The Tsai administration is making an effort to pursue “transitional justice.” Will it be healing or divisive?

February 28, 1980 has gone down in Taiwan’s history as the date of one of the nation’s most gruesome unsolved murders. An intruder entered the ground-floor apartment of opposition politician Lin Yi-hsiung and fatally stabbed his mother and seven-year-old twin daughters, while a nine-year-old daughter survived with slash wounds.

Lin, who years later would serve as chairman of the Democratic Progressive Party (DPP), was then in prison awaiting trial on sedition charges for taking part in a famous pro-democracy demonstration in Kaohsiung.

There have been questions ever since about how the murderer was able to enter Lin’s house, since police and security agencies were supposedly monitoring it constantly. Many Taiwanese, especially DPP supporters, suspect the killings were carried out by security agents – either under orders or on their own – as a warning to the nascent democracy movement.

So when President Tsai Ing-wen was elected in a landslide in 2016, with her independence-minded DPP winning a majority in the legislature for the first time, her supporters had high hopes that the new administration could gain access to previously secret files of the Kuomintang (KMT) government in order to solve this mystery and other cases. Those supporters also hoped that human rights abuses committed during the 1949-1987 martial law regime, documented in government files, could be unveiled for public scrutiny.

At her inauguration, Tsai promised to address the issue in a “sincere and cautious manner.” Since then, the legislature at the end of last year passed an Act on Promoting Transitional Justice, and in May this year the government established a Transitional Justice Commission.

With a budget for 2019 of around NT$160 million (about US$5.2 million), the commission aims to delve into files, classified or otherwise, held by various government agencies. Chang Tien-chin, the commission’s vice chairman, estimates that more than 1,000 relevant documents belong to the Ministry of Justice Investigation Bureau and over 60,000 are with the National Police Agency, along with others held by the KMT. Within two years, the commission aims to complete an investigation of the period from August 1945 to November 1992 and issue a report.

The commission will also seek to clear the names of people unjustly imprisoned or executed on trumped-up charges, including espionage and sedition, during the period being investigated. It also plans to remove symbols of the authoritarian era, such as statues in public places of former President Chiang Kai-shek and his son, former President Chiang Ching-kuo.

And in perhaps the most significant development, for the first time perpetrators of human rights violations and other abuses from the “White Terror” era will be identified and may face some form of punishment, such as “lustration,” Chang said in an interview.

Lustration is a policy that was put into practice in some post-Communist states in Central and Eastern Europe where officials found guilty of abuses were dismissed or banned from taking public office in order to cleanse the new regime of deleterious vestiges from the past.

Chang also notes the importance of reflecting on how such a harsh dictatorship could have taken root in Taiwan so as to prevent political abuses from happening again. “Then our democratic spirit will be deeper,” he says.

Transitional justice has been instituted in dozens of countries. While South Africa is probably the best-known example, there have also been several cases in Asia, including South Korea.

But Taiwan’s situation is considered rather unusual in that the political party that committed the abuses has since embraced democratic practices and is now Taiwan’s main opposition party and the only viable alternative to the ruling DPP.

Ernest Caldwell, a lecturer in the laws of China and Taiwan at the University of London’s School of Oriental and African Studies (SOAS), says that in most other countries with transitional justice cases the authoritarian party had already dissolved (although individuals such as Cambodian Prime Minister Hun Sen might remain in power). Given Taiwan’s rare circumstances, “it’s inevitable that any kind of transitional justice will be politicized,” Caldwell says.

Historical background

The political divisions in Taiwan society can be traced back to the end of the Second World War, when the Allies handed governance of Taiwan, previously a Japanese colony, to the mainland’s Republic of China headed by President Chiang Kai-shek. Friction arose between mainlander officials and the native Taiwanese population, who often felt treated like second-class citizens, distrusted because of their Japanese colonial background.

On February 28, 1947, a woman selling contraband cigarettes was struck with a pistol by government officers after she refused to hand the cigarettes over, triggering heated protests escalating to riots over the following weeks. Amid the disorder, much of the public administration was taken over by local Taiwanese leaders until the central government sent troops from the mainland to put down the uprising.

The number of fatalities in the ensuing massacre is unknown, but in an academic article published by the Washington International Law Journal Caldwell cites estimates ranging between 5,000 and 28,000. The “2-2-8 Incident,” as it is named, sowed the seeds of the Taiwan independence movement. During the authoritarian era it was taboo to mention the incident publicly.

With the Chinese Civil War raging on the mainland, Chiang in 1948 promulgated the “Temporary Provisions Effective during the Period of Communist Rebellion,” which declared a state of emergency and suspended many of the civil and political rights enshrined in the ROC constitution.

After the Nationalist army and government fled to Taiwan in 1949, the island became a fiercely anti-Communist police state. Many intellectuals, both native Taiwanese and mainlanders, were subject to imprisonment or execution, or simply went missing, out of suspicion that they sympathized with either Communism or Taiwan independence.

In an atmosphere of social paranoia, the White Terror period sometimes took on an element of absurdity. Hsueh Hua-yuan, chairman of the Memorial Foundation of 228, notes for example that a student protester was arrested in 1949 for reading Mark Twain, as police believed the author was Karl Marx’s brother.

Current scholarly research indicates that 140,000 civilians were tried in courts-martial between 1949 and 1987, resulting in tens of thousands of imprisonments, thousands of cases of property confiscation, and roughly 3,000 to 4,000 executions.

“Many victims are still around or their families are still around,” says Hsueh. “They of course want to know why they were arrested or why they received a certain kind of ruling.”

Noting that the KMT has paid compensation to the victims and their families, the party’s former spokesman, Eric Huang, maintains that the KMT has already made sufficient amends. But Caldwell argues that the KMT previously used its legislative majority to limit the prosecution of past abuses. While acknowledging that a restitution fund was established in 1998 during the Lee Teng-hui administration, he argues that the KMT was “trying to do the minimum that was acceptable to the people without formally saying they did something wrong.”

At the commission’s inauguration ceremony, President Tsai said that efforts at transitional justice previously had been too narrowly focused on compensation and did not do enough to seek the truth or identify those responsible for misdeeds.

As it starts its investigation, the first step for the commission will be to obtain access to the various relevant files held by government organizations. As some are classified, the National Development Council has drafted a bill calling for declassification of political files dating back 30 years or more. The bill is expected to clear the legislature this session.

The KMT, which is believed to possess documents from authoritarian-era security agencies, is also mandated by the transitional justice act to provide the commission with all political files from the period 1945 to 1992. Fines for failing to do so range from NT$1 million to NT$5 million.

Parris Chang, a former deputy secretary-general of the National Security Council during the Chen Shui-bian administration, says pro-independence hardliners hope the commission’s activities will contribute to “ideological nation building” and “create a new identity, a new kind of history.”

Chang Tien-chin notes that the act does not specifically authorize criminal prosecutions, adding that prosecution would be unlikely anyway, partially because so many of those involved have died. The commission is merely required to report on the identities of the perpetrators, how they were organized, the actions they took, and how they controlled educational and cultural affairs to protect the regime.

The vice chairman said he is still hopeful that the commission may be able to determine the identity of the Lin family murderer, or those responsible for the death of Chen Wen-cheng, a Taiwanese professor at Carnegie Mellon University in the United States who died mysteriously after being interrogated by the Taiwan Garrison Command in July 1981.

The transitional justice law also empowers the commission to revisit cases from the White Terror period, providing sanctions for individuals found complicit in miscarriages of justice and arranging compensation for the victims.

Chang Tien-chin says the commission also needs to plan how to deal with authoritarian-era symbols, as the act calls for their removal from schools and other public places. KMT members Eric Huang and legislator Johnny Chiang express concern that these kinds of symbolic actions may distract attention from more urgent subjects such as how to improve Taiwan’s economy.

“A lot of people complain we waste much time with never-ending fights and disputes,” Chiang says. “We should spend more time developing the country’s economy and other things, such as education and internationalization.”

Former KMT spokesman Huang acknowledges the brutality of the White Terror era, but considers it a deviation from the true spirit of the party as founded by democratic revolutionary Sun Yan-sen in 1912.

The nine-member commission, headed by Huang Huang-hsiung, a former DPP legislator and Control Yuan member, is supposed to be politically neutral. The number of members from any one political party is restricted, and members are forbidden to take part in politics while serving on the commission.

Nevertheless, legislator Chiang questions the body’s constitutionality because of its broad powers. It is empowered to investigate government agencies, demand relevant documentation from individuals and organizations, and impose fines of NT$100,000 to NT$500,000 on those who refuse to cooperate or obstruct investigations.

“It has executive and judicial powers despite not being part of the judicial system,” notes Chiang. The lawmaker adds that while he sees a need for transitional justice, he believes it should be handled within the existing constitutional structure.

Chiang also calls the transitional justice act unfair as it only targets abuses from the KMT’s authoritarian era. “If you want to talk about injustice, there’s so much injustice in Taiwan’s history,” he says. Chiang asks why the Tsai administration is not also demanding reparations from Japan, Taiwan’s former colonial master.

The commission’s Chang Tian-chin responds to this argument by saying that as the ROC, which committed the abuses, is Taiwan’s current government, it is obligated to serve Taiwan’s people by rectifying past misdeeds, whereas Japan is another nation.

Ill-gotten assets

During the martial law period the KMT was able to expropriate certain public and private property, in the process becoming one of the richest political parties in the world. The vast commercial empire amassed by the party included banks and other financial institutions, printing plants, and broadcasting stations.

In another piece of transitional justice legislation, the Legislative Yuan in 2016 passed the Act Governing the Handling of Illegal Assets of Political Parties and their Affiliates. The law assumes that aside from membership fees, donations, and the subsidies political parties receive from the government, all KMT holdings were acquired by illicit means.

For the stated purpose of creating a level political playing field, the KMT’s assets and bank accounts have been frozen while the Ill-gotten Party Assets Settlement Committee established in August 2016 assesses the rightful ownership. The KMT can only reclaim assets if it proves it obtained them legitimately. Currently, the committee is determining whether various social organizations are party affiliates. It recently designated the China Youth Corps as falling into that category.

Disputing the committee’s legality, the KMT is hoping to receive a favorable interpretation from the nation’s highest tribunal, the Constitutional Court. The issue is still being fought out in lower courts.

If Taiwan is coming to grips with the question of transitional justice years after any misdeeds were committed, Caldwell says some experts consider that to be a good thing, as by this time much of the anger has dissipated and the inquiry can be conducted more rationally.

But Bruce Jacobs, a professor emeritus at Australia’s Monash University and a specialist in Taiwan politics, argues that Taiwan “missed the boat” since many of the perpetrators have died and can’t be held accountable – or even be given the opportunity to apologize. All the government can do, he says, is foster a new collective memory of historical events.

Some commentary in the Taiwan media has welcomed the transitional justice initiatives as necessary to turn a page on past fissures in the society in order to move forward with greater solidarity to cement Taiwan’s future security and economic prosperity. Other commentators have viewed the initiatives as having just the opposite effect – opening old wounds by reminding people of past resentments.

Whether the public eventually sees transitional justice as contributing to reconciliation and social healing – or instead as exacerbating political and economy divisions, detracting from national development – will undoubtedly depend on how deftly the commission and the rest of the government handle the matter.

Describing her goal in a speech marking this year’s anniversary of the 2-2-8 Incident, President Tsai expressed the hope that “Taiwan, through transitional justice, can become a freer and more democratic nation with better human rights protections.”