Constitutional Court Simulation Judgment No.4 and No.5
I. Background
A. Ex parte Tu Ming-Che
1. Tu Shiao-Sheng, a Tsou tribesman, who was the Petitioner Tu Ming-Che’s father, served as the Director of the Public Health Center in Wu-Feng Township and the Head of Hsin-May Farm in 1952. In the same year, Tu Shiao-Sheng, Kao I-Sheng, and Tang Shou-Jen were arrested after they attended the Committee on Security of Aboriginal Villages by the order of Taiwan Provincial Security Command (hereinafter referred as the Security Command). On the same day, Lin Rai-Chang, who was an Atayal member of Taiwan Provincial Temporary Council, was also arrested. In the next year, Tu Shiao-Sheng was indicted by the military prosecutor of the Security Command on charges of corruption according to the Suppression of Corruption Act. Later, Tu Shiao-Sheng and co-defendants, Kao I-Sheng and Lin Rai-Chang, who were indicted for violation of the Act Governing the Punishment of Rebellion, were subject to the jurisdiction of the military tribunal according to Article 8, Subparagraph 2 of the Martial Law Act, after the Security Command submitted their case to the Premier and the Chief of the General Staff on the grounds that Tu Shiao-Sheng committed a crime seriously relevant to public order and received their permission. Tu Shiao-Sheng was convicted as accomplice of serial offenses of criminal conversion of public property and was sentenced to 15 years of imprisonment, deprivation of citizen’s rights for 10 years, and property confiscation by the Security Command. Tu Shiao-Sheng was charged by the Chief of General Staff to the said judgment an additional crime of embezzlement because of personal possession of public fund that should have been distributed to the public. Adding together, Tu Shiao-Sheng was sentenced to 17 years of imprisonment as cases consolidated. Finally, the said judgment on Tu Shiao-Sheng was sent to and signed by President Chiang Kai-Shek of the Republic of China (hereinafter as R.O.C.) while the sentence was not modified. Kao I-Sheng and Tang Shou-Jen were convicted offenses against treason proscribed by the Act Governing the Punishment of Rebellion and sentenced to death penalty.
2. In 1997, after the lift of Martial Law, Tu Shiao-Sheng had made a petition to “Foundation for Compensation for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period” (hereinafter referred as Compensation Foundation); later in 2002, the petitioner made an application for compensation to the Compensation Foundation based on the provisions of Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (hereinafter referred as Compensation Act). However, in 2003, the Compensation Foundation rejected the said application for compensation on grounds that Tu Shiao-Sheng was convicted of corruption-related offenses instead of treason-related ones, and, in accordance with Article 2, Paragraph 2 and Article 15-1, Subparagraph 1 of Compensation Act, such an application was beyond the mandate of the Foundation. In 2007, another Tu’s descendant made an application for compensation to the Compensation Foundation and the request was rejected again. On July 24, 2015, the Petitioner filed an appeal against the said decision of the Compensation Foundation, and currently the appeal is pending before Taipei High Administrative Court. As aforementioned, the Petitioner petitioned to this Court and claimed that Article 2, Paragraph 2 and Article 15-1, Subparagraph 1 of the Compensation Act infringed on the right to claim redress from the State for damage protected by the Article 24 of the Constitution and as such, should be unconstitutional.
B. Ex parte Huang, Kuo-Chang
1. The Petitioners, who are the members of the Legislative Yuan including Huang, Kuo-Chang and 30 other legislators, filed a petition against Article 8, Paragraph 1, Subparagraph 2 of the Compensation Act, which provides that if the conviction of sedition or treason was duly rendered pursuant to current laws or rules of evidence, the convicts may not apply for redress. The petitioners prayed for a constitutional review over the said provision made by this Court, on the ground that the said provision violates the principle of separation of powers. As the proposal of amendment of the said provision failed to win the support from the majority of legislators, the petitioners may file a petition for constitutional review from this Court in accordance with Article 54, Subparagraph 1 of the Statute of Constitutional Court Simulation (hereinafter referred as CCS).
2. Take the case of Li Ma-Tau as an example: Li Ma-Tau became a communist after Sino-Japanese War and joined the activities held by Taiwanese branch of the Chinese Communist Party, and participated in the rebellious activities involving the February 28 Incident in Chia-Yi County in 1947. From 1948 to 1949, Li Ma-Tau was in charge of the organization of communist branches during the February 28 Incident, and as a result 26 branches of the communist party including 3 units were established under his direct command across the southern parts of Taiwan. In 1952, Li Ma-Tau was arrested by the Security Command, admitting his involvement with the Communist Party and making a detailed confession to the activities he had involved. The Security Command was convinced that Li Ma-Tau’s activities in organizing underground cells for the Communist Party violated Article 100, Paragraph 1 of the 1935 Criminal Code, which provided that “an attempt with intent to destroy the organization of the State, seize State territory, or, using illegal means, change the Constitution or overthrow the Government.” Li Ma-Tau was subject to the military tribunal according to Article 2, Paragraph 1 and Article 10 of the Act Governing the Punishment of Rebellion. In 1953, Li Ma-Tau was convicted of the crime provided in the aforementioned provisions and sentenced to death penalty. Pursuant to Compensation Act, Li Ma-Tau’s son applied for compensation on his father’s wrongful trial. However, the Compensation Foundation found that the confession made by Li Ma-Tau was made under his free will, and the statement of his involvement in organizing the establishment of the communist cells, with an intention to subvert and overthrow the government, was truthful. Based on those findings, the Compensation Foundation rejected the compensation claim raised by Li family, on the ground that the conviction of Li Ma-Tau was made in accordance with Article 100 of the 1935 Criminal Code and Article 2, Paragraph 1 of Espionage Act, which were effective at the time of the conviction in 1953.
3. The Petitioners claim that Article 100, Paragraph 1 of the 1935 Criminal Code is in violation of the right of personal freedom provided in Article 8, the freedom of assembly provided in Article 14, the right to life provided in Article 15, and the freedom of thought provided in Article 22 of the Constitution. Besides, the Petitioners also claim that Article 9, Paragraph 2 of National Security Act is not in conformity with the protection of the right to institute legal proceedings provided in Article 16 of the Constitution since the Compensation Foundation rejected the redress claim raised by Li family in accordance with the said provision. Moreover, the ruling of J.Y. Interpretation No. 436 already announced that Article 9, Paragraph 2 of National Security Act, which provides the decided military tribunal case in which the convicts were non-mlitary personnel shall not be subject to appeal or interlocutory appeal, is not in conformity with the principle that no person shall be subject to trial by a military tribunal in Article 9 and due process of law protected by Article 8 and 16 of the Constitution, because the said provision deprives the convicts of the access to court in the post-Martial-Law time. Furthermore, Article 8, Paragraph 1, Subparagraph 2 of Compensation Act, which authorizes the Compensation Foundation to determine whether or not the convictions of sedition or treason was duly rendered through administrative proceedings, infringes the principle of separation of powers under the Constitution.
II. Reasoning of the Decision
A. Were the system of national mobilization for suppression of the communist rebellion and martial law before Taiwan transformed into a democracy a system of the unlawful state? Were punishment of sedition stipulated in Paragraph 1, Article 100 of 1935 Criminal Code and Paragraph 1, Article 2 of the Act Governing the Punishment of Rebellion one of the means taken by the state to infringe human rights?
1. The total opposite of the free, democratic and constitutional state : the illegitimate state
Under the constitutional democratic order, the legitimacy of a state lies in its function to protect people’s fundamental rights, by which the use of state power should be restricted. The principle of the rule of law, including separation of powers, executive authorities’ duty to abide by the law, judicial independence, judiciary’s duty to render decisions in accordance with law, and legal stability, cannot be limited to merely formality but aims at ensuring the supremacy of the Constitution and protection of fundamental rights. In preventing excessive centralization of powers from infringement of people’s rights, the state should be restricted by the principle of separation of powers, limit of duration and the nature of matters, even in imminent danger where emergency measures are necessary. Whether the state is in imminent danger and whether the use of emergency measures exceed the scope of power granted by the Constitution should be reviewed by another constitutional authority. On the opposite side of the spectrum is the illegitimate state (Unrechtsstaat), which not only lacks of principle of separation of powers and protection of fundamental rights but also is an one-party dominant state. It is a regime of totalitarian dictatorship (totalitäre Diktatur) that extensively and intensively abuses its executive powers and makes the law an embodiment of party ideology. It monitors people strictly, restricts their rights, and systematically suppresses different political opinions. Despite in appearance there exists regulations and laws (some of which looks even progressive), administrative agencies and judicial organs twist the meaning of law in enforcement and interpretation in order to serve for certain ideology and ingratiate the dictator’s will.
2. Enactment of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion has destroyed the Constitution
The National Assembly of the First Term amended the Constitution by enacting “the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion” and gave the President power to issue emergency decrees, notwithstanding the restrictions provided in Article 39 and Article 43 of the Constitution, merely through resolution of the Executive Yuan Council, without requiring the Legislative Yuan to enact the Law on Emergency Decrees before the issuance. Further, the President’s power of issuing emergency decrees was expanded to comprise the power to proceed national mobilization in order to suppress communist rebellion. In Spite of not meeting the requirement of physically incompetent, Chiang Kai-shek refused to resign but instead invoked Article 49 of the Constitution to assert he was unable to attend to office. Considering his own political interest, he later twisted Article 49 of the Constitution again and resumed his position with no legitimate cause. Under such circumstances, the constitutional legitimacy of these deeds was in ambiguo. Moreover, for the government of the ROC was unable to hold elections in Mainland China, democratic legitimacy of the Legislative Yuan, the National Assembly, and the Control Yuan shall be in question. However, delegates to the National Assembly, legislators, and ombudsmen of the following terms were not regulated elected, making the government lack democratic legitimacy for 45 years. National Assembly also amended temporary provisions to repeal the restriction against President to be re-elected and revised the government system arbitrarily for the reason of national mobilization system of suppressing communist rebellion. These deeds gravely violated principle of separation of powers. In addition, it consolidated the strongman politics and authoritarianism, which lacked democratic legitimacy and violated principle of separation of powers, through J.Y. Interpretation No. 31 and No. 85 and the enactment and amendment of the temporary provisions. As a result, the Constitution was destroyed.
3. Martial law system, security system and particracy
The government of the ROC enforced national mobilization system to suppress communist rebellion and declared martial law after it moved to Taiwan. People cannot form an association without approval and supervisor. The associations which did not get permissions from the government were illegal and prohibited. The security and intelligence system lead by the particracy during Kuomintang (hereinafter referred as KMT) Tutelage Period was re-established in Taiwan with the establishment of the Chiang Kai-shek regime; as a result, the period of White Terror was started. KMT controlled and commanded all the intelligence affairs, including the Ministry of National Defense, each administrative agency and every working committee of KMT, through political action committee and Information Management Division of Department of Special Affairs. KMT also established party committees, such as Educated Youth Division, Women’s Committee, and Culture Communications Committee, and party divisions in various schools to penetrate into each agency and deploy cell groups, which were the basic units to monitor, gather information in order to put the whole society under surveillance. The party, governmental and military sectors were all lead by one man, Chiang Kai-shek, who was at the same time the director-general of KMT, President of ROC, and the commander-in-chief of the Armed Forces. Under the interwoven powers of state intelligence and party security system, the nation soon became a one-party dominant particracy regime.
4. Security system and military tribunal system in the period of White Terror
The elements which constitute the crime of sedition stipulated in Paragraph 1, Article 100 of 1935 Criminal Code did not require employing violence or physical threats as the method, an act such as simply making a political statement or possessing writings or pictures related to the communism would suffice. As a result, people’s freedom of speech and freedom of thought were greatly restrained. Article 2, Paragraph 1 of the Act Governing the Punishment of Rebellion stipulated that the sentence of sedition shall be death penalty, taking Nazi Germany’s law as reference with a touch of state-socialism. Article 6 of Espionage Act in the Period of Mobilization for the Suppression of Communist Rebellion disregarded due process guaranteed by Article 8 of the Constitution. Article 4, 5, and 12 of the same law even established mutual monitoring system, which put people’s mind and speech under surveillance by security agency, relatives, friends, neighbors, and peers, which caused people’s personal freedom, life, body, and property under threat at any time.
Before the enactment of the Code of Court Martial Procedure, military tribunals were committee-based and not held in public. Its decision should be submitted first to the military commissioner and finally to the commander-in-chief of the ROC Armed Forces for approval. There was only one instance and one review, no separation of judge and prosecutor, and no appellate tribunal for appeal in the military trial procedure. After Code of Court Martial Procedure was enacted, Ministry of National Defense was the highest instance of military tribunals. It made military tribunals with judicial nature fall into military authority’s hand. The commissioner of military tribunals had the power to permit and reconsider the judgments and the power to approve the personnel of the tribunal. It made the executive power set foot in the arena of military trials. The defendant could not ask ordinary court to review the judgements made by military tribunals being in contravention of the laws and regulations. It violated the personal freedom and the right to institute legal proceedings guaranteed in the Constitution and conflicted with the minimum requirement of due process and the principle of separation of powers (See J.Y. Interpretation No. 436 and No. 477). The Code of Court Martial Procedure and Armed Forces Trial Act, which violated human rights and principle of separation of powers even more, were both a part of the illegitimate state in establishing a mechanism of systematic invasion of human rights in the period of White Terror.
5. The establishment of illegitimate-state system and the means to violate human rights
Although the cases involving sedition, treason, or espionage during the period of mobilization for the suppression of communist rebellion often decided in an ostensible form pursuant to legal procedure of the military tribunal, in reality, the decision about whether or not the defendant had committed the alleged offense or sentenced to reformatory education, whether or not he was to delivered to military tribunal, or on what date the sentence should be executed mainly depended on the political motivation of the intelligence and security agencies and to what extent the intelligent information had been satisfactorily gathered. Overlooking the principle of judicial independence, the intelligence and security system administered by Chiang Kai-shek and his son could operate information gathering by arresting, detaining, or convicting people under the pretext of espionage or other crime based on their political motivation at any time. The intelligence and security system were even allowed to monitor society in an all-round manner and arbitrarily used illegal means of reformation of character in the name of suppressing communist rebellion at dictator’s will. The final decisions of the cases in the military tribunal, which was not independent at all, were in the hand of Chiang Kai-shek and his son. People lost their subjectivity and dignity, and were reduced to ruler’s tools. Judiciary did not protect people but became ruler’s tool, too. The terror and feelings of isolation caused by invisible monitor brought about collective silence and aphasia on which the dictatorship was based. To sum up, not only the system of national mobilization for suppression of the communist rebellion and of martial law made the state system illegitimate, but also Paragraph 1, Article 100 of old Criminal Code and Article 2, Paragraph 1 of the Act Governing the Punishment of Rebellion became the vicious means to infringe human rights.
B. Why should Taiwan take measures to realize transitional justice after transforming into a democratic state? What is the constitutional basis of it?
1. The significance of transitional justice and the state duty
Transitional justice means a state’s self-accomplishment (Bewältigung) by confronting its history in the period of illegitimate state during the transforming process from dictatorship to democracy. It is not the subjugating action a winner takes but an accomplishment the state and people have achieved by coping with their own pass. What it achieves is not only inspecting those agencies and departments which symbolized the illegitimate state but also inquiring into the unlawfulness (System-Unrecht) and its contributing factors, bedrock, tools, and consequence of the illegitimate state. In order to realize the value of the constitutional democratic order and the state’s duty to guard and fulfil the Constitution, the free, democratic and constitutional state which succeeded the illegitimate state should re-examine or even reevaluate those deeds which conflict with the value of constitutional democratic order and violate people’s fundamental rights in the period of illegitimate state. Moreover, it should adopt remedial measures to fulfill its duty of rehabilitation.
2. Transitional justice is recognized in International Human Rights Law and UN Human Rights Conventions which have binding power in domestic legal system
A state has the duty required by International Human Rights Law to provide effective remedy and reparation to those whose human rights are violated. Article 2, Paragraph3 of International Covenant on Civil and Political Rights (hereinafter referred as ICCPR) stipulates the obligations of the states parties to provide effective remedy to those individuals whose rights and freedom guaranteed are violated. The obligations include: (1) state’s duty to investigate, (2) duty of reparation e, (3) guarantees of non-recurrence, (4) duty to prosecute the perpetrators, and (5) these duties should not be derogated even in imminent danger. United Nations Human Rights Council also pointed out that the state’s duty to implement transitional justice contains: (1) protection of the rights to truth, (2) protection of the rights to justice, (3) protection of the right to reparation, and (4) guarantees of non-recurrence. Since the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (hereinafter referred as Act to Implement the two Covenants) was enacted in Taiwan, , the two Covenants have already taken effect as a domestic law and had a binding power within the domestic legal system. In addition, Paragraph 2 of the Act to Implement the two Covenants stipulates that applications of the two Covenants should make reference to the purposes of the enactment and the interpretations made by the Human Rights Committee; therefore the general comments and related documents promulgated by the Human Rights Committee with regard to the applied protected rights should be binding and become references as the related provision was interpreted.
3. It is required by Article 16 and 24 of the Constitution that the state shall take on the duty to implement transitional justice and comply with the requirements in UN international human rights laws
Protection of the right to institute legal proceedings guaranteed by Article 16 of the Constitution shall include providing effective remedy to individuals whose rights are violated. The free, democratic and constitutional state which succeeded the illegitimate state has the duty required by the Constitution to investigate in order to find the truth for rights violation, to prosecute perpetrators and to guarantee non-recurrence. Article 24 of the Constitution imposes the state a duty of compensation if the government agency violates people’s rights. The legislative body also has the duty to enact laws related to embody the duty of compensation accordingly. In addition, legislative body can enact special laws to fulfill the duty to redress for specific purposes. For the same reason, the state shall enact related laws to fulfill state’s duty to implement transitional justice. When enacting such laws, it should be in accordance with principle of proportionality and the standard of international human rights protection. In other words, the state should comply with the principles stipulated in Article 2, Paragraph 3 of ICCPR and also the United Nations requirements for transitional justice which is based thereon. Consequently, state has to adopt legislative, administrative, and judicial measures to ensure people’s rights not only to identify the perpetrators, incidents, and reasons for the violation but also to urge state through judicial and other proceedings to investigate, vindicate, prosecute, rehabilitate, and compensate and to comply with the reparation criterion required by United Nations of restitution , redress, rehabilitation, satisfaction, and guarantees of non-recurrence of violations.
C. Does Subparagraph 2, Article 9 of National Security Act violate people’s rights to institute legal proceedings guaranteed by Article 16 of the Constitution? Is it necessary for J.Y. Interpretation No. 272 to be revoked?
1. The purpose of enactment aims to protect legal stability in form, while in reality it causes state to decline to assume responsibility for implementing transitional justice.
The enactment of National Security Act is based on the purpose to implement national mobilization for suppression of the communist rebellion. Although it was enacted to ensure national security and stability of the society, it still departs from the means a normal democratic state would adopt to safeguard the democratic constitutional order. Beside the concern for the legal stability of court decisions, the ban on appeal stipulated in Article 9, Subparagraph 2 of National Security Act is mainly for the following reason : if the filing for appeals were not limited to the action for retrial or the extraordinary appeal, the number of cases made by military tribunals accumulated in period of martial law over 30 years was too huge to be reviewed by the appellate court. Moreover, with the loss of witnesses and detriment of evidences, many cases were not able to be re-trialed. During the legislative debate, legislators who approved of the ban on appeal also admitted that the procedure in military tribunals may be flowed; however, for fear of political tumult and the turmoil brought by uncovering of the ugly past, they determined to restrict people’s right to appeal for cases of such nature after the lifting of martial law and had shunned responsibility of enactment for the excuses such as the impossibility of restitute and the unwillingness of the government to admit liability for its wrongdoing and compensate the victims of these wrongful cases. For such reason, Article 9, Subparagraph 2 of National Security Act had eschew state’s duty to implement transitional justice in the name of legal stability. The said provision hinders people from restitution of reputation, dignity, and rights, deprives people of rights to seek truth and justice, and influences the right to institute legal proceedings and the right to be compensated. Such provision should be void for violating people’s rights protected by the Constitution. Therefore J.Y. Interpretation No. 272 should also be revoked because it fails to consider the illegitimacy of the state during the said period, measures that should be taken after the lift of martial law, and state’s duty required by the Constitution to implement transitional justice.
2. The means legislative body and judicial organ should adopt to pursue transitional justice
Considering National Security Act has been enforced for thirty years, the period to file appeal for related military tribunal cases has expired, and most of convicts have been unable to file an appeal because being dead, legislative body should stipulate comprehensive scheme for the course of the appeal, the court to take jurisdiction, the period for appeal, preservation and delivery of the case files and evidence for the non-active military personnel trialed by the military judicial authorities during the period of martial law and within the region of martial law in law within one year from the announcement of this Judgment. Before related laws are amended or enacted, the convicts and their families referred in Article 13 of Compensation Act can bring appeals to Taiwan High Court and its branch courts from the announcement of this Judgment, the restrictions of period for appeal in Article 349 of the Code of Criminal Procedure notwithstanding. Besides, to avoid destruction, hiding, alteration, and damage of related files and harming the pursuance of truth and justice, this Judgment additionally orders an appropriate injunction as following: before Legislative Yuan enacts or amends laws relative to the political archives and historical data of the period of unlawful state in our country, every agency is not allowed to destroy every temporary records prior to May 1, 1991 that it required to preserve by Archives Act. The legislative body can not only amend or enact laws to provide judicial remedy for convicts and their families to appeal or make interlocutory appeal, but also consult the legislation model of Law to Annul Unjust Sentences Imposed during the National Socialist Regime of Criminal Justice in 1998 (Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege) , which Germany adopted, to enact laws for annulment of sentences of the non-active military personnel imposed by the military judicial authorities.
D. Does the name and the purpose of the Compensation Act comply with the meaning and purpose of Article 24 of the Constitution, which held that state should be liable to compensate if any official illegally infringes upon the freedom or right of any person?
1. The Compensation Act did not consider the illegality of the state action in the political cases under military tribunal during the Martial Law period
Pursuant to the Compensation Act, no further appeal or interlocutory appeal can be taken for a judgment made in a military tribunal during the Martial Law Period. As a result, the Compensation Foundation had also circumvented substantive review of the illegality of the judgment itself and only decided on whether to grant rehabilitation of reputation or pecuniary compensate without determining the illegality of the original cases. Even though the applicant may resort to the administrative procedures such as administrative petitions or administrative litigation proceedings, the Administrative Court itself does not have jurisdiction over the originated criminal or military cases. Therefore, the Administrative Court cannot determine whether the procedures of the trial, the evidence, and the reasoning of the original cases are prudently decided and consistent with the current laws and rules of evidence. Consequently, there is no way for the Administrative Court to review whether the issuance of compensation order is originated from a wrongful state action. Take the Second Rehabilitation Law to deal with the wrongdoings by the Regime of the Socialist Unity Party of Germany (Zweites SED-Unrechtsbereinigungsgesetz) as a reference. Although the Second Rehabilitation Law adopts indemnification (Entschädigung) rather than compensation (Schadenersatz) as the way to restitute the victims’ damage deriving from the loss of their work or from other field, the purpose of enactment of the act explicitly acknowledges that such indemnification is based on the illegal infringement caused by state’s violation of the principle of the rule of law during the East Germany period. By contrast, the Compensation Act in Taiwan only names the remedy indemnification instead of explicitly acknowledging the illegality of proceedings for these political cases under military tribunal during the Martial Law period. This is an evidence that the state had eschewed its duty of compensation. Moreover, The February 28 Incident Disposition and Compensation Act, to which legislators who proposed the Compensation Act often referred, changed the wording of the act from “indemnification” to “compensation” in its amendment in 2007, in which the government expressly declared that the state was liable for its wrongful actions infringing people’s rights during the February 28 Incident. For that reason, according to the meaning and purpose of Article 24 of the Constitution, the legislature shall not remain silent or deny the illegality of the decisions made by the military tribunal during the Martial Law period.
2. The nature of the state compensation liability and the mechanism of compensation for wrongful detentions and executions are different and cannot substitute for each other
Even though the general mechanism of compensation for wrongful detentions in criminal procedure and executions has already been established in Taiwan, the ruling of J.Y. Interpretation No. 670 and Law of Compensation for Wrongful Detentions and Executions were both founded on the premise that state power is restricted by the principles of rule of law and separation of powers. Under the aforesaid framework, the state compensates applicants whose constitution-guaranteed freedom is constrained and suffer from special sacrifice for the purpose of criminal prosecution and punishment. This compensation framework is different from the cases where the infringement of rights and freedom were caused by the systematic abuse of powers and the deviation of the constitutional democratic order of intelligence and security agency and military tribunals. Accordingly, the purpose of Section 6, Paragraph 1 of Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law, which applies mutatis mutandis to the provisions of Law of Compensation for Wrongful Detentions and Executions, merely considers efficiency of the procedure; such provision cannot be deemed as equal to the safeguard of the right to be compensated by the state guaranteed by Article 24 of the Constitution. The of Law of Compensation for Wrongful Detentions and Executions also cannot be construed to mean that the infringement of people’s fundamental rights caused by the military tribunals for political causes during the Martial Law period is merely the special sacrifice which is necessary for the benefit for government’s criminal prosecuting actions. It cannot be used as an excuse not to examine whether the enforcement of state power has illegally violated people’s rights. In addition, even though the State Compensation Law and Law of Compensation for Wrongful Detentions and Executions were already enacted, pursuant to the provisions of Section 3, Article 2 of ICCPR and General Comment No. 31 on ICCPR, the state still cannot shunn its duty to create the first remedy procedure, or to compensate for state power’s illegal infringement of people’s rights during the Martial Law period. Within such scope, the provisions of the Compensation Act regarding restoration of reputation and pecuniary compensation should have prior application to the Law of Compensation for Wrongful Detentions and Executions and State Compensation Law.
3. The name and the purpose of the Compensation Act do not comply with the meaning and purpose of Article 24 of the Constitution
The Compensation Act has made the scrutiny of aforesaid illegal judgements impossible. In fact, the provisions of restoration of reputation and pecuniary compensation are not premised on the acknowledgment of state’s liability for its illegal infringement of people’s rights and abusive deprivation of lives. Within such scope, the name and the purpose of the Compensation Act do not comply with the meaning and purpose of Article 24 of the Constitution.
E. Does Section 2, Paragraph 2 of Compensation Act violate equal protection of Article 7 of the Constitution? Is it necessary for the ruling of Interpretation No. 477 to be modified?
1. The expansion of the scope of the applicants in the Compensation Act indicates that the scope of compensation is too narrow
The limited scope of compensation provided by Section 2, Paragraph 2 of the Compensation Act was affirmed by the ruling of J.Y. Interpretation No. 477, which considered the consideration of the scope to be within the sphere of legislative discretion and thus constitutional. However, Legislative Yuan has amended the Compensation Act twice, enacting Section 15-1 and 15-2 to enlarge the scope of compensation. Sub-paragraph 2 and 3 of Section 15-1, as well as Section 15-2 expand the period of applicant’s persecution; sub-paragraph 1 and 4 of Section 15-1 further expand the causes of compensation to include crimes beyond sedition, treason, and the crime stipulated in the Statute for the Eradication of Communist Espionage. In particular, the legislation of sub-paragraph 1 takes into account the fact that Kaohsiung Incident participants, many of whom were convicted of crimes other than treason; they were not treated as the “convicts” of Paragraph 2 of Section 2, and thus could not apply for compensation. Paragraph 4 focuses on those Taiwanese people who were forced by the Japanese to serve as the captains of teenagers educating and training institutions; they were reported after the war as to have participated in the war of invasion and were unlawfully detained by police agencies or military tribunals in the name of committing the crime stipulated in the Statute for Trying War Criminals, but only to be found not guilty in the judgment afterward. We can tell from the aforementioned process of legislation, that due to the delineation of the period of Martial Law and the limitation of scope of crimes committed, the Compensation Act bears the inherent defects of being too narrow and results in leaving the convicts insufficient protections.
2. The scope of the Compensation Act is too narrow, because it distinguishes whether a case is political or not by the crimes committed
In the Martial Law period, whether the intelligence and security agencies arrested people and transferred them to the military tribunals depends on the political considerations of the governor. Only after that decision was made, did the intelligence and security agency and military tribunal scrape together the relevant evidences and the facts of the case. The crimes by which the people were charged and convicted also were not determined by the objective facts gathered pursuant to the rules of evidence, but by the will of the chief of staff, chief aide-de-camp to the president, and the President himself. If these people decided to impose a death penalty on someone, the military tribunal would be forced to change the charges to be treason. As for those who were not charged by sedition, treason, or the crime stipulated in the Statute for the Eradication of Communist Espionage, the intelligence and security agencies and military tribunals could still transfer people to a military tribunal based on Section 8, Paragraph 2 of the Martial Law, which provided: “the same rule shall be applied to those who committed specific crimes other than the crime provided in the preceding paragraph.” Accordingly, during the Martial Law period, when people were subject to a military tribunal due to political reasons, the crimes imposed were not only limited to crimes of sedition and treason.
3. The measures to be taken by the legislative branch and judicial branch so as to pursue transitional justice
The provision of Section 2, Paragraph 2 of the Compensation Act disregards how the governor intervened the judicial process as well as the military tribunal system and how he violated due process embedded in Article 8 of the Constitution. In addition, the scope of the Act does not cover crimes other than sedition, treason, and the crime stipulated in the Statute for the Eradication of Communist Espionage, which were also convicted based on political reasons. In fact, according to Section 8, Paragraph 2 of the Martial Law, people who were convicted those crimes or sent to the reformatory education were also tried in the military tribunals. Their freedom and rights were infringed by the state, but they do not fall within the scope as to qualify to claim legal redress. Such standard of classification is substantially unreasonable, which constitutes an unreasonably differential treatment, and thus violates the meaning and purpose of equal protection of Article 7 of the Constitution. Any part of the ruling of J.Y. Interpretation No. 477 that is in conflict with the explanation above shall be modified. Given the special recognition of the legislators and the use of uncertain legal concepts when designing the legal elements, if the relevant evidence is complete, the court shall have the discretion to construe the redress to be awarded pursuant to Section 15-1 Sub-paragraph 1 of the act. However, when the Compensation Foundation is to accept the application, it would be constrained by Paragraph 1 and 2 of Section 9 of the Act, which limits the Foundation’s power to review the documents. Accordingly, the Foundation cannot determine whether the current case was originated from the same pattern of facts built by the intelligence and security agency. Therefore, the legislative body should, pursuant to the meaning and purpose of this Judgment, examine the aforementioned provisions with regard to the scope of the people qualified for the redress and the access to the documents for the purpose of investigation within one year from the announcement of this Judgment. In addition, from the announcement of this Judgment to the amendment and enforcement of the aforementioned provisions, those who were convicted crimes other than sedition, treason, and those stipulated in the Statute for the Eradication of Communist Espionage, or sent to the reformatory education for the political reasons, as well as their families, shall apply mutatis mutandis to the provisions of the Act, and are qualified to apply for compensation from Memorial Foundation of 228, notwithstanding the restrictions in Paragraph 3 and 4 of Section 2 of the Act . Executive Yuan should allocate budgets to supply the necessary funding.
F. Is Article 8, Paragraph 1, Sub-paragraph 2 of the Compensation Act unconstitutional?
1. Rendering authority to the Compensation Foundation to review the compensation applications does not violate separation of powers
The compensation mechanism uses money to remedy the damages caused by the illegal judicial actions conducted in the Martial Law period, which is people’s secondary legal remedy. It does not involve the issue of whether the judicial action is per se illegal and the effect of negating the judgments. From the perspective of separation of powers, it is not necessary to conduct the redress process through the judicial power. The legislators may designate the administrative agency to conduct the recognition and distribution of the pecuniary compensation, which justifies the constitutionality of the Compensation Foundation’s power to review the applications.
2. Refusing to compensate certain types of applicants, Section 8, Paragraph 1 Sub-paragraph 2 of the Compensation Act has failed to take into account of the military tribunal system during the Martial Law period, and has gone below the minimum requirement of due process
Section 8, Paragraph 1 Sub-paragraph 2 of Compensation Act refuses to compensate certain types of applicants, so as to limit the scope of people who are qualified for the compensation. However, such differential treatment not only is based on the consideration of distribution of national budgets, but also intends to deny the state’s liability to redress the aforementioned people for the human rights infringement they had suffered. It fails to consider the possibility that the victims of the political persecution in the period of illegitimate state were innocent, which may constitute the justification of redress/compensation. In other words, in a sense such failure would make the society believe that the state acknowledge the government can take whatever means to persecute its political opposites in the extraordinary time; it severely contradicts the commandments of non-recurrence imposed by state’s duty to implement transitional justice. Accordingly, it violates equal protection of Article 7 and the state compensation liability of Article 24 of the Constitution, and should be void ab initio. People or their families who applied for but were denied the compensation due to the listed limitations shall apply mutatis mutandis to the provisions of the Compensation Act, and are qualified to apply for compensation to the Memorial Foundation of 228. They should not be constrained by the statutes of limitation provided by Paragraph 3 and 4 of Section 2 of the Act. Executive Yuan should allocate budgets to supply the necessary funding.
G. Does the indigenous identity of Tu Shiao-Sheng affect his right of compensation?
1. The development of history of Taiwan and the national identity of the indigenous people
The indigenous people in Taiwan were not subjected to the sovereignty of the Qing government during the Qing rule period. During the Japanese rule period and the period of illegitimate state in the R.O.C., they also had never been recognized as equal citizens, nor enjoyed part or all of the protections of fundamental rights. Did the indigenous people agree to become the nationals of R.O.C. at the time when Taiwan was under the change of control in 1945? Did they become the civil servants of R.O.C. through which legal procedures and who represent the will of all the tribes to agree to become the subject of the laws of R.O.C.? If the indigenous people in Taiwan were not the nationals of R.O.C. ab initio and per se, how could they become the defendants of the so-called treason or corruption?
2. The dilemma regarding the continuity of indigenous history
When the United Nations and International Human Rights laws define “the indigenous people”, they both acknowledge the fact that “the indigenous people pre-existed any modern country”, which is crucial for this discussion. Since 1910, the indigenous people in Taiwan suffered from many invasions by different colonists. Nonetheless, they for years insisted on keeping their inherent cultures, societies, and legal systems, which were the basis of the existence of their tribes. They determined to preserve and develop their ancestors’ territory as well as the racial recognition and wished to pass them down to the future generations. Nevertheless, the dilemma of the indigenous people in Taiwan when dealing the issue of transitional justice is that there were two historically consecutive sovereignties involved, so that we cannot simply confine the scope of transitional justice to “a certain country” within “a specific period of time” and apply the aforementioned measures to restore their rights.
3. Both the Constitution and United Nations Declaration on the Rights of Indigenous Peoples affirm the right of self-determination of the indigenous people
The Article 10 of Additional Articles of the Constitution of the ROC and the Indigenous Peoples Basic Law has been derived from which, both affirm indigenous people are distinctive from non-indigenous people. Therefore, indigenous people shall have the collective right of self-determination, so that they are able to conduct relevant legislation in the congress to protect the indigenous rights. However, the indigenous people do not become the nationals of R.O.C. automatically, nor should they can only become the nationals of R.O.C. in the future. According to Article 3 and Article 33 Paragraph 1 of United Nations Declaration on the Rights of Indigenous Peoples, the indigenous people shall enjoy the right of self-determination, and also the right to recognize their own identity and belonging pursuant to their habits and traditions. This does not prevent the indigenous people from acquiring the right of the citizenship of the country they reside in. Therefore, before Taiwanese indigenous people execute their right of self-determination pursuant to the Declaration, any part of this judgment shall not be construed as reducing or cancelling the abovementioned indigenous rights. Moreover, the dual identities of the indigenous people have already gone beyond the imagination of the constitutional practice of our country, which is the responsibility of both judicial organ and legislative body.
4. This Court does not have the power and capability to deal with the issue of self-determination and national recognition of the indigenous people. Even if it does, the Court still has to recuse itself
After thoroughly taking account of the history of Taiwan, the United Nations and international human rights conventions, Additional Articles of the Constitution of the ROC, and the Indigenous Peoples Basic Law deriving from it, this court holds that no judge of any R.O.C. court shall have the power and capability to interpret the national recognition and state imagination of the indigenous people. Accordingly, the relationship between the indigenous people and the constitutional structure of R.O.C. is beyond the scope of the interpretation of this court. As for whether they can and how do they become the nationals of R.O.C., or whether they can be named as the defendants of corruption of R.O.C. criminal codes, this court also does not have the power to interpret. Even if the court can take the abovementioned considerations into account in this case, no judge in this court has the indigenous identity, nor does any of them know well about the traditional culture, norms, and history of the indigenous people. The court should recuse itself. However, no matter Tu Shiao-Sheng is the citizen of R.O.C. or not, R.O.C. should be liable for the compensation in this case. Therefore, Tu Shiao-Sheng shall be compensated for the abovementioned reasons in the framework of transitional justice.
III. Conclusion and enforcement of this Judgment
A. The concluding judgment of Ex parte Tu Ming-Che and Ex parte Huang, Kuo-Chang
1. During the Martial Law period, Taiwan was dominated by the authoritarian government for almost four decades, during which people had lived under full control and surveillance. The dictator took the military tribunal system as the tool to purge political rivals by convicting them crimes provided by Article 100, Paragraph 1 of the 1935 Criminal Code, Act Governing the Punishment of Rebellion, or the Espionage Law of the Period of the Communist Rebellion. In fact, the dictator had the supreme power to determine whether people live or die at his will. The said provisions all contradict the constitutional value of the democratic constitutional order and violate the Article 2, Paragraph 3 of International Covenant on Civil and Political Rights and General Comment No. 3.
2. The First sentence of Article 9, Paragraph 2 of the National Security Act is void ab initio because the said provision restricts people’s right to appeal, which violates the right to institute legal proceedings provided in Article 16 of the Constitution, and the duty to implement transitional justice provided in Article 2, Paragraph 3 of International Covenant on Civil and Political Rights. To this extent, the holding of J. Y. Interpretation No. 272 is hereby revoked. In order to redress those who were not in active military service but involved and convicted in criminal cases adjudicated by the military tribunals during the Martial Law period, the legislative body should amend or enact the laws to prescribe the procedures of appealing, jurisdiction of court, people who are qualified to appeal, statutes of limitation for filing an appeal, and the procedures to preserve or sent archives and evidence within one year from the announcement of this Judgment. Before the law was revised, the convicts and the convicts’ relatives can file appeal to Taiwan High Court, the restrictions of statutes of limitation in Article 349 of the Code of Criminal Procedure notwithstanding. Further, they can apply to court for perpetuation of archives, files or evidence in accordance with the Code of Criminal Procedure.
3. The aforementioned provision of National Security Act has restricted judicial institutions’ power to follow constitutional principles and to re-exam those unlawful infringement of human rights. Further, the legislators did not enact any relevant laws to redress those convicts who were tried by the unlawful military tribunals, given that they should have recognized and acknowledged the illegality of the military tribunals during the Martial Law period. To this extent, the name and the purpose of enactment of the Compensation Act is not in conformity with the meaning and purpose of Article 24 of the Constitution, which provides with the right to claim compensation from the state.
4. Article 2, Paragraph 2 of the Compensation Act rules out the possibility for those who were convicted on charges other than sedition, treason or those in Espionage Act in the Period of Mobilization for the Suppression of Communist Rebellion, or were sent to the reformatory education in the Martial Law period on the ground of political reasons, to acquire compensation from the state. Therefore, it violates the principle of equality provided in Article 7 of the Constitution. To this extent, the holding of J. Y. Interpretation No. 477 is hereby modified.
5. The legislative purpose of Article 8, Paragraph 1, Subparagraph 2 of the Compensation Act limits the scope of redress, ruling out the convicts who suffered miscarriages of justice, misjudged cases, or wrongful cases. However, the said provision contradicts Article 24 of the Constitution and is hereby announced void ab initio on the ground that the initiation and operation of military tribunal had been in violation with the due process, no matter the convicts committed sedition by using threat or violence or not. The authoritarian regime, under legal system of illegitimate state, took following rules as tools to offend and suppress the freedom of thought and speech. These rules include military tribunal system, the crime of sedition or treason, the Act Governing the Punishment of Rebellion, and the Espionage Law of the Period of the Communist Rebellion. The convicts and the convicts’ relatives, who filed redress application and were rejected by the Compensation Foundation in accordance with Article 8, Paragraph 1, Subparagraph 2 of Compensation Act, shall file redress application to the 228 Memorial Foundation after the announcement of this Judgment, applying mutatis mutandis to the Compensation Act, the restrictions of period for redress application in Article 2, Paragraph 3 and 4 of the Compensation Act notwithstanding. Executive Yuan should allocate budgets to supply the necessary funding.
6. The legislative body shall amend the title, the legislative purposes, the subject of applicants, and the scope of retrieving archives of the Compensation Act within one year from the announcement of this Judgment. Before the amendment of the Compensation Act, the convicts who were convicted on charges other than sedition, treason, or those in Espionage Act in the Period of Mobilization for the Suppression of Communist Rebellion, or were sent to the reformatory education in the Martial Law period, and the convicts’ relatives, can file compensation application to the 228 Memorial Foundation, applying mutatis mutandis to the Compensation Act, without the constraint of statutes of limitation for applying redress in accordance with Article 2, Paragraph 3 and 4 of the Compensation Act. Executive Yuan should allocate budgets to supply the necessary funding.
7. The Taipei High Administrative Court should make a decision pursuant to the ruling of this Judgment on the case raised by the Petitioner, Tu Ming-Che, in respect of the redress decision based on the Compensation Act that is currently pending before Taipei High Administrative Court. Further, given the fact that the petitioner, Tu Ming-Che is a Tsou tribesman, no matter he is simultaneously a national of the ROC or not, the ROC government should redress Tu Ming-Che’s damage based on the duty of the state.
B. Both the administrative agencies and the legislative body should implement their duty to fulfill transitional justice
1. The enactment of the political archives act
Knowing the truth and remembering the pass are the inalienable rights of the citizen. Hence, preserving, compiling, and promoting open access to political archives and relevant archival materials of the period of illegitimate state is the necessary and urgent infrastructure to fulfil transitional justice. To prevent the state from losing, concealing, altering, or destroying political archives, the legislative body should amend relevant laws to regulate how to collect, compile, preserve, and promote open access to the relevant political archives and archival materials made by the central government agencies and the local government agencies, KMT Party and its branches, the citizen, or organizations during. Governmental agencies should preserve all archives prior to May 1, 1991 as temporary records and should not destroy any part of the archives before the said law enacted or amended.
2. Undertaking investigation and prosecuting the unlawful act conducted by the ruling party under particracy system during Martial Law period
It is necessary to undertake investigation and prosecution of the unlawful infringement conducted by the ruling party, because the one-party dominant state and particracy itself had made relevant acts in the period of National Mobilization for Suppression of the Communist Rebellion and Martial Law Period unlawful. In Taiwan, it is the KMT, the authoritarian party in the Martial Law period, who initiated the transitional justice process. As a result, KMT’s legislative and administrative measures, as well as J. Y. Interpretation No. 272, all showed that the authority had no genuine will to investigate and prosecute the perpetrator. Under such circumstances, the former authoritarian party although as it claimed has transferred to a modern political party, but it refused to take responsibility for what atrocities KMT had done in the Martial Law period. The legislative body should bear in mind the aforementioned difficulties and deal with the obstacles that the judicial system may face when it identifies the perpetrators, so as to ensure that a court has the power to deal with any criminal case in which a convict was a victim under authoritarian era. Besides, what is crucial is to emphasize the concept “the key perpetrators was KMT party-state regime” during the legislative process; hence the legislative body should enact or amend the laws to address that, after redressing the victims, the state authority shall have the right to reimbursement from the KMT or the perpetrators who are identified in specific cases.
3. Establishing a Truth and Reconciliation Commission
The Truth and Reconciliation Commission plays a significant role to disclose the whole picture of crimes conducted by the illegitimate state, so as to seek justice, and encourage the state to investigate and prosecute perpetrators, as well as to satisfy victims’ expectation. The Commission is a better setting than the criminal court system, because the latter is restricted by the strict rules of evidence and thus given such conditions, it is difficult for the latter to disclose the marginal criminal cases against human rights. The administrative agencies and the legislative body should refer to the principles to combat impunity set by United Nation Human Rights Council and foreign countries’ legal system and practices for establishing the Truth and Reconciliation Commission, and establish a similar organ in Taiwan. Simultaneously, in order to prevent recurrence of violations of human rights in the future, the authority should provide incentives to encourage perpetrators who committed misdemeanors, by facilitating chances for them to admit their crimes and speak out the truth to the victims face to face when recovering victims’ trauma and the crack in social relations made by the unlawful state.
修訂:官曉薇、孫迺翊
順序依照譯者姓氏筆畫順序排列：
吳奐廷 博士候選人 美國加州大學柏克萊分校
陳盈如律師 國立交通大學科技法律研究所碩士
國立臺灣大學法律學系學士
鄭忻忻律師 國立交通大學科技法律研究所碩士
國立政治大學外交學系學士、法律學系學士