Fri, Sep 28, 2018 page8

• Putting commission back on track

  • By Puma Shen 沈伯洋
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  The leak of recorded remarks made by former Transitional Justice Commission deputy chairman Chang Tien-chin (張天欽) at an informal commission meeting has cast a shadow over transitional justice.

  In their attempts to manipulate voters, the two main political camps have deviated from much-needed discussion over transitional justice, so, once again, the road to becoming a nation governed by the rule of law has been drowned out by a meaningless war of words.

  The commission must recognize two things concerning its operations if it is to put the nation on a steady path toward being a nation governed by the rule of law:

  First, transitional justice is a political project. Second, transitional justice must not be a political project that is undertaken without restraint.

  Transitional justice requires reflection over the authoritarian regime. The fact that the political body of that time still exists means transitional justice has become a highly political undertaking.

  Of course, the Chinese Nationalist Party (KMT) has done some things right, but it is the commission’s responsibility to address the crimes committed by the party-state, including its abusive use of power to arrest, illegally detain, torture and issue unjust judgements against dissidents.

  Furthermore, as an independent government body, the commission must find out why the Democratic Progressive Party (DPP) continues to preserve the mistakes of the past.

  The problem with these issues is that while many people in the old bureaucracy were voluntary accomplices, others were not willing — or sometimes even forced — accomplices.

  Whether it is appropriate to allow perpetrators to remain in the bureaucracy or the political arena is an issue that must be considered in connection to the lustration process.

  There are many ways to go about lustration. The most important question is how to determine the extent of an accomplice’s involvement and to what extent legal principles regarding accomplices or indirect perpetrators should be applied, as well as how to apportion responsibility.

  The nation needs to set up standards for the commission’s investigation and decisionmaking by judges. Before these issues are properly settled, lustration will always seem to be a matter of political score-settling.

  In an age when the word “politics” has almost become a swear word, the implementation of lustration becomes especially important.

  Consequently, transitional justice must not be a political project undertaken without restraint. Restraining this power requires a comprehensive legal system and public awareness of the law.

  Lustration is not included in the Act on Promoting Transitional Justice (促進轉型正義條例).

  Article 4 of the act says that the commission should draw up plans to thoroughly investigate people linked to past abuses of power, but this is not lustration.

  Article 6 mentions the investigation of liability, but it does not include relevant measures.

  In terms of administrative regulations, neither the Regulations Governing the Transitional Justice Commission’s Investigative Procedures (促進轉型正義委員會調查程序辦法), the Regulations Governing the Investigation of Historical Truth About the Authoritarian Era (威權統治時期歷史真相調查辦法), the Regulations Governing the Transitional Justice Commission’s Processing of Public Complaints (促進轉型正義委員會處理人民陳情案件作業規定), nor the Act Governing the Transitional Justice Commission’s Handling of Transitional Justice (促進轉型正義委員會處理促進轉型正義條例) mention whether or how lustration should be applied.

  If lustration is to be carried out and the liability of perpetrators investigated, a legal foundation is required. The commission must propose a lustration law to be reviewed and passed by the legislature before it can begin. Such a law must pass public scrutiny.

  Only with legislative authorization would lustration have a legal foundation. Without that foundation, it would become a political tool.

  The commission’s responsibility is to thoroughly discuss how such a proposal should be drafted. If it was only discussing the concept, what was it apologizing for? If it was only holding an internal meeting to discuss how lustration could be carried out, what was there to “expose” and why would people say: “I do not want that kind of transitional justice?”

  Understanding of the rule of law and transitional justice is insufficient. Not only has the commission not clarified its role, society has also failed to clarify what role it should play.

  This is also why, when the word “scandal” was bandied about, everyone thought something scandalous had occurred and felt satisfied to hear someone apologize.

  However, in the end, it is still unclear what the commission should be doing. It has even been forgotten that the commission is responsible for drawing up regulations.

  While lustration should not be undertaken without legislative authorization, it should be carried out — regardless of the timing — if a law clearly stipulates it. Otherwise, the never-ending election cycle would see it postponed until the nation perishes.

  Once the commission is back on track, the public must form an accurate understanding of the rule of law and then monitor and comment on the commission’s operations.

  Puma Shen is an executive committee member of the Taiwan Association for Human Rights.

  Translated by Chang Ho-ming
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