), the Act will see the setup of an independent, nine-people Transitional Justice Promotion Committee overseen by the Executive Yuan.

The Committee will be tasked with five main missions: opening up political archives, erasing symbols of authoritarianism and keeping the sites of past injustice, redressing judicial wrongs, restoring the historical truth and promoting social reconciliation, and settling and re-channeling ill-gotten party assets.

Beside the party assets settlement that has already been undertaken, the task that is expected to stir up future debate is the erasing of “symbols that are nostalgic or in memorial of the authoritarian ruler(s) in public buildings and spaces,” written in Article 5 of the Act. It has already been interpreted by some local media as a directive to conduct a house-cleaning removal of references to “Zhong-zheng” (Chiang Kai-shek’s given name) in the names of schools, places and streets. That claim has since been rebutted by Minister of the Interior Yeh Jiunn-rong, who said that it will be up to the Committee to decide.

The Act also stipulates that any institution, group or people evading, refusing or hindering investigations launched under the Act, and political parties and their affiliated organizations refusing to return political archives (determined as relevant by the Committee) to the state will be subject to repeatable penalties of NT$100,000 to NT$500,000 and NT$1 million to NT$5 million respectively. Those who have disposed of, destroyed, damaged or concealed political archives, or have attempted to do so, will be liable to punishment of no more than five years behind bars.

Transitional Justice with Taiwanese Characteristics’

The major breakthrough has been praised by the Taiwan Association of Truth and Reconciliation (TATR), a non-governmental group that has advocated for transitional justice since 2008 and which was directly involved in the legislative process leading to the Act. TATR has lauded the annulling of Article 9 (Paragraph 2) of the National Security Act — passed less than a month before the lifting of the Martial Law in 1987 in Taiwan proper — that prevented political victims convicted of criminal charges by a court martial during the authoritarian period from appealing in the post-martial-law time.

“The Act has made concrete advances on both rectifying past injustices and truth seeking, particularly the former,” the association said on Facebook. “This is a transitional justice model with Taiwanese characteristics.”

Article 6 of the new legislation now demands that the right to appeal for re-investigation be returned to those who “had been subjected to criminal sentencing — resulting in punishments, rehabilitative measures and confiscation of properties — that had violated the constitutional order of liberal democracy and the principle of fair trial during the authoritarian rule.” The cases should not be bound by Article 9 of the National Security Act, the article says, adding that redressing judicial wrongs can be achieved by “identifying the persecutors and holding them accountable, restoring and compensating for the damages to the victims or their families’ reputation and rights, and setting history right and making public the judicial wrongs.”

Two scenarios are considered in Article 6.

Those who have been compensated or had their rights re-instituted in accordance with the February 28 Incident Disposition and Compensation Act (1995) (二二八事件處理及賠償條例), the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (1998) (戒嚴時期不當叛亂暨匪諜審判案件補償條例) and the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (2000) (戒嚴時期人民受損權利回復條例), shall see the related convictions annulled and criminal records expunged, according to the Act, without the need to go through judicial proceedings.

Rendered criminal-record-free without the need to go to court, they can nevertheless still make use of the reinstated right to appeal, TATR President Yeh Hung-ling said. Such individuals can now appeal the convictions of offenses of sedition or treason under Martial Law in order to receive compensation or to secure the return of properties seized as accessory penalty (which was supplementary to the principal penalty of imprisonment or death). Such appeals were not possible before, as the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (Article 4) restricts the right to demand the return of or compensation for confiscated properties to those who are “found innocent.” This very article was literally empty because, when coupled with Article 9 of the National Security Act, no acquittal was possible without the right to appeal in court.

The second scenario involves those cases not covered by the three compensation acts. The new legislation demands they be redressed in the same way if approved by the Committee through a review launched upon the petition of the claimant or initiated by the Committee itself.

Those rare cases are the “controversial” ones, the association said. They include that of Voyue Tosku (杜孝生), a Tsou Aborigine who received a 17-year prison sentence in 1954 for “corruption,” and of Li Ma-dou (李媽兜), whose conviction of sedition/treason “survives the legal review under current laws and rules of evidence” — meaning that he did “by violence commit an overt act” with intent to destroy the state or use illegal means to overthrow the government according to the Criminal Code, and is thereby not compensable under the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period.

The claimants in the second scenario also have the right to appeal in court if their claims are rejected by the Committee, the Act states.

Milestone’

Putting an end to the applicability of Article 9 of the National Security Act is a “milestone” for Taiwan’s transitional justice since the lift of the Martial Law 30 years ago, the TATR said.

“We ask that the Democratic Progressive Party government exercise extra prudence when choosing the members of the Transitional Justice Promotion Committee, and attend to all the indispensable aspects of transitional justice — truth, justice, compensation for and rectification of wrongs, and reconciliation — with a holistic vision,” it added, stressing the need to pass the bill of political archives that has been waiting in the wings of the Legislative Yuan to further clear up the past.

President Tsai Ing-wen, on the next day of the legislative achievement, also called the passage of the Act “a milestone of Taiwan’s freedom and democracy.”

“I’ve said on the day of the 70th anniversary of the 228 Incident this year that the goal of transitional justice is reconciliation, not political vendetta; this is the principle that the government will insist on, as only when the people face the past together can the country move toward the future in unity,” she said.

The president said she “looks forward to the advent of the day when the work of transitional justice is complete and no political party in Taiwan would any longer need to bear the brunt of the country’s criticism against past authoritarian rule.”

“People would no longer harbor hatred against each other, trapped in painful historical memory. Taiwan will transform into a different country, and our democracy will also take a step forward,” she said.

President Tsai Ing-wen addresses victims and families of victims of political repression under Martial Law on International Human Rights Day 2016 (Photo courtesy of the Tsai Ing-wen official Facebook page).

TDB Vol. 1 No. 11: Memory, Amnesia, and Martial Law in Taiwan

TDB Vol. 1 No. 11: Memory, Amnesia, and Martial Law in Taiwan

As Taiwan marks the 30th anniversary of the lifting of Martial Law, much still needs to be done to ensure that a proper account of what happened is given as the memories, victims and perpetrators fade into the past. Alison Hsiao reports.

 

It was 1980, a year after the Formosa Magazine Incident. Still in high school, Chen Tsui-lien (陳翠蓮) was asked to “serve the country” after enrolling in university.

Her mission? To “catch the bad guys,” like those involved in the Formosa Magazine Incident, who, according to the school discipline director, were captured thanks to the assistance of many “patriotic youths.”

Selected by the system, Chen said was proud to be one of the students chosen for the spying assignment.

This year marks the 30th anniversary of the lifting of Martial Law in Taiwan, which had been declared in 1949. To coincide with various commemorative events this year, the Taiwan Association for Truth and Reconciliation (TATR), an organization dedicated to transitional justice in Taiwan, has launched an initiative calling on “ordinary people to share their memories of the Martial Law period.

During her high school years, immersed in an educational environment closely monitored and calibrated for collective action and inebriated with stilted patriotic refrains, Chen, now a history professor at National Taiwan University, was a what we could call a “defiant” daughter: she was appalled by her father’s criticism of nationalistic songs and accused him of being “unpatriotic.”

Professor Chen Tsui-lien tells about the state’s attempt to recruit her as a spy during an event organized by the Taiwan Association for Truth and Reconciliation (photo courtesy of TATR).

“My parents couldn’t sleep at night after I told them how excited I was that I was going to help the country,” Chen said of her spying assignment during a talk organized by TATR last month.

Chen’s father, however, explicitly told her that she should not accept the school director’s offer. “You’re out of your head for wanting to go. You will be responsible for many lives,” he said.

“I cried so hard because this ban,” she told a laughing crowd.

Chen is among the lucky ones who eventually sensed “cracks” in the Potemkin village created by the authoritarian government’s propaganda later in her college years.

“Once you noticed the inconsistencies in their narratives, there was no turning back,” she said.

But “sensing cracks” was far from ordinary. While there indeed were hot-blooded activists who were extremely committed to fighting authoritarianism, several others — like Chen’s parents — only secretly harbored an attitude of resistance. And then there were the “free riders,” those for whom the TATR event would be more appropriately titled “ordinary people’s no-memory of the Martial Law period,” said NTU history professor Chou Wan-yao (周婉窈).

“It’s undeniable that in the latter part of the Martial Law period, which overlapped with an era of high economic growth, many were occupied by the sole idea of making money and accustomed to the life under Martial Law,” Chou said.

Admittedly life could be pretty safe — as long as you stayed away from the “unpatriotic activities and riots that disturbed social stability,” which is how resistance was portrayed by the regime. The mentality explains why many Taiwanese, especially those who are now in their 50s, remember pre-Martial Law life with nostalgia.

“There is a reason why Taiwan’s democratization has been called a ‘quiet revolution,’” NTU political science professor Huang Chang-ling (黃長玲) said. “And this trait does make the country’s transitional justice harder to achieve.”

The problems arising from historical amnesia soon manifested themselves after TATR invited ordinary people to share their stories online and to present (if they had any) memorabilia to accompany their narratives.

Among the items posted was an encyclopedia with blacked out, or “sanitized,” entries about the People’s Republic of China that attested to the era’s censorship. Other participants shared their memories of being indoctrinated with Sun Yat-sen’s Three Principles of the People at school, being punished for speaking “dialects,” or even being forced to tear out the star logos (unfortunately red) printed on their Converse All Star shoes.

A ‘sanitized’ version of the Encyclopedia Americana, with passages blacked-out by state censors. The encyclopedia is kept at the National Chiao Tung University Library (photo courtesy of TATR).

Soon enough, the stories attracted criticism by people who accused the witnesses of lying and fabrication. Some questioned the authenticity of memories they said cannot be verified, while others turned to their own memories and stated that since they did not experience such traumas, the stories must therefore be fake.

The attacks forced TATR to issue a statement calling on netizens to respect the diversity of memories of life under Martial Law held by people from different regions, generations and groups, and not to dismiss other people’s life experiences.

“The same questioning logic can always be applied to the questioners themselves,” it said.

“Contemporary studies of personal and collective memories indicate that how the past is narrated can indeed be influenced by the time and situation in which the memories were told, the passage of time and the interaction between the narrator and the hearer,” it said. “But the past is not easily the product of manipulation in a democratic society where files are declassified, different groups of people’s memories are told and historical studies are done in an open and free academic environment.”

When “ordinary people” debate past events, what is really at stake but still lacking is a national report by the government detailing how many people were executed, jailed (and for how long) and subjected to surveillance, and how the institutions behind these operations played their roles and coordinated with each other.

“The state may have offered compensation to the victims of the White Terror, continues to declassify files, maintains historical sites and has even published the victims’ memoirs and interviews, but it has otherwise been completely silent about its past crimes [as an authoritarian regime],” Huang said.

“The public’s understanding of the White Terror has become hollow,” she said, adding that the victims are now little more than “elders in the family.”

People today mostly hear about the White Terror through stories that come up, inadvertently or not, during family conversations, which also refer to the persecutors as “the evil KMT.”

“It’s not exactly wrong to think of them in that way,” Huang adds, “but it certainly shows that the issue of state violence and its complexity has not been truly deliberated and reflected upon.”

Huang Chang-ling speaks during an event organized by the Taiwan Association for Truth and Reconciliation (photo courtesy of TATR).

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