Taiwan – A Total Lack of Accountability?

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officers involved in the coup and the Gwangju crackdown were also convicted. Chun was sentenced to death and fined US$283 million, while Roh was given 22½ years

imprisonment and a fine of US$355 million. The other involved officers were sentenced to between four and ten years (Roehrig, 2001, p. 179). Chun’s sentence was then

commuted to life imprisonment, and Roh’s to seventeen years. All were subsequently pardoned by the outgoing president Kim Young-sam in December 1997, the result of an agreement he reached with Kim Dae-jung.

The suspension of the statute of limitations was extraordinary, and it took a considerable amount of legal manipulation to defend it as being compatible with rule of law in a newly-democratized country. The Special Act “stipulated that the limitation period ceased to run during the period of the presidencies of Chun and Roh” (Cho, 2007, p. 583) with the rationale being that it would have been extremely difficult to level any charges against either president during their dictatorial rule. Some legal scholars have questioned the constitutionality of the Special Act, as it constitutes ex post facto legislation, possibly violates the principle of equality before the law, and treats specific acts as crimes, which goes against the notion of presumption of innocence (Waters, 1996, p. 482). If Korea was to disassociate itself from a past in which authoritarian regimes justified their excesses by bending the law to their whims, the new democratic government would need to consider how it pursued processes of transitional justice in the future.

Also, in an ironic twist, Chun had the audacity to claim that his due process rights were violated in the course of the trial (Minbyun, Personal Correspondence, February 7, 2017;

West, 1997, p. 102), though his claim may have some validity, as the latter part of the trial was rushed to ensure that he and Roh would not be freed. Waters (1996) believes that these issues could have been avoided “by simply charging the two in accordance with the Constitutional Courts mandate to the Prosecutor’s Office, and not at the whim of President Kim” (p. 483).

3.3.2 Taiwan – A Total Lack of Accountability?

As mentioned earlier, Taiwan has yet to have a full accounting of the truth of its

authoritarian past through the application of a truth commission mechanism, let alone a

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process of apportioning criminal responsibility for violations of human rights that occurred during the nearly forty years of KMT party-state rule. To this day, there have been no criminal trials for leaders involved in political repression or state violence.

Because of the KMT’s continuous withholding of archives related to the White Terror and the penetrative nature of the security apparatus led by Chiang Ching-kuo throughout the period of martial law, it’s extremely hard to determine, even at this point, where one would even begin assigning responsibility.

The closest Taiwan has come to determining accountability is naming a few major actors responsible for the indiscriminate violence that resulted in the deaths of tens of thousands during the 228 Incident in the two reports detailed in the first part of this chapter.

However, as Hwang (2016) points out, none of these officials were alive by the time the reports were written, nor were they brought to justice before they died (p. 176). Chiang Kai-shek, who was allotted the highest responsibility for 228 in the 2006 report, is still held in high repute by many in the KMT, with any attempt to remove memorialization of him strongly condemned by this group. Hwang also notes that “some victims brought damage claims and criminal charges against several still-living high-ranking officials believed to be key perpetrators” but that “none has so far been successful” (Ibid., p. 176).

Many of those considered wrongdoers are immune from prosecution due to the statute of limitations (Ibid., p. 176).

Not only does Taiwan currently have little means of determining individual liability, its victims also have no legal path to restoring their reputations, which were gravely

damaged by being convicted of crimes against the state in martial law era military courts.

This absence of legal recourse finds its origin to Article 9 of the National Security Act, legislation passed on July 15, 1987, that stated:

After martial law was lifted, the non-active military personnel trialed by the military judicial authorities during the period of martial law and within the region of martial law shall be processed by the following:

1. Pending cases of military justice shall be transferred to civilian prosecutors concerned for investigation or to civilian courts concerned for trial.

2. Decided criminal cases shall not be subject to appeal or resistant

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announcement, while the case with legitimate grounds to retrial or extraordinary appeal shall be subject to retrial and extraordinary appeal according to the applicable laws.

3. Cases under or pending execution shall be transferred to civilian prosecutors concerned (Ministry of Justice).

To make matters worse, Article 9 “was later declared constitutional by Taiwan’s Grand Justices in its JY Interpretation No. 272 on January 18, 1991” (Hwang, 2016, p. 171).

The court’s reasoning was vague; it stated that

…the reasons why the finalcourt decisions with respect to criminal cases

adjudicated in the military tribunals may not be appealed to the competent court, are due to the long-term enforcement of the Martial Law, the difficulty in

gathering and investigating evidence after such a long period of time has elapsed and circumstances have changed, and the need for maintaining the stability of judgments and social order (Interpretation No. 272, 1991).

Victims of imprisonment for political offenses during martial law from that point forward have not had any legal means of restoring their reputations, but starting with former president Chen Shui-bian, the government began awarding certificates of good citizenship to those unable to appeal their convictions.

Taiwan’s circumstances in this regard stand in stark contrast to South Korea, where the Special Act of 1995 specifically granted “a right to have a special retrial…to people who had been punished because of their engagement in the May 18 Uprising or because of their opposition to crimes against the constitutional order” (Cho, 2007, p. 583). This is unfortunate, given Taiwan’s major strides in improving its record on human rights over the past two decades since democratization. The majority of Taiwanese society’s acknowledgement of the unjustifiable nature of the actions taken by the authoritarian government during martial law further adds to the necessity of repealing this part of the National Security Act.

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