Up till today (2006), it’s been 59 years since the 228 Massacre that happened in 1947. Taiwan’s Criminal code practitioners seem to think there’s no such “criminal responsibility” in the 228 Massacre, nor is there the “responsibility of the main culprit,” “criminal offence,” or whatsoever. Certainly, this has much to do with the way of thinking in Taiwan. Only when we abandon a “systematic way of thinking” and embark on ideals for human rights can we have break through in the study of legal liability of the criminal offense in the 228 Massacre.
The 228 Massacre is justified if we were to look at it from the point view of the power holder. Because it does not examine the matter from the basis of the “nature of the behavior,” nor is the idea of “equal principle” applied to the persecutors and the victims. Legal professionals who harbor this kind of view can be said to be seriously lacking the concept of “human rights protection” required by constitution in the democratic era.
Judicial reform emphasizes the awakening, and enlightenment of the idea of human rights, but the judicial reform in Taiwan long hesitated to enter into the field of human rights. The real essence of judicial reform should be that of the “liberalization” and “rationalization” of the administration of justice, but up until now, there has not been any judicial reform that proposes “liberalization and rationalization of the judicial system” as the focal point of the reform.
If we do not study the offenders’ legal liability in the 228 Massacre or are unwilling to examine “political crime” of a “totalitarian regime” despite the fact there has been the transfer of ruling power, then the country is not walking on the right path towards democracy. On the contrary, if Taiwan’s legal practitioners can probe the criminal responsibility of the 228 Massacre, then it can be said that Taiwan is ruled by laws and is a country that really implements the “human rights protection.” Therefore, whether or not Taiwan’s judicial practitioners carry out relevant discussion of legal issues in the 228 Massacre bear the importance of whether the country in fact is a “democracy runs by law” or a “non-democracy that’s not run by law.”
We should list in-depth discussion on the importance of establishing a legal value system that safeguard “the right to live” as the priority in the country’s practice of criminal justice. Up until now, there is no criminal judicial practice at home that takes the initiative, or continuously, to investigate, collect, and save evidences regarding the conducts, conductors, injured parties, and witnesses of the 228 Massacre.
Specifically, if the criminal justice can launch the “investigation of due responsibility of the culprit of the 228 Massacre,” then we can guarantee the protection of human rights. Crimes conducted in the 228 Massacre were not criminal offences by ordinary people but a conduct by a ruler with “absolute power” in which the government itself was the criminal. This kind of crime is the so-called “government's crime” (Regierungskriminalitat).
If a criminal is the government body itself, it then requires a power exceeding the ruler's authority to put this offender to justice, hence the practical difficulty in indicting a "government's crime.”
The difference between government’s crime and general crime (non- government crime): offender of the government crime controls the ruling power and this power could even include that of the administration, legislation, and justice, etc. But if this power exceeds the limit of law, in other words, makes use of state power but abuses the state power, it then constitutes an act that abuse the authority in a willful manner. Regardless the willful behavior is by ways of violence, or finance, it is said to be connected with “the abuse of government’s power,” a characteristic of “government’s crime” too.
Government’s crime has to do with abuses of power. Its scale can’t be matched by general crime, and that it enjoys a privilege of not being prosecuted. The characteristics of government’s crime are as follows:
The interpretation of “period of validity” in criminal code currently in practice: the regulation of “period of validity” for prosecuting homicide only confine to the situation of “the general criminal offence,” this is referring to the judicial authority in a criminal situation in which offender of general crime “must be prosecuted but does not prosecute.”
However, because of the characteristic of the “government's crime,” when the government still possesses political rights, the situation in which one “must be prosecuted but does not prosecute” by judicial authority does not apply to the offender of the government’s crime because, in this case, it falls within a situation in which that judicial authority “must not prosecute and does not prosecute” the crime offender. One may well say that it does not accord with a purport of the “period of validity” for prosecution right, because the period of validity for prosecution right means the “time period starting from when the prosecution is allowed.” However, in the government’s crime, the “must not prosecute” applies and there’s no way to define the period of validity.
The “period of validity” described in the country’s criminal code does define a “period of validity” for prosecution of homicide, the regulation however seems to conflict with the concept of “protection of right to live.” Even if we do not amend relevant clauses on period of validity in the criminal code, we should still consider prosecution for the slaughter acts in the 228 Massacre, for which it involves “the realistic problem of ruling power.” That is to say, when the offender’s “sovereign right” remains, the criminal court can not prosecute the “government’s crime offender” since at this moment the “must prosecute but does not prosecute” of judicial authority does not apply, in other words, under this situation since we can not even prosecute at all, its then should be considered that the “period of validity” has not started.
When prosecuting an ethnic massacre, once the legal procedure starts it will help clarifying who are offenders and who are innocent once the legal procedure is started. Innocent Mainlanders from won’t be wrongly implicated either.
Examining the 228 Massacre massacre bears three significances:
Because regimes in Asia are mostly monopolized by privileged elites, some Asian countries solve their disputes by act of suppression, use of force, that sometimes even via ways of killings in a large scale, as in the case of the “Tian An-men Square Massacre,” all of which have formed the miserable realm of Asian politics and a negative index to Asia’s democratization and rationalization. It’s now the high time to implement the “universality of human rights” (Universalitat der Menschenrechte) in Asia. Some cultural traditions allow an easier facilitation of “the realization of human rights” (die Realisierung von Menschenrechten), while some others make it more difficult. But, under the general acknowledgement of the “universality of human rights,” “human rights” values cannot be detached from the “implementation of human right.”
The “philosophy of human rights” is no doubt an old issue, but in the implementation of the concept of contemporary European human rights, the establishment and implementation of “human dignity” no longer are monopolized by the Europeans and there are possibility and necessity of such realization in Asia.
(Chen Tze-Lung is a professor at the National Taiwan University’s College of Law and a board member of the Memorial Foundation of 228)