The Law and Politics of Taiwan’s Transitional Justice: An Interview with Cheng-Yi Huang (Part 1)
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 (Please read the Chinese-language interview here). Its English translation has been edited for clarity and has been 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 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, Yu-Han Huang, and Sabrina Teng-io Chung
The main gate, the Gate of Great Centrality and Perfect Uprightness, of the Chiang Kai-shek Memorial Hall before its rededication as Liberty Square in 2007. Image Credit: Wikipedia Commons
Taiwan Gazette: On July 15, 1987, President Chiang Ching-kuo (蔣經國) lifted the martial law in Taiwan. At the same time, the National Security Act During the Period of National Mobilization for Suppression of the Communist Rebellion (動員戡亂時期國家安全法; hereinafter the National Security Act) was promulgated. How, if at all, has this legislation affected Taiwan’s quest for transitional justice in the post-martial law era? In what ways have the provisions of the R.O.C. Constitution enabled or restricted the implementation of transitional justice mechanisms? What might be the specific goals of Taiwan’s project of transitional justice?
Cheng-Yi Huang: This Sunday (December 5, 2021), I went to the Chiang Kai-shek Memorial Hall (hereinafter referred to as the CKS Memorial Hall) to give a speech entitled “The Impact of the National Security Act on Taiwan’s Democratization During the Period of National Mobilization for Suppression of the Communist Rebellion.” I arrived at the following argument after examining the newspapers and important memoirs of the time: the Kuomintang (KMT) government performed an act of exchange on the eve of Taiwan’s democratization. The National Security Act was enacted in exchange for martial law. That is to say, martial law would not have been lifted without the enactment of the National Security Act. The National Security Act was passed on June 23, 1987. Meanwhile, the Democratic Progressive Party (DPP) was founded on September 28, 1986. At that time, the newly founded DPP only had 13 seats in the Legislative Yuan, meaning that it was difficult for them to block the legislative process of the National Security Act. People tend to believe that it was the KMT which ushered in Taiwan’s democratic change; that Taiwan’s democratization was a gift from President Chiang Ching-kuo before he passed away on January 13, 1988. Contrary to this popular belief, the historical condition in the 1980s tells us a different story. In April 1986, Chiang Ching-kuo formed a 12-member unit within the KMT to study the measures to be taken in response to the lift of martial law. In September, this unit proposed the passage of the National Security Act.
One of the features of the National Security Act is its Article 9 which restricts the rights of political victims to appeal their cases adjudicated in court martial to ordinary courts for retrial after the lift of martial law. In addition, Article 2 of the Act prohibits assemblies and parades from violating the Constitution and advocating communism or secession. This is what is notoriously referred to as the three principles of the National Security Act. These three principles also circumscribed Taiwan’s political development throughout the 1990s. The political agenda of the 1990s could be seen as a struggle between the DPP and the KMT on restrictions posed by these three principles. The prohibition on advocating communism was only lifted in 2011 during Ma Ying-jeou’s (馬英九) presidency, otherwise, the promotion of the “1992 Consensus” (九二共識) would have been difficult.
Let’s return to our discussion of Chiang Ching-kuo’s lift of martial law and its aftermath. Half of those who attended my talk were volunteers from the C.K.S. Memorial Hall. These volunteers were mainly retired military servicemen, government employees, and public school teachers, most of whom share pro-KMT political stances. After the talk, a woman asked me a question. She said, after the Magna Carta was passed by King John of England in 1215, it took the country another 700 years or so to achieve universal male suffrage. On the other hand, Taiwanese people enjoyed the right to vote right after the lift of martial law in 1987. Did democracy come too soon? I was not surprised to come across this sort of question. In fact, there has been a group of people in our society who hold conservative views about Taiwan’s democratic transition. In their view, we shouldn’t be too fastidious about the KMT’s wrongdoings; instead, we should acknowledge its myriad of contributions to Taiwanese society.
The issue of transitional justice is closely related to how we reckon with the legacy of authoritarian rule. In fact, our advocacy of transitional justice in Taiwan should not be seen as encouraging a selective remembering of past atrocities. Instead, our aim is to recuperate the past from historical amnesia. Like most people, the woman I just mentioned received her information from the newspapers or television programs of the time. As is well known, information on newspapers and television programs were tightly censored back then. Recently, the Transitional Justice Commission (促進轉型正義委員會; hereinafter the TJC) has declassified a body of documents pertaining to state surveillance activities, revealing that Yu Chi-chung (余紀忠), the owner of the China Times (中國時報), had been a target of state surveillance. A native of Jiangsu, China, Yu was once a correspondent of the Northeastern Section of the Publicity Department, Central Executive Committee of the KMT (中國國民黨中央宣傳部) during the Chinese Civil War. He also served as the director of a newspaper company. After relocating to Taiwan, he served on the KMT’s Central Standing Committee (中央常務委員會), indicating his unquestionable loyalty to the party. As the declassified documents reveal, however, there were secret agents in his newspaper company, monitoring his activities and reporting them to intelligence agencies. What can we say about the degree of press freedom in Taiwan under such circumstances? Even though it was a liberal news outlet back then, the China Times dared not deviate too far from the KMT’s policies and principles. So, when it comes to the issue of transitional justice in Taiwan, a major challenge facing us is how to unveil the aura of truthfulness from what was taken as facts in the past. We need to communicate to the people that the historical past should not be recognized as “the way it was.” This is one of the most difficult challenges confronting Taiwan’s quest for transitional justice today.
When celebrating the establishment of the Taiwan Political Victims Association, Hsu Tsao-te advocated the inclusion of the clause “Taiwan should be independent” in the association’s by-laws. Image Credit: Chiu Wan-hsing
These days, the controversy surrounding the removal of the C.K.S. Memorial Hall has received a lot of media attention in Taiwan. As mentioned earlier, the Chiang family has a large group of supporters in Taiwan. Despite their lived experiences under forty years of martial law, many of these supporters persistently believe that Chiang has made great contributions to the country. However, among those who attended my talk was a group of students in their twenties. Though by no means confrontational, these students sought to refute the claims made by the pro-KMT audiences in my talk. In their view, political oppression continued unabated even after martial law was lifted on July 15, 1987—a moment often regarded as monumental in the history of Taiwan’s democratic transition. Indeed, a notable case in point took place in August 1987. When celebrating the establishment of the Taiwan Political Victims Association (台灣政治受難者聯誼總會), Hsu Tsao-te (許曹德) and Tsai Yu-chuan (蔡有全) advocated the inclusion of the clause “Taiwan should be independent” in the association’s by-laws. However, their pro-independence declarations immediately incited investigations and charges from prosecutors, leading to their arrest in October.
In the course of my research, some interviewees told me how they had high expectations of Taiwan’s democratization at the beginning of the post-martial law period. Little did they know that the “Tsai-Hsu Taiwan independence case” would occur a month later, bringing them to a painful realization that what the KMT delivered to the people was “a democracy in a cage”; nothing had actually changed. As the aforementioned student response suggests, Taiwan’s democratic transition was not a gift from the KMT—that people enjoyed democracy and the freedom to vote right after martial law was lifted. In fact, censorship and political oppression continued for an extended period of time after the lift of martial law. The divergences in our historical memories and acknowledgement of authoritarian rule poses a profound challenge to Taiwan’s pursuit of transitional justice.
Let me return to your question concerning the specific goals of transitional justice initiatives in Taiwan. In December 2017, the “Act on Promoting Transitional Justice” (促進轉型正義條例; hereinafter the TJA) was enacted. Its major tasks include “providing for public access to political archives”; “removing authoritarian symbols and preserving sites where injustices were committed”—such as the C.K.S. Memorial Hall and military prisons—; “redressing judicial wrongs;” “settling and utilizing ill-gotten party assets”; and “handling other matters pertaining to transitional justice”. The TJC also added psychotherapy and consultation as part of their official mission. These are the major goals of state-organized transitional justice initiatives in Taiwan.
But the Taiwanese public is not really concerned about public access to political archives, the preservation of sites of injustice, and the revocation of military tribunal’s judgments, among other things. They are more interested in knowing what actually happened in the past: Who were the perpetrators of historical injustice? How did the surveillance system work? How did the KMT government control Taiwanese society through the legal system and surveillance network? Even if the TJC has rediscovered some historical truths from their archival research, we still need to deal with the public’s willingness or readiness to accept the truth as disclosed by the TJC. In fact, this is what I meant by “the gap” between the TJC and the society toward the idea of transitional justice. People want to know the hidden history of political oppression, but the TJC’s statutory functions are fragmented and bureaucrat-oriented.
Other countries followed a similar trajectory in their quest for transitional justice. For instance, the purpose of the Truth and Reconciliation Commission (TRC) in South Africa is to identify the perpetrators and victims of gross human rights violations, reestablishing a historical truth to promote reconciliation and forgiveness among a divided society.
Taiwan Gazette: So, what does transitional justice mean to the legal professionals in Taiwan? From a juridical perspective, how might the legal professionals contribute to Taiwan’s quest for transitional justice?
Cheng-Yi Huang: To answer your question, I would like to share another experience of mine. A while ago, I delivered a lecture at the Taipei High Administrative Court on the topic of transitional justice. Last year (2020), the Justices of the Constitutional Court issued J.Y. Interpretation No. 793, declaring the provisions of “The Act Governing the Settlement 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; hereinafter the Ill-Gotten Party Assets Act) constitutional.
It was the judges at the Taipei High Administrative Court who filed the petition for constitutional interpretation. From the arguments of their petition, we can see that the judges have expressed concerns over the implementation of transitional justice through the law, given that transitional justice is still a politically contentious issue in our society. Should the Ill-Gotten Party Assets Act be used to confiscate the KMT’s party assets and facilitate their transfer to the state? The judges found it controversial from a constitutional standpoint to apply the law to cases related to ill-gotten party assets.
In some countries, the quest for transitional justice culminates in the release of an investigative report on the past wrongdoings of the state. The release of the report suggests that justice has been served and reconciliation achieved between the conflicting parties in a society. In Taiwan, such an investigative report has not yet been delivered to the public. Notwithstanding the inadequacies of our historical understanding of the White Terror period, the DPP passed the Ill-Gotten Party Assets Act during its first year of rule (2016). For many, this constitutes an act of legal violence. They saw the DPP’s impetuous passage of the Ill-Gotten Party Assets Act and confiscation of the KMT’s party assets as being politically motivated; it was an act of retaliation after the DPP came to power.
Legal scholar Ruti G. Teitel has the following observations on how the conception of transitional justice is contingent upon the dialectical relationship between law and politics:
[T]he law’s role in periods of political change is complex. . . . For, contrary to the prevailing idealist accounts, law here is shaped by the political circumstances, but, also challenging the prevailing realist accounts, law here is not mere product but itself structures the transition. The association of these [legal] responses with periods of political change advances the construction of societal understanding that transition is in progress.
It is from the perspective of legal realism that we can view the passage of the Ill-Gotten Party Assets Act and the TJA as fraught with tension stemming from political changes in Taiwanese society. Indeed, the legal professionals in Taiwan are deeply conflicted when facing the issue of transitional justice. Law schools in Taiwan traditionally approach the law from the lens of legal formalism. Since Taiwan’s democratization, however, a new generation of law students and legal professionals have been trained to conform to the principles of democracy and constitutionalism, including the principle of equal protection, proportionality, intelligibility, and non-retroactivity. Hence, they consider the Ill-Gotten Party Assets Act as a violation of the rule of law because it is at once a retroactive and discriminatory legislation. As I mentioned earlier, the Court has affirmed the constitutionality of the provisions of the Act in Interpretation No. 793, reasoning that in accordance with the constitutional order of liberal democracy, the principle of retroactivity can be applied when handling authoritarian legacy. The Court has also regarded the provisions as not in violation of equal protection because its target is not the KMT as a single party per se but the illegality of its party-state during the authoritarian era. Whether the KMT’s rule is equal to party-state authoritarianism is not simply a question of constitutionality. It is also related to the historical facts-finding that Interpretation No. 793 evinced. Can such facts be accepted by all? Perhaps even the justices held divergent—if not contradictory—views over the issue.
To return to your question concerning the legal professionals’ involvement in the implementation of transitional justice in Taiwan, I think most judges remain quite ambivalent about the role they could play in the process. Even the so-called liberal judges have to convince their colleagues that transitional justice could be legally justified. But ultimately, the issue of transitional justice propels us to understand the dialectical relationship between law and politics. That is to say, transitional justice is the best litmus test for examining “what the law really is.”
Taiwan Gazette: Can you tell us a bit more about the historical sensibility that undergirds the implementation of Interpretation No. 793? How can it be understood in relation to the historical conditions that gave expression to Interpretation No. 272?
J.Y. Interpretation No. 272
Date: 1991/01/18
Issue: Is the rule of the National Security Act during the Period of National Mobilization for Suppression of the Communist Rebellion, which stipulates that the final court decisions with respect to criminal cases adjudicated in the military tribunals during the period of Martial Law may not be appealed to the ordinary courts subsequent to the abolishment of Martial Law, in conflict with the Constitution?
Holding: Article 9 of the Constitution clearly states that except for those who are in active military service, no person shall be subject to trial by a military tribunal; whereas Articles 8 and 9 of the Martial Law, which stipulate that those who are not in active military service may be subject to trial by a military tribunal, are, however, exceptions recognized by the Constitution. Subsequent to the abolishment of the Martial Law, pursuant to Article 10 of the very same Law, a judgment adjudicated by a military tribunal may be appealed from the day after the abolishment of Martial Law so as to conform to the first abovementioned provision of the Constitution. However, the ruling contained in the first sentence of Paragraph 2 of Article 9 of the National Security Act during the Period of National Mobilization for Suppression of the Communist Rebellion, which stipulates that those who are not in active military service may not appeal the final court decisions with respect to criminal cases adjudicated in the military tribunals during the period of the Martial Law to the competent court subsequent to the abolishment of the Martial Law, was set due to the exceptional circumstances arising during and in connection with the interval of more than thirty years from the time the law came into force until the abolishment of the Martial Law, and the intent was to maintain the stability of the courts’ final decisions and the social order. Furthermore, those who have cause for a retrial or an extraordinary appeal, may petition for remedy in conformity with the law; Consequently, the intent of the ruling mentioned above does not contradict the Constitution. This interpretation is, nevertheless, not applicable to cases which do not pertain to the above-mentioned circumstance.
Source: Constitutional Court R.O.C. (Taiwan)
Cheng-Yi Huang: In a recent article, I contend that the two constitutional interpretations embody a “paradigm shift” in how the Court understands and imagines the workings of state power and political systems. Last year, the TJC published a book entitled The Law by Command (奉命釋法), publicizing the minutes of some of the most important constitutional interpretations during the authoritarian period and the early years of the post-martial law era, including the now infamous J.Y. Interpretation No. 272. In this interpretation, the Justices upheld the constitutionality of Article 9 of the National Security Act, which restricts the rights of political victims to appeal their cases adjudicated by court martial to ordinary courts for retrial after the lift of martial law. This in effect forestalled the possibility of transitional justice in the early stages of Taiwan’s democratization. The reasoning behind this interpretation is that, to maintain “res judicata of court-martial judgments” (legal certainty) and the “social order” after martial law had been in full force for more than thirty years, it is not unconstitutional to block appeals against court-martial judgments when martial law was lifted.
From the declassified minutes, we can see that the Justices did not immediately reach a consensus on how their judgment should be proceeded. Some Justices argued that even though the Act of Martial Law was a piece of pre-constitutional legislation passed during the KMT’s party-rule period (訓政時期, 1928-1947), it offered defendants the redress mechanism to appeal their cases after the lift of martial law. Why should the National Security Act run in contradiction with the Martial Law, prohibiting the appeal of political cases to ordinary courts for retrial? Those who supported the passage of the National Security Act explained that the state of exception envisioned by the Act of Martial Law was intended to be short-lived. Hence, people enjoy the right to appeal against court-martial judgments immediately after the lift of martial law. However, from 1949 to 1987, martial law remained in place for 38 years; the retrial of political prisoners’ cases would have posed a great burden to the judicial system after martial law was lifted.
As we can see in the debate over the constitutionality of the National Security Act, the Justices reasoned that it was out of necessity that the KMT declared martial law. The martial law regime that lasted for 38 years was a state of exception that was at once endorsed by the Constitution yet suspended it. By suspending the Constitution, this state of exception secured the necessary conditions for the self-preservation of the Republic of China (ROC) regime during the Chinese Civil War and the Cold War. As such, its legitimacy could not be entirely contested after the lift of martial law. The Justice who initially opposed the rendering of the judgment was willing to compromise because the majority of the Justices agreed to add this phrase to the holding: “This interpretation is, nevertheless, not applicable to cases which do not pertain to the above-mentioned circumstance.” That is to say, should new exceptional circumstances arise, necessitating the imposition of martial law, the applicability of Interpretation No. 272. would be limited to the cases pertaining to the circumstances mentioned in the judgment. The state could not pass another law to restrict the appeals of court-martial judgments after martial law is lifted. Yang Zu-Zan (楊日然) is the name of the Justice who relegated the constitutional “harm” inflicted by Interpretation No. 272 to the martial law regime of the past.
In Interpretation No. 793, we can see that the Justices overturned the historical understanding underlying Interpretation No. 272. They even questioned the workings of state power at that time. For the first time in our constitutional history, the Justices adopted the term “party-state” system (黨國體制) to refer to the KMT rule starting from the imposition of martial law in May 1949 to the end of the period of national mobilization and suppression of communist rebellion in May 1991 (動員戡亂時期). Such a term does not exist in the text of the R.O.C. Constitution prior to the implementation of Interpretation No. 793. Neither has the KMT rule spanning from the start of the martial law era to the end of the period of national mobilization and suppression of communist rebellion ever been legally characterized as a party-state system. Interpretation No. 793 defines the party-state system as such: the KMT had wielded unchecked power over state organs, allowing the President to remove his term limits by means of amending the Temporary Provisions During the Period of National Mobilization and Suppression of Communist Rebellion (動員戡亂時期臨時條款, hereinafter Temporary Provisions) through the National Assembly; re-elections for the National Assembly, Legislative Yuan, and Control Yuan (the tricameral parliament of the R.O.C. under the 1947 Constitution) were also never held during the time. In short, the KMT’s party state overrode the Constitution and as such could not be considered as a “constitutional state.” Its martial law regime was not an exception to the constitutional state but instead constituted the legal framework under which the party-state was created.
I believe this historical understanding would not have been possible in the 1990s. After Taiwan’s democratization, the KMT still claimed to be the representative of “free China” as opposed to “communist China.” It would not have recognized itself as a party-state. It was not until 2020 that this term first appeared in our constitutional interpretation.
Taiwan Gazette: Can you further clarify for us the nuanced differences between the legal definition of a party-state and that of an illegitimate state (Unrechtstaat)? What might be the genealogies of these terms? And what might be the conditions that undergird the applicability and articulations of these terms in post-martial law Taiwan?
Cheng-Yi Huang: Interpretation No. 793 did not go as far as to characterize the KMT’s party-state as an “illegitimate state” (Unrechtstaat). The illegitimate state is a concept that originated from the context of post-World War II Western Germany’s juridical reckoning with Nazism. After World War II, Western Germany considered the Nazi regime as an illegitimate state whose source of state power was unlawful; thus, the set of laws passed by the regime could all be revoked. Accessing the KMT’s party-state along the veins of Nazi Germany could however stir a heated debate in Taiwan today. This is an issue we will return to shortly when discussing the third Constitutional Court Stimulation (hereinafter the Simulation). At that time, the civil Justices of the Simulation regarded the KMT rule during the martial law era and the period of national mobilization and suppression of communist rebellion as constituting an illegitimate state. However, pro-KMT legal scholars and lawyers found this judgment too stringent. If the KMT’s party-state qualifies as an illegitimate state, the laws it passed in the past 40 years would all be overturned. They found this judgment unacceptable.
The Justices of the Constitutional Court didn’t resolve in Interpretation No. 793 that the KMT’s rule at that time should be considered as an illegitimate state either. They instead saw it as a party-state. Why is this the case? This question is tied to how we evaluate the legitimacy of the R.O.C. Constitution. A more nuanced approach is to uphold its legitimacy while calling into question the legality of the Temporary Provisions. Passed in 1948, the Temporary Provisions suspended the Constitution, paving the way for Chiang Kai-shek to implement authoritarian rule or party-state dictatorship in Taiwan. With the abolishment of the Temporary Provisions in 1991, the state resumed its normal course and democratic constitutionalism was restored. The legitimacy of the Constitution remains intact if we can delimit the boundaries of illegitimacy to the KMT’s party-state rule, a state of exception that began in 1949 and ended in 1991. This is the so-called nuanced approach to or pro-KMT perspective of Taiwan’s authoritarian past.
On 22 April 1991, the National Assembly resolved to abolish the Temporary Provisions, and on April 30 of the same year, President Lee Teng-hui declared the end of the Mobilization for Suppression of Communist Rebellion as of May 1. Image credit: National Historic Monuments of Taiwan
Pro-independence advocates would however consider the R.O.C. Constitution to be the root cause of all problems. Theoretically, the Constitution became invalid from the moment when the R.O.C. lost its mandate to govern mainland China as a result of the Civil War in 1949. It cannot represent the people of Taiwan either, given that it was merely a political symbol that the KMT carried forth from mainland China. This political symbol remained intact after the lift of martial law because when the KMT carried out constitutional reform in the early 1990s, it did so by means of constitutional amendment rather than constitution-making. That is to say, constitutional reform was carried out with the ratification of Additional Articles (增修條文). The text of the Constitution remained otherwise unchanged. However, similar to the Temporary Provisions, the Additional Articles pose a question of temporality that demands our attention. It views the “free area of the Republic of China” (i.e. Taiwan) as a transitory entity. As its preamble suggests, the Additional Articles were ratified “To meet the requisites of the nation prior to national unification.” This indicates the KMT’s intention to keep the Constitution in its original form even after Taiwan’s democratization. In the past, the KMT had sought to use the Three Principles of the People to unify China; later, it latched on to the idea of bringing the Constitution back to mainland China so that the entire Chinese populace could enjoy the panoply of rights enshrined in it. For pro-independence advocates, this idea is simply ludicrous. They believe that the R.O.C. Constitution has never been endorsed by the people of Taiwan. Even with the restoration of the so-called democratic constitutional order since 1991, the KMT has never allowed the people of Taiwan to affirm the R.O.C. Constitution as the fundamental law of the state. It also restricted the people’s right to self-determination.
Hence, for those who thoroughly advocate Taiwan’s independence, the R.O.C. Constitution cannot serve as a basis for the implementation of transitional justice. Both South Korea and South Africa had adopted a new constitution after democratization, creating a new set of values to rectify the wrongs of previous governments. In Taiwan, the people have yet to exercise their constituent power to create a new constitution and adopt new values for the democratizing society. The end of martial law only brought about the restoration of the existing R.O.C. Constitution. However, during the Cold War, the KMT had claimed to be the sole legitimate government of Free China whose rule complied with constitutional principles. Positioning itself as such, the KMT managed to garner the support of the United States and consolidate its power during the Cold War. For many political victims, the R.O.C. Constitution is a symbol of political oppression, an instrument by which the KMT perpetuated the White Terror. In their view, new possibilities for transitional justice could not have emerged under the existing mechanisms of the R.O.C. Constitution. Should there be a court decision that declares the KMT as an illegitimate state, the R.O.C. Constitution—an instrument of the illegitimate state—would necessarily be abolished.
As the history of Taiwan’s political changes and legal reforms makes evident, however, there has never been a political occasion which allows the people of Taiwan to abolish the R.O.C. Constitution. Today, even when a constitutional referendum is proposed, voters might not have approved of the idea of constitution-making. This is because the Constitution is a legacy of Taiwanese history. People who grew up during the martial law period—such as those who were still in high school in 1987—were thoroughly indoctrinated by KMT discourses. They would not see the Constitution as posing any serious problem to society. It would rather be a heresy for them if the abolishment of the Constitution is ever proposed.
We can also take into account Taiwan’s so-called “peaceful revolution” of the 1990s. As I mentioned earlier, the National Security Act had a great impact on Taiwan because it prohibited the advocacy of communism, secession, and the violation of the Constitution. But why should the law prohibit the violation of the Constitution? Shouldn’t we obey the rule of the Constitution in the first place? Why is there a need to pass a law requiring the people to abide by the Constitution? Isn’t it tautological—if not nonsensical—to pass a law requiring the people to “obey the law”?
An examination of the historical context of the time will reveal to us that the Constitution in question refers to the R.O.C. Constitution specifically. In the early 1990s, the DPP attempted to promote the so-called “Draft Constitution of the Republic of Taiwan” (臺灣共和國憲法草案) and the “Taiwan Independence platform” (臺獨黨綱) but suffered a setback because of the lack of public support. This pushed the DPP to make adjustments in their political mobilization strategies: it realized that for it to gain political power and secure a majority seat in the parliament, it had to make certain compromises. The call for Taiwan independence might not be a direction in which they could proceed. Due to various political factors, then, the R.O.C. Constitution was preserved and became an instrument for the people to assert their basic rights. The bill of rights is enshrined in Chapter II of the R.O.C. Constitution, affirming “the democratic values of human dignity, equality and freedom” of the people. The Justices of the Constitutional Court had also issued a number of interpretations that reaffirmed and consolidated the principles of the liberal democratic constitutional order, including Interpretation No. 499 and Interpretation No. 567 that prohibited any encroachment on fundamental human dignity. The Court’s reevaluation of the legacies of authoritarian rule becomes possible thanks to these very democratic principles of the Constitution. In this light, the Constitution could be seen as the common denominator between the pro-unification supporters and pro-independence advocates in Taiwanese society. On the one hand, those from the pro-unification camp wish to keep the Constitution intact; on the other, in the past 30 to 40 years, pro-independence groups have already established a new, democratic Taiwan using the said principles of the Constitution.
This brings us back to your first question: What possibilities has the R.O.C. Constitution offered for the implementation of transitional justice in Taiwan? The Constitution is shaped by the contingencies of profound political changes. It is the result of an intense process of political negotiation, a middle-ground agreement that structures the transition of Taiwanese society and is informed by the contested understandings of the legacy of authoritarian rule.
Read Part 2 of the interview here.
