Transitional Justice Symposium: Law’s Liberation

[Cheng-Yi Huang is a Research Professor, Institutum Iurisprudentiae, Academia Sinica, Taiwan. From 2016 to 2018, Mr. Huang served as the chairperson of Taiwan Association for Truth and Reconciliation, the first NGO advocating for transitional justice in Taiwan. He was one of the appointed experts providing legal opinion on transitional justice for the Constitutional Court in the case which lead to Interpretation No. 793 of 2020 August.]

When Ruti Teitel’s magnum opus was first translated into traditional Chinese in 2001, the Taiwanese publisher chose the book title, ”Justice in the Process of Transformation”（變遷中的正義）, a paraphrase of transitional justice. Back then, the terminology coined by Ruti Teitel had not found a symmetrical phrase in the Chinese language due to its novelty, if not ambiguity. However, in December 2017, the national legislature in Taiwan passed the Act of Promoting Transitional Justice. More than 5,800 court-martial cases during the authoritarian period were annulled by the Act. Later on, the Transitional Justice Commission, an independent agency in charge of investigating historical truth, dealing with authoritarian landscape, and redressing judicial wrongs, was established in 2018. Moreover, the Constitutional Court, the top court in Taiwan, has recognized the constitutionality of transitional justice in its Interpretation No. 793 of August 2020. The court anchored its rationale on the “constitutional order of liberal democracy” to reevaluate the party state created by the former authoritarian party, Kuomintang (a.k.a. the Chinese Nationalist Party or KMT). Within twenty years, transitional justice has become one of the most      debated buzzwords on daily news in Taiwan, while younger generations’ aspiration for transitional justice looms larger and larger. Ruti Teitel’s timely visit to Taipei in 2019 witnessed a room packed with audiences mostly younger than thirty on a Saturday night for the Transitional Justice book event, while the Hong Kong police were beating and arresting protesters, students, and activists of the Anti-Extradition Law Movement. The zealousness shown by the Taiwanese youth attests Teitel’s observation in “Transitional Justice Globalized.” Meanwhile, it also reflects contemporary anxiety on the legitimate foundation of political power in a changing time.

In the second edition of its traditional Chinese version of 2017, the editor left a note on the translation of “transitional justice.” He argues, the popular translation of transitional justice in traditional Chinese（轉型正義）, which is allegedly      informed by Taiwanese scholars during the first decade of this century, is quite misleading. The term has often been misinterpreted as “deformation” or “mutation” of justice. Local commentators criticized the connotation of the term, for justice is universal, prospective, and generally applicable, rather than constructive, in-between, and context-dependent. In their words, transitional justice is a political excuse of the successor regime to persecute people on the other side of political spectrum. “Transitional injustice” was thereby invented to refer to extreme redistributive measures like nationalization of the KMT’s party assets.

The appropriation of language is an everlasting battle in the politics of transitional justice. To account for past atrocities, a new regime would reopen cases and launch investigations which may violate the statute of limitations. In countries which postponed the project of transitional justice for decades, like Taiwan, retroactivity is often an inevitable choice in terms of judging legal responsibility. Meanwhile, to overcome the legacy of the party state, legislation targeting the former authoritarian/communist party and its members is prima facie a bill of attainder, which might stigmatize the party and its supporters. All these transitional measures (some even after 30 years of democratization) challenge conventional understanding of the rule of law. However, the rule of law is also subscribed by the post-authoritarian/communist societies to denounce the ancien régime. Since justice is relativized and substantiated by the goal of liberalizing change, opponents may pick up the same language to delegitimize the new government in elections. To solve the problem of ambiguity, Teitel suggests in the book that time is the cure, because “the passage of time defines the political generation forming the new nation.” (183) A new political identity will consolidate the foundation of transitional justice. However, as time goes by, while the ghost of past regimes is still lingering upon the new polity, the once-youth-oriented party like Fidesz in Hungary has transformed itself into a new authoritarian party embracing political extremism. To them, transitional justice is an ongoing enterprise. Thorough and zero-sum purification, loyalty oaths, banning, and disqualification in the realm of the judiciary, the media, education, and public administration are much more in demand now than thirty years ago. Conservative populists are using transitional justice as a double-edged sword, cutting both ancien régime and the liberal state. The phenomenology of transitional justice opens up the Pandora’s box, inviting perplexing arguments not only during the transitional years but seemingly forever.

As Teitel cogently argues in the book, “[P]oliticized measures enable radical political change by instantiating it, effecting political reconstitution through the speedy redistribution of rights to political membership, representation, and participation. These measures are truly the machinery of the revolution in their capacity to dislodge existing power structures, as they consolidate the prevailing regime in its progress toward liberalization.” (186) In this sense, transitional justice has an expressive function, signaling a commitment to rejecting the political past. However, it is not easy to bid farewell to the past. The mentality and habitus of the authoritarian rule still dictate words and deeds of the “new” people. Though transitional jurisprudence might justify extraordinary measures by a “forward-looking purpose of democratization” (157), most members of the political community would still apply their present cognitive framework to the interpretation of events. Therefore, Teitel remarks in vigilance, “militant democratic schemes in the absence of a strong democratic tradition may well threaten incipient democracies.” (181) If one party can suppress the political past in the name of safeguarding democracy, the other party can also garner electoral interests by accusing the former of being not-democratic-enough. The question becomes “whether and to what extent democratic conditionality ought posit a normative guide of such political systems on a more permanent basis.” (181) Teitel embraces the rationalism (221) as “an assertedly political and juridical rights-based identity,” which may limit the majoritarian process and compromise on ideal rule of law. “The very justification for these seemingly illiberal measures is liberalism.” (187) Her incisive argument reveals that the ultimate justification for transitional justice depends on the crystallization of political liberalism. It provides political freedom and equality with “the future aim of constructing a more liberal state.” (188) Therefore, liberal values entrenched by rights-based jurisprudence represent the natural law of democracy, which may temper the vehement moments of transitional politics and bring about the rebirth of political identity in the new era.

The future has finally come. Did transitional justice render the promise of reconstituting liberal state? Some countries fell prey to conservative populism, like Hungary and Poland. Some welcomed the come-back of authoritarian political heirs, like South Korea during 2012 and 2017. Some still stumbled on reconstruction of/redistribution in social economic life, leading to mass distrust in democracy, like Brazil. There are also places like Hong Kong experiencing what shall be remembered as “never again” in the future. However, the dismal global development does not disqualify transitional justice as an effective response to political turbulence during transition. It is impossible to pretend nothing happened. The critical problem on liberalizing states is how to carry out the liberal values in a competitive democratic environment. Mutual embeddedness of the rule of law and democracy cannot depend solely on the project of transitional justice. Transitional justice is a process of law’s liberation. While liberating law from the predecessor regimes’ historical narratives, people rarely looked at the contribution of political liberalism, but instead spend too much time in the formality of legality and head-counting as democracy, which deviates from the natural law of liberal democracy. After twenty years, Transitional Justice still stands as a powerful message to the world. Against the resurgence of authoritarianism, law’s liberation is still on the road.