The media have reported on the Chinese Nationalist Party’s (KMT) proposed political party asset oversight and management act in response to the Democratic Progressive Party’s version of an ill-gotten party asset act. Looking at the draft bill, it clearly takes a combative approach and uses specious language in an attempt to minimize the scope of assets that must be returned. In doing so, it falls short of the public’s expectations of transitional justice.
First, everything must be returned, except in cases where there is evidence that the asset was legally obtained. Assets that were inappropriately obtained during the Martial Law era were obtained a long time ago, and it is impossible for those not involved to find information on how the assets were obtained.
Under the authoritarian system, methods used to appropriate private and national property were frequently masqueraded as legal, but the KMT’s draft bill restricts the assets that should be returned to assets that were obtained illegally or those obtained without, or with insufficient, compensation. The draft intentionally minimizes the scope of assets that should be returned.
We should refer to Article 6-1 of the Anti-Corruption Act (貪污治罪條例) which deals with an asset the source of which cannot be accounted for and shows that the burden of proof for how it was obtained lies with the KMT and that, if it is unable to do so, that asset should be treated as having been inappropriately obtained, and therefore needs to be returned.
An independent body for recovering inappropriately obtained party assets should be established. The KMT’s version of the act proposes to place this body under the Control Yuan.
However, the public has long questioned the composition of the Control Yuan and the credibility of its investigations. To charge this organization with investigating the ill-gotten party asset issue is tantamount to specifying that there should be no substantive results of such an investigation. This makes it clear that the KMT version of the act is intended to avoid the need to return any of its party assets. This is why a cross-party, independent investigative committee should be established and why dedicated legislation should be applied to eliminate the application of regular legislation. This would be the only way to effectively recover such assets.
The value to be returned should not be calculated on the price at the time the assets were transferred. The KMT’s assets were acquired a long time ago and for the value at the time to be used to calculate what the party owes would be unjust. Unless current prices are used, the party stands to make a profit on the price difference and that would not be in line with transitional justice.
Recovering ill-gotten party assets is one important link to transitional justice. It is not only necessary to clarify the truth, justice must also be carried out. This means that victims must be compensated and that assets that should belong to the public should be returned. Assets that were, for all intents and purposes, stolen during the Martial Law era should not be handled using normal legal procedures. Assets obtained in inappropriate ways during the Martial Law era should not be given protection under regular legal procedure.
As the saying goes, when you enter the court of fairness, do so with clean hands. You cannot expect the courts to give you justice if your own behavior has been unjust. Unjust and unfair events taking place at exceptional times must be given exceptional treatment. We must not let the use of regular legal principles restrict ourselves as that would prevent the nation achieving transitional justice.
Hsu Hui-feng is a professor of law at Chinese Culture University and a member of the board of the Taiwan Forever Association.
Translated by Perry Svensson
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