The Legislative Yuan on Tuesday last week passed the Act on Promoting Transitional Justice (促進轉型正義條例). The law requires that the Executive Yuan set up an independent transitional justice promotion committee to take measures and handle issues related to transitional justice.
In the past, the government addressed the human rights violations and persecution that occurred during the authoritarian era by offering reparations or compensation to victims.
With the passage of the law, it appears that transitional justice in Taiwan has entered the next phase, placing a new emphasis on investigating trials of political dissidents under martial law and prosecuting perpetrators of human rights violations.
However, will the new law be able to effectively achieve that goal?
It was not until last year, after the Democratic Progressive Party and President Tsai Ing-wen won the elections, that the legislature passed 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).
The result of this has been that measures to promote transitional justice so far have focused on the easiest and most basic form of compensation for injustice — money — by financially compensating victims and depriving the Chinese Nationalist Party (KMT) of its ill-gotten assets.
The aim of the Act on Promoting Transitional Justice is to uncover more facts about past persecutions and, more importantly, to correct past judicial injustices.
According to Article 6, Paragraph 1 of the act, people who were unjustly convicted during the authoritarian era could file an appeal directly with the transitional justice committee to have their verdicts revoked, instead of having to follow the complex rules on retrials and extraordinary appeals under Article 9 of the National Security Act (國家安全法).
However, this raises questions about whether the transitional justice committee could abuse its power. The act appears to provide effective tools to do justice to victims of human rights violations, but criminal cases that qualify to be overturned by the committee are very vaguely defined as any trial that contravened the values of freedom and democracy or the constitutional order.
Moreover, the transitional justice committee is to have the authority to investigate past injustices as well as to decide whether to revoke rulings. If applicants are unhappy with the committee’s decisions, their only option would be to file a lawsuit with the High Court.
This means that transitional justice committee members are to act both as prosecutors and judges of the court of first instance. However, the law does not specify what procedures they should follow, how they should collect and select evidence, or how the rights of defendants would be protected.
The lack of details on how the committee should handle such issues in the transitional justice act means that they are given carte blanche to do whatever they want. This gives them plenty of opportunities to abuse their power, and because of that some have accused the Democratic Progressive Party (DPP) of using it for score-settling purposes.
According to Article 6, Paragraph 2 of the act, the committee also has the power to convict perpetrators of human rights violations during the authoritarian era and mete out sentences if a perpetrator can be identified.
The act defines the authoritarian era as the period between Aug. 15, 1945, when the Japanese government announced it had surrendered, to Nov. 6, 1992, when the Period of National Mobilization against Communist Rebellion ended in Kinmen and Lienchiang counties, which means that many people involved in these cases are still alive.
Whether this power of the committee also includes the power to impose the death penalty on these people is an issue that will raise concern.
To further complicate matters, this kind of government-directed or structural offense took place many years ago. To convict those involved, the committee would have to bypass the statute of limitations.
Low-ranking government officials will try to avoid responsibility by saying that they were just following orders, while high-ranking officials will deny having ordered or participated in any criminal activities. The law must therefore clearly and unambiguously state that high-ranking officials who were aware of violations committed by their subordinates, but who did nothing to stop them, are all liable.
The fact that these measures were not included in the Act on Promoting Transitional Justice means that victim and perpetrator will continue to be poorly defined in Taiwan’s transitional justice process.
Wu Ching-chin is an associate professor in Aletheia University’s Department of Law.
Translated by Tu Yu-an
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