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Court must hear Martial law case

2008/10/15
category - 政治
コメント - 0
                         
Court must hear Martial law case


臺灣英文新聞
2008-06-04 00:00:00 Page 6
Published: 2008-06-04 01:17 AM

For the sake of Taiwan's democratic future, we urge the Constitutional Court to hear the petition on the constitutionality of the martial law decree imposed on Taiwan by the former authoritarian Kuomintang regime on May 19, 1949 that remained in effect until July 15, 1987.

During the nearly four decades during which martial law was in effect, there were over 29,000 cases of political persecutions in which several thousand Taiwan citizens were executed or, more precisely, murdered by the KMT party - state, and tens of thousands imprisoned for political reasons.

During the past eight years, attempts by the former Democratic Progressive Party government of President Chen Shui-bian, civic human rights groups and former victims or their surviving relatives to realize "transitional justice" achieved significant progress, but have yet to realize the intertwined goals of full and comprehensive "truth" for the victims or "reconciliation" based on the remorse of the victimizers.

Besides the boycott of virtually all legislation aimed at promoting human rights or historical truth of the past by the KMT, the greatest obstacles to healing the wounds of the authoritarian period remain the presence of the constitutionality of the martial law decree and the related existence of provisions in the July 1987 National Security Law, which still block any judicial appeal of wrongful judgments by martial law military tribunals against Taiwan citizens.

Last Saturday, former political prisoner and ex-DPP legislator and former presidential adviser Roger Hsieh Tsung-min announced that two Taiwan lawyers will file a petition to the Constitutional Court on behalf of two political prisoners, Hung Wu-hsiung and Hu Hsueh-ku whose appeals have been separately rejected by the Taiwan Supreme Court based on the National Security Act, calling for the overturning of the constitutionality of the martial law decree and Paragraph Two, Article Nine of the National Security Act.

The foundation of the petition is the argument by Hsieh and the two lawyers that the martial law decree issued on May 19, 1949 by then Taiwan Provincial governor and Taiwan Garrison commander Chen Cheng was in violation of procedures set out in the Republic of China Constitution as the decree had never been ratified by the Legislative Yuan and actually had also not been ordered by the actual ROC president, which was the Guangxi militarist Lee Tsung-jen and not Chiang Kai-shek.

Hsieh noted that the use of the martial law decree by Chiang's regime to keep power and crush dissent by negating constitutional guarantees for human, civil and political rights of Taiwan's citizens through arbitrary arrest, military court martial trials, execution or imprisonment, deprivation of political rights and confiscation of property and to provide "legal" fig leaves for changes in state and social structures trampled on the ROC Constitution.

The petition also asks for a finding of unconstitutionality against the self-serving clause in Paragraph 2, Article Nine of the National Security Law of July 1987, promulgated just before the late president Chiang Ching-kuo lifted the decree, which banned any appeal of martial law judgments against civilians.

For over two decades, this clause has abrogated the right of the victims of such wrongful martial law judgments to reopen the martial law era cases and has therefore been the KMT's greatest legal bulwark against transitional justice.

The petition also calls for the reversal of Interpretation 272 of January 18, 1991 in which the Constitution Court rejected an earlier petition by Hung and shamefully claimed that this transparently self-serving ban imposed by the victimizing regime and its rubber-stamp legislature did not transgress constitutional human rights guarantees.

Reflecting the KMT's own justifications of its crimes of state, the Constitution Court said the martial law decree "was a necessary means" to "maintain national security and social stability" (read, the KMT's grip on dictatorial powers) and decided that the ban on appeals was needed to "uphold the stability of the final judgments of the courts and the social order."

Besides its transparent partisanship, Hsieh rightly maintains that this "interpretation" contravenes the principles of the 1968 United Nations "Convention on the Non-applicability of Statutory Limitation to War Crimes and Crimes Against Humanity."

Nearly two decades later, we believe the Constitution Court should revisit this issue and, in line with the principles of transitional justice and international precedents, grant justice to Taiwan society by finding that both the May 19, 1949 martial law decree and Article Nine of the National Security Law are "unconstitutional."

After two democratic transfers of political power that have restored the KMT to governance and the cessation of the fratricidal civil war between the KMT and the CCP in whose name authoritarian rule was imposed on Taiwan, any claim that the invalidating of the martial law decree and the ban on appeals would undermine "social order" is transparently absurd.

On the contrary, given the lack of courage on the part of the KMT government to continue the pursuit of transitional justice, a favorable ruling on this petition by the Constitutional Court offers the best available path for the genuine healing of the historical wounds inflicted on thousands of our citizens and our body politic by the four decades of KMT martial law rule.




                
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