Article 9 of the Constitution clearly states that except for those who are in active military service, no person shall be subject to trial by a military tribunal; whereas Articles 8 and 9 of the Martial Law, which stipulate that those who are not in active military service may be subject to trial by a military tribunal, are, however, exceptions recognized by the Constitution. Subsequent to the abolishment of the Martial Law, pursuant to Article 10 of the very same Law, a judgment adjudicated by a military tribunal may be appealed from the day after the abolishment of Martial Law so as to conform to the first abovementioned provision of the Constitution.  However, the ruling contained in the first sentence of Paragraph 2 of Article 9 of the National Security Act during the Period of National Mobilization for Suppression of the Communist Rebellion, which stipulates that those who are not in active military service may not appeal the final court decisions with respect to criminal cases adjudicated in the military tribunals during the period of the Martial Law to the competent court subsequent to the abolishment of the Martial Law, was set   due to the exceptional circumstances arising during and in connection with the interval of more than thirty years from the time the law came into force until the abolishment of the Martial Law, and the intent was to maintain the stability of the courts’ final decisions and the social order.  Furthermore, those who have cause for a retrial or an extraordinary appeal, may petition for remedy in conformity with the law; Consequently, the intent of the ruling mentioned above does not contradict the Constitution.  This interpretation is, nevertheless, not applicable to cases which do not pertain to the above-mentioned circumstance. 

       Article 9 of the Constitution clearly states that except for those who are in active military service, no person shall be subject to trial by a military tribunal.  The Martial Law was implemented to deal with  emergency circumstances such as wars or rebellion and to maintain national security and social stability and its implementation was, thus, a necessary means to meet the above circumstances.  Consequently, cases that could not be adjudicated by ordinary courts during the Martial Law period and within the territories where the Martial Law was applicable, were uniformly adjudicated by a military tribunal.  They were exceptions under the Martial Law system, which are recognized by the Constitution, and these are also contained in Articles 8 and 9 of the Martial Law.  Nevertheless, lest there be insufficient protection for the people under a military adjudication, Article 10 of the Martial Law provides that after the abolishment of the Martial Law, such types of cases may be appealed to ordinary courts pursuant to the law, which provision conforms to the first abovementioned provision of the Constitution.To meet the requirements as per the Period of National Mobilization for Suppression of the Communist Rebellion, the government had, on December 10, 1948, put the Martial Law in force nationwide (whereas in Taiwan, it began on May 20, 1949); however, the law was, nevertheless, not uniformly enforced in all areas.  To respect the jurisdictional  authority, the government promulgated the “Regulations Demarcating Cases Adjudicated in the Military Tribunal or in the Ordinary Court in Taiwan during the Execution of Martial Law in 1952” gradually limiting the scope of military adjudication, and enacted the “Military Trial Act” in 1956 to replace “Trial Law for the Armed Forces” and other decrees related to procedures of military trial in order to conduct military adjudication as circumspectly as possible.  The Martial Law was in force for more than thirty (30) years from December 10, 1948, through its abolishment on July 15, 1987, and the situation was, indeed, one of emergency circumstances. Article 9 of the National Security Act during the Period of National Mobilization for Suppression of the Communist Rebellion stipulates that criminal cases relating to the non-military personnel, which were adjudicated in the military tribunals during the period of the Martial Law within the territories where the Martial Law was applicable, whose trials are not completed, or whose criminal sentence has not been executed or completed yet after the abolishment of said law, shall then be referred to the competent prosecutor or court, respectively.  However, the reasons why the final court decisions with respect to criminal cases adjudicated in the military tribunals may not be appealed to the competent court, are due to the long-term enforcement of the Martial Law, the difficulty in gathering and investigating evidence after such a long period of time has elapsed and circumstances have changed, and the need for maintaining the stability of judgments and social order.  Furthermore, those who have just cause for a retrial or an extraordinary appeal, may petition for remedy in conformity with the law; Consequently the intent mentioned above does not contradict the Constitution.  This interpretation is, nevertheless, not applicable to cases which do not pertain to the above-mentioned circumstance. 

* Translated by Wei-Feng Huang of THY Taiwan International Law Offices.