On the night of Jan. 16, death row inmate Huang Lin-kai (黃麟凱), convicted for the double murder of his ex-girlfriend and her mother, was executed. It was the first execution carried out in Taiwan in five years, and the first since last year’s Constitutional Court Judgement No. 8 on the constitutionality of the death penalty.
The shot that rang out late at night on Jan. 16 did more than end the life of a death row inmate; it also initiated a new wave of debate and questions over the implications of the death penalty for human rights, democracy and the rule of law in the nation as a whole.
The judicial system must differentiate between lawful and unlawful procedures. Regardless of, from a moral perspective, the extreme cruelty of an act carried out by a person, that the person is a human being means they should still be accorded human rights. A person’s existence is an end in itself, not an instrument to be used for the benefit of any other individual or the public interest.
On whether the death penalty excessively violates the “right to life,” the judgement establishes two standards: Given the severity of the punishment, the death penalty should only be used in the most extreme cases, and the criminal procedures involved must meet the most stringent requirements of due process within the Constitution.
However, the Ministry of Justice has not adequately accounted for how it determined Huang’s crimes to have met the criterion of an “extreme” case, or how it had applied the most stringent standards in the process of arriving at that decision. The public has a right to know whether Huang had been accorded adequate guarantees of the provision of the right to be informed, the right of statement of opinions and the right to defense. They have the right to know whether relief procedures were still being explored, the details such as the date and time of execution, or whether his defense had submitted a petition for relief and what assessment the ministry had made on a declaration of relief. The ministry is obligated to make this information available.
On the day following the execution, President William Lai (賴清德) spoke to the media about the “suffering of the family of the victims” and how the execution had been carried out in accordance with the law. He emphasized the “revenge” on behalf of the victims’ family aspect of the execution over the socialization function of punishment, in total disregard of the implications of the constitutional judgement.
The original intention of the Constitutional Court’s ruling was to draw a human rights and rule of law line under the myth that the death penalty represents justice. The president, as the leader of the nation, resorting in this way to an appeal to populism is damaging to the function of constitutional judgements in protecting the integrity of democracy. It is regrettable that he sought fit to take that path.
After the amendments to the Constitutional Court Procedure Act (憲法訴訟法) were passed last year, the Democratic Progressive Party repeatedly complained that the changes would make it difficult for the Constitutional Court to issue rulings, and that boycotting by the Chinese Nationalist Party (KMT) and the Taiwan People’s Party of Lai’s Constitutional Court nominees would effectively paralyze the court.
If Lai and the governing party genuinely care about constitutional judgements, how is it that they can so easily disregard Judgement No. 8 and rush to act on an issue that it involves? How can they now try to convince the public that they care so much about whether the court continues to exist, particularly when six of Lai’s seven judicial nominees have explicitly expressed their support for the abolition of the death penalty? If Lai was so keen on Taiwan keeping the death penalty, why did he nominate candidates who advocated for its abolition? Surely, Lai’s ideas on the right to life are not so easily swayed by public opinion.
After the judgement was announced, the media started referring to the “de facto abolition” of the death penalty, that it had been abolished “in practice” and that it was “conditionally constitutional.” Regardless of what qualifier is added, the death penalty still exists in Taiwan and remains constitutional. The execution carried out on the night of Jan. 16 is all the evidence needed to show that the death penalty has not been abolished, and that executions can still be considered to have been done “in accordance with the law.”
That result can be blamed on the failure of the judgement to provide a definitive answer to the issue. The Constitutional Court justices perhaps thought that all they would need to do is offer their ruling and put a stop to executions, and that they could leave the issue of the constitutionality of the death penalty to politicians.
To their surprise, the judgement that took them six months to deliberate upon was trampled on by politicians not four months after they had delivered their decision. The wiggle room that the judgement had given to politicians, who were able to interpret it how they saw fit, has led to a situation in which the state can continue to kill people in accordance with the Constitution. That does not bode well for the future of the Constitutional Court. We can express frustration, but we must also learn from what has transpired here, and look forward to a time when the court consists of people who are up to the task before them, and can do what they have been put there to do.
Tu Yu-yin is president of the Taiwan Association for Human Rights and an associate professor in the Department of Public Administration at Tamkang University.
Translated by Paul Cooper
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