There are two ways to violate the rule of law. In the case of Tai Ji Men, both were at work.
by Massimo Introvigne*
*A paper presented at the webinar “The Tai Ji Men Case and the Rule of Law,” co-organized by CESNUR and Human Rights Without Frontiers on January 11, 2022, Taiwan’s Judicial Day.
The rule of law is a basic conquest in the Western journey towards democracy. Where there is no rule of law, citizens are at the mercy of the capriciousness of the rulers. They can arrest, detain, and execute them just because they had a bad day, or the victims were in the wrong place in the wrong time. With the rule of law, everybody is subject to clearly established statutes, including the rulers themselves. Those in power and the state are as accountable as the common citizens.
There are two different ways to violate the rule of law. Interestingly, in the Tai Ji Men case both violations were committed. The first is to subvert the meaning of the word, and to call “rule of law” not the submission of the rulers to the law but the submission of the law to the rulers. Although Adolf Hitler had its own version of this theory, it was first formulated by Karl Marx. He called the rule of law “a great and dangerous illusion” that unfortunately the working classes naively believed in, particularly in the United Kingdom.
In fact, Marx and Friedrich Engels taught in the Manifesto of the Communist Party, the so-called rule of law is “but the will of the bourgeoisie made into a law for all, a will whose essential character and direction are determined by the economic conditions of existence of the bourgeoisie.” In other words, the bourgeoisie first makes a law protecting only its power, then instills in the proletarians the false idea that it is a “universal” law protecting all citizens.
Happily, Marx said, the solution was at hand. The Communist revolution would soon allow the proletarians to establish their own rule of law, whose custodian and only authorized interpreter will be the Communist Party. In a Communist regime, there are laws but they should be applied, or not applied, based on whether they promote or damage the Communist Party.
This is true of all totalitarian regimes, not only the Communist ones, and was also applied in Taiwan during the Martial Law period. Yes, there were laws. No, they were not enforced independently, but only when they favored the interests of the ruling party. Although in a somewhat attenuated form, this continued in Taiwan in the post-authoritarian period, as evidenced by the unbelievable number of violations of law committed by those who organized the persecution of Tai Ji Men in 1996 and beyond.
There is also a second way of violating the rule of law principle, which is more common in democratic societies. It is the way that the Roman lawyer and politician Cicero, who lived in the first century BCE and is regarded by many as the greatest legal scholar of all times, expressed with the words “summum jus, summa iniuria.” Actually, he found a slightly modified version of the sentence (“ius summum, summa malitia”) in a comedy of the second century BCE, “Heauton Timorumenos” (The Self-Destructor) by Terence, a playwright of African Berber origins who came to Rome as a slave and worked his way to freedom and fame through his literary skills.
Thanks to Cicero, the concept became crucial for the Western philosophy of law. A literal translation is that “the highest law is the highest injustice.” But the meaning is that a literal application of the law, without regard to its rationale and purposes, is the best tool to produce injustice.
There is now a literary genre of sort, which consists of the answers sent by Taiwanese Ministries to those in the United States and elsewhere who ask why on earth the Tai Ji Men case is not solved.
These answers always express the same concept: that in maintaining the tax bill for the year 1992 against Tai Ji Men and its leader Dr. Hong Tao-Tze, after the highest courts in Taiwan had stated that they were never guilty of tax evasion, and the tax bills for the years 1991, 1993, 1994, 1995, and 1996 had been corrected to zero, and in auctioning and seizing their sacred land based on the 1992 ill-founded tax bill, the National Taxation Bureau and the Administrative Enforcement Agency literally respected the law.
Note that these letters do not state that anything different happened in 1992 that did not happen in the other years, thus implicitly admitting that imposing taxes or alleging a tax evasion for 1992 does not make sense. No, they keep repeating like an old broken vinyl record that the laws, particularly the laws on the statute of limitations, were literally applied to the case.
If Cicero were alive, he would say that he had found here a perfect example of “summum jus, summa iniuria.” The most fastidious and literal application of a law, totally ignoring the laws’ goal and the rights of the citizens, had generated the highest injustice. In the Tai Ji Men case, by pretending to apply the law, the rule of law was substantially subverted. Restoring justice, in this case, is the only way to also restore the rule of law.