In the event this Yuan accepts a petition for constitutional interpretation and that petition is filed by any of the lower courts in accordance with Interpretation No. 371, if we should rule that the related law in question is inconsistent with the meaning or purpose of the Constitution, to avoid a prolonged delay in resolving the pending case at hand and recognizing that it may be difficult, as a matter of fact, for the related governmental body to complete the legislative process in a short period of time, this Yuan may [first] decree that the certain content of the Interpretation is deemed constitutional so that lower courts may apply the [constitutional] rules in time (See J.Y. Interpretation No. 471).
Between May 20, 1949, and July 14, 1987, the Taiwan Area was declared under martial law. For the Kinmen, Matsu, Tungsha (Pratas Island) and Nansha (Spratly Islands) districts, martial law was declared between December 10, 1949, and November 6, 1992. During this period, criminal cases tried by military tribunals applied different procedural rules from general criminal cases; hence, there was insufficient remedial function and less comprehensive protection of the people*s physical freedom than under the judicial due process under normal circumstances (See J.Y. Interpretation No. 436). Now that the period of martial law has been rescinded, the Legislature has enacted the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law Rule (hereinafter “The Act”) to restore rights or to offer comparable damages for those who were convicted under the charges of offenses against the internal or external security of the state and who are qualified under the Act. The reason that the application [of this Act] is expressly limited to cases involving the offenses against the internal or external security of the state is because these types of criminal offenses involve political consideration and under the extraordinary circumstances where martial law was imposed, military tribunals could have improperly ascertained the facts or applied the law. That other criminal offenses are not included in the application of the Act is a matter of legislative discretion and is not a violation of the Constitution.
Article 6 of the aforementioned Act provides, "[d]uring the period of martial law, any individual who has been detained or received execution of sentences for the offenses against the internal or external security of the state before being affirmatively found innocent may petition the district court for national [tort] claims by applying the related provisions, mutatis mutandis, of the Act of Compensation for Wrongful Detentions and Executions." It does not include people being detained or not being released in accordance with the law before or after the non-prosecution ruling, or arrested but released by the police department on its own initiative for lack of evidence, after the non-guilty judgment has been affirmed, or those having completed the sentences of a guilty judgment (including rehabilitation). Taking into consideration the nature of all elements, if there is no cause or justification for any differential treatment, this clearly constitutes a loophole and a gross legislative flaw for failing to provide any regulation to those whose rights suffered equivalent damages and deserved to have their benefits restored. If the application of this Act continues, then only those who lost their physical freedom before the final non-guilty judgment [was rendered] may be compensated and, ironically, an inequality would be created for people who stand before the law. As far as this is concerned, it naturally conflicts with Article 7 of the Constitution. Thus, any individual still being detained or not being released in accordance with the law before or after the non-prosecution ruling, or arrested but released by the police department in its own initiative for lack of evidence, after the non-guilty judgment has been affirmed, or those having completed the sentences of a guilty judgment (including rehabilitation), shall be equally qualified to petition for state compensation, like those who have been detained or received execution of sentences but have been affirmatively found innocent, by applying the related provisions, mutatis mutandis, of the Act of Compensation for Wrongful Detentions and Executions.
In accordance with Article 11 of the Act of Compensation for Wrongful Detentions and Executions, the statute of limitation is two years beginning from the date the petitioner received non-prosecution disposition or a final not guilty judgment. Given the fact that the period of martial law lasted more than thirty years and most of the cases were finalized or closed many years ago, this two-year period should begin as of the date the Act was announced (or promulgated). The authority having the final adjudicative power over wrongful detention or execution cases also holds the same ruling over the beginning of the statute of limitation for [this type of] petition, and there is no violation of the Constitution. As to petitions filed based upon this Interpretation, it is necessary to point out that their two-year period begins from the date this Interpretation.
*Translated and edited by Professor Andy Y. Sun.