The Constitutional Court on April 23 is to hear oral arguments on whether the death penalty is constitutional. Contentions include the following six points:
First, in addition to the right to life, would the death penalty infringe upon other rights protected by the Constitution, such as the right not to be tortured or the right to human dignity?
Second, what are the objectives of imposing a death penalty and are they constitutional?
Third, would the death penalty still be considered constitutional if it is a means to achieve the aforementioned objectives, but infringes upon people’s constitutional rights? If the death penalty is unconstitutional, are there other legally prescribed punishments or measurements to replace it?
Fourth, if the death penalty is constitutional, should the scope be limited to a certain number of offenses?
Fifth, should it be limited to certain types of offenders?
Sixth, what are the supplementary measures of the death penalty?
The term of Judicial Yuan President Hsu Tzong-li (許宗力) is to end by the end of October, along with that of the vice president and five other grand justices. Some judicial professionals have suggested that the issue of the death penalty be left to the new Judicial Yuan president, who would be appointed by president-elect William Lai (賴清德).
That way, the judicial system would be in line with the most updated public opinion, making it more democratic.
Interpretation No. 194 has addressed whether the death penalty is constitutional, saying that the death penalty imposed on those who traffic in illegal drugs is indeed rigorous, but that the provision “was enacted to eliminate drug trafficking to maintain national security and social order during the period for suppression of the communist rebellion.”
It is not contrary to Article 7 or 23 of the Constitution, it says.
Other interpretations have addressed similar issues. Imposing the death penalty on those who commit kidnapping with the intention of receiving ransom is constitutional, Interpretation No. 263 says.
Interpretation No. 476 also says that anyone who manufactures, transports or sells first-grade drugs should be sentenced to death, which does not violate Article 23 and is consistent with Article 15 of the Constitution.
From 1985 to 1999, three constitutional interpretations had been made, and many grand justices confirmed that the death penalty should be considered constitutional. Is it necessary for the six grand justices — whose terms are to end in October — and the other nine grand justices to hear oral arguments on whether the death penalty is constitutional? Even if the Constitutional Court rules that the death penalty is constitutional or unconstitutional before their term ends, the next Judicial Yuan president, vice president and grand justices might have to address the issue again, should someone ask for the Constitutional Court for another judgement.
If that is the case, does the stability of the Constitution and laws still stand? Does the authority of the Constitutional Court still mean something? Is it justifiable for one single issue to be interpreted again and again?
The issue of the death penalty is related to a variety of matters, including public opinion, politics, law, religion, criminology and criminal policy. The most important one to consider is whether the death penalty coincides with the public’s sentiment and national circumstances.
This is the life and spirit of the Constitution. Transplanting judicial systems from Japan, Germany and the US to Taiwan might not work. After all, the courts in Taiwan are not branches of those in Japan, Germany and the US.
Chuang Sheng-rong is a lawyer.
Translated by Emma Liu
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