How to Achieve Transitional Justice in Taiwan

South Korea has taken a much more comprehensive approach to facing its authoritarian past than Taiwan, and there are several lessons to be learned from it.

Despite having taken a back burner to other domestic issues, as well as the controversy surrounding the Trump-Tsai call and its aftermath, transitional justice remains a hot topic in Taiwanese politics. In addition to the actions of the Ill-gotten Party Assets Settlement Committee, the body organized under the Executive Yuan tasked with investigating the Kuomintang’s (KMT) enormous wealth and resources, President Tsai Ing-wen last month announced the commissioning of the very first comprehensive report on the White Terror to be completed in three years. This is an important move for Taiwan, where, in a survey conducted by the local magazine Business Daily in March 2016, 76.3% of respondents answered that they believed transitional justice is still incomplete.

There is no understating the importance of transitional justice to processes of democratic institutionalization and consolidation, as well as promoting ideals like the victims’ right to the truth, political and ethnic reconciliation, healing of emotional wounds, and lasting respect for human rights. Justice after a democratic transition or in a post-conflict situation may take any of a number of forms, including criminal trials for perpetrators, vetting of applicants for civil servant positions in the new government, reparations for victims of human rights violations, or truth commissions to investigate the wrongs committed under the previous authoritarian regime.

Notable manifestations of transitional justice are the Nuremburg trials of Nazi war criminals, the Truth and Reconciliation Commission of South Africa and, more recently, the reparations payments to First Nations peoples who had suffered abuse in Canada’s Residential Schools. In arguably one of the only success stories to emerge from the short-lived Arab Spring of 2011, Tunisia’s government last year announced the public airing of testimony for a truth commission to investigate the period of autocratic rule under Zine al-Abadine Ben Ali.

Yet Taiwan need look no further than its own neighborhood to gain useful insights for how to proceed with its own pursuit of justice. South Korea, another Northeast Asian nation that transitioned from authoritarian dictatorship during the roughly three decade long rapid rise in democracies known as the “third wave,” has a number of historical parallels with Taiwan. Both carry the legacy of colonization by the Japanese; both remained under authoritarian rule for a similar amount of time, and began democratizing in the 1980s; both experienced rapid economic growth before becoming democracies by utilizing similar, yet unique, developmental state models; both experienced a smooth and relatively peaceful transition from autocratic rule to democracy; and both, despite having experienced numerous challenges over the years, have prevailed as open and liberal democracies since transition.

However, South Korea has taken a much more comprehensive approach to facing its authoritarian past than Taiwan. Responding to pressure from a very vocal and influential civil society, the Korean government organized not only one, but 18 truth commissions, held criminal trials for the dictators Chun Doo-hwan and Roh Tae-woo, and created complex reparations schemes for victims of state violence. Their truth-seeking processes were generally restorative in nature, focusing on rehabilitation of the victims rather than the punishment of perpetrators, and covered a wide range of topics and time periods, including Japanese colonization, the Korean War, and the ensuing decades of military dictatorship.

Meanwhile, Taiwan underwent a transition to democracy without a change in regime. The KMT experienced renewed legitimacy after more liberal elements within the party helped spearhead the democratization process, but the structure of the ruling elite stayed essentially the same throughout. This has meant a much less robust approach to transitional justice than that of South Korea. It has included limited truth commissions on the 228 Massacre (1947) and the KMT’s illegitimate assets, a comprehensive yet comparatively minimal system of reparations for the victims of 228 and the White Terror, and memorialization in the form of parks and monuments. Apologies have been provided by presidents and other leaders on the anniversary of 228, but some have attributed the horror of the event to “state violence,” clever rhetoric meant to decouple the KMT from the state and thereby skirt full responsibility. In addition, certain issues, such as the Japanese colonial period or justice for aboriginal peoples, are rarely touched on by proponents of transitional justice in Taiwan, a problematic tendency that has the effect of further politicizing the topic and impeding progress in its pursuit.

The KMT experienced renewed legitimacy after more liberal elements within the party helped spearhead the democratization process, but the structure of the ruling elite stayed essentially the same throughout. This has meant a much less robust approach to transitional justice than that of South Korea.

Fortunately, there is still ample opportunity for this thriving democracy to fulfill its objective of seeking justice for its victims. The election of Tsai Ing-wen and a majority Democratic Progressive Party (DPP) legislature in January 2016 present the perfect playing field for a more thorough accounting of martial law-era abuses. In order to provide some guidance on how this can be accomplished effectively, three broad suggestions are outlined below.

It should remain victim-centered

Although it may seem satisfactory to many for the KMT to get its just desserts through review and confiscation of its assets, from a transitional justice perspective such a move would be retributive in nature. A large part of South Korea’s success stemmed from the fact that they mostly refrained from taking too much of this kind of action, and instead focused on memorialization, paying reparations, and restoring victims’ honor. Also, the names of perpetrators were rarely published in official reports.

Due process and procedural fairness should be observed

A challenge encountered by the Ill-gotten Party Assets Settlement Committee in Taiwan is that it is unconstitutional because of its lack of due process. Despite being under the auspices of the Executive Yuan, the Committee is charged with both investigating and re-appropriating any resources they find to be illegal or acquired through illegitimate means. This leaves the KMT with few options for rebutting any seizure of assets it does not agree with. The ruling issued by the Taipei High Administrative Court last November which argued the legal basis of the Committee’s freezing of bank withdrawals totaling NT$520 million (US$16.4 million) pointed to the lack of an administrative proceeding.

South Korea encountered similar objections concerning its Commission on the Confiscation of Properties of Pro-Japanese Collaborators. In this case, those who were found by the commission to have attained properties by working with the Japanese colonial regime had a right to petition this finding, but were denied a formal hearing. This provision encountered significant blowback and multiple lawsuits from a large number of influential people, forcing the Korean Constitutional Court to issue a definitive ruling on the issue. Though they ultimately found the actions of the commission to be constitutional, this may still serve as a valuable lesson for consideration on how the Taiwanese government should proceed with its investigation of KMT assets. As Korean legal scholar Tae Ung-baik points out with regard to fairness in transitional justice measures, the presence of due process “helps to ensure the legitimacy of the…mechanism itself, thus promoting its broader effectiveness” and “reinforces the principle of legal due process and the protection of human rights in society at large.”

It should cover a broader range of topics and time periods

While many in the pan-blue camp tend to bring up comfort women and aboriginal justice as a political tool rather than an actual desire to have those issues included in the Taiwanese pursuit of transitional justice, these arguments are not without merit. Significant suffering on the part of aboriginals at the hands of ethnically Han colonizers, as well as that experienced by all during Japanese rule, is an unfortunate yet large part of Taiwan’s history. To deny those who were affected an opportunity for acknowledgement and restitution, whether by omission or flat out refusal, is just as damaging as the KMT’s continual withholding of justice for 228 and the White Terror.

Once again, Taiwan can look to South Korea for inspiration in this area, where a considerable portion of the truth-seeking process was focused on human rights violations committed by the Japanese during its control of the peninsula. Of course, the individuals and groups who push for transitional justice in Taiwan take a much different attitude toward Japan’s legacy than those in Korea do; however, this could be an effective compromise to dampen pan-blue opposition.

By following these suggestions, Taiwan can set a major new precedent in the area of transitional justice, proving that justice delayed is not necessarily justice denied, and providing a valuable model for burgeoning democracies in East Asia and beyond.

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