Martial law was lifted in Taiwan nearly three decades ago, but the concepts and systems that supported it have yet to be completely swept away. Recent reports about a military instructor at National Chengchi University ripping up a flier about the 228 Incident and military police abusing their powers by searching a home without proper legal authority are examples of how the cancer has yet to be fully cut out.
Martial law is distinguished by the fact that it is run by a military regime. During the period in which Taiwan was ruled by former presidents Chiang Kai-shek (蔣介石) and Chiang Ching-kuo (蔣經國), military personnel were not only responsible for national defense, they also controlled the government and every aspect of society. Generals were employed as high officials; the Taiwan Garrison Command controlled thought; the Political Warfare Bureau watched the media; military training instructors stationed in schools, colleges and universities supervised what was happening on campus; and retired soldiers ran monopoly industries.
Together, these formed a clandestine network of military control that, although curtailed somewhat with the advent of democracy, has never actually been completely abolished.
National defense is concerned with the survival of the nation, but it is imperative that military personnel are prevented from interfering in government, while the emergence of a military dictatorship must be guarded against. It is precisely for this reason that civilian rule and the separation of the civilian government and the military are written into the constitutions of democratic nations.
The Republic of China (ROC) Constitution is quite clear on this point. In Article 138 it says: “The land, sea and air forces of the whole country shall be above personal, regional or party affiliations, shall be loyal to the state and shall protect the people.”
In Article 139, it says: “No political party and no individual shall make use of armed forces as an instrument in a struggle for political powers.”
And in Article 140 it stipulates that: “No military personnel in active service may concurrently hold civil office.”
There it is. The military serves the nation. Military personnel must maintain political neutrality and must not interfere in politics or in partisan disagreements. There must be a separation of military and civilian powers.
This is not just the case in Taiwan. Germany, which suffered at the hands of Nazism, has written in Articles 87a and 91 of its constitution — the Basic Law for the Federal Republic of Germany — that the military is only responsible for matters of national defense and can only get involved in matters above and beyond this in the event the country is faced with specific emergency circumstances clearly outlined in the Basic Law, or when it is deemed that the federal police or the border police cannot deal with the situation at hand. In these special circumstances, the German armed forces can be brought in to assist the federal government. However, to prevent abuses of power, it is also specifies that either the Bundestag (federal parliament) or Bundesrat (federal senate) can require that this is stopped.
In other words, the requirements, processes and preventive measures needed to place civilians above the military and being able to mobilize the military are all directly stipulated for in the German constitution. These mechanisms are all designed to protect Germany’s system of free and democratic constitutional government and to prevent the re-emergence of militarism or a military dictatorship.
In view of all this, if transitional justice is the goal, Taiwanese cannot allow themselves to simply go chasing after the symptoms of the malady; they need to go straight to the root of the problem, to initiate systemic reform. The military should restrict itself to the protection of the realm. There needs to be a thorough separation of military and civilian powers. The law should be amended to curtail the powers of the military police so that they are more in line with the role military police play in other democratic countries and restricted to dealing with matters exclusively concerning military personnel involved in military affairs. This would help prevent the re-emergence of the ghost of the White Terror era.
Further amendments will be required to completely remove military instructors from university and high-school campuses. This is more than just a question of self-governance for universities as indicated in Judicial Yuan Constitutional Interpretation No. 450; it is a necessary condition for the separation of civilian and military powers.
Until such time as the nation can rid itself of the poisonous legacy of the former military regime, Taiwan will never possess a genuinely democratic and professional military. As the 30th anniversary of the lifting of martial law approaches, hopefully the new legislature will go all out to solve these problems as soon as possible.
Chen Yaw-shyang is an assistant professor in the Department of Public Administration and Policy at National Taipei University.
Translated by Paul Cooper
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