Discussion on the "Rule by Law" in Taiwan under Japanese Colonial Rule: A Perspective from the Comparative Legal History

It is widely accepted that constitutionalism – separation of powers – has made a fundamental development in the 19th century, whereas much less attention has been paid to the colonial law of the same century, which also played a significant role in the mother nations overseas territories. During the period, constitution steadily functioned with the ruling power in these mother nations, and it was not totally irrelevant even when the ruling power ran into the colonies, as mother nation’s political systems were already based on their constitutions. Whereas administrative power should be subject to the limitation by law in mother nations, the limitation would sometimes be lifted for some reason in the colonies. This thesis focuses its attention on this legal situation that could be seen as mother nation’s rule of law and its limitation, and by comparing Taiwan under Japanese rule with British India and Kiautschou, the German Schutzgebiet in China, tries to find what could be regarded as peculiar features of the Japanese colonial ruling system.
In English law, protection of basic rights, those concerning physical freedom in particular, depends on habeas corpus, a procedural remedy for the accused in court. However, if its historical background was considered, the legal nature of its protection is the intervention of royal prerogative, on the condition of the reciprocal contract relations between the king and his subjects. However in British India, issuance of the writ was often suspended by the court for some reasons, making the legal protection less active than in the mother country. Germany in the 19th century was constitutional monarchy like Japan, however for its “Schutzgebiet”, the german government and public law jurists took the stance of non-extension of its constitution. The “vorbehalt des Gesetzes” therefore did not always extend to its colonies. On the other hand in Taiwan, the Japanese government supported the stance of extending its constitution since the very early period. In Taiwan, the extent of exceptional situation such as military administration in the early stage, summary execution, and aboriginal administration and constitutional administration was limited. The constitutional ruling depended on the famous “Act No. 63 of 1896”, which comperehensively delegated the Diet’s legislative power to the Governor-General’s order (Ritsurei). Under this system, a new custom of quoting the content of the laws of Japan proper that were not yet enforced in Taiwan, through the form of Ritsurei, rapidly appeared in the area of criminal law. For example, Criminal Code quoted by Ritsurei was never enforced in Taiwan, therefore other Ritsureis could freely set any “modifications” on the Criminal Code. A classic example of this custom was the famous “Bandit Punishment Ordinance” that sentenced death to thousands. This thesis used the judgment documents of the about 2,600 accused by the ordinance, which were found in the “Taiwan Colonial Court Records Archives”, to find the court’s theory and its statistical overview. It was confirmed that the most significant vioration of basic rights under constitution was made by this ordinance, suggesting that the most important legal feature of Japanese rule was infringement on the “vorbehalt des Gesetzes” through delegated legislation.
In the latter half of the Japanese rule the ordinance was no longer used, and the police power played more important role concerning the infringement of the basic rights. Police activity could be classified into police offenses (judiciary) and administrative detention. When compared to the huge discrepancy in legislation between Japan proper and Taiwan, in the area of police power the difference seems to be much smaller. As a whole, under the Japanese constitutional rule, legislative element (constitution, delegated legislation, Vorbehalt des Gesetzes, nulla poena sine lege, criminal justice) exerted in size and quality far larger infringement on basic rights than the administrative element (ruling power, police power, administrative discretion), which could be described as “violence by legislation”.