Taiwan’s Constitutional Court (TCC) will hold a hearing on the constitutionality of the death penalty on Tuesday. This is the first time in Taiwan’s history since its democratic transition that the Constitutional Court will be presented with a case on the constitutionality of the death penalty.
Since Taiwan transitioned from an authoritarian government under the National Assembly, the Republic of China’s Constitution has not been replaced, but rather its merits have been reinterpreted under a democratic government.
There have been only three times in the past that the Constitutional Court has heard cases related to the use of the death penalty under the framework of the Constitution. The first case was heard before Taiwan transitioned from an authoritarian government. The following two were held during the transition.
None of these cases exclusively addressed the constitutionality of the death penalty.
Abolition for transitioning countries is common. Recognizing the systematic use of the death penalty to control and marginalize populations was what guided countries like South Africa and Lithuania to call on their newly formed governments and judicial systems to abolish death sentences. Taiwan did not make this change during transition, which has left a path for the reconciliation of authoritarian crimes untouched until now.
The court will hear three issues regarding the constitutionality of the death penalty. The first is whether a death sentence in a petitioners’ case is unconstitutional under the criminal provisions. Wang Xin-fu (王信福), 72, the oldest man on death row, is the main petitioner, with all 36 other death row inmates as consolidated petitioners.
Not only will the court rule whether current death row inmates received an unconstitutional sentencing, but if under the Criminal Code (Subparagraph 1, Article 33) the death penalty is unconstitutional. If the court rules that the Criminal Code’s stipulation of the death penalty as a principal punishment is unconstitutional, the decision will effectively abolish the death penalty in Taiwan.
Additionally, the court will rule if past interpretations confirming the constitutionality of the death penalty for certain crimes — Judicial Yuan Interpretation Nos. 194 (1985), 263 (1990) and 476 (1999) — should be altered.
Regarding the upcoming hearing, Taiwan Alliance to End the Death Penalty executive director Lin Hsin-yi (林欣怡) said: “In 2000, when Taiwan’s political parties changed and the Democratic Progressive Party came to power, the gradual abolition of the death penalty began.
From 2006 to 2009, there was a four-year suspension of the implementation of the death penalty. In 2009, under the Chinese Nationalist Party’s (KMT) rule, the two covenants on human rights were adopted and implemented under domestic law.
According to Article 6 of the International Covenant on Civil and Political Rights, Taiwan should move towards abolishing the death penalty. The Ministry of Justice in 2010 also established the Task Force to Research the Gradual Abolition of the Death Penalty. The international community and the human rights community expect Taiwan to become the next country to abolish the death penalty.”
When the Constitutional Court hearing was announced to the public, the media disputed whether the decision to abolish the death penalty should be left to the judicial branch, citing the public’s general support for the death penalty.
Lin specified that “Taiwan’s legislative and executive branches have long used public opinion as an excuse to cover up their failure to implement the policy of gradual abolition of the death penalty. As legislators are unable to deal with the issue of the death penalty in detail, it is only right that Taiwan adopts a judicial approach to determine whether the death penalty should be maintained or abolished.”
Lin added: “What we should do now is to give the justices space. If the public has opinions about supporting or opposing the death penalty, they should clearly explain their reasons and submit opinions through amicus curiae or even write letters for discussion.”
Although the role of the justices is not to rule only in favor of public opinion, the assertion by society and media outlets that most Taiwanese support the death penalty is often misleading.
Currently, most opinion polls estimate that Taiwanese are in favor of the death penalty, projecting between 70 and 80 percent support depending on the year and recent well-known cases. This figure tends to neglect the importance of asking polling questions that are not binary. When framed with more than a yes or no answer, polling reveals that only about 32 percent of the population is strongly in favor of the death penalty.
From that same polling data, indicators show that the public’s knowledge of the death penalty in Taiwan is limited, with only 0.2 percent of respondents able to answer four basic, factual questions on the death penalty.
For the upcoming hearing, it is important to ask: If the public is not ready to abolish the death penalty, why is the Constitutional Court ready to hear this case?
The most evident answer is that the judicial branch cannot execute anyone on death row when constitutional cases are pending. If the Ministry of Justice signed off on an execution at this moment, it would be seen as a violation of Taiwan’s implementation of the International Covenant on Economic, Social and Cultural Rights. In fact, during January’s presidential election, the Ministry of Justice issued a press release asserting that the lack of executions in the past three years was due to ongoing applications by prisoners for legal remedies.
Nonetheless, it is critical to remember how much has changed in Taiwan since the early 2000s. Taiwan was the first country to legalize same-sex marriage in Asia as a result of constitutional interpretation No. 748 decided by the Constitutional Court. Current judges and lawyers in Taiwan were educated during Taiwan’s ongoing democratic era, presenting a striking difference from the previous judges who came from the martial law era.
With a new generation of legal thinkers, values towards punishment and human rights have shifted to fit Taiwan’s democracy.
Despite public concerns about abolition, for all the time it has taken for Taiwan to grapple with its past authoritarian rule, this has allowed society to invest in its commitment to democracy. The court’s decision could potentially signify the leaps it is willing to go through presently to incorporate internationally recognized human rights into domestic law.
Maria Wilkinson is pursuing a master’s degree in international studies with a focus on international law at National Chengchi University. She is a researcher on the death penalty and Taiwan and occasionally writes articles relating to these issues.
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