ANALYSIS/Key arguments from constitutional court's debate on death penalty

Taipei, April 30 (CNA) Taiwan's constitutional court debated the constitutionality of the death penalty on April 23, in a case brought by 37 petitioners who are currently on death row.

Throughout the five-hour-long debate, attorneys representing the petitioners, Ministry of Justice (MOJ) officials, and expert witnesses offered their opinions and answered questions from the justices.

Here are five of the main themes covered:

1. The death penalty violates the right to life and equality, and it violates the principle of proportionality

The main argument made by the petitioners' attorneys was that the provisions of the death penalty in Article 33 of the Criminal Code and other laws violate the "the right of existence" and the guarantee of equality enshrined in the Constitution of the Republic of China (Taiwan's official name).

Attorney Lee Hsuan-yi (李宣毅) argued that the state and society should not "abandon, discriminate against, or exclude" any individual and stressed that "embracing each and every one with an equal heart" is the "fundamental requirement" of the Constitution.

Another attorney for the petitioners, Nigel Li (李念祖), contended that every individual has their human dignity and deserves to be treated with respect and equality, and that killing a person because they are too evil would violate the core values of the Constitution.

No one, including judges, is entitled to end the life of another person, Li said.

"Based on the rule of law, we condemn the defendant who commits murder," he said. "Let us not...respond to violence with violence."

Kuo Yung-fa (郭永發), head of the MOJ's Department of Prosecutorial Affairs, responded that while the Constitution upheld "the right of existence," it also allowed for "restrictions," including in Article 23, which is used as the basis for the proportionality argument.

The "deprivation of life" imposed on those who commit the most serious offenses should be considered a form of restriction, Kuo said, calling the death penalty "the last resort" available to judges.

Court proceedings have been "very rigorous" in recent years, as only one of 476 murder cases in Taiwan from 2019 to 2023 resulted in a final court ruling handing down a death penalty sentence, Kuo said.

Taiwan's legal system also allows for appeals that can help prevent wrongful verdicts, Kuo added.

Given those circumstances, the death penalty does not violate the right to existence nor infringe upon human dignity, and it was in line with the principle of proportionality required by the Constitution, Kuo said.

Li disagreed, questioning if the sacrifice of taking away a life was proportional to the benefit of strengthening an unsubstantiated deterrent effect.

2. The Taiwanese public supports the death penalty

The MOJ said opinion polls it has commissioned show that around 80 percent of Taiwanese support keeping the death penalty.

Attorney Chen Shu-chen (陳淑貞), who spoke on behalf of the Association for Victims Support (VAS), cited the group's 2024 poll in which 87 of the 90 respondents who had a family member murdered in the past three years approved of the current practice.

"The public has strongly expressed their stance," Chen said, urging the court not to "ignore [public opinion]."

Another attorney for the petitioners, Jeffrey Li (李劍非), countered by citing Judicial Interpretation No. 603, which said opinion polls could only serve as a reference, not a basis, for constitutional court interpretations because they were not always credible.

He also contended that the MOJ had "oversimplified" the results of opinion polls, which hinted at more support for abolishing the death penalty if there were alternatives.

A survey commissioned by the MOJ in 2008 found that 56 percent of Taiwanese would approve of ending the death penalty if alternatives, such as life imprisonment without the possibility of parole, were in place, he said.

3. The death penalty violates a United Nations' treaty on civil rights

Activists opposed to the death penalty have long cited the United Nations' International Covenant on Civil and Political Rights (ICCPR), which Taiwan codified into domestic law in 2009, to support their case, and it sparked debate.

The petitioners' attorneys argued that the death penalty violated Article 6 of the convention, which asserts "the inherent right to life" and that "no one shall be arbitrarily deprived of his life."

Nigel Li also cited the final clause in the article, which reads: "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment."

The MOJ argued, however, that the article essentially calls for limiting the application of the death penalty.

It stipulates that a "sentence of death may be imposed only for the most serious crimes in accordance with the law," the MOJ's Kuo said, arguing that the offenses committed by the 37 petitioners were consistent with that description.

Lin Li-ying (林麗瑩), a Supreme Prosecutors Office prosecutor, said a Second Optional Protocol to the ICCPR was actually aimed at abolishing the death penalty, but that Taiwan never agreed to it.

4. The constitutional court should not determine the fate of the death penalty

Chien Mei-hui (簡美慧), deputy head of the MOJ's Department of Prosecutorial Affairs, asked the court to leave the death penalty issue to the discretion of the Legislative Yuan, Taiwan's lawmaking body.

The constitutional court should "fully respect [Taiwan's] policy on crime and the legislature's discretionary authority" and refrain from breaching the principle of the separation of powers, Chien argued.

She said countries such as Germany, the United Kingdom and France had taken decades, or even a century, to formulate "a political consensus" in society before pushing for the abolition of the death penalty.

Similarly, Cheng Shan-yin (鄭善印), an honorary law professor at Kainan University, argued that allowing "a few people" to decide such a contentious issue, referring to the 12 justices reviewing the case, is "dangerous" and that the law should conform to "a collective belief system."

Yen Chueh-an (顏厥安), a National Taiwan University law professor, disagreed.

The issue of the death penalty revolves around the question of the boundaries of state authority, Yen said, arguing that addressing such matters "is essentially the duty and function of a constitutional court."

Yen also defended the legitimacy of the court in handling the matter, saying the justices' authority was derived from the people because they were nominated by the president and approved by lawmakers, both of whom are popularly elected.

5. The death penalty does not deter crime

Speaking for the petitioners, Nigel Li said that while some justified the death penalty as a deterrent against crime, such a belief lacked "empirical evidence."

According to Li, studies done in Taiwan on this topic have not separately examined the deterrent effect of the death penalty and life imprisonment, and it was therefore impossible to know how effective the death penalty is in deterring crimes, he argued.

Jimmy Hsu (許家馨), a research professor at the Institutum Iurisprudentiae of Academia Sinica, retorted, however, that if the court were to declare the death penalty unconstitutional due to its lack of a proven deterrent, it would open the door for challenges to the legitimacy of life imprisonment and fixed-term imprisonment on similar grounds.

With three justices having recused themselves from the case, the remaining 12 are expected to make a judgment in July at the earliest.

According to the Constitutional Court Procedure Act, a majority of the judges presiding over the case would have to rule in favor of the petitioners for the death penalty to be overturned.

In the event that the justices end up in a 6-6 tie, they will convene further discussions until a judgment is reached.