Thu, Apr 05, 2018 - Page 8 News List

Transitional justice needs formal legal structure

By Wu Chia-hung 吳佳鴻

Former Control Yuan member Huang Huang-hsiung (黃煌雄) was last month nominated to be the chairman of a nine-member transitional justice promotional committee. The nomination has not only been questioned by many academics, who have long expressed concerns about the issue of transitional justice, but it has also encouraged some people to decline a seat on the committee.

The debate stirred by the nomination gives an insight into what transitional justice means to President Tsai Ing-wen (蔡英文) and her administration, as well as whether the nomination of committee members and the way they were selected are consistent with the core values of transitional justice.

Since the 1980s, many countries have had to face issues related to transitional justice. Taiwan is no exception, as it also faces this difficult task following the lifting of martial law.

Why is this process seen as “transitional?”

When a state frees itself from a long period of dictatorship and authoritarianism, and starts moving toward reconstruction, affirming democracy, freedom and human rights as core values of society, it undergoes a transformation that is revolutionary in character. The word “transitional” refers to this massive process.

Nations dealing with issues of transitional justice often face two problems. The first one is how to deal with the negative legacy and the record of oppression left by the previous regime; and the second one is how to form a cultural system built on human rights, legal principles and democracy.

Taiwan also faces these problems. However, due to the nature of Taiwan’s so-called “quiet revolution” — or “installment revolution” — on these two issues, it has not really achieved transitional justice, such as investigating the criminal responsibility of perpetrators, the clarification and reconstruction of history, and the reforming and purging of government administration at different levels.

In addition to reviewing historical memory, the essence of transitional justice is more about ensuring the establishment of mechanisms that will prevent the same thing from happening again.

Modern democracies are built on a constitution, which is a country’s most fundamental law. The rights of the people lie at the core of a constitution, and governmental organization is designed and operates around this core.

Therefore, at least in its form, a democracy should be a “limited state” in that it is subject to legal restraints.

However, once a democratic transition takes place, if the law does not implement a “paradigm shift” to form a “transformative law,” then the so-called political democratization could easily deteriorate into simply another change of political power.

The transitional justice promotional committee will bear an important historical responsibility. Given this situation, the nomination of Huang as chairman is quite surprising, as he had, while serving in the Control Yuan, opposed the recall of then-prosecutor-general Huang Shih-ming (黃世銘), who had been convicted of leaking information to then-president Ma Ying-jeou (馬英九).

Huang has also said that Ma is the “Chinese Nationalist Party [KMT] chairman who has been most determined to thoroughly deal with” the KMT’s party assets.

It will be very interesting to see how the Tsai administration will implement the values that should be part and parcel of transitional justice.

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