In contrast to past practice, the Supreme Court did not revoke the death sentence issued to Cheng Chieh (鄭捷) in the case against him over the random killings on Taipei’s MRT system two years ago. Instead of returning the case to court, the Supreme Court confirmed the verdict, which seems to be in line with public expectations. Does this mean that the controversy surrounding capital punishment has been resolved?
According to the Code of Criminal Procedure (刑事訴訟法), a third-round trial does not allow oral arguments, so trials in the Supreme Court tend to be secretive and in writing, which violates the principle of open hearings. This is why the Supreme Court, after it abolished the secrecy surrounding which judge was handling a case in 2012, announced that cases in which a death penalty was issued in a second-round trial, or in cases of involving important legal principles, third-round trials would allow oral arguments to avoid issuing verdicts in secret.
Before the law was changed, the Supreme Court made adjustments by issuing internal regulations in the spirit of human rights protection. Although praiseworthy, the decision on which cases — apart from those involving the death penalty — are to be considered as involving principally important legal matters was left up to the Supreme Court itself to decide.
Even more difficult to understand, based on the guarantee of due process, a defendant should of course be allowed to appear in court and defend themself, but in instances when the Supreme Court has allowed oral arguments, it has expressed the view that the trial is a legal review matter with nothing to do with the facts of the case as a reason not to accept applications by a defendant to appear in court. That this was suddenly reversed in Cheng’s case only serves to once again highlight the malpractice of allowing the judiciary to arbitrarily interpret the law.
The Supreme Court has often handled heavy penalties in general sentences and death-penalty cases in particular by returning a case to a lower court over breaches of the Code of Criminal Procedure, saying that prosecutors did not investigate something. This contradicts the fact that a third-round court makes a legal review rather than reviewing the facts of a case, and condemns a case to a long appeals process. With oral arguments allowed in cases involving the death penalty, the Supreme Court should issue its own verdicts or dismiss the appeals to conform with the goal of speedy trials.
However, over the past three years, even verdicts in murder cases have been revoked and returned to a lower court, a practice that has drawn criticism.
In the Cheng case, the Supreme Court did not revoke the verdict, issuing a clear verdict saying that Cheng did not have a mental disorder that would allow a sentence reduction, that the killings were random and that it was a serious offense that demanded the death penalty.
It also said capital punishment does not breach the Convention on Human Rights, but no one knows whether the handling of this case will become the general rule.
Although the verdict against Cheng has been finalized, “Capital punishment shall be approved by the Minister of Justice and be executed within three days after receiving such approval” as per Article 461 of the Code of Criminal Procedure.
With government power changing hands, this hot potato will fall in the lap of the next minister of justice.
With dual pressure of domestic calls for executions and international calls to abolish capital punishment, the controversy over the death penalty will continue and finding a solution will be difficult.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Perry Svensson
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