The Chinese Nationalist Party (KMT) is planning to push a referendum opposing the abolition of the death penalty. Putting aside the KMT’s motives to use a pro-capital punishment campaign as a countermeasure against the mass recall movement it faces, its referendum proposition — while seemingly politically serious — is an absurd fallacy.
The name coined for the referendum, “anti-abolition of the death penalty,” indicates that its goal is to oppose, change or even overturn the death penalty’s current state of so-called “abolition.” However, the death penalty has not been abolished — the Criminal Code lists more than 10 types of crimes punishable by death. Several other laws — including the Child and Youth Sexual Exploitation Prevention Act (兒童及少年性剝削防制條例), the Narcotics Hazard Prevention Act (毒品危害防制條例), the Firearms, Ammunition, and Knives Control Act (槍砲彈藥刀械管制條例) and the Punishment of the Crime of Genocide Act (殘害人群治罪條例) — also include death penalty provisions as the ultimate form of punishment for severe offenses.
Maintaining the death penalty is the legal “status quo.”
If a referendum were really to be proposed, it should be to support abolition of the death penalty, as that would actually be seeking a change.
Some have recklessly claimed that last year’s Constitutional Court Judgement No. 8 has resulted in the “substantive abolition” of the death penalty.
However, anyone with basic reading comprehension skills will find that in the first paragraph of the majority opinion in the judgement, the justices maintained that, while the right to life is protected by the Constitution, “such protection is not absolute.” Thus, the death penalty is not inconsistent with the constitutional protection of this right and was upheld. The decision also mentioned that the use of the death penalty should be “limited to special and exceptional circumstances,” and its “application and procedural safeguards — from investigation to execution — should be reviewed under strict scrutiny.” This is simply a reiteration of the need to pay close attention to the principle of proportionality and to follow due process of law. The death penalty, as the most ruthless consequence in the legal system, necessitates this reminder as a matter of legal principle.
Claiming that Judgement No. 8 constitutes a “substantive abolition” of the death penalty is a baseless fabrication.
In October 2020, a Malaysian university student was raped and murdered by Kaohsiung resident Liang Yu-chih (梁育誌). The High Court’s Kaohsiung branch in January sentenced Liang to death in the latest trial — with the sentence triggering an automatic appeal. In response to his brutal acts, the judges collectively agreed that imposing a life sentence on him would be insufficient to address the severity of his heinous crimes and would be contrary to justice. They said that there is no reasonable expectation that the defendant, who has an antisocial personality disorder that is unresponsive to treatment, would exhibit a reduced risk of reoffending through rehabilitation.
The death penalty is not only enshrined in law, but it has been upheld even after Judgement No. 8 was issued.
So, where did the idea of a “substantive abolition” of the death penalty come from?
If the KMT so desperately wants to advocate for a referendum opposing the death penalty’s abolition, perhaps it should wait until Taiwan actually becomes an abolitionist country — that way, such an assertion would at least sound somewhat reasonable.
Lo Cheng-chung is a policymaking member of the Taiwan Nation Alliance and a professor in the Graduate Institute of Science and Technology Law at National Kaohsiung University of Science and Technology.
Translated by Kyra Gustavsen
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