Sun, Dec 10, 2017 page3

• Transitional Justice Act: ANALYSIS: Judge law in terms of security act: academics

  • By Sean Lin / Staff reporter
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  ANALYSIS

  The Legislative Yuan on Tuesday passed the Act on Promoting Transitional Justice (促進轉型正義條例), whose significance — particularly its role in redressing injustices perpetrated by then-Chinese Nationalist Party (KMT) administration during the authoritarian era — must be examined side-by-side with Article 9 of the National Security Act (國家安全法) for it to be fully grasped, academics said.

  Article 9 of the National Security Act unconditionally upholds judgements made by the military courts during the Martial Law era and prohibits the right of appeal. The Martial Law Act (戒嚴法) stipulates that people who were convicted during the authoritarian era should have been allowed to appeal verdicts imposed on them under martial law, but the National Security Act, promulgated in 1987 to prevent Chinese Communist Party (CCP) operatives from infiltrating the nation, deprives people of that right, Taiwan Association of University Professors vice secretary-general Chen Li-fu (陳俐甫) said.

  Under martial law, military courts nationwide followed the orders of their superiors when prosecuting and trying people, Chen said, adding that the cases that military courts were allowed to review were not limited to offenses against national security, but included all other criminal offenses covered by the law.

  Unlike today’s judicial system, which consists of three stages — first, second and third trials — a court-martial only had two stages, leaving it susceptible to mistrials, he said, adding that files made available by the Academia Historica showed that Chiang Kai-shek (蔣介石) often presided over trials and imposed what would be considered today disproportionate punishments to people that he considered to be threats to his regime, which in some cases meant execution.

  The oft-abused court-martial system was used by government officials to confiscate the properties of those convicted of treason or to force them into underselling or giving the government their properties in exchange for non-prosecution agreements, Chen said.

  One of the most notable of such instances was the KMT’s confiscation of Kaosha Iron Foundry Co in Taipei, owned by Koo Yen Pi-hsia (辜顏碧霞), the mother of CTBC Financial Holding Co founder Jeffrey Koo Sr (辜濂松), he said.

  Koo Yen was imprisoned in 1950 for funding left-leaning author Lu Ho-juo’s (呂赫若) escape, and all properties in her name were confiscated by the KMT on charges of colluding with a Taiwanese communist.

  Lu was later found dead in 1951 after he hid in the mountains in Taipei County’s (now New Taipei City) Shiding (石碇), but the cause of his death remains unclear.

  By establishing a legal channel for investigating historic files and legal documents, such as those held by former members of the Taiwan Garrison Command and stored in the KMT’s archives, the Act on Promoting Transitional Justice enables the government to do more than compensate victims of the White Terror era, Chen said.

  As for the KMT’s criticism that the act targets the party by excluding the Japanese colonial government’s confiscation of Aboriginal territories and its forcing of Taiwanese women into becoming “comfort women,” Chen said those issues should be addressed by the Ministry of Foreign Affairs through negotiations with the Japanese government.

  “Transitional justice deals with injustices a democratized government perpetrated against its own people. By attempting to force an act upon a foreign government, it suggests the KMT has not only clung to the outdated Tian Chao (天朝, celestial empire) mentality, it is desperately lacking in common sense about international law,” he said.

  The passage of the Act on Promoting Transitional Justice is a “historic milestone,” as it overcame the legal obstacle posed by Constitutional Interpretation No. 272, which pronounced Article 9 of the National Security Act constitutional, Taiwan Association for Truth and Reconciliation chief executive officer Yeh Hung-ling (葉虹靈) said.

  The transitional justice act allows survivors of the 228 Massacre and the White Terror era who have already been compensated to have their crimes promptly repealed, she said.

  As existing acts only grant compensation to those wrongly convicted of treason during the authoritarian era, the transitional justice act also grants people potentially convicted of other offenses a long-awaited opportunity to clear their names, she said.

  The articles on identifying perpetrators is essential, as there can never be reconciliation without first uncovering the truth, but this task should be performed in a nuanced manner to avoid tarring all with the same brush, which is when the rule stipulating that political data from the authoritarian era be made available comes into play, she said.

  Similarly, the ad hoc committee, which the Executive Yuan is required by law to set up to implement transitional justice measures set forth under the law, should be prudent when punishing perpetrators, as not all people who worked for the then-KMT administration harbored ill intentions when perpetrating injustices, she added.

  Formosan Political Prisoners Association honorary director-general Tsai Kuan-yu (蔡寬裕), 84, said he hopes to die an innocent man.

  Tsai was imprisoned for 13-and-a-half years for his political activism and involvement in Taiwanese independence movements.

  Tsai called on lawmakers to swiftly pass a political data act (政治檔案法), which the committee needs to require political parties and their affiliates to disclose political files in their possession.

  “The party and the state were one during the authoritarian era. If the KMT could be considered a civic group back then, as it has claimed, why did Chiang and his bureaucrats get to decide the prison term for Free China magazine publisher Lei Chen (雷震)?” Tsai asked, referring to KMT Chairman Wu Den-yih’s (吳敦義) criticism that the act infringes on a civic group’s property rights.

  “If the KMT is afraid of making its archives available, it could mean that there is something in there it does not want people to see,” Tsai said. “In terms of legislative efforts, the passage of the transitional justice act might be the ‘last mile’ to transitional justice. As for realizing it, that was only the first step.”
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