Transitional Justice and the Role of court
Date Issued
2007
Date
2007
Author(s)
Huang, Jo-Lin
Abstract
Transitional justice refers to a field of activity and inquiry focused on how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma. As an important value that many new democracies pursue, transitional justice has proven its importance as a pivotal role in many countries’ developing experience with democratization process.oncerning many controversial and perplexing topics embedded in the transitional justice discourse, the practice of courts-- the judiciary proceeding and ruling-- has always been at the center of debate. This thesis, by illustrating the current judicial practice regarding transitional justice in democratizing Taiwan, adopted and institutional approach to investigate the role that judiciary can play. This thesis finds that while democratic transition in Taiwan has been achieved in an incremental manner, lacking a clear repudiation from the old authoritarian regime, the judiciary in Taiwan, when handling the issue of transitional justice, also responds with hesitation, evasion or even intrusion. With this passive attitude, the court has become nothing more than an institution to award compensations. The traditional functions and obligations of court, such as truth-finding, prosecuting the perpetrator, or achieving public awareness of the crime, were not amplified or respected.This thesis argues that the fundamental and crucial objective the new democracy should achieve regarding traditional justice is truth-finding. Only by clarifying the factual truth of the dreadful past and hideous crimes can the new regime move forward to self-recognition, reconciliation, and democratic consolidation. Comparing to other private or political institutions, this thesis argues that the judiciary proceeding was equipped with the distinguishing features of being “official”, “impartial” and “open to the public”, which are essential to accomplish some critical values pursued by transitional society. Those unique characters enable the court to take a more positive and initiative role in the truth-finding task in pursuit of transitional justice. However, as an institution designed for criminal prosecution or damage allocation of individuals, the court has its limits when facing the complex of transitional justice issues. A complementary institutional design, aiming at comprehensive historical reconstruction and restoration of victim’s dignity, is also necessary.
Subjects
transition justice
court
judicial review
democratization
authoritarianism
truth-finding
right to truth
martial law
wrongful imprisonment compensation
legal certainty
truth and reconciliation commission
SDGs
Type
thesis
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