Oct.19-20/ University of Wisconsin Law School
Constrained Justice:
Judicial Roles in Transitional Justice and Democratization in Taiwan
Wen-Chen Chang
I. Forward............................................................................................................... 1
II. The three men’s fight for justice ....................................................................... 2
III. Past wrongs: “February 28 Incident” and the “White Terror” ......................... 8
A. “February 28 Incident”................................................................................ 8
B. “White Terror” .......................................................................................... 11
1. Legally sanctioned state-terrorism ................................................... 11
2. Judicially sanctioned state-terrorism................................................ 16
III. Reckoning with the past during negotiated democratization ......................... 17
A. Political and legal actions ......................................................................... 19
1. Responding to “February 28 Incident” ............................................ 19
2. Responding to “White-Terror” ........................................................ 21
B. Reactionary judicial actions ...................................................................... 22
IV. Conclusion ..................................................................................................... 24
Reference ............................................................................................................. 25
I. Forward
Taiwan’s transformation from authoritarianism to a vibrant constitutional
democracy has been nearly two decades and moved much beyond democratic
consolidation. The discourse of transitional justice and pursuit of tackling past
wrongdoings, however, only recently became a much-discussed public issue and even
crystallized into some serious political campaigns. Compared to other new
democracies, the timing of Taiwan’s reckoning with its own past is rather late and the
path of it is distinctive.
Soon after the lift of the thirty-eight-years-long Martial Law Decree in 1987,
lawsuits were brought to courts asking for retrials. The requests were blocked by
courts, sanctioned by a constitutional interpretation of the Council of Grand Justices1
(hereinafter “Constitutional Court” or “Court”). Earlier, the Court reached an

Associate Professor, College of Law, National Taiwan University. The author would like to thank my
research assistant, Ms. Lee, Yi-Li for her wonderful assistance on the collections of facts and historical
materials for this paper. This paper is dedicated to those who suffered from the dark past of Taiwan.
1
The Council of Grand Justices is a functional equivalent of Constitutional Court in Taiwan.
1
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unprecedented ruling to unseat old representatives who had never been reelected since
1948 and ordered a new island-wide election. Facing the issue of transitional justice,
however, judicial attitude was surprisingly conservative.
Perhaps because the Constitutional Court failed to take judicial leadership in
transitional justice, political leadership was asked to deal with past wrongs in tandem
with complex democratizing politics. Monetary compensation for those wrongly
charged during the decades of the Martial Law Decree was finally provided by the
law later in the 1990s. It is rather intriguing to understand why –and under what
conditions– the way transitional justice was dealt with in Taiwan was legislatively–
instead of judicially– oriented, and why a very active constitutional court in
facilitating democratization was not equally active in redressing past wrongdoings.
This paper aims at explaining what brings to a picture of constrained justice in
Taiwan’s democratization process and the extent of judicial involvement in it. Only
after we understand why the pursuit of transitional justice was undermined in the past
process of democratization, we would not repeat the mistakes and find right and
feasible strategies.
II. The three men’s fight for justice
Immediately after the Martial Law Decree was lifted on July 15, 1987, Mr. Lee,
Shih-Chieh, Mr. Hu, Shiue-Gu and Mr. Chou, Chin-Sheng waited no time for making
their appeals to the Supreme Court. According to Article 10 of the Martial Law, by
which the Martial Law Decree was declared on May 20, 1949 to the Chinese
mainland as well as to the island of Taiwan, criminal and civil decisions not rendered
by ordinary courts during the period of Martial Law Decree could be made appeals
upon the decree’s lift.
Mr. Lee, Shih-Chieh, a deputy director for the first division of the Bureau of
Investigation, was arrested in February 1966. He was suspected by his colleagues in
the Bureau of Investigation for having taken part in communist rebellious activities in
1944 on the mainland. He was then charged with treason and sentenced to death by
the Taiwan Garrison Command in 1972. His case was then moved to the Ministry of
Defense and his sentence changed into life imprisonment. Similar to Mr. Lee, Mr. Hu,
Shiue-Gu, was charged with treason by the Taiwan Garrison Command and sentenced
to seven years in prison on June 2, 1964. Mr. Chou, Chin-Sheng was also charged
2
Oct.19-20/ University of Wisconsin Law School
with treason by the Taiwan Garrison Command on September 14, 1976 and then
sentenced to fifteen years in prison by Ministry of Defense on November 8, 1976.2
On August 6, 1987, The Supreme Court rejected Mr. Hu’s request for appeal.
The next day, appeals from Mr. Lee and Mr. Chou were also denied. Perhaps the three
men were not aware that despite (or because of) the lift of the Martial Law Decree,
the first-term Legislative Yuan whose seats had never been open for reelection since
1948 passed the National Security Act during the Period of National Mobilization for
Suppression of the Communist Rebellion (hereinafter “the Period of National
Mobilization”) and made it become effective on the same day when the Martial Law
Decree was lifted. In that Act, the right to make appeals provided by Article 10 of the
Martial Law was suspended.3 The Supreme Court relied not only on the said Act but
also on the Criminal Procedural Act that excluded cases litigated in accordance with
specific laws.4
Having failed at the Supreme Court, the three men took their case to two separate
institutions: first legal and then political. On September 18, 1987, the three men made
their petition to the Constitutional Court and argued that the National Security Act in
depriving their right to make appeals was unconstitutional. The Constitutional Court
waited four years to deliver the decision. In Interpretation No. 272, delivered on
January 18, 1991, the Constitutional Court affirmed the constitutionality of the
National Security Act. The Court contended that due to the four-decades-long martial
rule from 1949 to 1987, the difficulty of reinvestigation and retrials for so many cases
would be very substantial and well beyond the capacity of ordinary courts. The
deprivation of right to appeal in such circumstances was necessary to maintain legal
certainty and social stability. If in some extraordinary cases met with causes for
special appeals or retrials in accordance with the Criminal Procedural Act, requests
for appeals would still be granted. Here, the Constitutional Court endorsed the legality
of the past and let passed the very first opportunity to deal with –judicially– past
wrongs that were still fresh. Notably, this Court that was unwilling to open judicial
venues for cases during the Martial Law Decree was the same as the one delivering
Interpretation No. 261 that ordered old representatives who were never been reelected
since 1948 to leave their offices by the end of 1991. We are left to wonder why a very
2
Relevant facts can be found in their petitions and affidavits of J. Y. Interpretation No. 272, available
at http://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=272
3
Only with the exception for cases that were still pending when the Martial Law Decree was lifted or
defendants whose sentences had yet to be served.
4
Unless they are still pending when special laws by which they should be decided are abolished or
suspended. See Section 3, Article 1 of the Criminal Procedural Act.
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active Constitutional Court in facilitating democratization was not willing to grant the
right to appeals for those who may wrongly be accused during the Martial Law rule.
The three men also took political actions. In November of 1987, they petitioned
to the Legislative Yuan. But on November 14, the legislative committee on interior
affairs merely decided with a resolution that their petitions be considered in a future
special session. It then took about a year for their case to be heard in a special session.
In between, only one legislator, Mr. Fei, His-Pin, who was never reelected since 1948
but was not a member of the Kuomintang (Nationalist Party, hereinafter “KMT”) and
even worked to establish the Democratic Progressive Party (hereinafter “DPP”) in
September 1986,5 stood for the three men. During a legislative session of
interrogation, Mr. Fei questioned the Executive Yuan for depriving right to appeals of
those charged during the Martial Law Decree.6
On November 5, 1988, the said session was held.7 Mr. Lee and Mr. Hu were
permitted to present their claims in the meeting, and one prosecutor representing the
Ministry of Justice was asked to discuss the government policy. According to the
prosecutor, there were 29,407 cases of civilians tried and sentenced by the military
during the Martial Law Decree.8 If all allowed to make appeals, courts would be
exceptionally burdened and legal certainty be undermined.9 During the discussion,
only the DPP legislator, Mr. Yu, Ching, endorsed the claim and labeled the National
Security Act as evil law. One KMT legislator, Mr. Chao, Shao-Kang, a very popular
liberal at the time,10 advised the committee not to dismiss this case and to allow more
discussions on any future revision of the National Security Act. His suggestion
however was strongly opposed by the old legislator of his party. In the end, the chair,
the leader of the KMT caucus, decided not to make any resolution and again
recommend this case be discussed some other time.11
In fact, no such legislative session was ever held. The three men’s claim was
ultimately barred with the release of the aforementioned Interpretation No. 272 in
January 1991. Even when the period of National Mobilization for communist
rebellion came to an end in April 30, 1991, the National Security Act enacted for such
5
But Mr. Fei left the DPP in 1988 for he disagreed that the DPP made the independence of Taiwan as
one of the primary party goals.
6
Legislative Gazette, Vol. 78, No. 49, p226.
7
Legislative Gazette, Vol. 78, No. 49, p226-30.
8
Id. at 228.
9
Id.
10
Mr. Chao, a KMT member, was not among old legislators.
11
Legislative Gazette, Vol. 78, No. 49, p230.
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purpose was given a chance for review, but the revision that became effective on
August 1, 1992 still kept the earlier provision intact. Consequently, the three men’s
cases –together with other thirty thousand ones– were never granted any chance to be
reviewed in judicial venues even until today. Were they truly wrongly charged?
Should those wrongly put Mr. Lee, Mr. Hu, Mr. Chou and so many others in jail or
even in death bear any legal responsibility? Should perpetrators be punished after all?
Before we answer this very difficult question and discuss what steps so far
undertaken and their alternatives, we must first and foremost understand the nature
and characteristics of past atrocities that had occurred before Taiwan transformed into
a new democracy in the early 1990s.
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Table 1: Political and Judicial Events regarding Transitional Justice during
Democratization
Time Political Events
Judicial events
1945 08/14 Japan’s surrender to Allied forces in the Pacific.
10/25 Taiwan’s retrocession ceremony held in Taipei.
1947 02/28 February 28 Incident.
03
March Massacre
1948 04/14 Temporary Provisions Effective During the Period of National
Mobilization enacted.
1st
( 1948-58)
1949 05/20 Martial Law Decree declared.
12/07 The ROC government retreated to Taiwan in December.
1956 11/26
Interpretation No. 68.
nd
1958 11/26
2 (1958-
1960 09/04 Free China Fortnightly Incident, Lei Chen arrested.
67)
1970 10/30
Interpretation No. 80.
Interpretation No. 129.
1977 11/19 Jung-Li Incident.
3rd (1967-
1979 12/10 Formosan Incident (Kaohsiung Incident).
76)
1981 07/02 Dr. Chen Wen-chen killed.
1986 09/28 Democratic Progress Party（DPP）formed.
1987 07/01 National Security Act during the Period of National Mobilization
4th (1976-
enacted & became effective on 07/15
85)
07/15 Martial Law Decree lifted.
1988 01/03 Chiang Ching-kuo died, Lee Teng-hui succeeded to presidency.
1990 02/27 The 1st-term Legislative Yuan mourned for the February 28 incident.
06/21
Interpretation No. 261
th
1991 01/18
5 (1985-
1991 04/22 Temporary Provisions abolished.
94)
05/01 The period of National Mobilization terminated.
12/19 Second term National Assembly members elected.
1992 12/19 Second term Legislative Yuan elected .
01/28 The Act Governing the Recovery of Damage of Individual Rights
during the Period of Martial Law Decree promulgated
02/28 The first official apology to the “February 28 Incident of 1947”
1995
6th (19942003)
made by President Lee, Teng-Hui
04/07 The Act Governing the Handing of Reparation for the February-28
Incident passed. February 28 Incident Memorial Foundation
established in October.
6
Interpretation No. 272.
Oct.19-20/ University of Wisconsin Law School
02/28 Taipei New Park renamed as Taiwan 228 Memorial Park.
1996
03/20 The first direct presidential election held and the KMT won
1997 02/26 The first conference on February 28 Incident held.
12/19 Peng Mong-chi died.
06/17 Act governing Reparation of Compensation for Wrongfully Handled
Rebellion and Communist Espionage Cases During the Period of
Martial Law Decree promulgated.
1998
09/05 The Foundation for Reparation for Wrongfully Handled Rebellion
and Communist Espionage Cases During the Period of Martial Law
Decree established.
Interpretation No. 477.
1999 02/17
12/15 The Archive Act promulgated.
2000 03/20 DPP won the second direct presidential election.
2003 10/24
Interpretation No. 567.
2004 03/20 President Chen Shui-bian reelected for his second term.
03/27 The Act Governing the Handing of Reparation for the February-28
Incident revised to the Act Governing the Handing of Compensation
2007
for the February-28 Incident.
2003 – till
now
Interpretation No. 624.
04/24
Source: by author
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III. Past wrongs: “February 28 Incident” and the “White Terror”
Most serious atrocities that occurred after the KMT regime came to rule over
Taiwan in 1945 were “February 28 Incident” in 1947 and the so-called “White
Terror” that began in the 1950s and 60s and continued with a lesser extent to the
1980s till the lift of the Martial Law Decree. The wound left by both are still felt even
today. In the following, I shall summarize what happened in both and try to
understand –with the aid of theoretical and comparative angle– their respective nature
and characteristics.
A. “February 28 Incident”
The February 28 Incident in 1947 was the first massive killings carried out by
the KMT government in Taiwan.12 The entire tragedy was precipitated by a simple
confiscation case. On February 27, 1947, a Taiwanese woman was found selling
cigarettes on the street in Taipei without authorization. Several mainlander officials
confiscated her cigarettes and money. The woman begged the investigators for the
return of money but was refused and seriously beaten. An angry crowd witnessing the
event began attacking the officials who in turn shot and killed many innocent
passersby. Next day, an enraged crowd protested in the front of the Governor’s Office
and demanded for political reform. The police, however, fired at the crowd and
dozens more were killed or injured. The news about this brutal event quickly spread
to the entire island. More political protests took place and public resentment toward
the KMT government escalated. The Garrison Command headed by
Governor-General Chen Yi soon declared a martial law decree island-wide. But
protesting crowds were not stopped, and social unrest on an almost revolutionary
scale seemed accelerating.
On the third day, the Taipei City Council independently organized an
investigation committee. The committee requested Governor-General Chen Yi to
conduct an immediate investigation of the incident, lift the martial law decree and
release all detainees. The Governor initially appeared to accept their demands. A
committee for the February 28 Incident was instituted and composed of many
prominent Taiwanese elite. The committee dealt not only with the incident, but also
proposed measures for further political reform and reconciliation. The proposal for
political reform irritated the Governor who in turn accused the committee of
exceeding their mandate and dismissed it.
12
Douglas Mendel, at 31-35; George H. Kerr, at 254-311; Kiyoshi Ito.
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Meanwhile, Governor-General Chen Yi secretly requested the help from the
KMT government on the mainland to send troops to suppress rebellion. When the
mainlander troops arrived a few days later, a mass slaughter took place throughout the
island. The troops fired into the crowds with machine guns, leading to the deaths of at
least ten thousand unarmed civilians.13 Moreover, many members of the
aforementioned committee that negotiated with Governor Chen Yi were killed,
detained, jailed, or reported missing.14
After the eruption of February 28 Incident, a variety of rebellion and conflicts
spread out Taiwan. From north to south, many crowds staged protests
against –mostly– government corruption and human rights infringements.15 Some
most serious conflicts included, for instance, the “27 brigade incident” in Taichung
and the “Shuishang airport incident” in Chiayi. In response, the KMT government
took even more oppressive measures. The most deplorable was the suppression in
Kaohsiung. On March 6, the mayor and four city council members went to the
garrison headquarter to urge the troop’s disarmament. But the commander, Mr. Peng,
Meng-Chi denied their request and even shot three of the delegation on spot. A troop
of over 300 soldiers was ordered into the city and began a horrifying slaughter that
persisted till March 8.
The massacre in March that triggered by the February 28 Incident was much
more horrifying then the incident itself. On March 13, a massive arrest of citizens
began. Members of the aforementioned committee were the first to be arrested, many
executed on spot. What followed was a systematic slaughter of the Taiwanese elite in
major cities and towns, including doctors, lawyers, teachers, journalists and
businessmen. A whole generation of the Taiwanese leaders was eliminated through
ruthless ethnic cleansing.16 To name just a few, Mr. Chang, Chi-long, a medical
doctor and an elected member to the Constituent National Assembly for the ROC
Constitution, who had just returned from the mainland and was ill for a while, was
arrested and never returned. Mr. Lin, Lien-Chong, a lawyer, a member of the
Murray A. Rubinstein, at 4-5. As a Taiwanese politician at the time put it, “we lost a whole
generation of leaders in that terrible month of 1947.” Douglas Mendel, at 37.
13
14
For a list of the death of respected councilors and delegates, see Hsiao-Feng Li, at 216-7.
15
After six months of KMT rule, the economy was in ruins. Rice prices skyrocketed as much of the
supply was confiscated and shipped to mainland China. The KMT stripped all Japanese citizens and
enterprises of their property. The nearly 51, 000 businesses and properties which were expropriated
were worth at least $2 billion. Calling Chen Yi’s administration a “government of merchants”, George
Kerr writes that, “Even members of Chen Yi’s official family were astonished by the magnitude of the
corruption”.
16
Valerie Ashford and Thomas S. Axworthy, Teaching case studies Taiwan-2:28 uprising: content and
consequences(B) , at 16-17.
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Provincial Council and an elected member to the Constituent National Assembly for
the ROC Constitution, visited his friend who was also a lawyer in Taipei but was
arrested together with his friend and never returned. It is true that mainlanders who
followed the KMT government to Taiwan were also killed and brutally injured, but
the number of death and disappearance of Taiwanese local elite was enormous.
Table 2: Different numbers of victims calculated in the February 28 Incident
The number of victims calculated
Source
28,000 persons killed
“Teaching case studies: Taiwan-2:28 uprising (A)”
by Valerie Ashford and Thomas S. Axworthy
20,000 persons killed or injured
“Formosa betrayed” by George H. Kerr
10,000 and 20,000 persons killed
“Report on February 28 Incident” by the “February
or injured
28 Incident” Research Commission created by the
Executive Yuan
10,000 persons killed
Headlined in New York Times on March 29, 1947.
5,000-10,000 persons killed
“Lee Teng-Hui and Taiwan’s Quest for Identity” by
Shih-Shan Henry Tsai.
398 persons killed, 72 missing and
Number released by the Taiwan Provincial Garrison
2131 injured
Command in 1947
Source: by author
Table 3: Number of Compensated Victims in the February 28 incident
Number of cases
Percentage
Killed
680
30.04%
Disappearance
179
7.91%
Other (detained or injured))
1405
62.05%
Total
2264
100%
Source: by author (data is taken from http://www.228.org.tw/about228_intro.php)
There was never any accurate count of the total number of people killed,
disappearing or injured during the February 28 Incident and the massacre that
followed. Immediately after the event, the Taiwan Provincial Garrison Command
reported about 398 persons killed, 72 missing and 2131 injured, in sharp contrast with
the New York Times news reporting about 10,000 deaths. Some scholars calculated
around 20,000 or even more. The recent number provided by a research commission
is between 10,000 and 20,000 killed or injured. (See Table 2) According to the
Memorial Foundation of February 28 Incident, compensated victims since its
establishment in 1995 amounted to 2264, including 680 killed and 179 disappearing.
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In addition to massive killings and executions, property confiscation was also
among the many human rights violations particularly following the February 28
Incident. Having arrived in Taiwan, the KMT government led by Chen, Yi took over
public or even private enterprises left by the Japanese. Worse, lands or enterprises
owned by the Taiwanese were also confiscated. Many became government (or even
the KMT’s) properties without any compensations paid to the owners.17
B. “White Terror”
Following the “February 28 Incident” in 1947, the “White Terror” began in the
1950s and 60s and continued with a lesser extent to the 1980s. Most important about
these terrors is that they were all legally and judicially sanctioned by the apparatus of
the KMT party-state.
1. Legally sanctioned state-terrorism
Facing the defeat on the mainland, the KMT government retreated to Taiwan in
1949. On May 20, 1949, a Martial Law Decree was declared to the mainland as well
as to Taiwan. Worse, the ROC Constitution that just became effective on the
mainland18 in 1947 was suspended by the “Temporary Provisions effective during the
Period of National Mobilization for the Suppression of Communist Rebellion”
(hereinafter “Temporary Provisions”) in 1948. The Martial Law Decree that
sanctioned human rights infringements was not lifted until July 1987, and the
Temporary Provisions that suspended constitutional rule and facilitated party-state
presidential were not abolished until May 1991. Simply put, both legal mechanisms
represented as the primary source of state terrorism from 1950s to late 1980s.
A number of laws were created under the banner of “Mobilization for
Suppression of Communist Rebellion”. Most suppressive included the Statute for the
Eradication of Communist Espionage19 (effective on June 13, 1950; abolished on
May 16,1991), the Statute for the Punishment of Treason20 (effective on June 21,
17
In an interview the author did with a very old Taiwanese woman in Massachusetts, United States,
the woman’s family enterprise and land were confiscated by the KMT government at the time. She and
her family fled to the United States and never returned to Taiwan since. After the lift of the Martial
Law Decree, her family began to receive a tiny amount of check each year from the Ministry of
Defense in Taiwan as a token for her family’s land now occupied by the army.
18
It is important to note that the ROC Constitution after becoming effective was not applied to Taiwan
as requested by the Chen Yi government.
19
The text is available at http://db.lawbank.com.tw/FLAW/FLAWDAT01.asp?lsid=FL001438(last
visited August 22, 2007.)
20
The text is available at http://law.moj.gov.tw/Scripts/Query4.asp?B2=%AAu%A1
@%A1@%AD%B2&FNAME=C0000010 (last visited August 22, 2007.)
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1949; abolished on May 22, 1991), and the National Mobilization law21 (effective on
March 29, 1942; abolished on January 6, 2004). The first two laws targeted political
acts and speeches while the last one focused on violations of economic regulations on
almost all kinds of goods, services and enterprises. In the beginning five years,
already five thousands people were jailed under these laws. (See Table 4)
Table 4: Cases/prisoners between 1949 and 1953
1949
1950
1951
1952
1953
Total
Case/Prisoner Case/Prisoner Case/Prisoner Case/Prisoner Case/Prisoner Case/Prisoner
Treason
64/180
449/1506
184/761
279/888
175/607
1151/3942
0
0
0
20/37
67/211
87/248
0
69/184
131/323
46/161
3/3
249/671
64/180
518/1690
315/1084
345/1086
245/821
1487/4861
Violation of Statute for
the Eradication of
Communist Espionage
Violation of National
Mobilization Law
Total
Source: by author22
As a combined effect of these laws and the Martial Law Decree,
cases –regardless involved with civilians or non-civilians– were all tried by the
military. In fact, the majority of cases were all involved with civilians. Among the
fifty hundreds tried between 1949 and 1953, forty-five hundreds –about 90 %– were
civilians. (See Table 5)
Suspects were taken and interrogated –often beaten and seriously tortured– by
intelligence agents and military police. The first instance was undertaken in the
branch of legal affairs in the Taiwan Provincial Military Headquarter, and then cases
were moved to the Ministry of National Defense for review. In most cases, the
Ministry of National Defense simply affirmed decisions without review. Executions
were already authorized after the first instance, and thus the majority of death
row –particularly those accused with treason– was executed without any appeals.
21
The text is available at http://db.lawbank.com.tw/FLAW/FLAWDAT01.asp?lsid=FL000566 (last
visited August 22, 2007.)
22
Statistics are taken from cases tried by Taiwan Provincial Military Headquarter between September
1949 and December 1953, in HISTORICAL RESEARCH COMMISSION OF TAIWAN PROVINCE, HISTORICAL
ARCHIVES ON THE 50’S POLITICAL EVENTS IN TAIWAN AREA DURING THE PERIOD OF MARTIAL LAW, VOL
1, 127.
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Trials were not conducted in accordance with the criminal procedure, not to mention
the guarantee of right to fair trial or due process.
Table 5：Non-civilian/non-civilian tried between 1949 and 53
1949
1950
1951
1952
1953
Total
180
1506
761
888
607
3942
2/178
179/1327
42/719
58/830
20/587
301/3641
0
0
37
211
248
0
0
0
4/33
6/205
10/238
National Mobilization
0
184
323
161
3
671
(non-civilian/civilian)
0
4/180
3/320
1/160
0/3
8/663
180
1690
1084
1086
821
4861
2/178
183/1507
45/1039
63/1023
26/795
319/4542
Treason
(non-civilian/civilian)
Communist Espionage 0
(non-civilian/civilian)
Total
Source: by author
23
No systematically recorded number of cases tried during the decades of the
Martial Law Decree was ever available. If estimated according to the beginning five
years, the number of persons persecuted during the five decades of Martial law
Decree would amount to 500, 000. Even if we take into consideration the liberalized
political atmosphere of the 1970s and 80s and reduce the number into one third, it
would still be about 150, 000. According to a research done by a former legislator,
Mr. Hsieh, Tsung-min, it is estimated that between 1950 and 1987, there were 29,000
cases of political repression and that a total number of victims was at least about
140,000, and among them, 3,000 to 4,000 were executed. Yet, if you recall the
number given by the Ministry of Justice in the congressional session for Mr. Lee and
the two others in 1988, it was merely 29,407. But it is evident that cases should be in
larger numbers. For, since compensatory measures began in September 1998, there
were already 6,466 victims that had been wrongly charged with treason, rebellion and
espionage during the Martial Law Decree were compensated.
23
Statistics are taken from cases tried by Taiwan Provincial Military Headquarter between September
1949 and December 1953, in HISTORICAL RESEARCH COMMISSION OF TAIWAN PROVINCE, HISTORICAL
ARCHIVES ON THE 50’S POLITICAL EVENTS IN TAIWAN AREA DURING THE PERIOD OF MARTIAL LAW, VOL
1, 127.
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Table 6: Number of Compensated Victims during the Martial Law Decree Period
Types of sentences and harms
Number of cases
Percentage
Death penalty
703
10.87%
Life imprisonment
57
0.88%
15 ＜20 years
415
6.42%
10 ＜15 years
1266
19.58%
5 ＜10 years
1095
16.93%
Less than 5 years
594
9.19%
Rehabilitative confinement w. disciplinary measures
1385
21.42%
Innocence w/o Rehabilitative confinement
79
1.22%
Other physical harms (in case of release,
872
13.49%
6466
100%
Sentence
non-prosecutable, no trial, no execution)
Total
Source: by author (statistics are available at http://www.cf.org.tw/count/index.php)
In the five decades of the Martial Law Decree, persecutions were often
concentrated in certain periods and in various targeted areas. The first wave was in
the early 1950s as indicated by Tables 4 and 5. The second wave was in the early
1960s when Chiang Kai-Shek suspended the constitutional term-limit and was elected
to the third term. One of the most infamous political persecutions was the so-called
“Free China Fortnightly” Incident in the fall of 1960. The “Free China Fortnightly”
was a political magazine started in the 1950s by many widely respected intellectuals
even including KMT members and officers.24 Mr. Lei, Chen, one of the pivotal
figures involved in the making of the ROC Constitution, was the magazine’s
editor-in-chief. When Chiang Kai-shek attempted to extend his presidency beyond a
second term, Mr. Lei led such a strong wave of criticism that nearly amounted to the
organization of a political opposition party.25 Mr. Lei was arrested on September 4,
24
The most respectful among them was Hu Shih. See Steven J. Hood, at 45; SHELLY RIGGER, POLITICS
105-6 (1999).
IN TAIWAN: VOTING FOR DEMOCRACY
25
Mr. Lei, Chen had been a member of the KMT. But he with a group of intellectuals declared their
intention to form an opposition party, which was never formed but if formed would be called “the
China Democratic Party”. Steven J. Hood, at 44.
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1960 on the charge of treason and jailed for decades.26 Many others were also
arrested and sentenced.27
The third wave was in the early 1970s when the KMT regime was driven out of
the United Nations. Because of the gradually isolated status of Taiwan, an
independence movement began some momentum while the cry for democratization
became much stronger. The majority of these movements took place in the United
States and Japan. As a consequence, overseas Taiwanese became the target and the
primary instrument for persecution was the so-called black list. Many overseas
Taiwanese who were active (or merely related to those who were active) in some
political activities found that their applications for returning home were rejected
arbitrarily.28 For instance, Dr. Chen, Lung-Chu, a Yale graduate and a rising star in
international legal scholarship, was black-listed after publishing his dissertation article
that analyzed an independent legal status of Taiwan.29 These black-listed victims
never knew who spied on them and reported their activities or writings to Taiwan. It
was indicated that some popular KMT leaders who stayed overseas for some time
played such roles, but this has never been investigated neither confirmed.
Worse yet, even the few who were fortunate enough to return home would not
always be able to leave. Most infamous case was the murder of “Dr. Chen,
Wen-Chen”. Dr. Chen taught as an assistant professor in the Carnegie Mellon
University Statistic Department and was openly critical of the KMT’s rule over
Taiwan. In May 1981, Dr. Chen returned to Taiwan for family visit. When he was
about to leave, the authority delayed his departure. After being interrogated by the
intelligence agent, he was found dead on July 2 at the main campus of the National
Taiwan University. The government later announced that Dr. Chen committed suicide
and the investigation was closed. But it was never clear how this was happened.30
The last wave was in the early 1980s when domestic demands for
democratization became strongest. Many political dissidents were targeted, and the
26
His partner, another intellectual, Liu, Tzu-Ying, was also arrested and confessed to being a
communist.
27
Another infamous case was the arrest of Professor Peng, Ming-Min of the National Taiwan
University in 1964. Mr. Peng, a native Taiwanese, was later helped to flee to the United States and
became the leader of the Taiwanese Independence Movement. In the first ever presidential election in
1996, Mr. Peng became the presidential candidate for the DPP.
28
Many of the black-listed found that they were on the list when they needed desperately to return
home because of the death or illness of their parents or relatives or parents. Some of the black-listed
were wives, children, or even in-laws of those who were active or even just a bit more outspoken.
29
For more information on Dr. Chen, Lung-Chu, see http://www.newcenturyinstitute.us/pages/1.asp
30
Even now, it is widely believed that Dr. Chen was a victim of murder by the intelligence force. See
also Marc J. Cohen. More details are available at http://www.taiwanese.com/org/cwcmfinf.html
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Statute for the Punishment of Treason that even penalized attempts became the
primary instrument for suppression. A number of political magazines and activities
were cracked down, and their leaders were charged with attempts at treason or
rebellion. The Jung-Li Incident in 1977 and Formosan Incident (also known as
Kaohsiung Incident) in 1979 represented such typical cases. Many of today’s popular
DPP leaders were jailed at the time on these terms. Even more sadly, a murder that
killed three on February 28, 1980 at the home of one prisoner, Mr. Lin, I-Hsiung
while he was in jail has never been resolved.31
Absence of any official records, it is very difficult to estimate the ratio of victims
between mainlanders who came to Taiwan after 1945 and the Taiwanese whose
families had lived through the Japanese colonial rule. However, it is fair to believe
that in the first two waves of persecution, many mainlanders were suffered greatly,
and that in the last two waves, more Taiwanese political activists became the primary
target. As a matter of fact, in the 1950s and 60s, many cases charged with communist
espionage or treason took place within the intelligence agency as a result of notorious
internal struggles. In such case, victims were unsurprisingly mainlanders. The cases of
Mr. Lee, Mr. Hu and Mr. Chou were representative among them.
2. Judicially sanctioned state-terrorism
Persecutions during the Martial Law Decree were not only legally facilitated but
also –perhaps not surprisingly– judicially sanctioned. Worse, the Constitutional Court
had also taken part of it.
At the high tide of political persecutions in the 1950s, the first-term
Constitutional Court failed to protect suspects from unconstitutional investigation. At
the time, an ambiguous past record of participation in communist organizations might
amount to committing a crime of rebellion, if one could not prove that he or she had
officially withdrawn from such organizations.32 Deeming this as a serious violation
of fundamental rights, the Control Yuan33 made a constitutional petition. In
Interpretation No. 68, however, the Court concluded that the failure to provide a clear
31
Mr. Lin later became the party chairman of the DPP.
Because the intelligence forces often could not find any direct evidence of suspects’ participation in
communist organizations after 1949, as the Communists successfully established the PRC in the
mainland and separate from Taiwan, they based their rebellion charges on past records. For instance,
while the person described in Interpretation No. 68 had never participated in any communist
organizations since 1938, he was still charged with committing rebellion. See Tsung-Fu Chen, supra
note 3, at 98-9.
32
33
A functional equivalent of ombudsmen that investigate government wrongdoings and refer cases to
the judiciary.
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withdrawal from communist organizations amounted to the continuance of such
crimes.34
The second-term Constitutional Court was even more disappointing when a
similar case was brought in late 1958. This case involved a jurisdictional conflict
between military and ordinary courts regarding charges of rebellion. A military
prosecutor dropped a rebellion charge against a defendant. But another civilian
government prosecutor accused him of continuous rebellion since he failed to provide
a clear withdrawal according to Interpretation No. 68. The jurisdictional controversy
thus came to the Court, which not only affirmed the earlier ruling but also made the
situation even worse. In Interpretation No. 80, the Court rendered that in order to
avoid further jurisdictional conflicts, these cases should all be assigned to the military
court as final decisions would have to depend upon their findings.35 In Interpretation
No. 129, the Court even allowed persecutions of those who participated rebellious
organizations when they were under age of fourteen so long as they failed to provide
any evidence on formal withdrawal after fourteen.36
Following the “Free China Fortnightly” Incident, the Control Yuan made a
constitutional petitioned in 1961. The constitutionality of the Publication Law that
authorized government agencies, instead of courts, to suspend publications without
due process was questioned. The Court, however, affirmed its constitutionality in
Interpretation No. 105. 37
It is important to bear in mind that Taiwan’s past state-terrors were facilitated
and sanctioned by the judiciary, even by the Constitutional Court. Without any
large-scale judicial reforms, would it be reasonable to anticipate progressive judicial
actions in reckoning with the past? In what way should Interpretation No. 272 that
blocked the appeals of Mr. Lee and the two others surprise us?
III. Reckoning with the past during negotiated democratization
Strongly pressed internally as well as externally, President Chiang Ching-Kuo
was pushed to institute liberalized measures and lifted the Martial Law Decree in July
1987. He soon died in January 1988, and then reform-minded Vice President Lee,
34
Interpretation No. 68 (November 26, 1956).
35
According to the Court, because of the application of martial decree, anyone regardless of whether
they were civilians or military officers who committed rebellion or treason or the like would be tried in
military courts. As a result, such a related jurisdictional matter should be decided first in military
courts. See Interpretation No. 80 (November 26, 1958).
36
Interpretation No. 129 (October 30, 1970).
37
See Interpretation No. 105 (October 7, 1964). See also Tsung-Fu Chen, id., at 104.
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Teng-Hui succeeded to presidency as well as the KMT party chairman. But the KMT
was still the dominant political force in Taiwan. All of the seats occupied by senior
representatives in the National Assembly, Legislative Yuan and Control Yuan were
not yet opened for reelection.
Large-scale political reforms were not undertaken until students and political
oppositions took to the street for weeks in March 1990. A National Affairs
Conference joined by the KMT, DPP and other major political and social leaders38
was called in June, as a promised of President Lee in June. Key agendas for political
and constitutional reforms were negotiated and consensuses reached, among which
were the retirement of senior representatives and the opening of new elections soon.
On June 21, 1990, the Constitutional Court ordered the deadline for senior
representatives to leave office by December 1991 in order for new elections to be
held.39
In April and May of 1991, the old National Assembly finally abolished
Temporary Provisions for the Period of National Mobilization and created “Additional
Articles” –following the procedures of constitutional revisions– to allow next
“national” elections to be held in Taiwan only.40 The second National Assembly
elected in the end of 1991 revised the ROC Constitution again in 1992, and the second
Legislative Yuan was elected by the end of that year. Political and constitutional
reforms proceeded one after another. In a few years, Taiwan was transformed into a
new democracy with directly elected presidency as well as very competitive elections
at all levels. Up till now, the ROC Constitution was revised –by changing Additional
Articles– seven times.41 The DPP won the presidency in a direct election for the first
time in 2000 and again in 2004. But, the DPP has never won the majority in the
Legislative Yuan –a functional equivalent of parliament– and as a consequence, the
KMT and its political alliances (together labeled as “Pan-Blue”42) has always been the
dominant force in the making of laws ever after Taiwan became a democracy.
Against this political background of Taiwan’s rather conservative
democratization, the following analyzes what actions –political, legal as well as
38
This conference was defined by many scholar works as comparable to negotiating roundtables that
appeared in many newly democratized countries.
39
Interpretation No, 261 (June 21, 1990).
40
The ROC Constitution required national representatives for National Assembly, Legislative Yuan
and Control Yuan to be elected from all provinces of China.
41
The revisions took place in 1991, 1992, 1994, 1997, 1999, 2000, and 2005.
42
As opposed to the DPP and its political alliance labeled as “Pan-Green”.
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judicial– have been undertaken to redress evils in the past decades, whether they were
effective and what still remains to be done.
A. Political and legal actions
1. Responding to “February 28 Incident”
The first ever government mourning for the “February 28 Incident of 1947” took
place on February 27, 1990, at which time students and the opposition was about
taking to the street for an unprecedented scale of political protest. Even noteworthy
was the fact that this very gesture was made by the first Legislative Yuan comprised
of primarily senior legislators and a number of younger ones elected for additional
and supplementary seats.43 The mourning motion was suggested a week ago, on
February 23, by the DPP legislators including President Chen, Shui-Bian and Mr.
Frank Hsieh. After several hours of discussion in which several reform-minded KMT
legislators spoke to endorse the mourning, the motion was passed without taken into a
formal vote. Despite the symbolic meaning, this very first public
mourning –particularly done by the Legislative Yuan filled with senior KMT leaders–
went unnoticed at the heat of other more intensified political happenings.
It was not until on February 28, 1995, when the first government apology was
issued. During the ceremony for the installation of the “February 28” monument in
Taipei, President Lee, Teng-Hui on behalf of the KMT government made the apology
to the victims and their families. On April 7, an Act was passed to create a “February
28 Incident Memorial Foundation” that would be responsible for providing monetary
compensations for victims and their families.
The legal status of the Foundation is rather complicated. The Foundation was
established by the donation of the Executive Yuan. But it is non-governmental in the
way that its board of directors is comprised of non-government representatives,
representatives of victims and their families, and government representatives. The
Foundation receives donations from government annual budgets but also free to
receive donations from individuals or corporations –domestic and international alike.
Decisions on monetary compensation and –in some cases– recovery of reputation are
to be made by the Foundation and appealed first to the Executive Yuan and then to the
Administrative Court.
43
These supplementary and additional seats were created with the death or retirement of senior
members and with the growth of population in Taiwan. In 1966 and 1972, the “Temporary Provisions
were revised to make these seats possible and constitutional. Many key opposition figures such as
today’s President Chen, Shui-Bian emerged from these elections.
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Till 2005, ten years after the Foundation’s establishment in October 1995, the
number of compensated cases is 2,253 and the amount of money paid to victims and
their families were about seventy hundred million.44 Despite the government apology
issued by President Lee, a native Taiwanese, no officials were ever held responsible
for such a grave massacre. What really occurred and the scale of victimization are still
undergoing heated debates especially by politicians and at times historians.
The first conference on the “February 28 Incident” was held on February 26,
1997. The venue of this conference was very close to the residential building of a
retired general, Mr. Peng, Meng-Chi, who at the time was still alive. If you recall, Mr.
Peng was the commander who ordered a horrifying slaughter to the many civilians
and political elite on spot in Kaohsiung on March 6, 1947. In avoidance with any
potential conflicts, the government even sent a troop of police to secure the residential
building of Mr. Peng.45
Mr. Peng died on December 19, 1997. In his obituary written by his son and
published in a newspaper, those political elite –whom Mr. Peng ordered to shoot to
death– were described as “a ruthless group of violent citizens” and Mr. Peng was
deemed as having no choice but shooting. After the obituary’s publication, Mr. Tu,
Kuang-Ming, a son of one of the political elite, Mr. Tu, Shih-Wen, sued the son of
Mr. Peng for defamation of his father.46 Mr. Tu lost in both the Taipei District and
Taiwan High Courts. What is interesting is the decision of the High Court. In the
decision, the Court stated:
“.. this defamation suit was concerned with the historical truth of the
February 28 Incident in 1947. But the Incident in the past was not
allowed to talk about, and it was not until the lift of the Martial Law
Decree that this Incident was openly discussed and investigations
conducted. Even today, its historical facts were still not clear. Moreover,
historical facts are different from legal facts. Although some new reports
on the Incident have been released [which argued for Mr. Tu and against
for Mr. Peng], they hardly provide any help for this court to decide on
this case. This court stood in no position to decide any historical
truth. …”(translated by the author)
44
The exact total amount is 7,095,025,068 NT dollars. The data is available at
http://www.228.org.tw/about228_financial.php
45
See also Valerie Ashford and Thomas S. Axworthy, Teaching case studies Taiwan-2:28 uprising:
content and consequences(B) , at 16-17.
46
Decision No. 793 (April 1, 1999) of the Taiwan High Court. (in Chinese)
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I think the Taiwan High Court was right in not deciding the historical truth about
the February 28 Incident. The hesitation and even ambivalent attitudes of the Court
clearly prove the failure of Taiwan’s redressing past wrongs. More lawsuits like this
are likely to continue. Last year, the Foundation released a report indicating that
Chiang, Kai-Shek should be responsible for the Incident. Chiang’s out-of-wedlock
son, Mr. Chang, Hsiao-Yen, waited no time to bring a lawsuit of defamation again
President Chen, Shui-Bian who uttered the report in a public speech. Mr. Chang,
however, lost the suit.
This year (2007), the name of the Act that provide monetary compensation for
victims was changed from “reparation for the Incident” [“Pu-Chang”] to
“compensation for the Incident” [Pei-Chang]. For, “reparation” [“Pu-Chang”] in
Taiwan’s administrative legal system means compensation for harms that have been
legally done, whereas “compensation” [Pei-Chang] means compensation for harms
that have been illegally done. Understood this way, the name change was significant
in that the government admitted that the persecution in the Incident was illegal. Yet,
this name change was not even reported to public media and drew no attention from
the public.
2. Responding to “White-Terror”
Neither government mourning nor official apology was ever made to victims of
the “White Terror”. But the first legal step to redress the wrongdoings during the
Martial Law Decree came nevertheless a bit earlier than that of the “February 28
Incident of 1947”. An Act governing “the Recovery of Damage of Individual Rights
during the Period of Martial Law Decree” was passed on January 28, 1995. This law
was pressed hard by a DPP legislator, Mr. Hsieh, Tsung-Min, a student of Dr. Peng,
Ming-Min, who was arrested together with Dr. Peng in 1964 and jailed for more than
eleven years.47
This 1995 Act mainly provides for the restoration of official licenses –such civil
servants, lawyers, doctors or accountants– for those whose licenses were suspended
due to their rebellion or treason charges. It also directs the returning or monetary
reparation for properties that were confiscated as part of punishments. Last but not the
least, it also provides reparations –in accordance with the Act governing
Compensation for Wrongful Detentions and Executions– for those who were not
guilty but had been wrongfully detained by the military or intelligence agents during
47
For the discussion of Dr. Peng’s case, see supra note 27.
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the decades of the Martial Law Decree.48 Since applicable cases for compensation
were rather narrow, this Act was not seen as a very effective measure for rectification.
Thus, in June 1998, another Act was passed to establish a foundation that would
provide monetary reparations for wrongfully handled rebellion and espionage cases
during the Martial Law Decree. This 1998 Act was clearly modeled on the Act of
“February 28 Incident”. The Foundation is defined as non-governmental but at the
same time receives donations of government annual budgets, and its decisions can be
appealed to the Executive Yuan and Administrative Court. Most importantly, this Act
provides reparations for those who were charged with treason, rebellion and
espionage and consequently sentenced or given rehabilitative confinements. By
providing reparations –instead of compensations–, neither military trials of civilians
were judged as illegal nor were those charges deemed as wrongful. Hence, the legality
of the Martial Law Decree as well as those “evil” statutes was never renounced.
Interestingly however, the Act indicates that if still deemed as treason, rebellion or
espionage according to current laws and evidentiary rules, cases shall not be provided
with reparation.49 In a negative reading of this provision, compensated cases would
mean that they were at least “illegally charged” (in so far as current rules are deemed
as legal) in the past.
The 1998 Act was revised respectively in 2000, 2002 and 2006 to enlarge
applicable categories for reparations and extend deadlines for applications. The 1995
Act was also revised in 2000 to extend compensations to various situations of
wrongful detentions and rehabilitative confinements.
B. Reactionary judicial actions
Ever since Interpretation No. 272 barred appeals for those charged by the
military court during the Martial Law Decree, the Constitutional Court has not played
any role in redressing issues concerning transitional justice. Only after legal steps
were undertaken by the legislature, some legal issues that emerged from the statutes
governing reparations began to reach to the judiciary.
In Interpretation No. 477,50 the Constitutional Court was requested to review the
1995 Act governing reparations during the Martial Law Decree. As discussed earlier,
this law limited compensated cases to those who were not guilty but wrongfully
48
This provision was later ruled as too narrowed a category for providing compensations for wrongful
detentions and confinements. See the discussion of Interpretation No. 477 (February 17, 1999).
49
Section 1, Article 8 of the 1998 Act.
50
Interpretation No. 477 (February 17, 1999). Its English text is available at
http://www.judicial.gov.tw/constitutionalcourt/EN/p03.asp
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detained. This narrowed applicability was challenged as contravened with equal
protection as similarly situated cases –such as wrongful detention before prosecution,
wrongful physical confinement before/after prosecution and continued detention even
after completion of sentences– were not equally provided with reparations. The Court
agreed with the said contention and demanded the law to be revised and enlarge
compensated categories in two years. Despite reactionary, the Court seemed to play
active this time at long last. But the Court failed to address unconstitutional problems
in military trials of civilians. In a way, the Court impliedly sustained the legality of
military trials by not challenging their unconstitutional nature and simply stating the
necessity at the time.
If Interpretation No. 477 was rather disappointing, when could we see judicial
assertions for transitional justice? Four years later, the Court was given a second
chance. The constitutionality of the 1995 Act as well as the military order instituting
rehabilitative confinement for prevention of repeated espionage was put into
challenge before the Court. In Interpretation No. 567,51 the Court ruled rehabilitative
confinement as seriously contravened with personal freedom guaranteed by Article 8
of the Constitution and thus deemed the military order –albeit already abolished– as
unconstitutional. This unconstitutional ruling would thus make possible for those who
received rehabilitative confinements to apply not only for reparations under the 1995
Act but also –even more importantly– for compensations under the Act governing
Compensation for Wrongful Detentions and Executions. For, now, at long last, those
rehabilitative confinements are deemed as unconstitutional thus illegal.
This year (2007), the Court was faced with another case that had not been
handled during the Martial Law Decree but nevertheless concerned with military
trials. Due to the nature of military trials and its proceedings, the Act governing
Compensation for Wrongful Detentions and Executions excluded its application to
wrongful detentions during military proceedings. This exclusion was challenged
before the Court. In Interpretation No. 624,52 the Court deemed the exclusion as
unconstitutional and allowed compensations to be provided for wrongfully detained
even in military proceedings.
What –if any– may explain different reactionary attitudes in the Court of
Interpretation No. 272, the Court of Interpretation No. 477, and the Court of
Interpretations No. 567 and 624? One possible answer may perhaps lie in their
51
Interpretation No. 567 (October 24, 2003). Its English text is available at
http://www.judicial.gov.tw/constitutionalcourt/EN/p03.asp
52
Interpretation No. 624 (April 24, 2007). Its English text is available at
http://www.judicial.gov.tw/constitutionalcourt/EN/p03.asp
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different times. The Court of Interpretation No. 271 was facing the beginning of
democratization, at which point all senior representatives were not yet driven out of
their offices. The Court of No. 477 was situated in a new democracy when all
important government offices were opened for competitive elections. Yet, the KMT
was still the dominant political party in the executive and legislative branches.
Justices for the Court of No. 477 were nominated by President Lee, Teng-Hui, with
the confirmation of the National Assembly where the KMT held a strong majority.
The Court of Interpretations No. 567 and 624, however, was put in place after the
DPP won the presidency. Justices were nominated –for the first time– by a DPP
President but nevertheless still confirmed by the Legislative Yuan whose strong
majority was Pan-Blue. The more liberalized political atmosphere increased the
likelihood of a more liberalized court redressing issues concerning transitional justice.
But still, if compared to its performances in other human rights issues,53 all three
Courts have been very disappointing. Why would the Court turn less assertive or even
conservative in dealing with issues concerning transitional justice? One possible
answer may lie in judicial sanctions to state-terrorism in the past. As discussed earlier,
terrors before the lift of the Martial Law Decree were undertaken legally and endorsed
by judicial sanctions. Since legal continuity was largely sustained during democratic
transition, it was nearly impossible for the judiciary to rectify the past that was still
deemed as legal. A very limited role of the judiciary in this type of democratic
transition is almost inevitable.
IV. Conclusion
Taiwan’s way of dealing with transitional justice is very unique. No other new
democracies have undertaken such a sole model of monetary reparations. Without
putting any judgment against the past, would it really possible for this young
democracy to move forward and leave behind its dark past? Some doubts are
reasonable as evidently indicated by current efforts in re-rendering transitional
justices.
Despite compensations, many past wrongs still went unnoticed. For one,
property confiscation upon the arrival of the KMT government after 1945 was never
openly addressed. The DPP’s recent campaign in getting back “national property”
from the KMT was a clear indication of this problem. For another, the black list –and
the questions of who spied and who produced such a list– was never revealed. For still
another, major criminal cases such as that of Dr. Chen, Wen-Chen and that of Mr. Lin
53
The Court’s judicial activism in other areas, see Wen-Chen Chang, The Role of Judicial Review in
Consolidating Democracy: the Case of Taiwan, ASIA LAW REVIEW, Vol. 2, No. 2, P.73-88 (2005).
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and his families were still under the clouds. Last but not the least, the illegality of the
past regime has never been even recognized one way or the other. Perhaps it is time
for Taiwan now to move into the model of truth-finding and justice-seeking –if not
the model of punishment?
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