In the recent debate regarding a presidential system versus a Cabinet system, the concept of "consensus democracy" advocated by Arend Lijphart is frequently used to justify a multi-party Cabinet system. I believe that if Taiwan does not first consider and deal with the "transitional justice" problem, then consensus democracy is just an illusion.
On a purely abstract level, consensus democracy is an attractive phrase because it indicates that the political system can respond to the needs of the overwhelming majority of people's demands as opposed to a "simple majority," and so it appears to be closer to the spirit of "rule by the people."
But the political differences faced by every society and the character of their political systems are not identical.
In a multi-party coalition Cabinet, is the consensus truly formed through compromise and tolerance, or is it a coalition to share the booty for political advantage? Is this an anti-democratic situation where a critical minority props up the simple majority, or a true democracy that reflects the needs of the majority?
As a young democracy that has been through several authoritarian regimes, Taiwan must first realize transitional justice. A true democratic consensus can only be established on the foundation of truth, reconciliation and rehabilitation.
Up until now Taiwan's democratization has been through a series of "transitions without justice." Taiwan's democratic transition, because of a narrow-minded focus on elections, is simply understood as transition of power, as unjust aspects of the system have not been thoroughly examined and corrected. In the glow of the transfer of power, the Democratic Progressive Party (DPP) forgot to be resolute about transitional justice.
Transitional justice's most theatric manifestation is the open investigation of the former regime's violent crimes and subsequent trials. For example, in 1991 following the political transformation, Hungary's parliament passed a law allowing the prosecution of crimes committed by authorities who suppressed the 1956 protest movement with Soviet assistance. Another example would be Germany prosecuting those former East German police who had committed crimes against citizens trying to scale the Berlin Wall.
Some academics believe that prosecution, trials and punishment can be effective at making clear the distinction between the old and new political power, and that open declaration of the crimes of the former regime can be useful in establishing the legitimacy and value of the democratic authority. The famous Harvard political scientist Judith Shklar believes that trials have a real role in promoting freedom, allowing for public admission of guilt for state crimes and legitimizing the new legal and constitutional system. The trials have become an important process for democratic consolidation.
Yet, in Taiwan it makes little difference if one is talking about the 228 Incident, the political trials of the White Terror era, the Lin Family Murders, the murder of Chen Wen-chen (陳文成), or the court martials of the Kaohsiung Incident. There are always victims but no individual or regime who has been held responsible. In regards to the Chinese Nationalist Party (KMT) treating the national treasury as the party treasury and their stolen party assets, since the victim is the people and no person in particular, the transitional justice problem is even more ambiguous. In the blink of an eye the KMT became a democratic party peacefully competing in elections, but they still place their massive party assets under the protective umbrella of "private property rights."
In fact, transitional justice is not revenge, but is rather creating a new consensus about justice through reflection on true history.
For example, when Hungary passed the law allowing prosecution of those who suppressed the 1956 demonstrators, it was declared unconstitutional by the Hungarian Constitutional Court, which stated that some of the actions committed were in fact crimes and that some individuals were responsible for them, but that the new Hungary was a country established on the rule of law and should not turn its back on the statute of limitations or retroactively punish offenders.
Here we can see legal blame assigned for the unjust crimes of the past and also see the protection of a newly established corner stone, the rule of law.
In Taiwan, although the KMT has admitted that in the past it did not distinguish between the party and the state and acted improperly, they still dare not hold a referendum on returning party property to the state as the Hungarian Communists did. If the DPP uses the slogan of transitional justice to encourage pursuing KMT party assets while suggesting consensus democracy and support of a multi-party Cabinet system, can they really form a Cabinet with the KMT? This is truly a game of words aimed only at short term political benefit.
Vincent Wang is an attorney-at-law and commissioner of the Mongolian and Tibetan Affairs Commission.
Translated by Jason Cox
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