Chinese Nationalist Party (KMT) legislators have proposed caning as a punishment for online scammers. As many as 92 percent of respondents in a poll said fraud in Taiwan is severe, and more than 70 percent said they support following Singapore’s example by using caning as a deterrent.
The Ministry of Justice and the Judicial Yuan said that caning contravenes the personal freedoms outlined in the Constitution, and is inconsistent with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Promulgated in 653, the Tang Code with commentary defined five types of punishments — beating with a light bamboo cane, beating with a heavy stick, penal servitude, exile and execution — which were inherited by successive dynasties.
Following the example of European and US criminal law, the code viewed corporal punishment as a violation of human rights, and thus abolished the five traditional punishments. That laid the foundation for what would become Article 33 of the Criminal Code, which defines the five main punishments — the death penalty, life imprisonment, imprisonment of more than two months but less than 15 years, short-term imprisonment and fines.
In the early years of the Republic of China, insufficient judicial funding made it impossible to establish nationwide prisons, and the abolition of corporal punishment led to a rapid increase in offenders. Many believed that Western-style prisons treated inmates too leniently and failed as an effective deterrent. In 1914, then-president Yuan Shikai (袁世凱) reinstated caning and exile as punishments.
While the KMT’s proposal is well-intentioned, the Criminal Code outlines several serious crimes, and applying caning solely to online scammers would result in many gaps. In a populist atmosphere, the public might demand that caning be applied to crimes such as drunk driving, drug offenses, sexual assault, child abuse and child pornography. In that scenario, caning would inevitably become the sixth principal punishment under the Criminal Code.
If the focus is only on responding to individual offenses rather than solving the root of the problem, such a measure could cause more harm than good.
In 1935, a special chapter on “rehabilitative measures” was added to the Criminal Code. The judicial resolution justifying the addition stated that the Criminal Code would mandate educational compulsory labor to toughen prisoners’ bodies and minds, instill good life habits and equip them with skills to earn a living, thereby eliminating criminal thinking. Academics at the time widely regarded this to be the most valuable improvement to the Criminal Code.
Unexpectedly, the then-Council of Grand Justices (now known as the Constitutional Court) in 2021 issued Interpretation No. 812, which said that educational compulsory labor “infringes upon the due process of law and the principle of proportionality as outlined in Article 8 and Article 23 of the Constitution respectively” and abolished the system entirely. The reasoning was baffling, and legislators were given no opportunity to make corrections — it could likely be the reason behind today’s rampant expansion of fraud rings.
The opposition parties’ proposal to reintroduce caning undermines the overall structure of the Criminal Code. The Constitutional Court should take responsibility for this outcome.
The law should promptly be amended to reinstate educational compulsory labor as a rehabilitative measure. That would safeguard the nation and ensure public security.
Chao Hsuey-wen is an assistant professor and holds a doctorate in law from Fu Jen Catholic University.
Translated by Kyra Gustavsen
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