The Homework of Transitional Justice for the Judiciary

At the end of his book A Century of Pursuit: Stories of Taiwan's Democratic Movement, Mr. Wu Nai-teh emphasizes the importance of human will and human values. He notes that the existence of a legitimate opposition party and fair elections are the core keys of democratic transition; once a society crosses this political threshold, freedom of speech, judicial independence, regular re-elections of representative bodies, and even constitutional amendments and other democratic systems will sooner or later follow. These arguments truly align with the basic logic of politics. The question is: why does Taiwan's society—where a legitimate opposition party has existed for decades and which has even experienced two peaceful rotations of ruling parties—still see the independence and impartiality of its judiciary heavily questioned?

The answer to this question is perhaps precisely that Taiwan's judiciary has never undertaken related measures of transitional justice.

So-called transitional justice refers to the remedial work undertaken by a society after a democratic transition to address the political oppression of a past authoritarian regime and the social division caused by that oppression. Over more than twenty years of democratic transition in Taiwan, aside from successively conducting truth investigations, compensating victims, and holding commemorations and remembrance activities similar to the 228 Peace Memorial Day, other actions—such as prosecuting and trying perpetrators, institutional reform, and personnel vetting—have yet to be properly handled.

In the Past, the Judiciary Was a Tool and Accomplice of the Authoritarian Regime

To be frank, as someone who entered the court service only after the first rotation of ruling parties, I never had a complete and clear understanding of the role played by the past judicial system; I always felt that most of the perpetrators were secret-service systems like the Taiwan Garrison Command. However, after reading the introduction to the book set A Century of Pursuit, I was startled to realize that the court system under the Judicial Yuan not only failed to fulfill its function of safeguarding human rights and defending the Constitution and democracy, but actually became a ruling tool and accomplice of the authoritarian regime. As for the prosecutorial and investigative systems, that goes without saying!

However, under circumstances where party-state authoritarianism and violence blanketed all sectors of the nation and society, and judicial personnel could hardly guarantee their own personal independence, expecting them to "remain untainted out of the mud" appears unrealistic. Nevertheless, once Taiwan's society has undergone democratic transition, even if we do not emulate a unified Germany by dismissing more than half of the former East German judges and prosecutors, at the very least we should—as commentators have suggested—see these judicial personnel confessing and explaining the truth of the events of those years and reflecting upon them to society in exhibitions for the Kaohsiung Incident or related cases. Only then can we look back at this history facing the future, and reaffirm Taiwanese society's embrace of democratic and human rights values. What is regrettable is that after the rotation of ruling parties, Taiwanese society not only failed to let these legal professionals know that "whatever passes leaves a trace," but even allowed certain perpetrators to "receive promotions and salary increases." Such collective neglect or forgetting naturally cannot manifest right and wrong, cannot comfort the wounds of those victims, and even less can allow judges to reclaim their own souls of adjudication.

Although we have missed the optimal moment to promote transitional justice, it is never too late to act. Because it is people who operate systems and people who interpret laws, just as the Austrian legal sociologist Eugen Ehrlich stated: "Only the personality of the judge is a guarantee of legal justice." That is to say, the will and value理念 of judges are what matter most. With "judicial independence" currently having attained a considerable degree of guarantee in Taiwan, and given the massive public-affairs decision-making authority enjoyed by individual judges as a result of adjudicating independently in accordance with the law (including deciding presidential election litigation concerning who the president belongs to, whether a former president was involved in corruption crimes, etc.), the legal conscience of judges is the barrier for judicial justice. If judges are not upright, if they curry favor with power, distort the law to pander to sovereigns, populism, or trial by media, how can the rights and interests of the people be protected, how can social justice be realized, and how can judicial credibility be ensured! Therefore, systems related to who has the power to adjudicate, judicial personnel appointments, and legal interpretation are matters we can still strive to improve.

The Root of the Transitional Justice Problem Lies in the Party-State Rule Policy of the Tutelage Period

First, since transitional justice aims to address the problems of the past authoritarian regime, solving the root of this problem should trace back to the source of the Kuomintang's establishment of the authoritarian system—namely, the Political Tutelage period beginning in the sixteenth and seventeenth years [of the Republic], rather than just the 228 and White Terror periods.

As the saying goes, after the founding of the Republic, although the political situation was turbulent and warlords wreaked havoc, at least the policy adopted was the Western separation of three powers and a non-partisan (independent) judiciary. Later, during the so-called Tutelage period, in order to implement the Kuomintang's policy of "party-state rule," not only were the separation of five powers and the supremacy of party power promoted, but the ideas of revolutionary popular sovereignty and the party-ization of the judiciary were also vigorously advocated. The so-called separation of five powers resulted in our country having a rare dual judicial administrative system worldwide—meaning that the Judicial Yuan and the Ministry of Justice under the Executive Yuan each manage a portion of judicial administrative operations, resulting in many judicial reform issues failing to progress due to antagonism between the courts and prosecutors or institutional mutual obstruction. As a result of the "party-ization of the judiciary," "drafting judgments according to party doctrine" and "the party-ization of judgments" became the supreme guiding legal principles, making "the courts were opened by the Kuomintang" a natural matter of course.

These policies and legal systems followed the Nationalist Government to Taiwan and were continuously applied until the democratic transition, becoming a part of the training and education of judges and prosecutors. Studying "President Chiang's Instructions" and "Revolutionary Philosophy" became important courses, and many incumbent judicial personnel were nurtured by such education. Of course, this touches upon the aspect of judicial personnel vetting, which is precisely the most difficult choice to make and relies on the wise decisions of politicians; however, at the very least, the position of Lin Hui-huang, the prosecutor who indicted in the Kaohsiung Incident, should be adjusted. For over a decade, as an implementer of training and education for judges and prosecutors, he has not only continuously replicated the stagnant culture of the judicial system and been unwilling to open courses related to transitional justice, but has also persistently insisted on the joint training of judges and prosecutors, keeping the courts and prosecutors as one big happy family and preventing the function of checks and balances between adjudication and prosecution from being realized.

Secondly, in the first year of the Republic it was decreed: "Presently, the laws of the Republic have not yet been deliberated and promulgated; all laws previously enforced and the new criminal code, except for those provisions conflicting with the national polity of the Republic which shall become invalid, shall all continue to be provisionally applied." In the 16th year [of the Republic], the Nanjing Nationalist Government promulgated: "Regulations and decrees enforced by the Beiyang government, except for those conflicting with the Kuomintang's party platform, doctrines, or the Nationalist Government's decrees and regulations, are all provisionally permitted to be applied." Logically, when the Constitution was enacted in the 36th year [of the Republic], many legal systems conflicting with constitutional democracy, the separation of powers, and other concepts should have been reviewed and abolished; however, because of the Chinese Civil War they were not properly handled at the time, leaving many current legal system concepts still carrying residues of the mindset of the autocratic era. Taking the binding force of judgments as an example, the judiciary can only issue judgments targeting individual cases; based on the legal principle of "like cases, treated alike," the legal interpretation of that case can then be applied to similar cases. Yet, inheriting the cultural mindset of "using precedents to break statutory law" under the autocratic imperial power of the Qing Dynasty, we created a unique system of selected precedents and general assembly resolutions worldwide, causing judges to adjudicate based on outdated precedents rather than the law.

Judicial Appointments Should Emphasize Will and Value Principles

For example, judges are human, not gods, and are inevitably prone to errors during adjudication, which is why the retrial system exists. The German legal system we received handles as many as two thousand retrial cases per ruling each year, whereas our country has only around five. Is Taiwan's judiciary really more progressive than Germany's? The reason lies primarily in being bound by Supreme Court Precedent No. 21 of the 35th Year [of the Republic], which distorts legislative intent and strictly narrows the requirements for initiating a retrial. What is its basis? It is the *Special Criminal Cases Litigation Ordinance* enacted in the 33rd year [of the Republic]. According to the provisions of that ordinance, indictments were decided by police agencies, no appeals were allowed against judgments, and only applications for review could be made, with review adopting written deliberation. Because it violated due process of law, that ordinance was abolished more than sixty years ago, yet judges must still continue to treat human lives lightly based on that precedent. How can Taiwan's judiciary have credibility!

Furthermore, since judges determine the shape of the law, their personnel appointments are of paramount importance, yet this is precisely what is most overlooked by our citizens. We have been afflicted by a "poison" in Chinese society—fearing the people becoming masters and overly relying on imperial examinations. How so? Modern civilized countries' litigation systems all adopt the principle of free evaluation of evidence, and professional judges enjoy very broad discretionary authority over factual determination and legal interpretation. To supervise and check judges, advanced countries, apart from establishing the prosecutorial system, mostly establish systems for public participation in adjudication. Only in this way can judges be prevented from distorting proper legal interpretations due to specific partisan or ethnic ideologies. When the "Yao Jung-tse murder case," the very first case tried upon the founding of the Republic, was heard, in order to demonstrate that we were a civilized country and "show a civilized atmosphere to the people," and upon the insistence of the then-Minister of Justice Wu Ting-fang, a jury system was even adopted. Yet, even now, more than a hundred years after the founding of the nation and with public education widespread, our government still does not trust the people and insists on promoting a "lay participation system" that only lets you watch without letting you judge!

Finally, "People are the foundation of judicial reform." Logically, after democratic transition we should pay even more attention to the appointment of judicial personnel, and in most countries judges are either chosen through elections or parliamentary appointment, or determined by diversely composed committees, with few instances of leaving it entirely to judges to decide autonomously. However, most judges in Taiwan enter through examinations, and their subsequent transfers and promotions are entirely decided by the judges themselves; consequently, seniority and graduation classes become the primary deciding factors, while the will and value frameworks of judges are not valued. Therefore, when the societal atmosphere cries out for blood, who cares that the "theory of statutory official powers" is the consistent view of legal practitioners! Only then do we see a lack of due process without debate, judging solely by "substantial influence." And because there is no public and transparent debate, people do not know whether this is the party-state consciousness of Supreme Court judges playing a role at a critical moment or an inevitable outcome of legal interpretation—no wonder there is criticism that "the courts were opened by the Kuomintang!"

Based on the principle of judicial independence, the judiciary should maintain a distance from political power, but judicial reform requires the support of political power to succeed. The dilemma of Taiwan's judicial reform currently lies on one hand in the lack of transitional justice mindset and institutional-chauvinist considerations in many reform bills, and on the other hand in the judiciary lacking resources and applause, treated like discarded shoes by politicians, leaving many bills lying dormant in the Legislative Yuan. But human historical experience tells us that if those in political power do not want to lose power in the future only to have new rulers use the judiciary and prosecutorial systems to strike at and persecute them, the safer approach is: give up control over the judiciary and prosecutorial system yourselves first, and strive to promote reform.

It is hoped that on this 228 Peace Memorial Day, all sectors of society can face up to the transitional justice homework of Taiwan's judiciary!