Taiwan took a long overdue step toward political justice yesterday when an official government body for the first time indicated that the martiallaw used by the rightist Chinese Nationalist Party (Kuomintang) to impose nearly four decades of authoritarian rule on Taiwan from 1949 to July 1987 was "procedurally flawed" and possibly "unconstitutional and illegal." Besides posing an embarrassment to President Ma Ying-jeou's KMT government, the finding opens a ray of hope for relatives of thousands of political prisoners who were sentenced to death and tens of thousands who were imprisoned by military tribunals for "sedition" or being "communist bandit spies" during the "white terror" imposed by the KMT regime to seek a full overturning of their convictions, compensation for properties confiscated by such tribunals and, perhaps even, the determination of civil or criminal responsibility for unjust executions or imprisonments.
The finding by a three person panel of Control Yuan commissioners was based on a year-old investigation of a petition submitted by ex-Democratic Progressive Party legislator Hsieh Tsung-ming who raised the question in his status as a "former political prisoner" of "whether the promulgation of the martiallaw decree in effect Taiwan for nearly 38 years was in accordance with legal procedures" and whether the confiscations of property of civilians under the decree was legal.
Hsieh submitted two previous similar petitions on behalf of other political prisoners to the Council of Grand Justices asking for interpretations on the constitutionality of the martiallaw decrees and the military court verdicts and property confiscations carried out under the decree's authority in 1990 and 2008, but the Constitutional Court declined to accept either of the two cases for review.
Hsieh argued that the martiallaw decree issued in November 1949 by the KMT - ruled Republic of China government from Chongqing in November 1949 in the last days of the KMT regime's unsuccessful bid hold the China mainland in the face of Chinese Communist Party military forces did not follow proper constitutional procedures and was therefore invalid, but was nevertheless used by KMT dictator Chiang Kai-shek to ensure the survival of his KMT regime in Taiwan.
Yesterday afternoon, the Control Yuan panel, comprising Commissioner Liu Hsing-shan for the ruling KMT, Commissioner Huang Huang-hsiung, a former DPP legislator, and non-partisan Commissioner Yeh Yao-peng cautiously backed up Hsieh's challenge.
According to the report, the KMT ruled Republic of China government had promulgated three national martial law decrees, the first issued by Chiang as ROC president on December 10, 1948 that did not encompass Taiwan, the second by the late ROC acting president Lee Tsung-jen on July 7, 1949, and the third on Nov. 11, 1949, attributed also to Lee, which included Taiwan in the "war zone."
The panel found that all three orders, as well as the martial law decree issued for Taiwan on May 19, 1949 by then KMT Taiwan provincial governor Chen Cheng, had constitutional and legal procedural "blemishes."
However, the most serious shortcoming concerned the Nov. 11, 1949 decree which apparently was submitted by the Executive Yuan and confirmed by the Legislative Yuan.
However, the question is whether Lee himself signed the decree since the former Kuanghsi warlord had left Chongqing for exile in Hong Kong and the U.S. on Nov. 3 and, after Chiang took back control over the KMT exile regime on Taiwan, was recalled by the National Assembly on May 5, 1950, apparently without having signed the November martial law decree as constitutionally required.
The missing link
Moreover, the Control Yuan commission reported that even though the related documentation from the Executive Yuan and Legislative Yuan were extant, the presidential order itself cannot be found.
The Control Yuan commission avoided directly stating that the third nationwide martial law decree issued in November 1949 was therefore "illegal or unconstitutional " and said that only the Constitutional Court could make such a determination.
Nevertheless, the Control Yuan report acknowledged that "if it is true" that the November 1949 martial law decree "is rendered invalid due to lack of formal documentation," then "the power of judgment of military tribunals will be blemished."
Moreover, the Control Yuan commissioners also acknowledged that the finding brings into question the validity of convictions of civilian and military political prisoners handed down by KMT military tribunals on charges rendered under the "Statute for the Punishment of Communist Bandit Spies during the Period of the Suppression of the Communist Rebellion" and the "Statue to Punish Sedition" during the "white terror" era.
In addition, the Control Yuan panel noted that resulting confiscation of property for transfer to the National Treasury or other assets from political prisoners convicted under these statutes or otherwise ordered by KMT military authorities and rewards distributed by the National Treasury to informers will also "be open to question."
In addition to its significance for transitional justice, the Control Yuan finding casts a long overdue ray of light on the illegitimacy of the KMT regime in Taiwan and presents Ma with an opportunity to make a fresh start or to "treat the Taiwan people as the enemy" by continuing to insist on the "legality" of the KMT authoritarian rule.