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Chapter 5 – Conclusion
This thesis has compared broadly the approach to transitional justice taken by two East Asian third wave democracies, South Korea and Taiwan. These two countries were chosen for comparison because both experienced similar developments in their 20th
century histories, yet have taken very different approaches to accounting for human rights abuses that occurred during their periods of colonial and authoritarian rule. While the post-transition Korean governments have chosen a comprehensive process of multiple truth commissions covering a broad range of events and time periods, criminal trials for major perpetrators, and reparations for victims, Taiwan has pursued only fact-finding studies performed by research teams organized by the Executive Yuan, compensation schemes for victims of the 228 Incident and the White Terror, and, currently, the settling of the KMT’s party assets. In conducting the research and production of this thesis, the author chose to focus on truth-finding and criminal accountability, the two aspects where South Korea and Taiwan differ most strikingly in this process, and to determine why these differences exist.
The findings were likely only a portion of the full array of different factors that
influenced how Taiwan and South Korea have approached this issue, but were the most noticeable from a deep review of the literature and speaking with experts, academics, and lawyers in both countries. Perhaps the most important reason they differed in tackling transitional justice, save the divergent cleavage structures in Taiwan and South Korea, was the staying power of the KMT. The KMT, which possessed more antecedent strengths at the beginning of Taiwan’s democratic period than the Democratic Justice Party of Roh Tae-woo in Korea, maintained governing control of the presidency and law-making body, as well as influence in the judiciary for over a decade after the country’s transition from authoritarianism. This allowed it to pass laws like the National Security Act, Article 9 of which is a deliberate move to protect perpetrators and legitimize authoritarian era court martial decisions. This also gave it the ability to staff its
constitutional court during the first five years following the democratic transition with justices who would use their review power to rule Article 9 constitutional.
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Lastly, the amount of time elapsed between incidents of intense state violence and democratization varied between Taiwan and South Korea. This is because the coercive apparatus Chiang Ching-kuo cultivated in Taiwan was unitary and penetrative, and used targeted, discriminate violence against those it suspected of subversion or treasonous activity. The tragic brutality of 228 Incident and the height of the White Terror violence were not forgotten, but were not fresh on the minds of the generation who came of age during the latter years of the KMT’s martial law rule. Meanwhile, the government’s use of violence against South Koreans during authoritarian rule depended on the perceived threat of different dictators. In particular, the Gwangju 5.18 Incident had occurred only ten years before democratization and became South Korean civil society’s jumping off point to push for further transitional justice measures.
It was with this information in mind that the author started research on this topic one year ago, with the belief that South Korea’s comprehensive approach was a good model for Taiwan to emulate. Indeed, even the well-regarded work of Olsen, Payne, & Reiter (2010) specifically mentioned Korea’s success with such an approach, noting that even though the high expectations for truth commissions such as the TRCK were not fully met, the different mechanisms of the “justice balance” process that the country adopted
“complemented and reinforced” the “stability and accountability functions” that evolved from its use (p. 1004).
However, after endless hours of scouring the literature, as well as interviews with lawyers and academics in South Korea, some of whom had taken a very active part in creating the transitional justice legislation that was implemented in the late 1990s and early 2000s, a different picture began to emerge. The multiple mechanisms used there had ended up being toothless. Truth commissions lacked subpoena power, severely limiting the ability to apportion responsibility for past wrongs, and possibly preventing some victims from feeling safe enough to tell their own side of the story. Similar to Taiwan, victims were awarded compensation, but it was a hodgepodge of different reparatory schemes, with some victims, like those affected by the Gwangju Incident, awarded much higher sums than those who experienced political suppression elsewhere (Baik, 2012). Reconciliation, in the views of many, has yet to be achieved. Despite Korea’s success in reforming
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institutions through the promulgation of a new constitution in 1987, remnants of the turbulent and repressive past, such as the National Security Law, still exist and have continued to serve as tools of political repression by conservative politicians.
Unfortunately, these are some of the common pitfalls of transitional justice anywhere, comprehensive or not. De Greiff (2012) describes this best by stating:
We should acknowledge from the outset the limited reach of each of the measures that is part of a transitional justice policy. In fact, there is no transitional country that can legitimately claim great successes in this field. That is, there is no country that has undergone a transition that has prosecuted each and every perpetrator of human rights violations…; that has implemented a truth-seeking strategy that disclosed the fate of each and every victim…; that has established a reparations program providing each and every victim with benefits proportional to the harm he or she has suffered; or that, particularly in the short run, has reformed each and every institution that was implicated in the violations in question (p. 35).
In other words, no approach is perfect or can be applied to every case. Authoritarian regimes like those that governed Taiwan and South Korea, did so for so long, and violated the rights of so many, that a totally thorough accounting would be impossible.
Furthermore, it would take necessary focus away from other pressing issues of the present that also affect a country’s democracy and human rights.
It then must be asked how these two countries, particularly Taiwan, can move forward with its program of transitional justice in a way that at least helps promote reconciliation, healing, and healthy acceptance of the past. It is also relevant to reflect on the lessons that Taiwan can learn from the weak points observed in South Korea’s transitional justice process. Information from the interviews the author conducted, as well as that gathered from the literature has helped form a more nuanced and informed answer to these questions.
Neither interviewee in Taiwan thought that the process of transitional justice there had been completed, which is not surprising, but they also believed that the current DPP-controlled presidency and legislature are not doing anything substantial to get started on a
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feasible approach. Su Ching-hsuan attributed this to ambivalence on the part of many politicians towards most transitional justice measures:
I think one of the issues is, they believe this is a troublesome topic. Many of them have no idea how to accomplish transitional justice. The other issue is some of them believe that party assets settlement is the extent of transitional justice, it’s possible that some of them think this. So to me, this is pretty alarming. I
personally don’t think that settling party assets is enough (Su, Personal Correspondence, May 5, 2017).
Professor Huang Cheng-yi reiterated this point, noting that, beyond the Party Assets Settlement Committee, the only other move towards formulating an approach has been the draft bill on promoting transitional justice. He argued that this is ridiculous, in that it sets up a commission to draft legislation on transitional justice, rather than make any concrete steps toward its realization. He and other members of the Taiwan Association for Truth and Reconciliation “have been criticizing the Tsai administration because they don’t have any clear picture for transitional justice” (Huang, Personal Correspondence, May 23, 2017).
Both Su and Huang thought that a truth and reconciliation commission would be the best plan of action for the case of delayed justice in Taiwan. Su noted the most important aspect of this would be a final report issued at the end of the commission’s investigation.
He posited that this should focus less on the White Terror “political case” aspect that a lot of the previous work of civil society organizations emphasized, and more on parsing the intricacy of the surveillance network that defined the KMT’s internal security apparatus (Su, Personal Correspondence, May 5, 2017). Professor Huang, being a legal scholar, pointed to the repeal of Interpretation No. 272, the Council of Grand Justice’s ruling on the constitutionality of Article 9 of the National Security Act, as being of primary
importance. (Huang, Personal Correspondence, May 23, 2017). These suggestions appear to be a viable start to a more complete transitional justice program in Taiwan.
On the other hand, the opinion of Attorneys Chang and Seo that better education on human rights and transitional justice, as well as the work of civil society organizations in continuing to push for more truth-finding and reconciliation efforts, especially in the
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aftermath of the Park Geun-hye debacle, is not to be understated. It’s difficult to gain public support for a project as large as a truth and reconciliation commission if the public is not exactly clear on the benefits such a commission can bring. On the other hand, Professor Paul Hanley’s observation that many of the transitional justice measures in South Korea were used more as political weapons against the conservative party than as tools of restoration and reconciliation also raises concerns for Taiwan’s situation, where the Party Assets Settlement Committee is seen by many as a partisan attempt at revenge against the KMT.
It is because of these concerns that the author has settled on four broad overarching goals that a future approach to transitional justice in either Taiwan or South Korea should strive to achieve. Firstly, it should focus as much attention as possible on the rehabilitation and healing of the victims. Both countries, despite the flaws in their respective transitional justice processes, have made significant steps towards this goal. In South Korea, although some measures were more punitive in nature, the majority of the transitional justice legislation passed was moderate, focusing on truth-finding, compensation for victims, and restoration of their reputations. A similar situation can be observed in Taiwan’s experience: although truth-finding was not as strong or comprehensive as that which took place in South Korea, victims of the 228 Incident and the White Terror were provided compensation if it was applied for. One of the most important actions the current administration can now take is to work towards repealing Article 9 of the National Security Act, in order to allow those convicted of crimes during martial law to appeal their convictions in civilian courts.
Secondly, it should make truth-finding an official process. In order to do this in Taiwan, all documents related to the White Terror and martial law must be moved from the Ministry of Defense to the National Archives Administration and declassified (Huang, Personal Correspondence, May 23, 2017). The information gathered from these archives should be investigated along with the testimony of victims and perpetrators, if they are still living, in the form of a truth commission. As Hayner (2011) observes, truth
commissions not only “focus on victims, usually collecting thousands of testimonies, and honoring these truths in a public and officially sanctioned report” (p. 13), they also have a
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“broader mandate to focus on the patterns, causes and consequences of political violence”
which allows them “to go much further than is generally possible (or even appropriate) in a criminal trial” (Ibid., p. 13).
However, in order to be more effective and to learn from the lessons of the South Korean experience, a subpoena incentive must be applied in such a commission, and all involved should give testimony under oath. Exception must be made for the very wide reach that the former surveillance apparatus had, with the acknowledgement that in many cases cooperation was forced or coerced. Victims and perpetrators also must face each other in the controlled environment of a commission, in order to promote, if not engender, some sort of reconciliation.
Thirdly, a truth commission of this kind must be as nonpartisan as possible and maintain respect for all groups who may become involved. In Taiwan, this means a commission composed of academics, historians, and civil society leaders from all backgrounds and ethnic groups. Because so many of those targeted during the White Terror and the martial law period were of mainlander origin, special attention must be given to this detail.
Success in promoting reconciliation in this area can expand to other painful or
controversial areas of Taiwan’s history, including Japanese colonialism and justice for aboriginal peoples, although the latter appears to be a more pressing issue at this point, as protestors for aboriginal land rights have been protesting on Ketagalan Boulevard in Taipei for over three months (Gerber, June 2017).
Fourthly, the purpose and importance of rule of law, human rights, democracy, and transitional justice must be made clear to the public. Mendeloff notes that “formal truth telling alone is unlikely to be sufficient. It is probably more likely to be effective if sustained and institutionalized, such as through public education” (p. 376). This sits with both Attorney Chang’s recommendation, as well as Su Ching-hsuan’s, who argued that a report submitted by a truth commission and made available to the public would improve civic education in Taiwan. Specifically it would be the process of producing the report that would have the biggest impact:
…in the process of writing the report, you need to continuously ask the public:
this person was treated like so by the government. Exactly what is wrong with this
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treatment? Was this treatment acceptable or was the government wrong for doing it? The report writers need to keep putting this information forward and letting society discuss it. And finally, they can produce a final report, so that when it’s published, society basically already has a way of thinking about these issues. Of course, there will be different opinions, but at the very least, they will have already faced these questions as a society (Su, Personal Correspondence, May 5, 2017).
Su’s suggestion would be a viable means of providing such a civic education and garnering more public support for a transitional justice program.
These proposals, while still difficult to implement, are nowhere near impossible in Taiwan or South Korea. Snyder and Vinjamuri (2003), proponents of a minimalist approach, argue that “when a country’s political institutions are weak, when forces of reform there have not won a decisive victory, and when potential spoilers are strong,”
attempting anything more than very superficial transitional justice is “likely to increase the risk of violent conflict and further abuses, and therefore hinder the institutionalization of the rule of law” (p. 15). None of these conditions are present in current-day Taiwan or South Korea. In fact, the opposite is true: pro-transitional justice parties are in positions of significant power.
Additionally, as Mendeloff suggests, “truth-telling is likely to be most effective when groups want to discuss the past” (p. 376). It is apparent that different groups do want to discuss the past, they are just at odds as to how that discussion should take place. This will be the main difficulty to overcome. The upside is that both Taiwan and South Korea are paragons of democracy, respect for human rights, and governance by rule of law, especially in relation to their East Asian neighbors. Both are also in a position to pursue or continue to pursue a policy of moderate restorative justice. It is the author’s hope that the governments of both countries act on this opportunity to finally help settle their complex pasts.
There is no easy answer as to how Taiwan, or South Korea for that matter, can most effectively plot the way forward in its pursuit of transitional justice for human rights abuses committed during the pre-democratic period of rule. The suggestions provided
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above seem feasible, but cannot accommodate all victims or assign responsibility to all perpetrators. In addition, an air of cynicism pervaded the interviews the author conducted on this subject, both in Taiwan and in South Korea, with all interviewees expressing similar ideas of mild, restorative justice and an emphasis on education, but none believing even this was very possible in either country’s specific circumstances. In Taiwan, this sentiment was even more pronounced, as the Tsai administration’s actions, despite multiple promises of a renewed project of transitional justice, have come to nothing more than a dogged pursuit of KMT party assets. Interviewees in both countries expressed their belief that a lot of what is done or proposed by certain parties in the name of transitional justice is a partisan political weapon, a way to demonize and marginalize the other, opposing party (Hanley, Personal Correspondence, February 17, 2017; Huang, Personal Correspondence, May 23, 2017).
Yet there were still expressions of hope for the future. The election of liberal President Moon Jae-in and his ties to the younger progressive movement that emerged with Roh Moo-hyun in South Korea, encouraged human rights attorney Chang Wan Ick, who also noted the persistence of victims and their family members in pushing for a continuance of the truth-finding process. He made clear his belief that transitional justice is not just “the work of one administration or government” but rather “the common work of all”
(Minbyun, Personal Correspondence, February 7, 2017). The same can be said of Taiwan, where intelligent, influential, and compassionate scholars and members of civil society organizations, such as the Taiwan Association for Truth and Reconciliation, also continue their work in consulting the government and educating the public on the benefits of restorative, victim-centered transitional justice, reform of outdated institutions, and respect for human rights. Their contribution, coupled with a government that is more amenable to instituting these changes, stands the best chance of helping to ensure that justice long delayed is not necessarily justice denied.
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