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).