In April 2024, the Taiwan Constitutional Court held a hearing on whether the death penalty violates constitutional guarantees of human rights. On 20 September it ruled to uphold the death penalty, with some new safeguards around its use. While a coalition of abolitionist non-government organisations (NGOs) and research institutes led by the Taiwan Alliance to End the Death Penalty (TAEDP) have spent two decades advocating the abolition of the death penalty, poll after poll revealed strong public opposition to its abolition.[1]
Taiwan in recent years has made progress on human rights protection, including legalising same sex marriage, the first country in Asia to do so. The TAEDP had hoped the country would also end capital punishment once and for all. Assisted by international human rights groups such as Amnesty International Taiwan and the World Coalition Against the Death Penalty, the TAEDP, on behalf of thirty-seven individuals currently on death row, had submitted several previous appeals to the court since 2006 without success. In addition to its argument that the death penalty was unconstitutional, the latest appeal reasoned that in the past, during the time when these thirty-seven were sentenced, the judicial process lacked certain protections that are central to sentencing today, including assessments of the contexts of the criminal act and considerations of the defendant’s social background before sentencing as well as the possibility of wrongful conviction. Among the thirty-seven death row inmates, twenty-three had been convicted of murder and nine of robbery with murder. Among them, eight cases involved sexual assault.[2] If judged today, many of these death row inmates would likely have been sentenced to life imprisonment instead of the death penalty.[3] There were high stakes involved.
The TAEDP speculated that the court was finally willing to consider the constitutionality of the death penalty, at least partly because of the political timing – the 2024 presidential election had just finished, and the next one is still two years away.[4] It ’did not need to take into account the political repercussions of its decision. In addition, the composition of the fifteen justices of the current court is the most liberal Taiwan has ever seen.
The legal argument
There were five important factors that the court needed to take into consideration. As summarised by Taiwan’s Central News Agency report, they were (1) the argument that the death penalty violates the right to life and equality, and it violates the principle of proportionality; (2) the fact that Taiwanese public supports the death penalty; (3) the fact that the death penalty violates a United Nations treaty on civil rights; that is, specifically the human right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment as stipulated in International Covenant on Civil and Political Rights (ICCPR), which Taiwan ratified in 2009; (4) the argument (by retentionists) that the Constitutional Court should not determine the fate of the death penalty; in other words, the Legislature, Taiwan’s congress, should have the final say; and (5) evidence that the death penalty does not deter crime.[5]
While this summary captures the jor legal arguments for and against the death penalty in Taiwan, it is not the whole story. In recent years, Taiwan’s standards for death penalty rulings have become increasingly stringent in accordance with the increasing democratisation of Taiwan’s political and legal system. Since 2000 there has been a relatively low rate of execution, and no executions have been recorded in Taiwan since 2020, which represents a de facto moratorium on the death penalty. The crime must meet the criteria of the ‘most serious crimes’, as stipulated in the two international covenants, and be limited to ‘intentional killing resulting in the loss of life’, meaning there must be evidence of ‘direct intent’. Additionally, judges needed to consider ten sentencing factors listed in Article 57 of the Criminal Code, such as the motive for the crime and the defendant’s character. The potential for rehabilitation is also a crucial factor that must be proven when sentencing someone to death. Legally, it had to be examined whether there is sufficient evidence to prove that the person is ‘beyond rehabilitation’.
On 20 September 2024 the court ruled the death penalty constitutional but only for the ‘most serious’ crimes involving intentional killing. This ruling instructed judges to consider factors like intent, motive, means, extent of participation and the accused’s ability to defend themselves before sentencing. The ruling also prohibits the death sentence for individuals with mental disorders or deficiencies, reversing the current practice that allows only those who can prove that their mental conditions have affected their judgement at the time of their crime to receive a reduced sentence. Any current laws incompatible with the ruling must be amended within two years, according to the Constitutional Court.[6] But the court also declares that the death penalty remains a ‘necessary’ form of retribution in relation to the crimes committed and to achieve ‘deterrent’ effects.[7] The message about the legal arguments on the death penalty and the reactions to it were mixed: the TAEDP welcomed the court’s acknowledgement of flaws in the death penalty but expressed disappointment that it was not abolished, whereas the retentionists argued that by tightening standards, the court effectively abolished the death penalty without legislative consent.[8]
The moral and political debate
The court has made its decision, but it is worth going beyond the legal arguments to capture more fully the significance of the death penalty debate. The battle over the death penalty in Taiwan was initially framed by legal scholars such as Chia-Wen Lee in as early as 2004,[9] and later circulated in popular usages as being two conflicting value systems: one local and traditional, rooted in cultural beliefs, and the other, which advocates of abolition perceived as superior and civilised if foreign, based on international human rights law and standards. Popular sayings such as ‘the murderer must die for the murder act’ 殺人者死 are claimed to be rooted in traditional religious beliefs and evidenced in, say, retributive rituals for the immoral acts one has committed during the lifetime in City God Temple.[10] It is no surprise, then, that the most vocal retentionists were relatives of crime victims, arguing that the suffering caused by these crimes could only be answered through ‘revenge’. Combined with widespread scepticism about the penal system’s ability to rehabilitate offenders, popular sentiment has lent an air of moral panic to debates over the death penalty, even when framed in legal terms like the deterrent effects of punishment.
The battle of opinion was intertwined with Taiwan’s partisan politics. The ruling Democratic Progressive Party (DPP), divided between retentionists and abolitionists, has called for gradual and careful consideration of the issue such as in the most recent formal statement by the Lai Ching-te 賴清德 during the televised debate for the 2024 presidential election.[11] The major opposition party, the Kuomintang (KMT), on the other hand, strongly opposes abolition as it asserts itself as a guardian of ‘local sentiment’, aligning with majority opinion against values it characterises as foreign and disconnected from the public, often mobilising people to vent their emotions online and offline. This emotional outpouring places a heavy burden on the Taiwan Constitutional Court, which is concerned with the legitimacy of its decisions in the eyes of the public. As Randall McGowen remarked on the death penalty historically, ‘It becomes an instrument for certain political groups to cast themselves as defenders of law and order at home, and as upholders of national integrity against outside interference.’[12]
We should be cautious about overemphasising the idea of moral or political progress in the movement to abolish the death penalty in modern times – especially given that influential historical forces driving the abolitionist impulse since the late 1960s in the West – such as the experience of fascism and the profound horror of the Holocaust – were predominantly European in origin.[13] But it is equally misleading to assume that traditions and beliefs are static or universally shared within any group. Legal anthropologists consistently remind us to consider the unique features of local circumstances – cultural, religious and political – in shaping people’s attitudes towards human rights issues.[14] As a legal anthropologist, I strongly object to treating the death penalty and, by extension, human rights in an abstract or universal sense. Instead, we should focus on how traditional relationships are translated into the language of rights, and vice versa.[15] It is also important to avoid falling into the East versus West dichotomy that has long influenced these debates, as though each were a fixed and unified entity – which they definitely are not. Since the beginning of last century, the Japanese colonial rulers and later the ruling KMT party both have tried to centralise and westernise Taiwan’s legal systems, which imposed radical changes to its civil customs. In other words, Taiwan’s culture is not static or unchanging, and invoking ‘traditional culture and values’ alone is insufficient to resolve the debate on the death penalty. The growth of democracy on the island, together with ideas around human rights, have indeed reshaped the social fabric that individuals recognise and incorporate liberal legal rules into their own life activity and self-identity. To avoid the deadlock between the two conflicting value systems on the death penalty, it is essential to understand the historical context in which local views on the death penalty – and, more broadly, attitudes towards life – are shaped by the interaction of national laws and local customs.
The social question
In a short story, ‘The Ones Who Walk Away from Omelas’ by the late American writer Ursula K. Le Guin (1929–2018), the inhabitants of the utopian city Omelas live in a state of perfect happiness. However, there is a dark side to their happiness: it is dependent on the suffering of a small child who is locked away in a broom closet, naked, hungry and beaten. The moral enigma Le Guin presents in the story, as commentators have pointed out, lies in the way that the citizens of Omelas justify the perfection of their city – its beautiful music, architecture and overall way of life – by accepting the child’s torment as a necessary evil. Some individuals, however, choose to walk away from Omelas, unable to accept the moral cost of their happy existence.
Like the people of Omelas, Taiwan’s people had previously consented to the ‘necessary evil’ of the death penalty, believing it to deter crime. If bad things are done by the state, people rationalise, identifying with the victim, they won’t be done to me.
The Taiwan Constitutional Court has made its decision, meaning that the challenge to the Constitutional Court on the issue comes to an end. While the ruling DPP, often viewed as more socially liberal, has restrained its reaction, the KMT loudly expressed regret about the decision, saying the court was trying in essence to abolish the death penalty and was going against the feelings of most of the island’s people.[16] In the meantime, the TAEDP and lawyers will have to wait for a case around which they can form a very strong argument.
The final way to abolish the death penalty is through legislation, a long way to go, as the TAEDP has expressed that the next battle is in the court of public opinion.[17] Perhaps the story of Omelas is not a fable at all, not very different from the real world. The lessons we can take away from the story are that the legal system itself cannot address the complex meanings of life, as these require broader exploration of social dynamics and functioning, and that, in the end, the Taiwanese will need to grapple with the fundamental question of what kind of society they desire.
Notes
[1] Michelle Chiang, ‘Poll: 85% of public supports death penalty’, Radio Taiwan International, 27 May, 2024, online at: https://en.rti.org.tw/news/view/id/2011197
[2] Yuchen Li, ‘Taiwan’s death penalty and debate over constitutional rights’, Deutsche Welle, 24 April 2024, online at: https://www.dw.com/en/taiwans-death-penalty-and-debate-over-constitutional-rights/a-68909105
[3] Ibid.
[4] Michelle Kuo and Albert Wu, ‘Death penalty abolition: A potentially historic moment in Taiwan’, News Lens, 27 June 2024, online at: https://international.thenewslens.com/article/187052
[5] Anonymous, ‘Key arguments from constitutional court’s debate on death penalty’, Focus Taiwan, 30 April 2024, online at: https://focustaiwan.tw/politics/202404300019 (retrieved 31 July 2024)
[6] Hsieh Hsin-en, Lin Chang-shun and Teng Pei-ju, ‘37 death row prisoners in Taiwan may petition for extraordinary appeals’, Focus Taiwan, 20 September 2024, online at: https://focustaiwan.tw/politics/202409200021
[7] Teng Pei-ju, ‘Court rules death penalty constitutional for “most serious” crimes’, Focus Taiwan, 20 September 2024, online at: https://focustaiwan.tw/politics/202409200011
[8] Derren Chan, ‘Taiwan’s Constitutional Court upholds death penalty for serious crimes but mandates procedural reforms’, Jurist News, 21 September 2024, online at: https://www.jurist.org/news/2024/09/taiwan-constitutional-court-upholds-death-penalty-for-serious-crimes-but-mandates-procedural-reforms/
[9] Chia-Wen Lee, ‘The symbolic meaning and social function of the death penalty in Taiwanese society, 死刑在台灣社會的象徵意涵與社會功’, Yuedan Legal Magazine, vol. 113 (2004): 110–29.
[10] Paul Katz, Divine Justice: Religion and the Development of Chinese Legal Culture, London and New York: Routledge, 2009.
[11] Jono Thomson, ‘Taiwan election 2024: Major party positions on death penalty’, Taiwan News, 8 January 2024, online at: https://www.taiwannews.com.tw/news/5074263
[12] Randall McGowen, ‘Getting the question right? Ways of thinking about the death penalty’, in David Garland, Michael Meranze and Randall McGowen (eds), America’s Death Penalty: Between Past and Present, New York: New York University Press, 2011, p. 18.
[13] Michael Meranze, ‘The death penalty: Between law, sovereignty and biopolitics’, in David Garland, Michael Meranze and Randall McGowen (eds), America’s Death Penalty: Between Past and Present, New York: New York University Press, 2011, p. 75.
[14] See Philip Alston (ed.), The Complexity of Human Rights: From Vernacularization to Quantification: Essays in Honour of Sally Engle Merry, Oxford: Hart Publishing, 2024.
[15] Shaw-wu Jung, ‘Landscapes and governance: Practicing citizenship in the construction of an eco-village in Taiwan’, Citizenship Studies, vol. 20, no. 3–4 (2016): 510–26.
[16] Derren Chan, ‘Taiwan’s Constitutional Court upholds death penalty for serious crimes but mandates procedural reforms’, Jurist News, 21 September 2024, online at: https://www.jurist.org/news/2024/09/taiwan-constitutional-court-upholds-death-penalty-for-serious-crimes-but-mandates-procedural-reforms/
[17] Jan Camenzind Broomby, ‘After Taiwan rules to uphold death penalty, the next battle abolitionists face is in the court of public opinion’, Hong Kong Free Press, 6 October 2024, online at: https://hongkongfp.com/2024/10/06/after-taiwan-rules-to-uphold-death-penalty-the-next-battle-abolitionists-face-is-in-the-court-of-public-opinion/?utm_medium=email
