What do Voldemort, Confucius and Albert Camus all have in common?
One was a fictional villain, one a great Eastern philosopher before the common era, and one a French philosopher specializing in existentialism. While all from vastly different timelines, each found their way into the ideological discussions of the constitutionality of the death penalty that occurred in the Taiwan Constitutional Court (TCC) on April 23.
Constitutional Civil Case No. 904052 for the Minguo Year 111 was petitioned by Wang Xinfu, the oldest man on death row (age 72), and all other 36 death row inmates were consolidated petitioners. The main questions raised in this hearing came in two parts (which may be found in the May schedule of the TCC webpage). First, is the death penalty, as one of the penalties by law, unconstitutional? Second, is the death penalty system to be considered constitutional? This second question asks which types of crimes for which the death penalty is applicable, the scope of criminal defendants eligible for the death penalty, and the supporting procedures for the death penalty.
During the TCC hearing, the constitutionality of the death penalty was posed through a series of ideological lenses. The main themes that kept coming back up for discussion around the basis of constitutionality were, whether the abolition of the death penalty was a “Western value” in conflict with “Eastern values;” whether Taiwan was bound to international norms on the death penalty; and the proper role of the constitutional court in interpreting the Republic of China (ROC, 中華民國) constitution in relation to human rights norms.
“Western Values” versus “Eastern Values” on the Death Penalty
A number of questions raised related to the cultural differences between states and their stance on the death penalty. If abolition of the death penalty were to be based in cultural differences, could Taiwan’s notion of traditional Chinese familial vengeance as emphasized in society be the basis of the constitutionality of the death penalty in Taiwan?
One response came from Huang Cheng-Yi (黃丞儀), a researcher at the Institutum Iurisprudentiae of Academia Sinica, who first mentioned the difficulty of incorporating cultural differences in constitutional interpretation. If the emphasis by society is grounded in Chinese tradition, based on Confucian values, using this to evaluate ideas of the death penalty lacks a straightforward basis for interpretation. Huang detailed that China’s imperial period saw a number of changes in its principles of the death penalty. After Emperor Han Wendi [漢文帝, personal name Liu Heng (劉恆), ruling from 180-157 BCE], abolished corporal punishment (肉刑, amputation or castration), for three to four hundred years the debate to reinstate corporal punishment rarely revolved around Confucianism—thereby making the necessity to include Confucian ideas in the modern debate on the constitutionality of the death penalty somewhat extraneous. Huang further stated that two judicial systems—Macau and Hong Kong—do not have the death penalty, meaning that Chinese societies have the ability to be death penalty free. Recalling these two systems, the argument that the death penalty is part of Chinese culture becomes less substantial.
As far as finding a principle of the death penalty based in Taiwanese ideology, Huang points out that the indigenous people of Taiwan have virtually no culture of the death penalty—so there is no precedence of the death penalty being a Taiwanese tradition.
Law professor Yen Chueh-An (顏厥安) responded to the claim that it is hard to operationalize culture in terms of constitutionality by presenting the perspective of cultural constitutionalism, which in Yen’s view is a necessary requirement to prevent the conversation from revolving solely around academic considerations. In addition, Yen argues that viewing the world in an east-west dichotomy is a mistake, as culture is complex and multifaceted. “Discussing culture isn’t about the clash of civilizations between Eastern culture, Western culture, European culture, and Taiwanese culture, but about the value judgments, choices, and developments within cultures,” Yen says. Yen further iterated that, “from a perspective of cultural balance, we cannot claim that the culture of the Republic of China predominantly advocates for the death penalty.”
From the Ministry of Justice (MOJ) viewpoint, Deputy Director of the Department of Prosecutorial Affairs Chien Mei-Hui (簡美慧) indirectly referred to constitutional values by citing Xunzi: “Rewards not matching deeds, punishments not fitting crimes, there is nothing more serious or worse than this.” This quote was interpreted by the MOJ to state that the death penalty allows for proportionality between crime and punishment, therefore necessary to balance society. The decision to cite a famous Chinese philosopher and an early architect of Confucian philosophy provides an implication as to which values the MOJ deems to be more relevant to Taiwan’s constitutional values. In addition, the MOJ highlights that “the consensus of most Asian countries is still to maintain the death penalty.”
While state systems are built and look to emulate others with similar values, the debate during the constitutional hearing provided a perspective as to whether retaining the death penalty was truly an Asian value, or Chinese value, as many in Taiwan argue. These conversations give an inkling that there is no sure historical perspective that could argue the death penalty is an Asian value–and as Yen Chueh-An argues, even if it is an Asian value, is it the value that Taiwan is stuck with?
Image: The interior of Taiwan’s Constitutional Court, within the Judicial Yuan.(Image source: ROC Constitutional Court)
Taiwan and International Norms
In 2009, Taiwan enacted the International Convention on Civil and Political Rights (hereafter referred to as ICCPR) into domestic law. As Taiwan is not a member of the United Nations, Taiwan has not been able to officially ratify the binding treaty. However, incorporating the treaty into domestic law applies a sufficient enforcement mechanism to require the international legal basis to be followed domestically. In addition, the legislative enactment uses language to also require any further general comments or resolutions on the ICCPR to also be practiced by Taiwan. The hearing discussion tried to determine where Taiwan seeks to stand under international law in conjunction with constitutional law.
The MOJ representatives, in their opening statements, acknowledged the requirements of the ICCPR on the death penalty in regards to which crimes shall be punishable by death. In addition, the MOJ noted General Comment No. 36, which further specifies that intentional murder is the only punishment eligible for the sentencing of death. The MOJ states that Taiwan follows all international directions, and claims that international reviewers have not found any violations to the covenant.
While the MOJ has made this comment, they neglected to acknowledge other aspects of General Comment No. 36, such as the requirement for retentionist countries to gradually abolish the death penalty. Professor Hsieh Yu-Wei (謝煜偉) remarked that Article 19(2) of the Criminal Law indicates that the ability to bear responsibility should be reduced from “may” reduce the punishment to “must” reduce the punishment in the application of the death penalty to better align with General Comment No. 36 of the ICCPR. This reinforces the present gap between Taiwan’s practice and ICCPR General Comments intention.
Commissioner Kao Yung-cheng (高涌誠) from the National Human Rights Commission argues that Taiwan is arbitrarily and disproportionately applying the death penalty–and that therefore it is in violation of the ICCPR. He further states that “as Taiwan has internalized both covenants (ICCPR and ICESCR), several international review conclusions have recommended that Taiwan abolish the death penalty to become a benchmark for human rights in Asia.” This is to contend to the justices that it is not only about the international legality of Taiwan’s role in implementing death penalty punishment, but it is also about the symbolic role Taiwan would play by abolishing the death penalty—and showing that Taiwan, although largely unrecognized by the international community, still recognizes and abides by international human rights norms.
The Court’s Role in Human Rights Norms
The role of Taiwan’s constitution, due to the nature of when the constitution came about, presents one question to which each justice may have varying answers. The ROC Constitution was enacted in 1947. During this period, the ROC Constitution was established in Nanjing, China. Now, the relationship between the constitution and the ROC presents an enigma as to how it should be viewed. As a democratic system, should the constitution also be interpreted to include democratic principles and values such as the right to life–or shall we interpret the functions and meanings of the constitution as envisioned under an authoritarian system?
Attorney Jeffrey Li (李劍非), reminded the court that in Interpretation No. 748 regarding same-sex marriage, the court stated that the protection of fundamental rights is a constitutional duty of the judiciary. Professor Yen added to how the court has seen its role in past cases by citing Interpretation No. 261—overturning previous Interpretation No. 31, effectively saving Taiwan’s democracy and playing a significant role in reflecting the democratic values of Taiwan.
Additionally, Attorney Li continues, if the Constitution is to represent the principles of the present society, as some may advocate, then who must the justices listen to in order to rule on these principles? As Taiwan has presented an interest in gradual abolition since 2006 under the administration of Chen Shui-bian (陳水扁)—and reinforced this interest in human rights and gradual abolition in 2009, when Taiwan signed the ICCPR into domestic law under the administration of Ma Ying-jeou (馬英九)—but if Taiwanese society is more invested in victims’ rights and retribution, whose ideas must place precedence?
The Association for Victims Support led the debate on public support, centered in the discussion around victims’ rights. Citing the public’s opinions as reflected in news media, the association highlighted both support for the death penalty among victims’ families, and also general public support for the death penalty in the past three years after high profile cases.
In the opening remarks of attorney Essen Lee (李宣毅), one of the petitioner’s legal representatives, he speaks as a family member to a murder victim. Lee presents his personal story of transformation from one once wishing to kill the perpetrator, to twenty years later, no longer sharing that same sentiment. Lee questions whether a court conviction truly brings restoration to the victim, as he states there is silent trauma that a court decision is incapable of healing.
Lee highlighted the story of Harry Potter to apply an analogy as to how Taiwan’s society may improve crime prevention. From books four to six of that series, Voldemort’s return was not accepted by the administrative system. Lee says this reluctance to recognize Voldemort’s presence occurred in order to prevent having to admit that mistakes were made by the wizarding government. Lee suggests we are better off learning from this fantasy series by facing evil in society at the root of the issues with remedies, rather than waiting until crime occurs.
On this issue, the MOJ held that there must be a societal consensus before the justices are able to declare the death penalty unconstitutional. The MOJ believes, from a perspective of separation of powers, that judges are required to adopt a self-restraining stance towards reviewing issues, and that rulings must be based on social development and public consensus.
The Justices announced on July 12 that they will extend their deliberation time from three months to six months, with the official date of announcement still to be determined. This gives the court until September 23 to announce its decision. Several human rights organizations in Taiwan remain hopeful that the court will, even if not finding the entirety of the death penalty to be unconstitutional, recognize a number of components of the regulations and application of the death penalty to be unconstitutional. There remain a number of considerations that the justices must thoroughly consider. If the court decides to look purely at the use of the death penalty in Taiwan and determine whether it violates the constitution, there has been explicit evidence both presented at the hearing and from international experts’ submitted amicus curiae to illustrate how the death penalty has been applied arbitrarily and disproportionately, violating both local and international law. If the court feels that societal support is the major concern in this issue, the court will be responsible for specifying its reasons as to why Taiwan’s use of the death penalty abides by the ROC Constitution.
The main point: In April, Taiwan’s Constitutional Court heard arguments related to a challenge that the death penalty is unconstitutional, per the ROC Constitution. Arguments were conducted on multiple grounds, to include “Eastern” versus “Western” values, international norms, and victims’ rights. The court is expected to render a decision related to these arguments sometime in September.
