A few days ago, the Tainan District Court issued a verdict in the trial of Tseng Wen-chin (曾文欽), who killed a 10-year-old boy on Dec. 1 last year by slitting his throat. The judge believed that there was a possibility that Tseng could be reformed and did not hand down the death penalty. The boy’s family responded by saying: “The judiciary is dead.”
The intellectual support and public demonstrations in favor of abolishing the death penalty have had an impact on national criminal policy and although the intent of the Ministry of Justice seems to be to gradually move toward abolishment of the death penalty, it is not determined enough.
However, the number of death sentences that have been handed down by Supreme Court has decreased over the years and this, in turn, has guided the decisions by other courts.
It is therefore likely that protests against similar decisions will continue, affecting public confidence in the judiciary.
We want to abolish the death penalty out of respect for life and oppose the state’s right to kill people in order to maintain social order and public safety, but there is no policy to help relieve the pain of a victim’s family or public anger.
On the other hand, replacing the death penalty by a life sentence without parole seems inhumane and uses up national resources. This means that any attempt to abolish the death penalty will be unsuccessful unless it receives full public support.
Verdicts should be explained to the victims or their relatives, and they must also meet social expectations for justice. They should also take into account the second clause of Article 6 in the International Covenant on Civil and Political Rights.
Unless there are regulations allowing a lesser sentence or if the victim’s family requests leniency, the court can issue the death sentence in murder cases because it can help ease the pain of the family and satisfy public sentiment.
This is why it is not appropriate for a judge to determine that there is a possibility that the defendant can be reformed and choose to sentence him or her to life in prison instead of death based only on the superficial observations available to the court.
It is only by observations prior to the execution of a death sentence that it would be possible to make such a decision.
After a defendant has been sentenced to death, there should be a suspension period before the execution is carried out. Such a decision would not require a legal amendment, because it is in line with the UN resolution for a moratorium on the use of the death penalty, issued on Dec. 18, 2007.
If a defendant is truly repentant and compensates the family of the victim for their loss, and if the family chooses to forgive the defendant, the prosecutor can ask the court to reduce the sentence to life imprisonment — this part requires an amendment — and the defendant can be returned to society through a parole procedure.
By converting a death penalty to life imprisonment, and thus a return to life, all parties will go through a healing process, which will reduce opposition and finally eliminate all “dinosaur” judges.
Until the death penalty is abolished, one way to eliminate the effect of such judges and to relieve the pain of the victim’s families and meet social expectations would be to implement a suspension period before a death penalty is carried out to allow for rehabilitation, followed by sentence reduction and parole. In the end, this could lead to the abolishment of the death penalty.
Su Yiu-chen is a lawyer and chairman of the Chinese Association for Human Rights.
Translated by Perry Svensson
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