Media reports have said that President Tsai Ing-wen (蔡英文) might pardon former president Chen Shui-bian (陳水扁) before her term ends on Monday next week. The idea is not without controversy. Putting political considerations aside, there are a number of legal issues.
Article 3 of the Amnesty Act (赦免法) states: “After a pardon is granted to a person subject to a pronouncement of offense and punishment, the execution of the punishment is waived; under special circumstances, the pronouncement of offense and punishment may be deemed a nullity.”
In most previous pardon cases, the punishment was waived, but the guilty verdict remained. The verdict might be annulled only when the ruling is deemed unjust and the litigant requests an appeal or extraordinary appeal.
In 2015, Bunun hunter Tama Talum was found guilty of contravening the Controlling Guns, Ammunition and Knives Act (槍砲彈藥刀械管制條例) because he hunted and killed a Reeves’ muntjac for his mother. Although Tsai granted Talum a pardon, the conviction remained until the then-prosecutor-general requested an extraordinary appeal for him.
There might also be problems if the offense and punishment are waived at the same time. Su Pin-kun (蘇炳坤) was framed as the perpetrator of a jewelry store robbery in 1985 and received a presidential pardon — waiving both conviction and punishment — from Chen in 2000.
However, due to that pardon, Su’s retrial request and compensation for wrongful imprisonment were rejected, and he was not vindicated by the court until 2019.
As for the pardon for Chen, the main problem is whether the scope of the pronouncement includes undetermined cases, as Article 3 of the Amnesty Act does not stipulate its effectiveness as clearly as Article 2. Article 2 stipulates that if an amnesty is issued, those who have not been convicted of an offense cannot be further prosecuted for that offense.
Nonetheless, as Article 3 of the Amnesty Act does not stipulate the requirement, scope and applicable object for pardon, any legal cases, including as-yet unprosecuted cases, could be subject to a pardon.
Nevertheless, if Tsai does grant Chen a pardon including for unprosecuted cases, this would imply that presidential power is overriding judicial power, and even entails the presumption of guilt, which would open it up to political disagreements.
Thus, Tsai could only grant a pardon to the determined parts in Chen’s case. Confiscation is another issue in this case. Confiscation has become an independent punishment since 2016, while it was an accessory punishment under criminal sanctions in the past and at the time of Chen’s prosecution.
Therefore, when Chen’s case was determined, confiscation was still an accessory punishment. If Tsai wants to exclude confiscation from the pardon, it needs a stronger justifiable cause.
Besides showing presidents’ kindness, the granting of pardon aims to correct miscarriages of justice. Perhaps, among the 37 death row inmates there are cases more fitting for review that Tsai or president-elect William Lai (賴清德) could turn their attention to.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of its Criminal Law Research Center.
Translated by Chien Yan-ru
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