Eighteen days after his death sentence was finalized, Taipei MRT killer Cheng Chieh (鄭捷) was executed, sparking public debate. In particular, since Minister of Justice Luo Ying-shay (羅瑩雪) is about to step down, it was debated whether she should be the one to approve the execution. That aside, the Ministry of Justice’s habit of approving executions in response to a public outcry in the past few years highlights the difficulty of deciding whether to carry out executions.
Article 461 of the Code of Criminal Procedure (刑事訴訟法), says that after a death sentence is finalized, it should be approved by the justice minister and carried out within three days. However, the article does not specify when the minister must approve the verdict after it has been submitted to the ministry. For this reason, a justice minister’s decision to defer the approval is tantamount to using administrative powers to block a judicial ruling, which violates the separation of powers stipulated in the Constitution.
Since the death sentence is irreversible, the absence of rules stipulating a deadline for the approval and carrying out of capital punishment in effect gives the justice minister a chance to carefully consider whether the verdict is correct, thus allowing for the possibility of a retrial or an extraordinary appeal, which could prevent wrongful executions, such as that of air force serviceman Chiang Kuo-ching (江國慶) in 1997.
Capital punishment can only be suspended if, as Article 435 of the code stipulates, the court rules for a retrial, or if, as per the proviso in Article 461, prosecutors discover that the evidence supports a retrial or an extraordinary appeal and asks the ministry for a retrial. In this regard, the justice minister’s right to approve an execution does not give the minister the right to review a death sentence.
However, since the law does not specify a deadline for the minister’s approval of a death sentence, whether to carry out the sentence and how long that decision takes is at the minister’s discretion. As there is pressure on Taiwan from Amnesty International to abolish capital punishment, the ministry does not approve an execution immediately after a death sentence is issued.
Since 2010, when capital punishment was resumed, 33 people have been executed, with 40 waiting on death row.
As 70 to 80 percent of Taiwanese are opposed to the abolition of capital punishment, there is pressure to carry out death sentences. This has forced the ministry to promulgate regulations for reviewing death sentences, which state that the execution of someone who has not filed for a pardon, constitutional interpretation, extraordinary appeal or retrial, and is of sound mind and has committed a cruel crime should be a priority. Not only does this provision lack a legal basis, it is also dependent on the arbitrary decision of the person in charge. Death row inmates have practically become tools for the government to divert public attention or reduce outrage.
Former South Korean president Kim Young-sam, the nation’s first truly democratically elected president, executed 57 people during his five years in office, overtaking his predecessor Roh Tae-woo, a former army general, who executed 39 people during his presidency.
In December 1997, three months before his tenure ended, Kim had 23 death row inmates executed on the grounds that he wanted to relieve pressure on his successor, Kim Dae-jung, who once was on death row himself. No death sentences have been carried out in South Korea since.
If the future justice minister, when faced with a difficult situation uses the death penalty as an way to make problems go away, it could fracture society.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Ethan Zhan
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