Why Constitution Matters with Transitional Justice: Comparison of Taiwan and South Korea

The paths of constitutional reform and democratization in Taiwan and South Korea paralleled as well as diverged from each other. The difference has a huge impact upon their policies and legal strategy toward transitional justice. Constitution in post-authoritarian Taiwan failed to form a new political identity against past atrocity. Even though the Constitutional Court has made effort to instill theoretical bases to redress unfair criminal treatment of political activists, these rulings simply reaffirm the untouchable issue of political legitimacy enshrined in the 1947 Constitution of the Republic of China. The KMT simply passed legislation to award monetary compensation for political victims under martial law. However, Korea has actively investigated at least two political incidents. The case of Taiwan illustrates an outdated constitution not only cannot provide a sound foundation for transitional justice but also fails to facilitate political communication within a growing democracy.