President Tsai's Transitional Justice Act Opens Old Wounds and New

Taiwan’s efforts to promote transitional justice took a solid step forward this week but will likely fall short of ambitious aims to achieve national reconciliation amid accusations of exclusivity and partisanship.

The Dec. 5 passage of the Act on Promoting Transitional Justice (促進轉型正義條例) (TJA) was framed by President Tsai Ying-wen (蔡英文) as landmark legislation that will enable Taiwan to make peace with a tumultuous past and turn its gaze forward once and for all.

According to a statement by the Executive Yuan, the Cabinet of Tsai’s Democratic Progressive Party (DPP) government, the Act will establish a committee “responsible for declassifying political documents, removing symbols from Taiwan’s authoritarian era, redressing judicial injustices and restoring historical truths" in a bid to "fulfill expectations for achieving transitional justice, reconciliation and unity.”

Yet the Act has been criticized for a narrow temporal purview that leaves indigenous victims of land seizure by the Japanese colonial government (1895-1945) out in the cold. The TJA aims solely to redress outstanding injustices committed from the Japanese surrender in World War II to 1992, when the last vestiges of the laws that framed the Martial Law period initiated by the nationalist Kuomintang (KMT) government in 1949 were terminated on the islands of Kinmen and Matsu.

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The Act’s structure has also drawn flack for putting too much power in the hands of DPP supporters. Consequent KMT reaction suggests the national unity it strives to attain will be hard to come by, but that is hardly unexpected from the party of opposition. Perhaps of greater concerns is that the Act may leave future generations no closer to knowing what really happened to their relatives during those dark pre-democracy days when the KMT held sway.

Declassified government documents suggest that 200,000 people tried in military courts during the martial law era were punished with sentences ranging from death and life imprisonment to re-education. In the period immediately following the declaration of martial law, more than 100,000 people went missing.

According to the state media, criminal cases from the period will be reexamined. “Victims and their families can have charges quashed or seek retrials, and can also pursue compensation for violations of their human rights,” the government said. Former political prisoners have been calling for this action since the current government assumed power.

All of which is well and good. Yet the legislation stops short of demanding that cases already deemed innocent and worthy of recompense under prior administrations be thoroughly investigated.

Archival evidence

Much of the TJA committee’s work will focus on analysis of as yet undisclosed documentation. The TJA overcomes a legal quirk that had so far seen KMT archives rendered immune to Taiwan’s Freedom of Government Information and the Archives laws because they are held in the KMT party history institute, a civil body. The committee can determine what constitutes a national archive and oblige holders of such files to hand them over or face a fine of up to NT$5 million (about US$167,000). No prizes for guessing where its sights are set.

“The archive may reveal the manipulation of the KMT leaders in political trials and how secret service personnel abused victims,” said Huang Cheng-yi (黃丞儀), chair of the Taiwan Association for Truth and Reconciliation. “Article 6 establishes a two-track mechanism for the legality of those political judgments.”

Just after the lifting of martial law in 1987, the KMT passed the National Security Act, Article 9 of which prevented victims appealing their cases to the high courts. This means that civilians tried in the martial courts remain, at least in legal terms, guilty, according to Huang.

Credit: REUTERS/Pichi Chuang

While the “Routledge Handbook of Contemporary Taiwan” suggests that more than 8,000 applicants had received about US$660 million in compensation from the White Terror Foundation (WTF), established in 1998 to coordinate monetary compensation payments, this pecuniary acknowledgment of injustice “had nothing to do with the legality of their judgments,” Huang said.

As such, Article 6 of the TJA provides legislative authority to exonerate the recipients of monetary compensation. Cases investigated and compensated by the WTF are rendered innocent under the TJA while those who were not awarded compensation (more than 10,000 applicants had applied) now have the option to bring their case to the TJA committee. “Those whose claims are denied by the committee may appeal to the high court,” Huang added.

But the mandate of the WTF was not to check on the legality of cases but rather if applicants were victims of political trials. The inference is that these investigations were not as thorough as those to be conducted under the TJA. Moreover, casting a blanket of innocence over all cases addressed by the WTF means the judgments will not be checked, and “the truth will be concealed because these cases would not be retried or reopened,” Huang said.

President Tsai said in December 2016 that her administration would complete the first official report on the White Terror era within three years, though it is unclear whether this will consider these issues. The TJA committee is responsible for producing a report within two years.

“Many of the victims are aged and dying so they want to be acquitted immediately,” Huang concluded. “The next generation might want to know what exactly happened during the White Terror: Who decided what to be done by whom. It is not a matter of personal sentiments or individual exoneration, but a national quest for truth and reconciliation.”

Partisan structure

Successive Taiwan governments have attempted to address the issue of transitional justice, encompassing a focus on apology and compensation under Lee Teng-hui (李登輝) (KMT) the as yet unfinished work of identifying those responsible undertaken by the government of Chen Shui-bian (陳水扁) (DPP), and the reversal of that work orchestrated by Ma Ying-jeou (馬英九) (KMT).

Transitional justice is, then, unfinished business the form of which has fluctuated in line with swings in the pendulum of political power. The Tsai administration is no different, having had the issue squarely in its sights since coming to power in May 2016. Last summer’s establishment of the Ill-gotten Party Assets Settlement Committee – tasked with coordinating the return of assets obtained illegally by political parties and their affiliated organizations during the martial law period – was an initial foray, and the TJA is the next stage in addressing an issue that polls suggest more than 70 percent of Taiwanese think warrants further action.

Yet the structure of the TJA committee itself, designated as “independent”, leaves Tsai and her Cabinet open to accusations of partisanship that could undermine the Act’s popularity and effectiveness.

“The chair and vice-chair of the nine-member committee are to be appointed by the Premier, and they must be approved by half of the Legislative Yuan, in which the DPP has a majority,” said Jeremy Olivier, a political commentator based in Taipei who wrote a thesis comparing South Korea and Taiwan’s approaches to traditional justice. “There is an article in the law that you can only have three people from the same party but there is no stipulation that these are necessarily party-affiliated people that will be members – they could be academics, historians or former politicians,” he said.

Olivier points back to the “ill-gotten assets committee” for an idea of what to expect: “You had academics, historians, former politicians, former KMT people, but I can tell you that they all had a bias.” That committee was chaired by Wellington Koo [顧立雄], who stepped down as a DPP legislator to take on the role – leading to accusations of partisanship and unconstitutionality that are now being repeated with respect to the TJA.

“[The Act] overrides judicial, administrative and legislative power and undermines the constitutional system,” Sra Kacaw (鄭天財), KMT legislator for the Lowland Aborigine Constituency, told The News Lens. “This law excessively targets the KMT and largely overlaps with the goals of the Ill-gotten Party Assets Settlement Committee.”

For his part, KMT party chairman Wu Den-yih (吳敦義) has said publicly that he did not oppose the establishment of a transitional justice system outright. Wu understands that the KMT is obliged to go along with the commission and atone for their actions prior to 1992.

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Wayne Chiang (蔣萬安), great grandson of Chiang Kai-shek (蔣中正) and a KMT legislator from Taipei, said in a statement that “Transitional justice represents the willingness of the state to compensate for the past injustices and repay the reputation or rights of victims and their families, both in terms of implementation and content, in keeping with the principle of fairness and justice. However, the DPP version contains a targeting and financial liquidation clause which changed the tone of the act [from rehabiliatory to punitive]. [This act] offers a means for the committee to bypass prosecutors and the courts.”

Chiang continued: “Removing the right to a trial has violated the constitutional principle of separation of powers. Transitional justice should not be selective. Illegal, unconstitutional, dangerous provisions cannot reconstruct or restore the truth of history, nor can they promote Taiwan's social unity or social reconciliation.”

Chiang can only be expected to rail against an Act that will strive to remove "symbols of authoritarianism" such as his great grandfather's Memorial Hall in Taipei, but, as J Michael Cole argues for Taiwan Sentinel, if transitional justice is to overcome the political partisanship that has dogged its previous implementation then it must be enshrined in civil institutions that command bipartisan support and outlast the four-year term allotted to Taiwan's presidents. Early indications are, sadly, that the TJA is not set up to achieve this.

Overlooking indigenous injustice

Perhaps the most glaring issue though and that is that the TJA focuses solely on the period following 1945, when the ROC took over Taiwan from the Japanese military government. The KMT had proposed an alternative version of the Act that stretched back to 1895, when the Japanese occupation began.

Indigenous groups, promised transitional justice of their own by President Tsai following protests in Taipei, are vehemently opposed to this timeframe, as there were extensive land seizures and rights abuses before this period that they feel deserve redress.

Highland aborigine constituency legislator May Chin (高金素梅) of the Non-Partisan Solidarity Union said in a Facebook post: “This system is interwoven with colonialism … The colonial system set up by the Japanese military government has been in use ever since and hasn’t changed. For indigenous peoples, colonial powers have changed, but the system remains in place.”

高金素梅臉書

DPP legislator Yu Mei-nu (尤美女) acknowledged injustices suffered by indigenous peoples occurred under the Dutch, Portuguese, and Japanese governments but suggested they were a separate issue. “There will be a process for indigenous peoples’ conditions to improve,” she said in a phone interview.

Yet the fact that the Act uses the blanket term “promoting transitional justice’” to cover only the period of KMT martial law rule, may prove problematic for the DPP, according to Olivier. ““Had the bill been drafted in the early months of the Tsai administration, I would have placed the chances of success much higher,” he said. “Likewise, the issue of aboriginal land rights and abuses committed specifically against them by preceding regimes is a major and very visible issue thanks to the protests held over the past six months or so.”

Ian Rowen, Ph.D, assistant professor of Geography, Nanyang Technological University who co-authored a paper examining the issue for the International Journal of Transitional Justice, suggested that there is “some legitimacy" to Tsai’s approach. "In 1945, the KMT directly addressed the Japanese period and displaced Taiwanese collaborators,” Rowen said. “That work – or violence – was pointed at the Japanese period. Tsai represents the ROC She has drawn the line at when the ROC took Taiwan.

“You could move [the date] back but much would be rendered moot by the passage of time. Actually, the Tsai administration took a high-level decision early on to split the issue of transitional justice and indigenous land rights. I find that decision questionable but pragmatic.”

Rowen went on to contend that settling indigenous land rights is complex, requiring extensive consultation among all Taiwan’s indigenous peoples. “They do not all get along or see eye to eye. It takes not only the president’s office and Legislative Yuan but also a wider level of consultation between those groups.”

Draft rules were published in February aiming to provide a framework to redistribute public land to indigenous peoples, but privately held plots remains a thorny issue – the cause of months of protests. If this plan were to go into effect, it would have to be negotiated as part of a promised “Indigenous Terrestrial and Maritime Territories Law” (原住民族土地及海域法) which has yet to see the light of day. The issue of indigenous land rights remains part of the DPP’s agenda, but there haven’t yet been specific proposals addressing the issue.

On the bright side, Taiwan’s persistent efforts to address transitional justice mark it apart in a region ridden with regimes that obstinately refuse to treat with past atrocities. “The DPP is under no illusion that [they] will somehow change the way Taiwan is recognized externally through this Act [but the country] has few options beyond taking a slow path to legitimacy as a member of the international community and transitional justice is part of that,” Rowen said.

Despite this, it is hard to look past the TJA as a piecemeal piece of legislation, comprising as it does just 21 articles, which fails to overcome perceptions of partiality, and leaves Taiwan’s indigenous peoples – among the least vocal yet most vulnerable members of its society – no closer to justice, transitional or otherwise.

TNL editors: David Green and Morley J Weston