FEATURE/Death penalty hangs in the balance ahead of Constitutional Court ruling

By Teng Pei-ju, CNA staff reporter

In just two days, Taiwan's Constitutional Court will determine whether to abolish the death penalty. But legal scholars believe that the court is likely to choose a "middle ground" given the contentious nature of the issue.

The challenge to capital punishment's constitutionality as one of several statutory penalties has been brought by 37 death row prisoners who have exhausted the appeals process.

In an interview with CNA, Jimmy Hsu (許家馨), a research professor of law at Academia Sinica, said rather than declaring the death penalty categorically unconstitutional, the court was "slightly more likely" to choose a "middle ground."

With three justices recusing themselves, the case is being reviewed by the remaining 12 justices, who together will render a ruling on Friday based on a majority vote.

An unconstitutional ruling, effective immediately upon its issuance, corresponds to abolishing the death penalty.

As there is broad scope for interpreting articles relating to proportionality, the right of existence and the waiving of protections in certain circumstances, the justices' own beliefs could tip the scales.

"It all comes down to the personal convictions of the justices," said Hsu, who acted as an expert witness arguing against a ruling pronouncing capital punishment unconstitutional in April's oral arguments.

According to Hsu, the prevailing view among legal scholars favors abolishing the death penalty, reflecting a shift in attitudes over the past quarter of the century in Taiwan and internationally.

To date, the Constitutional Court has issued three rulings concerning the death penalty, each time ruling in favor of retaining the punishment.

The most recent ruling from 1999 upheld capital punishment for serious drug offenses, citing that the harm of illegal narcotics "far outweighs the legal interests of an individual's life and personal freedoms."

The Academia Sinica researcher observed that the current justices were from a different generation than their predecessors who had justified the death penalty.

Many of them, he said, developed their academic positions in the late 1980s and early 1990s, when global advocacy for eliminating the death penalty was gaining momentum.

Such overseas influence also paved the way for Taiwan to codify the United Nations' International Covenant on Civil and Political Rights, which affirms the individual's right to life and calls for pathways to ending capital punishment, as domestic law in 2009, according to Hsu.

However, he observed that if the court took into account the overwhelming public support for the death penalty, it would be "hesitant" to rule it unconstitutional.

Similarly, Elvin Lu (呂政諺), head of the Law and Policy Department at the Judicial Reform Foundation (JRF), estimated that the likelihood of a blanket unconstitutional ruling on the death penalty was equal to that of a more moderate decision.

Lu envisioned that an unconstitutional ruling, while favorable to the JRF, which serves as a friend of the court and shares the petitioners' positions, could trigger a strong public backlash.

A 2012 report by the Ministry of Justice (MOJ) indicated nearly 77 percent of Taiwanese opposed abolishing the death penalty, while approximately 21 percent were in favor.

In the current case, the MOJ defends the existing practices as constitutional and suggests the highly disputed issue be left to the discretion of the Legislature.

Public opinion has not changed significantly in the last decade.

Polls conducted by the Crime Research Center at National Chung Cheng University in 2023 revealed that nearly 86 percent of Taiwanese were against abolishing the death penalty, with only 14 percent supporting putting an end to it.

Lu argued, however, that a split court decision between constitutional and unconstitutional would effectively mean the "status quo" considering the implementation of the death penalty has been "extremely restricted" in Taiwan.

In such a scenario, the court might continue to allow the use of the death penalty for homicides but not for other crimes, such as drug dealing, still covered by the law, Lu said.

In practice, the court subjects only those convicted of serious murders to the death penalty, in keeping with the U.N. convention Taiwan adopted in 2009, Lu told CNA.

Furthermore, every death penalty case will be automatically appealed until the Supreme Court makes a final decision, as per the Code of Criminal Procedure, to ensure the most rigorous review possible, he added.

Currently, 45 individuals, including eight whose sentences are subject to appeal, are on death row in Taiwan, according to JRF's data.

In the meantime, executions have diminished significantly in the last eight years under former President Tsai Ing-wen (蔡英文) of the Democratic Progressive Party (DPP), with only two carried out compared to 33 during the eight-year tenure of her predecessor Ma Ying-jeou (馬英九) of the Kuomintang (KMT).

From an abolitionist point of view, Lu said, a middling court decision will set back Taiwan's move toward a society without capital punishment, as justices are unlikely to reconsider the issue for another 10 to 20 years after Friday's ruling.

But Hsu disagreed, noting that, with a moderate ruling, further reforms to the death penalty system could be achieved before a societal consensus on abolition was reached.

Possible measures include imposing a moratorium on executions or introducing more stringent rules for reviewing criminal cases, he said.

Eliminating the death penalty now might not only provoke public outcry but also lead to "serious political repercussions," Hsu warned, adding that it could exacerbate divisions in the legislative body and even impact future elections.

In the Legislature, the main opposition KMT caucus strongly objects to abolition, while the smaller Taiwan People's Party has yet to take a clear stance.

On the other hand, the ruling DPP, which has set abolition as its long-term goal, has largely kept mum on the case, with only the party's caucus whip Ker Chien-ming (柯建銘) saying in April such a cause required "a general consensus in society."

Meanwhile, Lu said, the Constitutional Court is expected to give additional instructions on how to handle the 37 death row prisoners if it revokes the death penalty.

He said the court could have the head prosecutor of the Supreme Prosecutors Office file an extraordinary appeal or order a retrial of the petitioners' cases.

Both scholars consider it least likely that the Constitutional Court will rule the death penalty fully constitutional, for if the justices intended to keep the legal provisions intact, they would have declined to review the case.

However, it remains unclear why the court accepted the petitions.

In a written response to CNA, the court's Clerk Department said the reason would be outlined in its ruling.

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