Washington International Law Journal


Referring to Taiwan’s recent transitional justice legislation as a first tentative step towards the possibility of judicial solutions for problems of injustice dating from the authoritarian era, this paper elaborates chances and difficulties of introducing the judiciary to the ongoing processes of coming to terms with the past in Taiwan. It intends to argue that apart from the specific circumstances of Taiwan’s transition to democracy after the lifting of martial law in 1987, the avoidance of a judicial approach to transitional justice was both caused by and the reason for a deficit in narratives of judicial justice. Together with the judiciary’s reluctance to communicate with society and to confront the sensitive aspects of their professional history, a lack in stories of the judge dispensing justice to those in need of it is identified as a precondition disqualifying the courts as potential agents of transitional justice. At the same time, the exclusion of the courts from the agenda of redressing the wrongs of the past is understood as having deprived the members of the judiciary of an opportunity to identify and be identified as those restoring justice to society. On a second level of investigation, the implied need for a consolidation of the image and self-understanding of judges and procurators, is shown to link the agenda of transitional justice to the one of judicial reform. The text departs from the assumption of a complementarity of the two agendas, in the sense that becoming actively engaged in the handling of transitional justice may further distinguish the courts as legal platforms of communication and provide a neutral space for a non-politicized negotiation of the politically sensitive issues of Taiwan’s past and present. A shared narrative of “justice in transition,” both in the sense of justice as a parameter of transition and the notion of justice itself undergoing transition, is proposed as a foundation and prerequisite of an integrated and mutually beneficial approach to transitional justice and judicial reform in Taiwan.

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