The third constitutional court simulation last year had an apt subject, as the nation the same year elected its first female president and put her party in the leading position in both the executive branch and the legislature, an unprecedented scenario that has led to expectations of substantial moves toward transitional justice.
The simulation, initiated by legal experts and civil groups in 2014, aims to “seek solutions for specific social issues by adopting the oral argument procedures of the Council of Grand Justices,” especially when the issues concern “choosing between different constitutional values,” the program’s introduction says.
The third court simulation regarding transitional justice came after the first simulation in 2014 that took on same-sex marriage and adoption rights for same-sex couples, and the second in 2015 that tackled the death penalty.
In both cases, the simulated court took a progressive stance: In the gay rights case, it ruled that the Civil Code articles that exclude same-sex couples from enjoying the rights entitled to heterosexual couples to be unconstitutional, and also found as unconstitutional the Criminal Code article that prescribes the death sentence.
On Dec. 24 last year, more than a month after the two-day court simulation held in November, the simulated court presented its ruling that the now-defunct Espionage Laws of the Period of the Communist Rebellion (戡亂時期檢肅匪諜條例), the Anti-Insurgency Law (懲治叛亂條例) and the Martial Law-era court martial system were institutions of an Unrechtstatt, or an unconstitutional state that violated the liberal and democratic constitutional order and were therefore unconstitutional.
It also ruled as “ineffective” the clauses of the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (戒嚴時期不當叛亂暨匪諜審判案件補償條例) that deny certain kinds of victims reparations, as it fails to address the need for the state to redress its past unconstitutionality and contradicts Article 24 of the Constitution, which states that any person who has had their freedoms or rights infringed upon by public functionaries in violation of the law may claim compensation from the state for the damage sustained.
The CCS again made a daring move, rising above the argument against criminalizing a past authoritarian regime that had its “contributions” in fending off the communists and bringing prosperity to “Free China.”
It kept political polemics over the KMT’s legitimacy at bay by not regarding it as an emigre or colonial regime.
Since it was a constitutional court simulation, all discussions were made within the parameters of the Republic of China (ROC) Constitution; in other words, the KMT regime was held to the standard of the ROC Constitution, which it brought to Taiwan and now invokes in the face of pro-independence forces.
Given that the nation’s political landscape is idiosyncratically divided by the extent to which someone identifies with the “ROC” — some negate it wholesale, while others take it to be Taiwan’s ROC or believe its essence lies in the “C” — the ruling is politically enlightening and defendable to those who are alienated from the Constitution — since they are calling for transitional justice against the KMT — and those who venerate it.
Two questions substantiated by two judicial cases were brought up during the simulation on Nov. 13 and Nov. 19:
First, does an “enemy of the state” — someone who by violence committed an “overt act” with intent to destroy the state or use illegal means to overthrow the government according to the Criminal Code — who was tried and executed by an authoritarian state according to martial law, deserve reparations by the post-authoritarian government for being a “political victim”?
Second, are those who were tried on corruption charges which were (according to later evidence) politically motivated entitled to reparations after democratization?
The court brought forward two people convicted during the authoritarian period, whose entitlements to redress were appealed by incumbent lawmakers and the convicts’ progeny.
Executed by the KMT regime in 1953, Li Ma-dou (李媽兜) was a Taiwanese who joined the Chinese Communist Party (CCP) in 1946 and helped the CCP expand its network in Taiwan.
The CCP’s Taiwan Provincial Work Committee was set up in 1946, after which the outbreak of the Korean War in 1950, the ensuing Cold War and the US Navy’s Seventh Fleet in the Taiwan Strait helped the KMT tighten its control over Taiwan.
Until that point, the KMT regime that fled to Taiwan after its defeat in the Chinese Civil War in 1949 had anticipated its imminent eradication by the CCP.
Li was caught in 1952 following the arrest in 1950 of the work committee head Tsai Hsiao-chien (蔡孝乾), who worked with the KMT to arrest CCP members in Taiwan.
In 2000, nine years after the Temporary Provisions Effective During the Period of Communist Rebellion (動員戡亂時期條款) was annulled, Li’s descendants invoked the 1999 Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (戒嚴時期不當叛亂暨匪諜審判案件補償條例) for compensation, but was blocked from the payroll by Article 8, which states that compensation is not applicable to those whose “conviction for sedition or treason survives reviews according to the current laws or the current evidence laws.”
The other case mentioned in the ruling involved Voyue Tosku (杜孝生), a Tsou man who received a 17-year prison sentence in 1954 for corruption.
He was among a group of Aboriginal elites who were also charged with corruption, but were additionally indicted and sentenced to death or life imprisonment for “committing an overt act to overthrow” the state and “sheltering communist spies.”
The corruption and insurgency charges were “coinvestigated and cotried.”
Aboriginal elites such as Uyongu Yatauyanguna (湯守仁) and Uyongu’e Yatauyungana (高一生) of the Tsou people and Losing Watan (林瑞昌) of the Atayal — three out of the six who were executed — had advocated autonomy for Taiwan’s Aborigines, and had demanded that the new regime return certain lands nationalized by the Japanese colonial government.
Later research found they had been approached by Taiwanese communists after the war, but vacillated between cooperating with the KMT regime and joining the communist cause that promised self-rule for Aborigines.
Aboriginal people had posed a threat to both Taiwanese communists and the KMT regime, since they were located in the mountains, which had been hideouts for some communists, and because it was not without precedent that Aboriginal people could join Han Taiwanese rebellions, as in the 228 Incident.
Voyue’s daughter in 2003 applied for reparations and was denied, because his indictment was not a “charge of sedition and espionage” as the compensation act specified.
There were general and philosophical arguments made about constitutionalism, democracy and transitional justice, as well as case-specific arguments defending two political victims’ rights to state reparations.
One question regarded the extent to which the state is allowed to deviate from certain constitutional principles when entering a state of emergency, which lasted for 38 years in Taiwan and 17 years in Chile under former Chilean president Augusto Pinochet.
Javier Couso, a professor of law and social sciences at Universidad Diego Portales in Chile, said: “Strictly speaking, the state should never ‘deviate’ from core constitutional principles, but in the case of a clash between certain legitimate goals and certain rights and freedoms, in extreme cases, the government should be allowed to use a mechanism [principle of proportionality] to ascertain if the measures taken are constitutionally acceptable.”
“A state of emergency should always be regarded as an exception to the normal constitutional order, and therefore short. [It could be] weeks, or at the most a couple of months. Any government that allows a state of emergency to be longer than that risks becoming an authoritarian regime,” he said.
When asked by the simulated court’s grand justice Su Yen-tu (蘇彥圖) how Chile worked through transitional justice when it, like Taiwan, has a constitution that it inherited from the previous authoritarian regime, Couso said that while that kind of constitution “typically blocks proper transitional justice or overprotects the perpetrators, in Chile … the new justices reinterpreted the constitution, and because all constitutions typically have implicit basic values of liberal democracy, it is very easy for the court to reinterpret clauses that are there.”
In South Africa, a new constitution and a new constitutional court were set up following apartheid.
When asked in 1994 by a petitioner’s lawyer what would have been different in South Africa’s transitional justice if apartheid-appointed judges had remained on the constitutional court, former South African Constitutional Court justice Richard Goldstone said the court would have been “completely unrepresentative” of the society in terms of gender and race.
“They would have been bound by the new constitution [if they had remained], and 90 percent would have accepted that, but they didn’t come from a human rights background,” which would have posed a stark contrast to the 11 members of the new constitutional court the nation actually had, he said.
The ethos would have been very different if they were allowed to continue, Goldstone said.
Soochow University law professor Deng Yan-sen (鄧衍森) said that while there is never a shortage of conflicts between the protection of human rights and state sovereignty, “We cannot imagine that a state has a raison d’etre in itself: The only purpose of a state’s existence is to protect and guarantee its people’s rights.”
Li’s case is exemplary of this contradiction: A state’s own survival should not be the justification for the state to deviate from its real purpose if a constitutional order of liberty and democracy is to be maintained, Deng added.
However, appraiser Kao Su-po (高思博) compared Li’s case to that of Justin Lin (林毅夫), a military captain who defected to China in 1979 and became a prominent economist and adviser to the Chinese government.
“Li is now considered a political victim for his ‘wartime defection,’” while Justin Lin still faces prosecution if he returns, Kao said.
“I have a feeling that Li’s case is treated so because the time in which everybody believed he must be punished has passed. In other words, it is more like an ethical issue,” Kao said, to which agent ad litem Huang Cheng-yi (黃丞儀) responded that Lin was a soldier when he defected, whereas Li was a civilian.
National Taipei University of Education associate professor and appraiser for Voyue’s case Awi Mona (蔡志偉) of the Sediq people posed the question of what relationship the defendant in the case had with the ROC’s jurisdiction.
“Insofar as the execution of jurisdiction could be seen as evidence of state sovereignty, the question was whether the ROC was a legitimate government with jurisdiction over Taiwanese Aborigines in the early post-war years. The ROC Constitution underlines the concept of people’s sovereignty, but it is questionable whether the composition of the ROC political entity at that time actually included Aboriginal people,” Awi said.
Grand Justice Kao Yung-cheng (高涌誠) asked Awi whether this means that the distinction between political and non-political cases — political cases being the only ones covered by the compensation law — is meaningless for Aborigines.
Awi agreed, saying that many of the Aborigines convicted of various crimes at the time had advocated for autonomy, “and it was one of the grounds on which they were put on trial by the regime.”
Voyu Tosku (杜銘哲), Voyue’s youngest son and the petitioner for a constitutional interpretation of his father’s case, said his father had remained silent about the incident.
“Our family left the tribe in Alishan due to the incident. I have no words to describe to you the exhaustion and difficulties I experienced growing up as both the member of a White Terror victim’s family and an Aborigine,” he said, adding that he continued to face derision and systematic inequality in the 1970s.
“I do not want to see myself as a victim, and I have struggled excruciatingly to come to this state of mind and with a heart clear of grudges and hatred. Now I can view [my family’s past] with a healthy attitude, and I have hopes for Taiwan to become a great nation in which every person can live freely and equally,” Voyu said.
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