The Transitional Justice Commission was on May 30 officially dissolved after four years of operation, and its duties were distributed among agencies of the Executive Yuan.
Did the commission achieve its goal stipulated in Article 1 of the Act on Promoting Transitional Justice (促進轉型正義條例), which says it was formed “to promote transitional justice and implement a liberal democratic constitutional order”?
The principle of separation of powers in modern democracies seeks to prevent the abuse of those powers through mutual checks and balances among the branches of government.
The executive and legislative branches are legitimized by elections, while the judiciary relies heavily on reasoning. Based on the rules of evidence and reasoning, the judicial branch can regulate the behaviors of lawmakers and enforce the rule of law.
In comparison, during the Taiwan’s authoritarian past, the ruling regime fully controlled the executive, legislative and judicial branches, enabling them to use those powers to monitor and govern Taiwanese.
With the democratization of Taiwan, the executive and legislative branches over time established procedural rules, which were put into practice in regular elections. The judiciary has not undergone such a process, and it continues to follow the model of the past authoritarian rule.
Some people criticize the judicial system, saying that it prosecutes more politicians from the pan-green camp than from the pan-blue camp, treats the rich and poor differently and makes unjust decisions.
However, most critics do not fully grasp that if an unjust judge intends to incriminate or exonerate a defendant regardless of their guilt, they would have to distort the evidence presented during a trial and breach the rules of judicial reasoning.
Such a judge would be misusing the principle that judges can freely evaluate which evidence is to be considered credible. Their decisions would not be bound by commonly accepted judicial reasoning and the modern understanding of what is right.
Poor-quality judicial decisions were common in the past authoritarian rule, and its consequences have remained unchanged.
The government has focused on transitional justice to redress politically motivated unjust decisions of that era, while many unjust decisions in apolitical cases have still not been addressed.
As a result of the past authoritarian rule, judges remain able to issue reckless rulings, knowing that they will not be held accountable. This contradicts the commonly accepted idea that good behavior should be rewarded and bad behavior should be censured.
Eliminating bad judges to rebuild judicial credibility should be a priority of judicial reform. Moreover, as Taiwanese judges serve lifetime appointments, there should be no statute of limitations for redressing unjust rulings. Only if that principle is put into practice, a balance between the power and responsibility of a judge can be ensured.
Without judicial reform, Taiwan’s democracy — dominated by power-seeking executive and legislative branches, and a judiciary that abuses its power — might become an arena ruled by the law of the jungle, and soon there would be no more checks and balances among the branches.
How, then, can Taiwan achieve a liberal democratic constitutional order, let alone the goal of promoting transitional justice?
Chen Chun-kai is a professor of history at Fu Jen Catholic University.
Translated by Eddy Chang
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