The Past Conditional Temporality of Taiwan's Transitional Justice: An Interview with Cheng-Yi Huang (Part 2)
We are pleased to discuss with Professor Cheng-Yi Huang (黃丞儀) about the challenges and possibilities facing Taiwan’s quest for transitional justice, both past and present.
Professor Cheng-Yi Huang is Research Professor at Academia Sinica’s Institutum Iurisprudentiae (Institute of Law) and Joint-Appointment Professor at the Institute of Law for Science and Technology of National Tsing Hua University. He writes and conducts research mostly in the areas of comparative administrative law, constitutional theory, law and society, transitional justice, and Taiwan legal history. He served as Chairperson of the Taiwan Association for Truth and Reconciliation (2016-2018), Vice President of the Taiwan Association for Human Rights (2011-2012), and President of the North American Taiwan Studies Association (2007-2008). His work appears in Law & Social Inquiry, Taiwan Journal of Democracy, Washington Journal of International Law, National Taiwan University Law Journal, and Oxford Handbook of Comparative Administrative Law. He is editing a book, Constitutionalizing Transitional Justice (Routledge, forthcoming), which discusses constitutional transformation and transitional justice in Latin America, Eastern Europe, South Africa and East Asia. He received his doctorate (J.S.D.) from the University of Chicago Law School. His J.S.D. dissertation won the Honorable Mention to the Best Dissertation of the Law & Society Association in 2010.
This interview was conducted online in Chinese on December 8, 2021. Its English translation has been edited for clarity and will be published in two parts. Through the lens of constitutionalism and political contestation, Part 1 considers the challenges and possibilities facing Taiwan’s quest for transitional justice. Part 2 focuses on the civil society’s responses to the limits of state-organized transitional justice initiatives. It also aims to illuminate the significance of Taiwan’s redress movement for the victims of KMT state violence vis-à-vis the Cold War and post-Cold War geopolitical tensions across the Taiwan Strait.
We have also received the permission of the Taiwanese human rights artist Chen Wu-jen (陳武鎮) to reproduce the images of two of his artworks—“No. 17 Chen, Jung-tien Should be Sentenced to Death Together” and “Names in the Wind No. 7” on our website. Special thanks for this arrangement goes to Matthew Mucha, our editorial assistant, and Dr. Shuo-bin Su, Director of the National Museum of Taiwan Literature.
Interviewed by Sida Liu, Sabrina Teng-io Chung, and Yu-Han Huang
Translated by Sabrina Teng-io Chung
Edited by Matthew Mucha
“The struggle of man against power is the struggle of memory against forgetting.”
- Milan Kundera, The Book of Laughter and Forgetting
Taiwan Gazette: So far, we have sought to understand the challenges and possibilities facing Taiwan’s quest for transitional justice through the lens of constitutionalism and political contestation. Perhap we can now turn our focus to the civil society’s responses to the limits of state-organized transitional justice initiatives and mechanisms? Can you discuss the specific interventions that the Taiwan Association for Truth and Reconciliation (台灣民間真相與和解促進會; hereinafter the TATR) undertook to facilitate the implementation of transitional justice measures in Taiwan? In particular, can you explicate the implications behind the Constitutional Court Simulation (模擬憲法法庭) that the TATR convened in 2016?
Cheng-Yi Huang: In 2007, Professor Wu Naiteh (吳乃德) founded the TATR as a response to the negative perceptions surrounding the label of transitional justice during President Chen Shui-Bian’s (陳水扁) second term in office. At that time, Chen Shui-Bian was involved in a series of scandals over corruption and the misuse of state funds. Concomitantly, then Minister of Education Tu Cheng-sheng (杜正勝) had called for the renaming of the C.K.S. Memorial Hall and the implementation of educational reform. The media criticized the Chen administration for appropriating transitional justice initiatives: the government used transitional justice as a tool to garner public support whenever its legitimacy was under threat. In media portrayal, transitional justice is nothing but a tool for political contestation.
For Professor Wu and other founding members of the TATR, the civil society’s quest for transitional justice should not be made synonymous with the government’s attempts to secure its legitimacy to rule. They considered a major goal for transitional justice initiatives in Taiwan to be the recuperation of historical memory concerning past atrocities. To realize this goal, the TATR conducted a series of oral interviews with political victims. It also sought to adopt and learn from the experiences of South Africa’s Truth and Reconciliation Commission (TRC).
As mentioned earlier, Article 9 of the National Security Act prevented political victims from seeking redress through litigation after Taiwan’s democratization. Efforts to address and redress the state’s wrongdoings were mostly organized by political victims themselves or a few cultural figures. For instances, Chen Yingzhen’s (陳映真) Ren Jian (人間) magazine had published reports on the victims of White Terror. Each year, the Taiwan Area Political Victims Society (台灣地區政治受難人互助會) organizes memorial ceremony at Machangding (馬場町), a former execution ground for alleged communist spies or political dissidents. Filmmaker Wan Jen (萬仁) had also released Super Citizen Ko (超級大國民), a feature film that revolves around the rediscovery of a mass grave for political victims at Liuzhangli (六張犁). Besides these redressive measures, scant public attention had been paid to the predicaments of political victims in the 1990s.
However, DPP legislator Hsieh Tsung-min (謝聰敏), a political victim himself, had helped facilitate the legislation 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; hereinafter the Compensation Act). Even though this legislation allowed political victims to apply for monetary compensation, it was not without its limitations. Article 2 of the Compensation Act delimits a narrow scope of eligibility for the compensation scheme. It only recognizes an eligible applicant as a person convicted of one of the following statues—the Article 100 of the Criminal Code （刑法100條 ), the Act for the Control and Punishment of Rebellion（懲治叛亂條例 ), or the Espionage Laws of the Period of the Communist Rebellion（戡亂時期檢肅匪諜條例 ). In addition, Article 8 provides that defendants would not be eligible for compensation should the facts and evidence prove that the crimes they committed remain punishable under the current criminal laws and evidence laws.
In fact, a large number of political victims had been active participants in underground communist activities in the 1940s and 1950s. Many of them felt guilty about their family members who were equally subjected to intense state surveillance and suppression because of their activities. Their children could not study abroad and their job opportunities were limited. To compensate for their family’s loss, the political victims would choose not to acknowledge their communist background when applying for compensation. Instead of consolation, however, the silence around their past would haunt them with a sense of remorse. They could not reconcile with their betrayal of their former comrades. For this reason, some of them would choose to recount the truth in oral interviews commissioned by the TATR in the 2000s.
However, knowing Professor Wu’s anti-KMT stance, some political victims were reluctant to disclose the full details of their experiences. Based on what I have learned from the recent interviews conducted by others, quite a lot of people managed to admit that they were former members of the Taiwan Provincial Working Committee (臺灣省工作委員會) established by the Chinese Communist Party.
The restrictions posed by the Compensation Act have resulted in a mechanism that further hides the historical truth from view. To conform to the compensation scheme’s eligibility requirements, political victims would choose to remain silent about what they did in the past. The outcome of this compensation scheme is a complete contradiction to that of South Africa’s TRC—a model which offers amnesty to individuals who fully disclose in public their involvement in politically motivated gross human rights violations. In Taiwan, we offer monetary compensation to individuals who manage to consign the truth to historical oblivion.
When I served as the Chairperson of the TATR in 2016, I sought to address the restrictions posed by the existing compensation mechanism. To encourage further discussion on the transitional justice processes and mechanisms that could be made available in Taiwan, the TATR convened the Constitutional Court Simulation of 2016 (the Simulation or Moot Court) with the Taipei Bar Association. The two civic groups invited lawyers to review the constitutionality of the provisions of the Compensation Act, specifically Article 2 of the Act which excludes political victims failing to meet its eligibility requirements from receiving compensation, as well as Article 8 which discourages the disclosure of historical truth pertaining to political victims’ involvement in underground communist activities.
In fact, Taiwanese society has not yet come to terms with these questions: Should we redress the historical injustice and juridical wrongs done to underground communist members? Should state enemies be exonerated from their charges? Given the increasingly antagonistic atmosphere between mainland China and Taiwan, Taiwanese people tend to imagine “communist China” as an enemy external to the national community. Many existing factors have contributed to the people’s imagination as such. For instances, former Kaohsiung mayor Han Kuo-yu (韓國瑜) was removed from office after a recall largely because of his pro-China stance; young Chinese netizens or the so-called little pink were accused of spreading fake news on the internet; the current political situation in Hong Kong suggests that the “One Country, Two Systems” framework is infeasible for Taiwan. When added together, these issues aroused a strong resentment and deep distrust towards China among the Taiwanese people. Exonerating state enemies and redressing their injuries might not be acceptable to the people. However, to resolve the very crux of Taiwan’s pursuit of transitional justice, we must learn to reckon with—however belatedly—the figure of underground communist members within our community.
Another case being reviewed in the Simulation concerns Voyʉe Toskʉ (杜孝生; Tu Hsiao-sheng), an indigenous doctor from the tribe of Tsou. In 1952, along with other elite members from their tribe, Voyʉe and his brother Uyongʉ’e Yatauyungana (高一生; Gao Yisheng) were charged with political crimes. Uyongʉ’e was later charged with treason and sentenced to death, while Voyʉe was convicted of embezzlement in accordance with the Act for the Control and Punishment of Corruption (懲治貪污條例). As mentioned earlier, Article 2 of the Compensation Act stipulates that only defendants convicted of one of the aforementioned statutes could be eligible for compensation. Because Voyʉe was convicted of embezzlement, a crime not listed in Article 2, his children’s application for compensation was declined. However, since the passage of the Act for Promoting Transitional Justice (TJA) in 2017, they were able to petition their case to the newly established Transitional Justice Commission (TJC) and receive compensation. Voyʉe was eventually acquitted of his charges in accordance with Article 6 of the TJA. When preparing materials for the Simulation, we decided to review the Voyʉe Toskʉ case and the underground communist member case for this reason: while it is relatively easy to resolve the former through due appellate process, the later raises serious questions concerning the constitutionality of the criminal prosecution of communist enemies.
During the Moot Court, the justices adopted the German concept of the illegal/illegitimate state (Unrechtsstaat) in their ruling, declaring that the criminal codes, special laws, and some constitutional provisions of the R.O.C. are in violation of the principles of constitutional democracy. This ruling in effect nullified the Punishment of Rebellion Act, acquitting underground communist members of their charges of treason and secession. A number of legal scholars and lawyers who participated in the Moot Court found this judgment unacceptable, however. They disagreed with the justices’ assessment of the KMT rule during that time as constituting an illegal/illegitimate state. Moreover, the decision to acquit underground communist members might not be well received by the public. The legitimacy of this ruling needs to be understood in relation to our government’s recent attempts to remove authoritarian symbols such as the C.K.S. Memorial Hall: Can the removal of authoritarian symbols go hand in hand with the acquittal of communist members?
Since the Chinese Civil War and the Cold War, the KMT government has derived its legitimacy to rule from the banner of anti-communism. After democratization, successive Taiwanese governments have resorted to a similar anti-communist agenda to consolidate their rule. Chiang Kai-shek was regarded as a savior of the Chinese nation; while his successor as well as his son, Chiang Ching-kuo, was remembered for his contributions to Taiwanese economy and democratic transition. In what ways can we justify the redress of injuries and losses suffered by former communist members who are still regarded as state enemies by our current laws? What do these redress efforts entail? Does it mean that Taiwan is ready to embrace the legitimacy of Chinese Communist rule and the “One Country, Two Systems” framework?
This is precisely why the existing transitional justice mechanism in Taiwan fails to deal with the historical complexity of our authoritarian past. Organized efforts towards transitional justice have been made in terms of declassifying political documents, redressing juridical wrongs, and compensating political victims, among other things. Dealing with the past however also involves a tireless reckoning with these questions: in what ways had the Cold War legitimated the KMT’s authoritarian rule over Taiwan? How should we understand the workings of the KMT regime and critique the systematic violence and injustice it perpetuated? Can the use of state violence be ever considered as just under exceptional circumstances? How should we assess Chiang Kai-shek’s handling of the Lei Chen (雷震) case and the removal of his presidential term limits? And how should we evaluate the discourse of anti-communism which renders unredressable the historical injustice facing a certain group of political victims? This set of questions poses great challenges to our pursuit of transitional justice in Taiwan today.
Taiwan Gazette: Since the Transitional Justice Commission has submitted its final report to Premier Su Tseng-chang (蘇貞昌) and ended its function on May 30, 2022, what else could the government or the civil society do in terms of promoting transitional justice in Taiwan?
Cheng-Yi Huang: The final report, which counts to more than 1.7 million words, is monumental. However, so far it has neither been known nor even read by too many people in Taiwan. It’s a pity that the Transitional Justice Commission was entangled with political scandals at the very beginning of its founding. As a result, certain members of our society, mostly holding pro-KMT stances, did not find the Commission trustworthy. Now I think the civil society has to take up what has not been done and cannot be done by the Commission. Transitional justice might be a controversial term which cannot connect the people of Taiwan with the core question: How to deal with the past? We have to first unfold the ideas of the authoritarian past and make people aware of the historical complexity of the KMT’s authoritarian rule between 1949 and 1990. We may then engage more people in the process of “dealing with the past.” A more inclusive process of rediscovering the past is the most difficult but essential job that the Commission has not successfully done and should be fulfilled by more civic efforts.
Taiwan Gazette: Can you discuss the inadequacies of the Tsai administration’s transitional justice policy in terms of its handling of indigenous peoples’ quest for justice?
Cheng-Yi Huang: To be honest, I am not an expert on this topic. There are other scholars in Taiwan who specialize in indigenous law and indigenous justice, such as Professor Wu Hao-Jen (吳豪人) and Professor Lin Shu-Ya (林淑雅).
In fact, the question of indigenous historical justice in Taiwan involves more than just legal issues. It has deeper-running issues in the areas of land, language, and sovereignty. Starting from the period of Qing rule over Taiwan, indigenous peoples have gradually lost their ancestral land to state development and land grabs. By means of leasehold arrangements and land cultivation over the “savage border,” Han Chinese settlers had expropriated indigenous land in the western plain of Taiwan. Moreover, the Japanese colonial government promulgated the Regulations of National Forests Management and Camphor Production (〈官有林野及樟腦製造業取締（管理）規則〉) in 1895, turning all indigenous lands that were then regarded as terra nullius into state-owned land. This colonial legislation made possible the subsequent state seizures of a huge swath of indigenous peoples’ ancestral land.
Under the Chen Shui-Bian administration, the Indigenous Peoples Basic Law (原住民族基本法; hereinafter the Basic Law) was enacted, “protecting the fundamental rights of indigenous peoples, promoting their subsistence and development and building inter-ethnic relations based on co-existence and prosperity.” Yet, it falls short in addressing whether, in accordance with its provisions which aim at facilitating the return of “indigenous land,” the land that was lost due to Japanese colonial legislations and Han Chinese settler practices should be returned to the indigenous peoples. This remains a bone of contention in our society today.
Protestors marched the streets holding the “Return Our Lands” slogan. Image Credit: Chiu Wan-hsing
“Return Our Lands” has been a major slogan that runs through the indigenous rights movement emerging in the 1980s. After President Tsai Ing-wen took office, indigenous singer Panai Kusui (巴奈·庫穗) protested against the Presidential Office’s Indigenous Historical Justice and Transitional Justice Committee (原住民族歷史正義與轉型正義委員會; hereafter Indigenous Justice Committee) and the Executive Yuan’s Council of Indigenous Peoples (行政院原住民委員會) for their failure to broaden the definition of indigenous “traditional territory,” an endeavor which could help facilitate the return of privately held land to indigenous peoples. She has been protesting at the 228 Peace Memorial Park since 2017. However, while the issue of indigenous land claims could be understood in relation to the question of “transitional justice,” its historical complexity and connections with resource distribution-related policies and mechanisms deserve a separate line of inquiry. I believe that we should not conflate our inquiries into the longue durée of settler colonialism and indigenous historical injustice with that of the legacy of KMT authoritarian rule and its redress.
As mentioned before, the issue of indigenous justice is tied to the questions of language revitalization, cultural preservation, and indigenous sovereignty and self-determination. Although the Chen administration declared a “new partnership” (新夥伴關係) with the indigenous peoples in 2002, it did not offer a concrete agenda concerning the return of land to indigenous peoples. It also failed to resolve the tension between indigenous tribal councils and city councils in terms of decision-making and policy implementation. After being elected to the presidency in 2016 due in large part to the calls for democratic reform during and after the Sunflower Movement, President Tsai Ing-wen issued a formal apology on behalf of the government to the indigenous peoples. In the apology, she mentioned that the government would work “to retrieve historical memories, to promote indigenous self-government, to seek fair economic development, to ensure continuation of culture and education, to safeguard indigenous health, and to protect the rights of urban indigenous peoples.” She also assembled the representatives of 16 indigenous tribes and that of the Pingpu people in a ceremony during which she approved the Guidelines for Establishment of the Presidential Office Indigenous Historical Justice and Transitional Justice Committee.
But in essence, the Council of Indigenous Peoples have been pursuing the same set of goals. The Indigenous Peoples Basic Law has also been enacted under the Chen administration to address similar issues. What Tsai could do is in fact very limited. The newly established Indigenous Justice Committee could only be advisory in nature. Since the Committee’s establishment, representatives of various indigenous tribes, scholars, and experts have put forward many reform proposals—the degree of implementation of which is relatively low. The investigation of the historic borders of indigenous traditional territories alone poses serious challenges to the Committee. Without the support of the administrative system, the Committee can only make recommendations at best. It does not have the power to launch investigations and implement policies on its own. Hence, we can consider the Committee as a symbol without substance.
During the legislative review process of the Act for Promoting Transitional Justice, legislator Kao Chin Su-mei (高金素梅) and other KMT-affiliated legislators emphasized the need to bring in the issue of indigenous historical justice to the said Act. However, as mentioned earlier, the root cause of indigenous historical justice is tied to the issue of land rights, language revitalization, cultural preservation, and indigenous sovereignty. Though important, these issues are matters of concern that are drastically different from the KMT’s persecution of political dissidents during the White Terror. How should we investigate cases of a different nature—say, the political case of Lei Chen on the one hand, and the case related to the return of the land near Sun Moon Lake Ita Thao to the Thao people on the other—under the framework of the same legislation? The TJA is mainly concerned with the redress of state violence and juridical wrongs done to political victims between 1949 to 1991. We might indeed need a larger framework to address the historical injustice suffered by the indigenous peoples in Taiwan.
Taiwan Gazette: Thank you very much for your detailed explanation. Our last question is actually related to the evaluation of Taiwan’s experiences of transitional justice under a different context, or to use your term, a larger framework. What might be the significance of Taiwan’s quest for transitional justice in the face of the growing geopolitical tension across the Taiwan Strait, especially the repressive climate in Hong Kong since the imposition of the National Security Law of 2020?
Cheng-Yi Huang: This question is relevant not only to the situation in Hong Kong, but also to that in mainland China, such as the restitution movement for the 1989 Tiananmen Square protests. When we talk about the history of political prosecution in Taiwan, we often refer to such victims as political dissidents who faced charges or execution in the early 1950s, or liberal intellectuals associated with the Free China Journal (自由中國), such as Lei Chen and Fu Cheng (傅正), whose democratic ideals were crushed by state power in the 1960s. Forms of legal redress were made available to these victims only some 70 years later. And for the past thirty years, victims of the Tiananmen Square protests and their family members have been denied justice and state reparations. Yet, Taiwan’s experience might have offered consolation for some. It exemplifies how the passage of time does not necessarily compromise our quest for historical justice, but instead substantiates it. In other words, there is always hope on the horizon.
But I also think that an important factor contributing to the development of Taiwan’s redress activism is not only the democratization process that emerged from the lift of martial law in 1987 and the end of “the period of national mobilization for suppression of the communist rebellion” in 1991. What I mentioned earlier about the “paradigm shift” in our historical understanding of authoritarian legacy is also indispensable to such a development. In the 1990s, public awareness of the predicaments of political victims was limited. It would have been virtually impossible to garner public support or understanding towards the acquittal of former political prisoners. Indeed, the quest for historical justice is contingent upon the socio-political changes and epistemic shifts in which it is situated. Earlier calls for redress were met with the political and juridical constraints under the post-martial law milieu of the 1990s and the Chen Shui-bian administration of the 2000s. Without a paradigm shift in our historical understandings of the past—a process whose condition of possibility assumes an indeterminable passage of time—attempts at transitional justice could have been foreclosed in advance.
Someone once commented to me about the profound injustice confronting the political victims during their protracted struggles for justice. The sense of injustice would be even more pronounced with the passing away of victims before their political cases could be acquitted. For Taiwanese society, however, perhaps the passage of time makes space for our critical assessment of the past. This temporal distance also defines the new political generation to come.
Those who are now in their twenties and thirties have no direct experiences of martial law or authoritarian rule. When we present them with relevant sources and historical facts, they will come up with an assessment of the past based on their own judgment. This judgment is by no means confined by what the law allows or prohibits, however. It is not the law that prescribes upon them a certain set of historical perspectives. Instead, from the declassified archives and other source materials, they will be able to map out their own judgment of the past, uncovering the historical truth from facts.
I once attended a high school event where one of the students presented a study on the The February 28 Incident Disposition and Compensation Act (二二八事件處理及賠償條例). Despite their waisheng family background, the student displayed a strong interest in learning about the historical details of the February 28 Incident and how the said Act facilitated the compensation of political victims. What surprised me is these young people’s quest for historical knowledge. Despite having grown up in the years after Taiwan’s democratization, they understand that their country’s past is not a complete, empty void. They want to look into the past and understand what fuels the politically contentious issues of our times.
At the beginning of our interview, I mentioned a female audience member of my talk at the C.K.S. Memorial Hall who held conservative assumptions about Taiwan’s democratization processes. By contrast, we have also seen a new generation of young people who are willing to work through the archives and reconstruct their own understanding of the past. This is the result of an ongoing process of political change. The past thirty years of political liberalization and democratization have brought about new hopes and developments for Taiwan. Can the Taiwanese experience be of any help to the current situation in Hong Kong? I am afraid that it cannot offer any immediate help to Hong Kong. It cannot help to resolve its current situation. However, in terms of its referential significance, the Taiwanese experience reveals to us that the political silencing that is engulfing Hong Kong at the moment is not a historically done deal. Paradigm shifts, political changes, and epistemic ruptures will bring about new understandings of the past, enabling new possibilities for the pursuit of historical justice.
Civil groups marched in Taipei to commemorate the 75th anniversary of the 228 Incident. Image Credit: Chiu Wan-hsing
