Sidelights | "Were the Courts Run by the XX Party?" Why Young People Should Understand the History of Party-State Judiciary

Moderator ｜ Liao Szu-min (JRF Volunteer)
Speaker ｜ Liu Heng-wen (Professor, Department of Civic Education and Leadership, National Taiwan Normal University)
Discussants ｜ Lo Ping-cheng (Attorney, Tolo Law Firm; Standing Executive Committee Member, JRF), Lin Meng-huang (Judge, Taiwan High Court)

In the "Pen" zone of the "Becoming an Ordinary Person" exhibition, we witness the indelible 30-year history of judicial reform, as well as the process of Taiwan's democratic and rule-of-law transformation.

Today, the admission rate for the judicial officer examination is under 5%, making it one of the most notoriously difficult national exams in Taiwan. But did you know that in the past, even law students who passed the judicial examination might have been barred from becoming judges simply because they were not members of the Kuomintang (KMT)? Furthermore, even if you did not pass the special examination for judicial officers, merely holding the political status of a "KMT member" allowed you to wield the judge's gavel and preside over cases in court?

Pursuing transitional justice in the judiciary is not only about deeply understanding the historical context of Taiwan's judiciary, but also about drawing lessons so that Taiwan never returns to the old path of a party-state judiciary. Regarding the party-ification of the judiciary, one of the most classic studies is Professor Liu Heng-wen's paper, "Postwar Taiwan's 'Party-ized Judiciary'—The KMT's Institutional Control over Judicial Personnel Before the 1990s and Its Subsequent Impact." Professor Liu has long collaborated closely with the JRF on rule-of-law education and is affectionately known by many as the "Guanyin of Basic Law." At this event, Professor Liu shared her motivations for choosing the "party-ized judiciary" as a research topic and further explained the core findings and observations of her study. From the remark made by Hsu Shui-teh in 1995 that "the courts were also opened by the Kuomintang," to the institutional evolution of party-state forces withdrawing from the judicial system—the Civil Associations Act in 1993, the Judicial Yuan's administrative disciplinary norms in 1999, and finally Article 15 of the Judges Act in 2012, which explicitly drew a clear line between judges and political parties—Taiwan's judicial system was profoundly influenced by the KMT. The so-called "party-state judiciary" can be said to have only officially reached its legal endpoint in 2012.

We also invited Taiwan High Court Judge Lin Meng-huang, author of Transitional Justice and Judicial Reform, who has long focused on judicial system issues during democratic transition. As a member of the judicial system, he shared his feelings from within the system regarding the history of a party-ified judiciary, and discussed the intersections and gaps between theoretical research and practical experience in light of Professor Liu Heng-wen's findings.

In addition, Attorney Lo Ping-cheng, who once defended in the Su Chien-Ho case, shared his experiences and reflections on promoting transitional justice policies during his tenure as a political deputy minister. He discussed whether the efforts at that time still left unfinished business, and what expectations and suggestions he holds for future policy directions.

Today's moderator, Liao Szu-min, previously worked in the Judicial Injustice Remediation Division of the Transitional Justice Commission and currently serves at the Foundation for Rights Recovery of Victims of Official Wrongs during the Authoritarian Period, long dedicating herself to transitional justice issues.

During the opening weekend of the exhibition, we invited three speakers to deeply explore the history of the party-state judiciary with everyone, reflecting on how those in power during the authoritarian period "penetrated government through the party," constructing an institutionalized judicial control system by controlling the recruitment, training, management, and personnel assignments of judicial personnel.

The lecture series accompanying the "Becoming an Ordinary Person" exhibition highlights critical themes in the 30-year development of Taiwan's judicial reform for deeper sharing and discussion. The first session notably echoed the exhibition's venue in Taipei, the 228 National Memorial Museum, aiming to bring out the historical depth of judicial reform.

The session opened with moderator Liao Szu-min, who pointed out the vital connection between transitional justice and the judiciary: it is both a necessary project for healing trauma and consolidating democratic transition, and a crucial issue for contemporary judicial self-examination and institutional reflection. In the past, Taiwan's promotion of transitional justice mainly focused on "compensating victims," while falling short in truth-seeking, holding perpetrators accountable, and institutional reform. Even after President Tsai Ing-wen took office in 2016 and promoted related transitional justice legislation, there remains ample room for progress on judicial reform issues. This lecture gathered three speakers from academia, adjudication, and practical advocacy to review the historical issues of the party-state judiciary from different perspectives, thereby reflecting on the essential connection between transitional justice and judicial reform.

Professor Liu Heng-wen Introduces Her Paper: "Postwar Taiwan's 'Party-ized Judiciary'—The KMT's Institutional Control over Judicial Personnel Before the 1990s and Its Subsequent Impact"

First, Professor Liu Heng-wen introduced her research, built upon years of dedicated study. Professor Liu explained that during the political tutelage period in pre-war China, the KMT primarily promoted a "party-ified judicial" system through a series of institutional measures. She introduced this through two distinct routes: "party-ization of personnel" and "party-dogmatization of ideology," explaining how the two co-constructed the existing party-ified judicial system. The former involved "sending party members into the judicial system / drawing judicial officers into the political party" regarding personnel, while the latter involved "leading law through the party" concerning ideological training and adjudication approaches.

Regarding personnel, the "Examination Regulations for Party Personnel Engaged in Judicial Work" was enacted in 1935, through which the party headquarters directly selected and recruited judicial personnel, admitting over a hundred people at once. In 1938, the "War Zone Prosecutor" screening channel was established to select investigation (intelligence) personnel from the Central Party Headquarters for training and deployment across various regions. Between 1942 and 1944, they were successively "reassigned as ordinary prosecutors or criminal division judges," formally incorporated into the establishment. On another front, the Judicial Officers Training Institute and subsequent training classes affiliated with the Central University/National Chengchi University listed the Three Principles of the People, the Constitution of the Five Yuans, and "party dogma" as compulsory subjects, establishing party dogma study groups, implementing testing, rewards, and punishments, and heavily encouraging party membership. This practice continued in the Judicial Officers Training Institute in postwar Taiwan, where trainees were often required to join the party before graduation and assignment, closely linking promotions and key appointments with party affiliation. At the time, there were also "guest-training" pathways: Investigation Bureau personnel and court clerks could audit or undergo guest-training, with some later transitioning into judicial officers—a practice questioned as an institutional channel for "insiders."

Professor Liu further elaborated that the personnel structure underwent rapid upheaval following the postwar takeover. Starting in 1947, the proportion of Taiwanese judges and prosecutors plummeted rapidly, with officials of mainland provincial origins becoming the mainstay. To insert individuals with party, military law, or investigative backgrounds, pre-war methods such as "loosening appointment thresholds and transitioning through special training" continued to be employed. The tools of absorption and control were dense and consistent: from ideological indoctrination and party recruitment during examination and training, to special reassignments from war zone prosecutors and investigative systems, down to career reward-punishment and promotion gatekeeping. Administrative positions at the division chief level and above were frequently required to hold party membership, and top-level personnel decisions were mostly nominated by the KMT Central Standing Committee before being announced. Party branch organizations also existed within courts until the amendment of the Civil Associations Act in 1993 explicitly prohibited political parties from establishing party caucuses within courts.

Furthermore, regarding "party-dogmatization," education and examinations not only added the Three Principles of the People and the Constitution of the Five Yuans and established party dogma study groups, but practical applications also saw concepts like "revolutionary civil rights" and the "KMT Manifesto" used as interpretive guidelines, granting party dogma the effect of overriding or guiding legal application. Although this had limited promotion at the general administrative and district court levels, in political and communist-related cases, it could often achieve "expected" and "decisive" conclusions. Around 1948, special criminal courts were widely established, and human resources such as military law officers and "war zone prosecutors" were mobilized to handle political cases, further eroding judicial independence.

Professor Liu also extended the timeline to the "turning points" and "gray periods" following democratization. For instance, the 1993 Civil Associations Act drove political parties out of courts (as well as universities and the military), and the 1995 Code of Judicial Ethics required judges not to participate in political parties or political group activities, though it did not yet demand "resigning from the party." Consequently, a gray area persisted throughout the 1990s: judicial officers could still retain their party membership or party positions as long as they did not participate in overt activities like stumping or stumping speeches. As for party primaries and nominations, they were often evaded under the pretext of being "internal party affairs," and there were even instances where judicial officers concurrently served as National Assembly delegates or ran for office, handled via leave of absence or suspension without pay. It was not until the implementation of the Judges Act and the Enforcement Rules of the Judges Act in 2011–2012 that judges and prosecutors were explicitly required to fully withdraw from political parties and political groups and complete party resignation within a specified period. Only then was the legal severance from political parties completed.

Professor Liu further emphasized that this entire set of historical factors—ranging from personnel deployments extending from pre-war to postwar Taiwan, to specific key judicial positions being monopolized by related party affairs personnel for a long time—had profound impacts on politically sensitive judicial cases. Even after democratization, the scars persisted for a period and required reform through legal and institutional adjustments.

Finally, Professor Liu concluded by pointing out that today we should not indiscriminately slap a "party" label on incumbent judicial personnel, but we must not ignore this historical process of a party-ified judiciary. Only by seeing clearly how it operated, how it persisted, and how it was dismantled can future reforms hit the mark.

Discussion: Judge Lin Meng-huang's Internal Perspective

Judge Lin Meng-huang began by recommending two films: Argentina, 1985 and I'm Still Here, which respectively introduce the different choices made by Argentina and Brazil in facing military dictatorship. Following the 1976 coup, Argentina went through the difficult years of prosecuting military-regime perpetrators starting in 1985; even though the majority of prosecutors, judges, and defense attorneys still identified with the military dictatorship, society still attempted to bring justice back into the courtroom. Brazil experienced dictatorship starting from the 1960s, but its transitional justice has always been fraught with difficulty; the latter film depicts a documentary shot by a son about his own lived experiences after his congressman father was made to "disappear." Judge Lin previously wrote an article in The Reporter sharing his viewing reflections on both films, noting that it is precisely by looking into someone else's mirror that we better understand where we are stuck.

Returning to Taiwan, Judge Lin mentioned that Lin Mao-sheng, our country's first Doctor of Philosophy, disappeared during the 228 Incident, and a declaration of death was only applied for last month. Why did it take until today to take this step? Because for a long time, we were unwilling to clearly articulate transitional justice. Many legal professionals did not understand how the judiciary had been influenced by political parties, causing the values and adjudication culture of the authoritarian era to continue to the present under the guise of "custom."

Recalling his experience entering judicial officer training in May 2000, Judge Lin noted that even without personally experiencing the party-ification era, he could clearly sense the system's coldness and taboo surrounding this issue. Before Chief Justice Hsu Tzong-li took office in 2016, society suggested exploring wrongful convictions through seminars to reflect on the system from a systematic and comprehensive perspective, including that important law enforcement personnel such as police officers and investigators should participate. However, out of fear of being labeled as engaging in "settling scores," it was ultimately held only internally within the Academy for the Judiciary and kept from the public. Judge Lin once participated in a lecture on wrongful convictions hosted by former Grand Justice Huang Hung-hsia, but only five judicial trainee judges were in attendance at the time, demonstrating that transitional justice in the judicial field still carries a certain sensitivity. In short, Article 6 of the Act on Promoting Transitional Justice, which provides for the "annulment of judicial injustices," grew slowly out of these self-reflective discussions and activities.

Judge Lin also mentioned that when Prosecutor-General Chiang Hui-min took office in 2018, then-Legislator Tuan Yi-kang suggested that Chiang should represent the prosecutorial system in apologizing to society for past unlawful acts during the authoritarian period. At the time, the media even described the Prosecutor-General as "unsullied" (non-stick pan), treating keeping a distance as the correct solution to transitional justice.

Judge Lin wrote an article titled "Prosecutor-General Chiang Hui-min's Transitional Homework" for self-reflection: looking back at the authoritarian era, several high prosecutors general originated precisely from the KMT's agent system, which was why they could be heavily trusted by the party-state. Wrongful convictions occurred not only at the highest level of adjudication; many cases were handled by district courts, but due to a societal lack of awareness regarding transitional justice, even judges within the system might not have known the full picture. Discussing institutional vestiges, he described past control mechanisms such as "court presidents pre-reviewing judgments and inspecting them before finalization" and "assigning cases to trusted judges." Today, replacing these with random case assignment and judicial performance evaluation committees means things are no longer what they used to be, but this does not mean we can let our guard down. Judge Lin reminded everyone that whether the prosecutorial system will be influenced by political forces in deciding whether to indict remains a critical issue that must be closely monitored today.

Regarding the structural problems of the current judiciary, Judge Lin bluntly stated: First is the judicial officer examination. He does not believe that judges selected solely through examinations can guarantee enthusiasm and a sense of mission. Second is the training mechanism. Although the militarized training of the former Judicial Officers Training Institute is gone, the Academy for the Judiciary remains subordinate to the Ministry of Justice, exactly as it was in the past. When the Control Yuan inquired about the Academy's transitional justice courses, although the Academy scheduled two hours, "nobody cares unless it's on the test"—a true reflection of the system. Third is personnel control and responsible governance. Today, dispositions against unsuited personnel still heavily rely on the Judges Review Committee rather than the court president's administrative supervision, making the removal of incompetent personnel extremely difficult.

In summary, transitional justice failed to succeed in the judicial circle for two reasons: first, it was undervalued and treated as political rhetoric; second, the judicial and prosecutorial systems' review of past wrongful convictions falls far short of Germany's depth in reflecting on Nazi judiciaries. Until these two gaps are filled, transitional justice can hardly truly penetrate the sinews of Taiwan's judiciary.

Discussion: Attorney Lo Ping-cheng's Experience Sharing as a Former Political Deputy Minister

The third discussant, Attorney Lo Ping-cheng, who also served as a political deputy minister in the Tsai Ing-wen administration, focused back on "civic mandatory courses." He pointed out that reviewing the party-ification of the judiciary is an attitude of reflecting on the past and protecting the future: "The past cannot pass, and the future cannot arrive." The first step of transitional justice is "truth," and the second step is "justice." Only with truth can we speak of compensation and rehabilitation; only with justice will errors not be repeated. Viewed from his era as a practicing attorney, errors were not accidental, and corruption and interference were ubiquitous within the authoritarian network. Not only judges and prosecutors, but even the bar association had once been controlled. That was an era where a little garrison command lived in everyone's heart, and self-censorship made people unwilling to spare even themselves.

Attorney Lo mentioned that the book *Judicial Orders* selected nine Judicial Yuan Interpretations, specifically pointing out that Interpretations No. 68 and No. 129 involved the "crime of juvenile rebellion." In 1956, the Control Yuan petitioned for constitutional interpretation, arguing that since there was evidence proving an individual "participated in the Communist Party in the past," could they still be punished upon coming to Taiwan due to a "continuous state" of affairs? The final interpretation adopted a framework of "unless proven to have surrendered and disaffiliated," equating to indefinitely extending the behavioral state to the period after coming to Taiwan, punishable by death at most. Consequently, judgments criminalizing fourteen-year-old children even emerged, conflicting with the criminal law principle of capacity, yet still receiving endorsement from the Grand Justices.

Attorney Lo pointed out that behind these judgments lay political operations, which subsequent archive declassifications have confirmed. The book also reconstructs the thought process during constitutional interpretation meetings: some argued that since Interpretation No. 68 had just passed, No. 129 could not "slap its own face"; others opposed expanding criminalization toward children. Originally, the latter group had more numbers, but during the meeting, the court president began lobbying the compromise faction under the pretext of "respecting the central authority" and "having instructions from the President [Chiang Kai-shek]," shifting the momentum. When Interpretation No. 69 was rendered, although some scholars still argued reasonably, reminding others not to confuse right and wrong, if even the Grand Justices acted this way, the pressure and self-limitation experienced by judicial personnel at other levels can well be imagined.

Discussing the post-democratization era, Attorney Lo noted that while changes have occurred since 2000, there has never been an "end-to-end, all-at-once" systematic overhaul; changes have mostly been gradual rotations. External norms against joining parties helped judges build internal independence. The legal profession also underwent a critical turning point in 1989 when the "Literature and Year Group" initiated bar association re-elections, ending the pattern of former military judges monopolizing the field, truly overturning the landscape from local associations to the national bar federation. Judicial independence is one of the most precious values under the separation of powers; even under the banner of democracy, it should not be lightly trampled. Weakening and interfering with the judiciary can certainly still occur in a democratic era; only by remembering history and seeing through the methods can society have defensive capabilities.

Attorney Lo then shared a photo as a footnote: years ago, during a mutual human rights visit to the European Union, he went to Berlin with colleagues from the human rights park and saw brass square blocks embedded in the streets—the "Stolpersteine" (stumbling stones) project initiated by a German artist, with the first placed in Cologne and now exceeding 75,000 blocks. Each block inscribes a name, restoring names to those who were reduced to mere serial numbers in concentration camps. For over thirty years, the artist has persisted through vandalism and litigation, allowing "memory" to infiltrate people's daily walking routes. Placing the Supreme Court on the site of an old prison after South Africa's democratization serves the same reminder: institutions must keep memory alive in daily life. Education is no exception. Although the Transitional Justice Commission promoted this previously, it struggled to reach deep into various ministries. The first Transitional Justice Report submitted by the Ministry of Education proposed the 2023–2026 guidelines, incorporating judicial personnel and the civil service system, but resistance from the Ministry of National Defense, the Veterans Affairs Council, and others was not insignificant, and even the removal of authoritarian bronze statues has progressed sluggishly. Attorney Lo reminded us that if trainees at the Ministry of Justice Investigation Bureau are not taken to human rights parks to hear history and learn humility, past errors could still repeat themselves. Policy and legislation must come first. Although the "Three Laws" (the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations, the Act on Promoting Transitional Justice, and the Political Archives Act) passed, the Act on Promoting Transitional Justice still has unfinished business, such as accountability clauses, which face statute of limitations dilemmas. While criminal law scholars emphasize the principle of legality, international human rights law scholars argue that exceptions under international law can break through this.

Finally, Attorney Lo pointed out that Taiwan's transitional justice is progressive, which makes patience all the more necessary, allowing every step to connect with the next.

Q&A Session

Q: Does the Ministry of Justice's subordination to the Executive Yuan erode judicial independence? Should it be subordinated to the Judicial Yuan instead?

Judge Lin Meng-huang answered: In most democratic countries worldwide, the prosecutorial system falls under the executive branch; our country's unique "Judicial Yuan" arrangement has always been rare. From the professional logic of "prosecutorial integration," placing prosecution under the Judicial Yuan is even more inappropriate.

Attorney Lo Ping-cheng answered: Judicial independence involves not only judges, but also the "internal independence" of prosecutors and lawyers. Once external authoritarianism diminished, judicial adjudication showed decent independence, but prosecutorial independence still needs strengthening. We can discuss transferring a portion of prosecutorial personnel administration from the Ministry of Justice to chief prosecutors to conform to the responsibility structure of prosecutorial integration, discussing prosecutorial independence from both internal and external dimensions. Professor Liu Heng-wen added that historically, the subordination of the "Ministry of Judicial Administration / Ministry of Justice" shifted multiple times. What truly matters is institutional accountability and ex-post oversight: even if ex-ante control is constrained by law, mechanisms for archive declassification upon expiration and auditability should still be established to place the prosecutorial system under democratic oversight.

Q: Amid political turmoil, it is harder for civil society groups to monitor the prosecution and judiciary, and there is a lack of a consolidated "authoritarian resume." Even political parties advocating transitional justice have nominated individuals with authoritarian backgrounds, such as Hsieh Wen-ting. How should citizens face this chaos?

Judge Lin Meng-huang answered: Whether under authoritarianism or democracy, political parties may want to control the judiciary; what citizens should do is closely monitor whether politicians abuse power. Taking the Hsieh Wen-ting case as an example, many people at the time did not know which cases he had handled. This is why institutionalized memory projects like Germany's "Rosenberg Files" are needed; only by establishing the truth can the people remember. He also reiterated the three bottom lines of judicial independence—anti-corruption, anti-interference, and anti-cursory handling—pointing out that current judicial problems frequently stem from "cursory handling." Rulers sometimes tend to weaken the judiciary; only through continuous citizen attention and urging will the judiciary move forward.

Attorney Lo Ping-cheng answered: He agreed with using the "Rosenberg Files" as a mirror. Although Taiwan promoted transitional justice after political party rotation, it still falls far short of what is required; this was always meant to be a long-term project. Germany is not perfect either; officials from the Nazi era still served in the post-war government and obstructed processes, but the judiciary did not collapse as a result. The key is to continuously bring objective facts into the sunlight. Resistance will inevitably exist, just as national security units might restrict archive access under the pretext of confidentiality; however, as the German Federal Archives stated: "The better one understands past democratic politics, the better one can understand future democratic politics."

"Courts Were Opened by the XX Party"?

The lecture concluded with closing remarks from the moderator. The moderator reminded the audience that while Taiwan has not yet consolidated and established an "authoritarian resume for judicial officers," the Transitional Justice Commission's database on the remediation of judicial injustices already allows searches for cases handled by specific individuals, serving as a partial functional substitute.

From the dialogue and sharing of the three speakers, we may arrive at a preliminarily agreed-upon conclusion: understanding the party-state judiciary is not about attaching labels, but about embedding institutional memory and democratic accountability into the daily life of society, ensuring that "the courts are not run by any political party" is not merely a slogan, but a shared belief that can be seen, examined, and upheld.