Except for extreme circumstances such as self-defense, the killing of a person is punishable by the law. However, arguing that the law should require a life for a life in the case of murder requires convoluted reasoning.
The nation should not show the same disregard for human life as murderers do and should instead give consideration to alternative punishment. The scope of punishment should be restricted to protect human rights that are enshrined in the Constitution.
Two constitutional interpretations were recently requested by the Taiwan Alliance to End the Death Penalty, but both were rejected by the Council of Grand Justices. One of the reasons given was that constitutional interpretations Nos.194, 263 and 476 have addressed similar issues, and thus the court said there was no need for a new one.
It is, however, a matter of debate whether these interpretations fully deal with the essence of the controversy over the death penalty and whether another interpretation is needed.
From a constitutional perspective, the key element deciding whether to maintain or abolish the death penalty is the question of whether or not capital punishment violates fundamental human dignity.
Criminal law should prohibit any brutal, inhumane or degrading punishment. The question of whether the death penalty constitutes such inhumane punishment and is a violation of human dignity -- and even whether human dignity should be discussed in the case of violent criminals -- are issues that should be addressed in constitutional interpretations.
If it is found that the death penalty does violate human dignity, then the next step should examine whether death penalty legislation and executions can be legitimized on the basis of maintaining social order and promoting the public interest.
In other words, this is the principle of proportionality stipulated in Article 23 of the Constitution, which stipulates that "all the freedoms and rights enumerated in the preceding Articles shall not be restricted by law except such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare."
This involves the difficult question of whether the Constitution should only provide relative protection of human dignity. The existence of human dignity means the state should not use the public interest as a pretext for sacrificing goals and values of individuals. This means that the question of deterrence through capital punishment being more important than the human dignity of the condemned requires clarification by the court.
Unfortunately, the grand justices dodged these issues in their three interpretations. They also failed to give consideration to the fact that the sentence is irreversible, even if new evidence may exonerate the accused.
In their argument for the death penalty, the Council of Grand Justices displayed irresponsible, nonlinear thinking. Regardless of whether they made the right decision, they were not able to give a logical argument for their decision.
According to Council of Grand Justices Constitutional Interpretation No. 372, "The maintenance of personal dignity and the protection of personal safety are two of the fundamental concepts underlying the constitutional protection of the people's freedoms and rights."
In this light, the death penalty issue presents a challenge to the nation's constitutional foundation and is at the least deserving of a logical, rational constitutional interpretation.
Hsu Tze-tien is a doctoral candidate in law at the University of Tubingen in Germany.
Translated by Lin Ya-ti
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