A Remedial Class on Transitional Justice

A Remedial Class on Transitional Justice
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
September 06, 2007

The ruling Democratic Progressive Party has had seven different Government Information Office (GIO) Chiefs since it assumed power. Every one of them has been, shall we say, unique. From "The Shooter," who mimicked gunning down reporters at a press conference, to "The Ribbon Cutter," who presided over ribbon cutting ceremonies for illegal pirate radio stations. From "The Terminator" who shut down cable television networks offensive to the ruling DPP, to "The Broker," who negotiated deals for those he was supposed to be regulating. But the most "unique" GIO Chief of all, has to be Hsieh Chi-wei, who has outdone them all.

Why is Hsieh Chi-wei so insufferably arrogant? Hsieh is proud of the fact that he studied German literature in Germany. Because he studied German literature in Germany, he presumes that he is qualified to hold forth on "transitional justice." That, and because he enticed a former East Germany premier with a large sum of money to come to Taiwan and demand that the KMT account for its party assets. He and Chen Shui-bian, who knows nothing about Germany whatsoever, are singing the identical tune. They are demanding that "half of the officials of the judiciary be purged" and that all officials of the judiciary be compelled to declare their party affiliation on the Internet.

How much Hsieh Chi-wei knows about German literature we can't say. But based on the nonsense he has spouted about "transitional justice," he knows nothing about German history, and even less about German politics and law. He is depending solely on his authority as government spokesman to assert that Germany is the way he says it is. He is a disgrace to every scholar who has ever studied in Germany.

Those who have studied transitional justice know that next to Latin America, the most discussed region is Eastern Europe, including Germany. This region has undergone a metamorphosis from socialism to capitalism. These post communist countries must sort out private property, public property and party property. They must right miscarriages of justice. They must investigate refugees gunned down while fleeing from behind the Iron Curtain. They must separate the sheep from the goats. They must also deal with the mountain of dossiers compiled by their secret police. As of today, Eastern Europeans have talked a lot about transitional justice. but those who have actually done something about it are few and far between. It is not that the scope of social reforms is not extensive enough, or that understanding is not deep enough. The problem is transitional justice depends upon the transformation of society as a whole.

So-called transitional justice, is simply making right today what was wrong yesterday. When we encounter a society undergoing transformation, when what I am today emerged from what I was yesterday, just how am I to carry out transitional justice? Is a new generation supposed to exact vengeance on the previous generation? Are some individuals playing by old rules, supposed to turn around and exact vengeance on others? When everyone is pointing the finger at everyone else, transitional justice becomes a form of soul searching. We must never allow a new generation to commit the same mistakes over and over again.

In all of Eastern Europe, only Germany was able to achieve some degree of transitional justice. The reason is simple. Germany reformed by means of merger, in reality, annexation. West Germany's capitalist system replaced East Germany's socialist system in toto. That is why post reunification Germany had good reason to eliminate judges whose heads were filled with socialist ideology. That is why their ranks had to be replaced by judges from West Germany. No other Eastern European country was able to achieve this.

The ROC's tranformation was less radical than Eastern Europe's. Our economy was always capitalist. Our political system was always "democratic gradualism." Therefore following democratization, most of our legal and social institutions needed no further modification. Most importantly, our transition was different from East Germany's. It was the same as other Eastern European countries. It was a collective transformation, akin to the transformation of a caterpillar into a butterfly. The old rules of the game may have been riddled with injustices, yet the society as a whole advanced from the past to the present. So the question is, precisely who has the right to demand transitional justice from whom? New landlords who worship the old land ownership policies? Corporate heads who depend on old incentives to seize international market share? What right does someone who was once a Kuomintang cell leader, who made it into National Taiwan University because he scored well on Sun Yat-sen's Three People's Principles, who was able to buy a house before all his classmates because he studied Martial Law era maritime law, presume to demand the purging of half the officials within the justice system? Is Chen Shui-bian, a potential defendant in the State Affairs Confidential Expenses case, to decide which half of the officials in the judiciary should be purged? Will these include the presiding judges in his corruption trial?

Had Hsieh Chi-wei really studied Germany history, he would know how vigorously Helmut Kohl sponsored Lothar de Maizie, the last prime minister of East Germany, following the reunification of East and West Germany. This was especially odd, considering how ministers who had been in office for only two months were quietly relieved of their duties. The reason was that East Germany's Ministry for State Security (Stasi) had a dossier filled with senstive information on Kohl. This former Prime Minister, the victim of a ruthless purge, probably never imagined that an Eastern Bloc government undergoing transitional justice would have a Bureau of Information Chief willing to pay him bundles of money to lecture on "transitional justice."

The transitional justice that Taiwan needs requires the kind of soul searching that is carved indelibly into one's bones and into one's heart. What is needed is an evolutionary metamorphosis, not two wrongs that will never make a right, not an endless cycle of tit for tat. An ignorant Hsieh Chi-wei is unqualified to discuss transitional justice. He and the irredeemably corrupt Chen Shui-bian are birds of a feather who are unqualified to criticize the justice system. They can only demean justice.

為謝志偉補課：何謂「德國轉型正義」？
【聯合報╱社論】
2007.09.06 03:06 am

民進黨執政以來已經換掉七名新聞局長，而從「比槍」局長，到（為地下電台）「剪綵」局長，再從「關台」局長，到「喬事」局長，個個前無古人，卻絕對不愁後無來者。唯以狂妄的程度而言，謝志偉毫無疑問又創造了另外一個前無古人的紀錄！

謝志偉憑什麼狂妄？用他的冷笑話來講，就是「留德」青山在。只因在德國學習德國文學，他就敢大談「轉型正義」，並重金禮聘一位「前東德總理」來台灣暢言「清算黨產」，又和完全不瞭解德國的陳水扁一唱一和，要學德國「清算檯面上一半的司法官」，而且要所有司法官上網公布自己的黨籍。

不知謝志偉的德國文學學得怎樣，但非常確定的是，從他滿口柴胡的「轉型正義」就知道，他不懂德國的歷史，更不懂德國的政治和法律，只憑他佔據了政府發言人的地位，儼然以為他說德國如何德國就是如何。這簡直丟光了所有留德學者的臉。

研究轉型正義的人都知道，在拉丁美洲之後，今天世界上最認真在談轉型正義的地方，就是從社會主義體制蛻變為資本主義體制的東歐，包含德國。後共產國家有私產、公產和黨產攪在一塊的問題，有冤假錯案平反的問題，有投奔自由遭到格殺的究責問題，有各種舊時代的功績罪過如何重新評等的問題，還有公安部門巨量的各種「黑材料」如何善後的問題。然而一直到今天，東歐人談了很多，真正能夠「處理」的轉型正義，卻是寥寥可數。原因絕對不在社會轉型的幅度還不夠大，或者對正義的領悟還不夠深，而在其轉型基本上是建立在整個社會的「蛻變」上。

所謂轉型正義，就是對今是昨非的徹底釐清，然而碰到蛻變型的轉型社會，今日的我就是從昨日的我蛻變而來，正義的清算要如何執行？是讓下一代的人清算上一代的人？還是讓舊遊戲規則下的一部分人回頭來清算另一部分人？在人人指向人人而是非犬牙交錯的困境下，轉型正義實際上變成了刻骨銘心的靈魂搜尋：千萬不要讓下一代人重蹈覆轍！

整個東歐唯一能多做一點的就是德國，原因很簡單，只有德國是通過合併（實際上是兼併）達成轉型的國家，資本主義的西德體制由外而內地加在東德的社會體制上，所以統一後的德國才有餘裕可以淘汰一半頭腦已經被社會主義醬透的司法官，因為還有西德的法官可以立刻補位，僅僅這一點，就沒有任何其他的東歐國家可以做得到。

台灣的社會轉型，與東歐比較，相形之下幅度較小：我們在經濟上從來就是資本主義體制，我們的民主轉型也被稱作「漸進式民主」。也因此在民主化以後，我們絕大多數的法律與重要社經機制不需要作任何調整。更重要的是，我們的轉型剛好和東德不一樣，而和所有其他東歐國家一樣，是一種集體的蛻變，如蛹之蛻化成蝶。所以，從今天的眼光來看，舊的遊戲規則雖有諸多不義之處，但整個社會由過去走向現在，請問，誰有資格去向誰執行轉型正義？是拜舊土地政策之賜的新地主？或是靠舊獎勵政策而搶進國際市場的企業主？請問，憑什麼曾經做過國民黨小組長、因為三民主義拿到高分而考上台大、因為熟讀熟用「戒嚴時代」的海商法才比所有同學先買房子的陳水扁，有權利主張清算一半的司法官？難道要由國務機要費案的「潛在被告」陳水扁來決定哪一半的司法官應被清算？包不包括將審判他的法官？

如果真正研究過德國轉型的歷史，謝志偉不會不知道末代東德總理麥齊爾先生為什麼在兩德統一後受到柯爾總理大力扶持，卻只作了兩個月的部長就黯然去職，因為他作東德公安部「爪耙子」的資料被人掀了出來。這位遭到無情清算的前總理大概從來沒想到，遠東會有另一個轉型民主國家的新聞局長，肯花大筆鈔票找他去當「轉型正義」的宣講師！

台灣所需要的轉型正義，正是刻骨銘心的靈魂搜尋，更是蛻變以後的精神昇華，而不是掌權者清算在野者的反覆輪迴。無知的謝志偉沒有資格談轉型正義，就和陷入集團性貪腐泥淖的陳水扁，沒有資格批評司法一樣；他們只會汙衊正義，糟蹋司法。