Mon, Apr 17, 2017 - Page 3 News List

FEATURE: White Terror on trial in simulated court

UNCONSTITUTIONAL:Arguments focused on two cases during the Martial Law era: a Taiwanese member of the CCP, and a Tsou man who was imprisoned for corruption

By Alison Hsiao  /  Staff reporter

The third constitutional court simulation last year had an apt subject, as the nation the same year elected its first female president and put her party in the leading position in both the executive branch and the legislature, an unprecedented scenario that has led to expectations of substantial moves toward transitional justice.

The simulation, initiated by legal experts and civil groups in 2014, aims to “seek solutions for specific social issues by adopting the oral argument procedures of the Council of Grand Justices,” especially when the issues concern “choosing between different constitutional values,” the program’s introduction says.

The third court simulation regarding transitional justice came after the first simulation in 2014 that took on same-sex marriage and adoption rights for same-sex couples, and the second in 2015 that tackled the death penalty.

In both cases, the simulated court took a progressive stance: In the gay rights case, it ruled that the Civil Code articles that exclude same-sex couples from enjoying the rights entitled to heterosexual couples to be unconstitutional, and also found as unconstitutional the Criminal Code article that prescribes the death sentence.

On Dec. 24 last year, more than a month after the two-day court simulation held in November, the simulated court presented its ruling that the now-defunct Espionage Laws of the Period of the Communist Rebellion (戡亂時期檢肅匪諜條例), the Anti-Insurgency Law (懲治叛亂條例) and the Martial Law-era court martial system were institutions of an Unrechtstatt, or an unconstitutional state that violated the liberal and democratic constitutional order and were therefore unconstitutional.

It also ruled as “ineffective” the clauses of the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (戒嚴時期不當叛亂暨匪諜審判案件補償條例) that deny certain kinds of victims reparations, as it fails to address the need for the state to redress its past unconstitutionality and contradicts Article 24 of the Constitution, which states that any person who has had their freedoms or rights infringed upon by public functionaries in violation of the law may claim compensation from the state for the damage sustained.

The CCS again made a daring move, rising above the argument against criminalizing a past authoritarian regime that had its “contributions” in fending off the communists and bringing prosperity to “Free China.”

It kept political polemics over the KMT’s legitimacy at bay by not regarding it as an emigre or colonial regime.

Since it was a constitutional court simulation, all discussions were made within the parameters of the Republic of China (ROC) Constitution; in other words, the KMT regime was held to the standard of the ROC Constitution, which it brought to Taiwan and now invokes in the face of pro-independence forces.

Given that the nation’s political landscape is idiosyncratically divided by the extent to which someone identifies with the “ROC” — some negate it wholesale, while others take it to be Taiwan’s ROC or believe its essence lies in the “C” — the ruling is politically enlightening and defendable to those who are alienated from the Constitution — since they are calling for transitional justice against the KMT — and those who venerate it.

Two questions substantiated by two judicial cases were brought up during the simulation on Nov. 13 and Nov. 19:

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