Justices Declaring Loyalty to the DPP By Abolishing the Death Penalty Will Only Make People Resent the Judiciary
United Daily News Editorial, April 25, 2024
The Constitutional Court held a session of debate on the "interpretation of the Death Penalty" proposed by 37 death row inmates. As three of the 15 grand justices requested recusal, only seven justices (out of the remaining 12) will be good enough to decide whether to abolish the death penalty. These incumbent justices were all nominated by President Tsai Ing-Wen, their political inclination takes precedence over their independence and objectivity, and six of the 15 justices have a few months left in their office term.
Political observers speculate that these justices are apt to give the green light to death penalty abolition and reach a conclusion that "the death penalty is unconstitutional,” they aim to create for President Tsai a legacy that stands as a "monument to the abolition of death." The problem is given the fact that 80 percent of the people in Taiwan still disagree with the abolition of the death penalty, the clash of beliefs brought about by the interpretation of the Constitution may deepen the people's dissatisfaction and resentment against the judiciary.
In regards to the question of whether the death penalty should be abolished or not, advocates from both sides can find supporting articles in the Constitution to support their respective stances. Those who support the abolition can deduce the proposition that "no right to life can be deprived by the authorities" according to the right to life stipulated in Article 15 of the Constitution. On the other hand, from Article 23 of the Constitution, those who oppose the abolition can refer an argument for deprivation of power to the state restrictions and restrictions granted by the Constitution. Therefore, the debate over the abolition of the death penalty is not so much a question of whether it is unconstitutional or not, but rather a dispute over values and philosophies at a higher level. It also involves a tug-of-war between social norms and judicial means and purposes. It is not appropriate to leave it up to a few justices to make arbitrary decisions. Moreover, the political stance of these justices is not unbiased, and it is even more unjustified to make such a major constitutional interpretation decision when they are about to leave office.
Furthermore, restraint of power has become a contemporary legal trend. For example, the so-called progressive Interpretation No. 791 of the Constitutional Court, Judicial Yuan, on decriminalizing adultery holds that "based on the self-restraint principle of criminal law, the state should not include in the scope of criminal sanctions acts that harm the feelings of individuals and the disputes mainly over rights and obligations between individuals." Based on this logic, those advocates of abolishing the death penalty argue that the state should not violently deprive people of their lives. However, such a view inevitably narrows the concept of "self-restraint.” “Judicial self-restraint" also includes humility and restraint on legislative and executive powers for various reasons. For example, the United States will relinquish jurisdiction over certain cases through judicial principles or practices, and avoid review on the grounds that the courts "lack the ability to review,” arguing that it is advisable to resolve the matter through political or democratic means.
From this point of view, when the Constitutional Court ruled to accept the case of interpretation of the Constitution with no regard for the 80 percent public opinion against the abolition of the death penalty, it has already shown that the majority of those incumbent justices do not impose "not self-restraint" when exercising their own power. The debate takes place at a time of transition between the old and new governments and right when many justices are about to reach the end of their term. This seemingly planned arrangement turns the "debate of the century" into a "cutscene" game. Although these justices, who had long been in favor of the position of abolition of death, in the official capacity conducted a nothing but ceremonial and seemingly thoughtful debate, the "poisonous tree" they planted would inevitably bear "poisonous fruits" in the end. Those poisonous fruits will become the abyss of the people's resentment against judiciary justice.
Those who supported the abolition of the death penalty held high the two international human rights conventions, advocating that Taiwan should strengthen its ties with the international community by abolishing capital punishment. However, as everyone knows, the said two Conventions do not explicitly prohibit the death penalty, but stress that no life "shall be unreasonably deprived.” This position complies with the spirit of Article 23 of the Constitution. It would be too utilitarian to use a vague international trend to support the abolition of the death penalty, ignoring the fact that the United States, Japan, and other countries are still carrying out the death penalty. To sacrifice our real attitude toward human rights in public opinion in exchange for international support for Taiwan would be even more humiliating.
Some people are also arguing that the basic human rights of death row inmates are completely deprived, which seriously violates human dignity, let alone the cruel execution of the death penalty. Therefore, advocacy of the idea of "distributive justice" should be introduced, i.e., the whole society should bear part of the responsibility for the murderers. But such "avant-garde" ideas have never considered the cold-blooded brutality and inhumanity of many murderers. Moreover, Taiwan's social safety net has become increasingly dilapidated. If we can’t even protect the safety of innocent people and provide justice to the victims, then whose wishes are being satisfied by such “avant-garde” justice claims?
The death penalty abolition controversy is a conflict between two value systems, and it is clearly better to leave the final decision to a more representative legislative or referendum than to leave it to seven justices with a fixed political partisan position. Once the death penalty is judged unconstitutional, in the future people will only be able to bear with criminals of capital felony become more unrestrained and innocent people can only express their anger, fear, resentment, and worry. If the the justices’ were to abolish the death penalty to flatter and declare loyalty to President Tsai, it will leave a disastrous legacy to the entire population.