Do legislative assemblies protect religious liberty? They should, but they do not always succeed, particularly when a country emerges from a non-democratic past.
by PierLuigi Zoccatelli*
*A paper presented at the webinar “Parliaments, Freedom of Religion or Belief, and the Tai Ji Men Case,” organized by CESNUR and Human Rights Without Frontiers on June 30, 2021.
As we celebrate the International Day of the Parliaments, it is important to note that the parliamentary principle we honor today is not about the existence of elected assemblies. These also exist in contemporary non-democratic regimes, but have very limited or no powers. The parliamentary principle, which was created in early modern Britain, although with precedents in Spain and Portugal, is about the separation of powers, and the fact that the legislative power vested in the Parliament should be able to control and criticize the executive power vested in the King, or the President, and the government, and the judiciary power, vested in the judges and prosecutors.
Typically, non-democratic regimes reduce Parliaments to a purely decorative function when they do not simply eliminate them. This allows the executive power to reign unchecked. For this reason, when a non-democratic regime transitions into a democratic one, citizens normally see Parliaments with sympathy.
This happened in Italy after the Fascist regime, and in Taiwan after the Martial Law. This social capital of sympathy the Parliaments enjoy is immediately tested by how they are able to deal with transitional justice, i.e., the redress of the injustices created by the previous non-democratic system. This is not easy, and often includes an element of restoring religious liberty.
In fact, in Italy, the democratic Parliaments that emerged after World War II left in place for several decades measures of the previous Fascist era that had restricted religious liberty, and decisive progress happened only in the 1980s. Old bureaucrats maintain old habits, difficult to change.
From what I have learned by observing Taiwan from outside, it seems to me that Taiwan shares with Italy and other countries the problem of transitional justice, including in the field of religious liberty.
Taiwan gained a truly independent Parliament, known as the Legislative Yuan, as the Martial Law era ended in 1987. However, there was a long transition that also affected religious liberty. When in 1996 the government cracked down on several religious and spiritual movements, including Tai Ji Men, accused of not supporting the presidential candidate that won the elections, the Legislative Yuan was not able, or not willing, to stop the injustice. Later, some things improved, but there was no redress based on transitional justice for injustices perpetrated after 1987.
Interestingly, the Legislative Yuan tried to intervene repeatedly and solve the Tai Ji Men case. It conducted extensive public hearings and meetings about the Tai Ji men tax case for two decades. In 1999, eighty-two legislators signed a joint petition asking the National Taxation Bureau to cancel the illegal tax bills that had been issued against Tai Ji Men without waiting for the outcome of the criminal case. In November 2013, after Tai Ji Men had emerged victorious from the ill-founded criminal case, again thirty-three legislators co-signed a proposal requesting the Ministry of Finance to revoke the unlawful tax bills. To date, over 300 legislators from different parties have asked in different ways ((such as petitions, proposals, interpellations, press conferences, public hearings or coordination committees, etc.) the National Tax Bureau to revoke the tax bills, including the bill for 1992 that has finally been maintained and enforced.
The question is, why were so many legislators unsuccessful? Why was the legislative power unable to control a branch of the executive power, or perhaps just some rogue bureaucrats?
Based on parallels with the Italian experience, I can suggest three possible explanations.
First, the driving force against the whole persecution of Tai Ji Men was a powerful prosecutor with an unusual ability to manipulate the media. As we have seen in Italy, because of real corruption cases the third power, the judiciary, was able to gain more power and limit the possibility of the other powers, legislative and executive, to control its possible abuses. Members of the Parliament are afraid of powerful and media-connected prosecutors. Perhaps something similar happened in Taiwan.
Second, perhaps some toxic residuals of the non-democratic period were still at work in Taiwan’s system, notwithstanding its laudable democratic achievements, as they were at work in Italy for many years after the fall of Fascism.
Third, bureaucrats in the tax offices are also powerful. Politicians are taxpayers themselves, and some of them may be reluctant to make enemies there. In Italy, very powerful politicians had their careers compromised by accusations of tax evasion. Perhaps in Taiwan as well legislators did not want to engage to the bitter end in a dangerous confrontation with tax bureaucrats.
I may, of course, be wrong. But these possible explanations hint at the conclusion that, until the Tai Ji Men case is solved, the principle of parliamentary control of the other powers is in some sort of jeopardy in Taiwan.