Transitional Justice and Regression of Democracy in Taiwan- Some Reflections

on the Practices of Vindictive Legislation

Liao, I-Ming (Professor, Dean of College of Law, National University of Kaohsiung, Taiwan)

Abstract

Transitional justice is a political concept used as a rhetoric for making terminal peace and
democracy consolidation by letting people remember the injustice and tragedy that caused by
authoritarian. But in Taiwan some recent legislative actions under the plea of transitional justice
would break the foundation of rule of law and further make democracy regressed. As a concept
accepted by most of political elites, why its practices could jeopardize democracy and rule of law?
To discuss this question is the major purpose of this article.
This article will first discuss the origin of democracy regression from practical law-making
perspectives, and to identify characteristics of vindictive legislation illustrated by Taiwan
recently legislations.
Then this article will identify three major characteristics of vindictive legislation: first,
vindictive legislation taking correctly punishing those whom commit seriously crime at injustice
past as practicing transitional justice, so it is welcomed by any opposite parties at present politics
and could also easily cover up majority bias. Second, in order for correctly punishing those who
commit injustice, vindictive legislation tend to delegate coercive power to administrative agency
without hesitation and the power that delegated usually only ruled not by law but political power.
Third, vindictive legislation could easily bring material or spiritual interests to those who
suffered injustice at past as well as to the ruling party, so there will have strong incentives for the
ruling party to copy it again and again.
At last, this article will argue that these three characteristics make the vindictive legislation a
danger tool for ruling party to regress democracy.

Keywords: transitional justice, democracy regression, vindictive legislation

Introduction

“Transitional justice” is a very important concept at politics and legal fields after world war II.
1
Recent two decades, although there is no world war at global village, terrorist attacks and religious

1
Transitional justice has a long history but it became prominent in transitional processes only in the second half of the twentieth
century, and mostly after the Cold War in parallel with the normative ascendance of the international human rights regime. The
Nuremberg and Tokyo trials were the emblematic of transitional justice about world war II. After that, during the 1980s,
transitional justice became a regular feature of governance transitions, especially in Latin America. Transitional justice is now
a recurrent issue in post-conflict situations, including where the state is not necessarily the only, or indeed main, perpetrator of
1



conflicts around the world cause everybody reemphasis the old vital question: how to prevent war by
establishing and keeping well legal system? When talk about preventing war and keeping peace in
formal and legal way, “transitional justice” has been a fashion words both in the practices and
academic fields.
In Taiwan, “transitional justice” raise again and again along with the party alternation. Due to the
civil war and authoritarian history2, the “transitional justice” always been used as rhetoric for the
new party to attack old party, or for politicians to raise an issue that could cause some media influential.
The most recent party alternation at Taiwan was 2016 when the DDP successfully defeat KMT and get
the authority to hold the executive apartment and take the majority in parliament- Legislative Yuan.
After that the DDP government proposed some policies under the rhetoric of transitional justice and
had caused a lot of conflicts at Taiwan politics and society.
Most of those conflicts about transitional justice policies are only non-sense political drama that are
not worthy of discuss them at international academic forum, but some legislative action under the
policy of practicing transitional justice have seriously damage the foundation of democracy and rule of
law system of Taiwan is very important for international academic discussion because it could give us a
critical example at researching the democratic consolidation and regression.
“Transitional Justice” is an idea that is for the purpose of keeping people to remember the vice of
authoritarian and so to prevent it happen again3. But according to some reflections about recent Taiwan
transitional justice practices, some kind of legislative action which was clearly focus on to realize
transitional justice would damage the foundation of democratic and rule of law system seriously but
without manifest syndrome. Legislative actions through democratic due procedural that hamper
democracy in latent way are the most critical root of democratic regression. How could transitional
justice ideas make democracy regression with legislative action? To discuss this question according to
recent Taiwan example is the purpose of this article.
This article will first discuss the origin of democracy regression from practical law-making
perspectives, and to identify characteristics of vindictive legislation illustrated by Taiwan recently
legislations.
Then this article will identify three major characteristics of vindictive legislation: first, vindictive
legislation regarding correctly punishing perpetrators as practicing the transitional justice ideal, so it is
welcomed by any opposite parties at present politics and could also easily cover up majority bias.
Second, in order for correctly punishing those who commit injustice, vindictive legislation tend to
delegate coercive power to administrative agency without hesitation and the power that delegated
usually only ruled not by law but political power. Third, vindictive legislation could easily bring

human rights crimes (Domingo, 2012).
2
The historical facts of Taiwan February 28 Incident and the White Terror that most Taiwan transitional justice programs and
debate address to could see Huang, 2016.
3
For the United Nations system, transitional justice is the full range of processes and mechanisms associated with a society’s
attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve
reconciliation. See GUIDANCE NOTE OF THE SECRETARY-GENERAL (MARCH 2010) United Nations Approach to
Transitional Justice.
2



material or spiritual interests to those who suffered injustice at past as well as to the ruling party, so
there will have strong incentives for the ruling party to copy it again and again.
At last, this article will argue that these three characteristics make the vindictive legislation a
danger tool for ruling party to regress democracy.

Democracy Regression

The general condition of democracy always been regarded as majority rule through fair and regular
election and laws4. But even the majority could take authority legally and rule by law, without
self-restraint, democracy may still in danger. If the majority take the authority and then reject to
self-restrain and follow the rule of law, in this article, I will regard it as democracy regression.
In the whole world, freedom and democracy had regressed to the worst grade during these 40 years
at about 2010. In Africa, development failed; in China, Russia, and also some South Korea, the
government threat to human right and freedom were more and more seriously. Philippe Schmitter had
correctly said, democracy is not surly going to consolidation, but turn into other kinds of authoritarian.
What kinds of governance the democratic system will transform depends on the way it came from and
5
also the way it rules.
So when democratic system wish to go to consolidation, not only had to protect it from outside
attack but also from inside collapse.6 And the inside collapse of a democratic system always start from
the elected majority government enforced its policies that had been a series of promises to constituents
without strictly observed the rule of law. Compare to the spirits of constitution and rule of law, promise
to majority of people been regarded as much more important. At this time, the discretional power
delegate from the parliament will be no boundary and limits. The majority ruling that willing to set no
limit to administrative discretional power is under a special condition, that is, according to what happen
recently in Taiwan, vindictive legislation under the plea of transitional justice rhetoric would easily
avoid questions about the legality and justification of unlimited administrative discretional power.

Transitional Justice and Vindication

Transitional justice is a kind of justice emphasizing on correcting injustice action which were

4
Juan Linz and Alfred Stepan conceptualize "democratic consolidation" as having behavioral, attitudinal,
and constitutional dimensions and define a "consolidated democracy" as a "political regime in which
democracy as a complex system of institutions, rules, and patterned incentives and disincentives has
become, in a phrase, 'the only game in town'" (Linz and Stepan. 1997).
5
Philippe C. Schmitter, “Transitology: The Science or The Arts of Democratization?”, in Joseph S. Tulchin
and Bernice Romero, The Consolidation of Democracy in Latin America (Colorado: Lynne Rienner
Publishers, Inc., 1995), p.14.
6
Samuel J. Valenzuela, “Democratic Consolidation in Post-transitional Settings: Notion, Process, and
Facilitating Conditions”, in Scott Mainwaring, Guillermo O’ Donnell and Samuel J. Valenzuela（eds.）,
Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective
（Notre Dame: University of Notre Dame Press, 1992）, pp.58- 70
3



justified by political right at authoritarian past but caused serious damages to some people. Democratic
government reviewed honestly all those actions done by its past leaders and officers that violate natural
law or damage human right seriously. By prosecuting those wrong doers and compensate the victims,
democratic government swear to all citizens that the human right will not be violate any more under
any kinds of reason or based on any forms of political right. Scholars and thinkers believe that by
recovering all criminal actions at the past could let people knowing its wrong and learning how to
prevent. Political actors claim that to punish the past wrong doers will bring comfort to victims and
their families and further believe that victim’s comfort is the base of eternal social peace.
Concluding the above ideas, transitional justice in practice always include three major works, to
investigate the truth about past injustice, government formal apologize and compensation to victims,
and prosecuting and punishing injustice doers.
In practical perspectives, transitional justice must be justice in delayed7. Such delayed justice not
only will be easily accepted by elites of political forum, it also hard to be questioned when the ruling
party want to accelerate it. So in political reality, few will doubt if transitional justice would utilize
illegal way so that cause new injustice. But in Taiwan recent legislation, there were some legislative
acts that were under the plea of carrying transitional justice, have now rooted authoritarian seeds at
Taiwan’s young and flat democratic soil. And those legislative acts have their common feature, that is,
justified vindication. The legislative acts that the major purposes are to justify the retaliatory measures
could be identified in this article as “vindictive legislation”. At the following section, I will identify the
vindictive legislation by comparing to ordinary legislation in three aspects: goal setting, enforce
techniques, and benefit parties.

Punishing as Governing

When the government proposes a legislative act that is vindictive contained, it must highlight a
special governing ideas, that is, to punish the bad guys8 is the best and even the only effective way of
governance. Compare to other form of governance, punishment governance taking the governing
purpose as much more easily and simple. It thought the social problem that government has to solve is
only caused by those who did something wrong or bad. To punish them rightly, the problem be solved
and the justice be done9.

7
Transitional justice could be defined as ‘the array of processes designed to address past human rights violations following
periods of political turmoil, state repression, or armed conflict’ (Olsen et al., 2010: 11). Because it is justice addressing to the
past, so it must be delayed.
8
At the GUIDANCE NOTE OF THE SECRETARY-GENERAL (MARCH 2010) United Nations Approach to Transitional
Justice, it highlight the first element of transitional justice programs is Prosecution initiatives: Prosecution initiatives aim to
ensure that those responsible for committing crimes, including serious violations of international humanitarian law and gross
violations of international human rights law, are tried in accordance with international standards of fair trial and, where
appropriate, punished.
9
Many have argued for the prosecution of the repressors and perpetrators to keep alive the historical memories of the repressive
past as an important bedrock for building a sustainable democracy. As Tina Rosenberg rightly points out, “While trials may
endanger democracy’s short-term prospects in Latin America, they are crucial for its long-term health.”(Rosenberg, 1995,
4



So when the bad guys who did the very wrong things at past are easily to identify, and what they
had done were more easily to be judged as wrong, then the punishment governance idea will be much
more easily than any other kinds of governance been support at political showing stage. For when talk
about justice at political arena, an eye for an eye, blood for blood is been regarded as more welcome to
the whole society10.
Politicians know how to avoid risk and capture one’s own political interest from issues that are less
disputable. To punish the well-known murders, slaughterers at past politics to let the victims and the
whole society could have an outlet to blow off steam is always a good rhetoric to win acclamation at
political exhibition.

Experts without Checking

After making sure that there are murderers and criminals to punish, and to punish them is right at
current politics. Then politicians have to let the punishment be properly done. The first step of proper
punishment is investigation of the truths-the truths that most people, especially politicians, have
already their presumed judgment. But politicians know, just because most people have their presumed
judgment about the past history, more investigation for finding out the evidences to prove most
people’s presumed judgment is right will make the punishing governance more acceptable and
unquestionable. So, delegate authority to some so called “experts” that have special privilege to
interpret the meaning of truth, will be no more better policy to practice transitional justice.
But who could be qualified as “experts”? And is there objective criterion to review the
qualification? These two questions could only be answered by political process11. First, about the
qualification of the experts, in common sense, it is the historical scholar, especially those scholars that
are major in the study of that injustice period are better. But even there surly are some historical
scholars who are really major in the study of the injustice period, not all those scholars could be
qualified and selected as the experts that own the privilege to interpret thousands of historical papers or
stuffs and making sure of the truth even though they may have written some researching papers about
that injustice period.
Maybe only those scholars with right thoughts and attitude so could be helpful for the government

404).
10
So, arguers had said, that Taiwan's experience had been so unique for at first wave of Taiwan transitional justice program
during 2001-2004, victims were given reparations but no single individual was prosecuted. Arguers has sarcastically called
Taiwan a phenomenon of "ten thousand victims without a single perpetrator" (Wu 2005: 91 ) and “the perpetrators of these
past crimes have long lived the good life, staying well beyond the arm of the law.” is a “shame for ordinary Taiwanese that
transitional justice is always something on the horizon, something the public does not feel justified in reaching out for.” (Peng
Ming-min, 2016) .
11
Political context influences the experience and outcomes of truth-telling exercises. Inevitably, these are contested processes
and, particularly when causes of conflict have not been addressed, warring parties find it difficult to establish a ‘shared’ truth.
(Domingo, 2012). Ongoing conflict or unresolved power struggles can also undermine the effective voice of some
constituencies. Some governments, such as those in Mozambique and Cambodia, even decided that revisiting the past would
be too devastating for their traumatised populations (Mobekk, 2005)
5



to fulfill transitional justice policies could be the real expert for investigating the historical truth and
interpreting them to meet the policy of government or ruling party. So due to this reality of choosing
experts for investigating truth, the criteria of expert is having the right will and skill to interpreting
history for meeting the transitional justice policies.
After gathering a group of experts, the transitional justice government needs to give them enough
authority and power to investigate. For speeding up the works and declaring the determination of
government to seeking the whole truth of the injustice past, transitional justice government always
gives those experts authority without checking power through due process of legislation.
At Taiwan, recent legislation gives the experts not only the uncountable power to investigate, but
also huge discretion power at imposing a fine to those who disobey the investigation orders12. Although
in the legislation, it still allowed the penalized unit or individual to lodge a complaint, the discretion
power delegate to the truth investigation authority has been a very special exceptional case in Taiwan’s
thirty years democratic legislative history. And it has caused seriously dispute at Taipei politics and
further made all governmental transitional justice proposals become political issues.

Victims present All

Even though the transitional justice proposals have become political issues, politicians in ruling
party still regard the transitional justice legislative acts as doubtless. Because at the political transitional
moment and under the transitional justice rhetoric, victim’s need is everybody’s need, victim’s interest
could present all society’s interest.
Victims of the past injustice are deserving of much sympathy. It could be a consensus among
people across races, religions, nationalities. In a diverse society, such consensus is more valuable. So
for politicians, to express one's heartfelt condolences to the family of the decease is a costless and
uncontested way to pursuing political support. For government, to mourn for the dead, to take care of
victim’s families’ life, to express their sorry could also show its benevolence to people in the most
costless and effect way. Giving full sympathy to victims is a high-end but cheap policy to both
politicians and government, so it leads to an ideal among political and civil society that regards the
victim’s interest as the whole societies’ interest13.
Victim’s interest became whole societies’ interest could simplify a lot a social problems. For
example, when there is racism conflict problem among society, maybe it is very hard to figure out why
the racism comes out, but when there is somebody dying at race conflicts, the tear families of the dead

12
A bill on illegal Party property was forced through the Legislative Yuan on July 25th 2016, and a commission was set up in the
Executive Yuan to proceed with the tasks of identifying illegal property and reclaim it. President Tsai Ing-wen appointed a
lawyer who had involved political affair very much and was a strong supporter of the President Tsai’s political ideas as head
of the Commission.
13
So some scholars had pointed out that in conflict-affected societies, both rule of law and transitional justice promotion
processes are often focused upon visible, public harms, and large scale institutional responses; however for many people
everyday violence and injustice is experienced differently, whether it is ordinary crime and disputes, gender-based violence, or
localized power-relations(Jensen, 2008; Tamanaha, 2004)
6



would tell the whole world every right. Their sad and their wish shall be shared by every rational
citizen around the world. So even the origins of racism conflict problems are so complicated, but if one
families of the dead crying at TV news and dreaming of a place with pure race and peace, there must
have some politicians yielding that the gate of country must be closed.
That is to say, to satisfy victims’ interest is relative simple solution to the social problems. It is not
only simple but also cheap. For the victim are mere the few minority of people. To meet their needs
costs few but everybody applauses. If anyone dare not to applause, he or she may be cursed as
merciless cold animals by the whole world.
Concluding the above analysis, the victims’ interest could easily become the whole societies’
interest and transfer to formal policy that no one dare to opposite it if policy makers are lazy to deal
with the differences between victims’ interest and the whole society interest14.

Transitional Justice and Populism

Under transitional justice ideal, few victims’ interest substitutes the whole society’s interest.
Victims’ interest is important, that is right. But if the victim’s interest is the dominant and exclusive
interest that needs to be take care, then the justice will go to populism.
Populism seldom has its connections with transitional justice. But in academic dialogue, it is still an
open question that whether the transitional justice should have its purpose on preventing populism?
This question needs to be answered, because it has its dual question in the shadow: is it possible that
practicing transitional justice would lead to political populism? In Taiwan recent experiences, yes,
transitional justice may possibly turn into the perfect excuses of political populism when politician
want to take the advantage of transitional justice by making some policy that causes the few loudly
group’s interest to suppress and substitute the silent majority.
Populism has no its exact appearances. Most of times, populism may even propose some ideas that
could be regarded as justice. When a society confronts some social problems that were really hard to
figure out their solution, then the populist could always give some simple ones. For example, when
majority of society become poorer, then the populists will quickly tell the mass that it is because the
bosses are all mean and salary they gave you is too few so make you poor. Populist could quickly make
decision that to punish the mean bosses and ask them give you more money by the law will rightly
solve the social poor problem.
Or when there were some serious traffic accidents happened and caused many people dead. The
reasons the drivers in accidents could not keep in proper speed maybe very complicated, but populists
know what answer will be popular. They said it was the mean boss push drivers too harsh so they
losing the ability to control speed and protect the passengers. So populists soon concluded that only
give the mean boss the most strictly punish and hardest regulation on their management so could make

14
So transitional justice in Taiwan had been criticized as: “pursued only by providing reparations to the victims but without
tackling the greater issues of retributive justice against the perpetrators and of historical rectification.” (Wu, 2005)
7



the drivers healthy and could protect all passengers.

Populist politicians know justice delayed is justice denied but it always delayed, so their job is to
make the justice be done as soon as possible. So to simplify the question and figure out solution
quickly is justice for the masses. If simple answer and quick solution could be justice, then in
transitional justice they are doubtlessly right. So could we conclude that populism give transitional
justice right and practical contents15?

Conclusion

Most politicians never honestly uncover their real faces to the civil society. But they should
confront all the real results of what they have done. Transitional justice is a political concept used as a
rhetoric for making terminal peace and democracy consolidation by letting people remember the
injustice and tragedy that caused by authoritarian. But in Taiwan some recent legislative actions under
the plea of transitional justice would break the foundation of rule of law and further make democracy
regressed.
There are three major features of vindictive legislation illustrated by Taiwan recent legislations.
First is punishing as governing. Vindictive legislation regards correctly punishing those whom commit
seriously crime at injustice past as practicing transitional justice. Such governing idea is welcomed by
any opposite parties at present politics and could also easily cover up majority bias.
Second, delegate the experts without checking. In order for correctly punishing those who commit
injustice, vindictive legislation tends to delegate coercive power to administrative agency without
hesitation. But the power that delegated ruled not by law but political power.
Third, vindictive legislation could easily bring material or spiritual interests to those who suffered
injustice at past as well as to the ruling party, so there will have strong incentives for the ruling party to
make the victims’ interest substitute the whole societies interest and copy it again and again.
I doubt that these three characteristics may make the vindictive legislation a danger tool for ruling
party to regress democracy. For populist politician could easily utilize vindictive legislation to let
justice be done in front of the masses.

References

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processes, weighing efficacy. Washington, DC: US Institute of Peace.
Mobekk, E. (2005) ‘Transitional justice in post conflict societies: approaches to reconciliation’.
Geneva: Geneva Centre for the Democratic Control of Armed Force (available at

15
So the World Development Report (World Bank, 2011) rightly acknowledges that transitional justice is not just about
examining the past, or focusing on the victims of human rights violations. Rather, the manner in which legacies of violence,
conflict and human rights violations are addressed affects short-term peace processes and longer-term state-building and
development processes
8



http://www.bmlv.gv.at/pdf_pool/ publikationen/10_wg12_psm_100.pdf).
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