Former minister of justice Wang Ching-feng (王清峰) and Huang Shih-ming (黃世銘), who is acting minister of justice and President Ma Ying-jeou’s (馬英九) nominee for state public prosecutor-general, differ on whether the death penalty should be carried out. Wang refused to execute any of the 44 on death row during her term. Her refusal caused concern among legislators and Control Yuan members, and both Minister of the Interior Jiang Yi-huah (江宜樺) and National Police Agency Director-General Wang Cho-chiun (王卓鈞) opposed her stance. How to handle this issue is currently the focus of much public concern.
The existence of the death penalty is a matter for concern in legal circles and for human rights activists around the world. The issue involves social values and religious and philosophical ideologies, and there is no absolute answer.
As James Madison wrote in The Federalist Papers, a government often has to choose between the lesser of two evils when setting policy, and no policy is beyond reproach. This is reflected in the current controversy over the death penalty.
Weighing the pros and cons based on the situation in today’s Taiwan, a majority of the public would probably find it difficult to accept total abolition of the death penalty. The current legal framework is imperfect, however, and it is in dire need of review and improvement.
An extremely violent and inhumane criminal deserves the harshest punishment. This serves justice, social order and the legal expectations of the public, and it meets the religious exhortations for doing good. Concerns about wrongful convictions can be properly handled by perfecting trial and implementation procedures.
This is why it would be better to maintain, but not use, the death penalty, instead of completely abolishing it. As a reference, advanced democracies such as the US, Japan and Switzerland have the death penalty. Taiwanese laws that used to prescribe a mandatory death penalty have been amended to allow a discretionary death penalty, giving judges more room to decide based on each individual case. Revising death penalty legislation could remedy the flaws pointed out by those who oppose it. This is what the government should do, because the Ministry of Justice’s strategy of delaying executions is inadequate.
Based on my 30 years of experience as a criminal defense lawyer, I have the following suggestions.
First, the section concerning “Discretionary Punishment” in the Criminal Code should emulate the Japanese Criminal Code by adding a clause stating that special caution is required when issuing a death sentence, in order to reflect the spirit of the code. Also, the Organic Act of Court Organization (法院組織法) should state that a death sentence can only be issued when all judges in a collegial court reach a consensus agreement. This would further distinguish the seriousness of a death sentence from other sentences, which are based on a majority ruling.
As for the procedure for carrying out a death penalty, an addition should be made to the Code of Criminal Procedure (刑事訴訟法) that says that the justice ministry should set up a death penalty execution review committee, including representatives for human rights groups and neutral members of society. Within a month of a prosecutor submitting an execution request, the committee should listen to a final statement made by the inmate, his or her family members, or an authorized representative, while also reviewing the case documents again. If reasons for mercy are discovered, the committee should be able to recommend that the president commute the sentence or grant a pardon.
If they find that the application of the law or the facts are questionable, they should ask the state public prosecutor-general to file for a retrial or an extraordinary appeal. If no questions remain, the justice minister should order that the execution be carried out.
Through such strict controls of the trial and execution procedures, we could exclude the risk of wrongful convictions. Through such thorough legal design, we could also reconstruct the situation described by the ancient Chinese judge Ouyang Guan (歐陽觀) during the Song Dynasty.
“I always look into the case of a death sentence repeatedly just to find a way out for him,” he said. “Even if I cannot find any flaws, at least both the inmate and I will have no regrets.”
If we could live up to the benevolence of this great historical figure, there would be no public complaints.
Hsu Wun-pin is a national policy adviser to the President Ma Ying-jeou.
TRANSLATED BY EDDY CHANG
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