March 12, 2015: Ministry of Justice's Commemorative Gift for 228

With 228 just past, numerous commemorative events have taken place, and transitional justice has once again been brought to the fore. According to news reports, the Ministry of Justice recommended Academy for the Judiciary Director Lin Hui-huang for the position of Grand Justice—a "commemorative gift" of sorts from the Ministry for 228. Rumor has it that he is senior in standing, highly learned, and exceptionally capable. He has brushed shoulders with the position of Grand Justice several times, having previously been recommended by Chen Ting-nan. However, during the Formosa Incident mass trial, he served as a military prosecutor, fiercely denouncing and prosecuting pro-democracy movement pioneers such as Huang Hsin-chieh. His arguments for sedition charges were delivered with great passion.

Some sympathize with him, believing that then-President Chen Shui-bian's failure to nominate him was because the Democratic Progressive Party simply could not swallow its pride, sighing that "when the judiciary encounters politics, it too will turn a corner." The implication is that the Formosa Incident was political, while nominating a Grand Justice is judicial, and nominations should be made as they ought to be. Putting aside the fact that constitutional interpretations rendered by Grand Justices are inherently the intersection of politics and law, such "sighing" is far too superficial. The argument goes that since he meets the "qualifications," he should be nominated. But the real question we must ask is: Are the "Lin Hui-huangs" truly qualified?

Qualifications of a Grand Justice

Fundamental rights coupled with governmental structure constitute the entirety of a constitution. Grand Justices are charged with constitutional interpretation; thorough familiarity with the theories and realities of these two areas is merely a baseline requirement. More importantly, they must possess the courage to "defend the Constitution." Defense is an action, which is far more important than profound erudition. Here, it refers to defending the "fundamental rights of the people" enshrined in the constitution, rather than defending the government and suppressing the populace.

Furthermore, the catalog of human rights in our nation's constitution has long been overly rudimentary and fails to meet the needs of the times. To be qualified as a Grand Justice, one must have the courage to bridge the gap between Taiwan's standards and international human rights standards. One should not passively evade these issues or remain entirely unfamiliar with international human rights covenants. The judiciary should set its self-expectation on checking and balancing the executive and legislative powers.

Beyond checks and balances, a Grand Justice must possess the wisdom to resolve political controversies. Cases requiring constitutional interpretation are typically politically intractable issues, and even more frequently, matters of high controversy under the operation of the current political system. Grand Justices should cherish every opportunity, using constitutional height and perspective, coupled with clear and compelling prose, to chart a path for the nation—one that may not be easy, but is nonetheless worth persisting upon.

Moreover, internally Taiwan has experienced an authoritarian regime, while externally it faces the China factor. Both human rights and the political system present thorny problems. Can indigenous peoples achieve autonomy? Should the rights to privacy and freedom of communication be subject to a high degree of protection? Are the rights and identities of LGBT individuals recognized? Should the death penalty be abolished? Can Grand Justices declare individual administrative cases (rather than merely laws) unconstitutional? What is the extent of human rights protection for foreigners and Chinese nationals? Are the Assembly and Parade Act and the Civil Associations Act unconstitutional? Do they dare to touch issues related to Tibet? And, particularly for Mr. Lin Hui-huang to face: What about transitional justice?

Values and Soul Are What Matter

Transitional justice is not necessarily about political vendettas (some countries enact amnesty laws first), but it is definitively a form of "cleansing." When confronting these embarrassing and intractable situations where "what was right yesterday is wrong today," how one handles oneself and achieves self-purification is what truly matters. After the passage of a long period of time, accompanied by deep sedimentation and reflection, how does one face one's own inner self? How does one face external skepticism? Transitional justice requires the clarification of values.

The ten characters "military prosecutor in the Formosa Incident" are by no means devoid of significance. On the contrary, the status of a public prosecutor carries considerable weight. The Formosa Incident is all the more weighty. A military prosecutor represents the state in prosecuting a group of individuals for engaging in seditious acts. Yet today, these very acts are recognized as forward-looking actions for Taiwan's democracy, resulting in a complete inversion of values. We must clarify whether the very same person still holds the same values. If not, how does he confront his past values?

Perhaps we ought to be more empathetic. Assuming we had been brainwashed by party-state education from childhood, with the atmosphere of the entire era being as such, we might not have made better choices than Lin Hui-huang. Few can transcend the era in which they live; after all, we too could simply be "the Lin Hui-huangs."

However, had Lin Hui-huang chosen to go into business, before the state fully implemented transitional justice, the oppressive weight of these values might have been slightly mitigated. Since he chose to continue serving as a prosecutor, he ought to face it, articulate it clearly, and cleanse his past values. Moreover, he aspires to become a Grand Justice, and a soul is the most vital attribute of a Grand Justice. The constitutional soul, which places the highest premium on values, should not and cannot be subservient to any political regime.

Otherwise, upon becoming a Grand Justice, he would merely defend the government and suppress the people. At best, he would passively evade the core mission of the judicial power. That would merely be holding high office, not serving as a Grand Justice. Without constitutional consciousness, everything else is simply out of the question.

High seniority, great learning, and exceptional capability are what high-ranking officials in the Ministry of Justice focus on, but they are fundamentally missing the point. To recommend such a candidate ultimately suggests that, when all is said and done, perhaps "the Lin Hui-huangs" are simply far too numerous.