The Constitutional Court announced that it is to hear a case on the constitutionality of the death penalty and has scheduled oral arguments on April 23, attracting widespread attention.
However, instead of delving into the core debate of whether the death penalty contravenes the Constitution, legislators across party lines and the media have been preoccupied by arguing whether the grand justices should or should not make a ruling.
Curiously, Chinese Nationalist Party (KMT) and Democratic Progressive Party (DPP) legislators seem to think that it should be handled by the legislature. Is that really the case?
In 2000, Taiwan underwent its first transfer of political power to another party, and under the DPP administration, there was a shift in policy toward gradually abolishing the death penalty.
The Ministry of Justice also proposed a white paper on gradually abolishing the death penalty, and there was a four-year moratorium on executions from 2006 to 2009.
In 2008, the KMT regained power. The following year the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights were adopted under domestic law.
According to Article 6 of the ICCPR, Taiwan should move toward abolishing the death penalty, meaning there was bipartisan commitment at the time.
However, in 2010, the administration of then-president Ma Ying-jeou (馬英九) resumed executions, going against the spirit of the covenant.
From 2010 to 2016, the KMT executed 33 people and the DPP has executed two since 2016.
The judiciary, based on separation of powers, plays a crucial role in safeguarding the fundamental rights of individuals.
However, marginalized groups, including minorities, the vulnerable and those with less visibility, face challenges in effectively lobbying and expressing their concerns through the democratic process. The judiciary is designed to compensate for this issue of insufficient democratic representation.
One advantage of the judiciary lies in its expertise in gathering facts and analyzing legal matters, enabling it to render impartial judgements independent of political conflicts.
Therefore, when people ask why grand justices can override public support for retaining the death penalty, it raises a fundamental question about who can make important decisions.
The historical context reveals the failure of policymakers and legislators to effectively address the complexities surrounding the death penalty. For more than 20 years, this issue has been neglected and postponed, but now the grand justices are finally addressing it.
In upholding democracy and the separation of powers, regardless of anyone’s views on the death penalty, it is crucial to provide the grand justices with a rational space to address the issue. Taiwanese should refrain from misinforming and misleading public discourse. The institution of amici curiae (friends of the court) in the Constitutional Court aims to provide the grand justices with a broader range of perspectives and arguments for their consideration. If this is deemed insufficient, individuals or groups could also post public comments or organize events to discuss the issues.
Previously, the Constitutional Court’s grand justices declined to hear constitutional interpretation cases brought by death-row prisoners, but the landscape is shifting. In addition to the domestication of international human rights covenants, the Constitutional Court’s progressive rulings on issues such as same-sex marriage and adultery suggest a growing awareness of human rights protection among the grand justices.
Regarding the death penalty, the ultimate decision on this matter would depend on the current Constitutional Court’s will.
To define the societal values Taiwanese aspire to, it is essential for the grand justices to make decisions that align closely with those of progressive democratic societies that prioritize the protection of human rights, free from political influence. This necessitates collaboration between the judicial, executive and legislative branches, along with civil society, to develop concrete and achievable plans for Taiwan’s advancement.
