Tue, Dec 26, 2017 page3

• Transitional justice laws violate rule of law, pose constitutional challenges: Ma

  • By Shelley Shan / Staff reporter
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  Former president Ma Ying-jeou (馬英九) criticized two transitional justice laws promoted by the government, saying that they have violated the guiding principles of the rule of law and would pose serious challenges to the Constitution.

  Ma commented on the Act of Promoting Transitional Justice (促進轉型正義條例) and the Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (政黨及其附隨組織不當取得財產處理條例) during an address to a summit organized by the Taiwan Competitiveness Forum in Taipei yesterday to mark Constitution Day.

  The laws violate the principle of presumption of innocence by asking the accused to prove their innocence, rather than prosecutors proving guilt, Ma said.

  The acts have also violated the principle of non-retroactivity, Ma said, adding that they also clearly target a specific group or party.

  “The rule of law requires that laws be stipulated using clear and specific terms. What is the definition for an ‘ill-gotten asset’? How is ‘an affiliated organization’ of a political party defined? The definitions for these terms in the acts are vague and the agencies charged to enforce these laws can interpret them based on their authority,” he said.

  The acts also fail to observe the principles of protection against double jeopardy and address conflicts of interest, Ma added.

  The acts authorize the Executive Yuan to establish new agencies to enforce the legislation, which is a violation of the Basic Code Governing Central Administrative Agencies Organizations (中央行政機關組織基準法), Ma said.

  “These agencies have even greater authority than the courts. This would hurt Taiwan as a democratic nation governed by law, infringe upon people’s rights and their interests, and ruin the harmony between the ruling and opposition parties,” he said, adding that some people are planning to seek interpretations from the Council of Grand Justices on whether the acts are constitutional.

  Ma quoted British historian John Dalberg-Acton’s famous remark: “Power tends to corrupt and absolute power corrupts absolutely.”

  Ma said he used this quote in his inaugural address nine years ago to remind himself and all government workers that they need to exercise the authorities invested to them cautiously.

  “I stepped down only one-and-a-half years ago and my successor has already failed to meet that expectation,” he said.

  Ma also talked about what he said were misconceptions about transitional justice — a concept that was first introduced to cope with the issues facing Germany after World War II.

  The goal was to take concrete remedial actions to address human rights violations under the Nazis, including compensating victims and their families, holding culprits accountable and investigating truths, Ma said.

  The concept was later applied to address the issues facing eastern European nations following the fall of communist regimes and post-apartheid South Africa, he said, adding that Taiwan’s case is different from these nations.

  “Martial law ended in 1987. For decades, the government has been taking a series of remedial actions to cope with the damage done by the 228 Incident and the White Terror era, including confessing to crimes, issuing formal apologies, setting up monuments, protecting the rights and reputations of the deceased and making Feb. 28 a national holiday,” he said.

  Over the past 13 years, the government has spent about NT$27 billion (US$901 million) compensating victims or families of the Incident and White Terror, Ma said, adding that the 228 Foundation is still helping victims and their families seek restitution.

  Rather than setting up two new agencies to enforce the acts, matters related to transitional justice could be settled through the judicial system, Ma said.
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