Jerome A. Cohen. Taiwan’s Democracy And The Death Penalty. SCMP (South China Morning Post)

March 17, 2010

Was last week’s sudden resignation of Taiwan’s Minister of Justice Wang Ching-feng a stunning setback for those who wish to abolish the death penalty? Or might it prove a catalyst leading the island further along the worldwide path toward universal abolition?

Much will depend on how Taiwan’s President Ma Ying-jeou concludes this drama, which has done more to stir up Taiwanese interest in criminal justice than even the ongoing prosecution of former president Chen Shui-bian.

Ma’s initial reaction has not been encouraging to abolitionists.

The current brouhaha began to make headlines when Minister Wang’s deputy, Mr. Huang Shih-ming, told a legislative committee that was reviewing his suitability to become prosecutor-general that, although he would favor abolishing the death penalty by legislation, the punishment of the 44 prisoners awaiting execution after judicial condemnation should no longer be delayed.

This seemed implicit criticism of Minister Wang, who refused to sign any execution orders whatever, and also of her predecessor, an appointee of the Chen Shui-bian administration, which favored abolition if accompanied by sentences of life without parole. Her predecessor stopped signing death warrants after December 2005, starting the quiet de facto moratorium on executions that has lasted for over four years.

Huang’s testimony sent the media scurrying to Minister Wang, whose penchant for politically incorrect public statements had often landed her in hot water.

She obliged again with a colorful vow never to approve any execution because of the reverence for life embodied in Taiwan’s Constitution. Ms. Wang, a Buddhist and long-term campaigner against the death penalty who had organized a ministry study group concerning abolition, dramatically pledged to resign her office, or even surrender her own life, if that was necessary to prevent an execution. She boldly risked her career by predicting that her government would never permit her to resign in protest against the death penalty since that would make Taiwan “an international laughing stock”.

Yet her confidence was misplaced. Premier Wu Den-yih and President Ma rejected her claim that the Minister of Justice has legal power to suspend executions indefinitely in all cases and accepted her resignation.

Premier Wu announced that, once judicial remedies have been exhausted, the Minister is obliged to approve every execution unless the judgment is “controversial”. This exception for controversial cases had to be recognized since President Ma, when Minister of Justice in the mid-1990s, had courageously, for the first time ever, refused to approve executions in three cases because of apparently-flawed judicial process, although he did approve over 70 other executions!

The Presidential Spokesman, however, would not confirm that government might commute the sentences of any of the 44 on death row. Whether to abolish death penalty, he said, would have to depend on the outcome of “rational discussion” by a society that remains polarized on the issue.

In the meantime, he said, Taiwan should strive to limit the likelihood of future capital sentences by adopting stricter protections for defendants, winnowing the number of offenses eligible for the death penalty and making alternative punishments to death more credible by increasing the length of prison sentences for major crimes and tightening standards for granting parole to those sentenced to life terms.

This agenda, which sounds so similar to that of reformers in China confronting a much greater challenge, was immediately criticized by abolitionists as too timid. Even though Taiwan’s Council of Grand Justices has previously affirmed the death penalty’s constitutionality, many death row prisoners and civic organizations, alleging new grounds, are seeking another Council interpretation, and the question of the scope of the Minister’s discretion surely deserves Council attention.

President Ma could still use the need for a Council interpretation as reason for a further moratorium, and he could submit a bill seeking legislative continuation of the current moratorium, explicit authorization of the Minister’s discretion or even abolition. He could also appoint an independent committee to review the file of each death row prisoner.

Yet, as opinion polls show, abolitionists cannot muster many votes at next December’s important municipal elections, and the Ma administration, despite some accomplishments in cross-strait relations, managing the economy and attacking corruption, is preoccupied with boosting sagging public support.

In virtually every society, including America’s, prior to abolition the death penalty is highly popular, despite little evidence that it deters heinous crimes. The traditionally felt need to provide maximum outlet for retaliation and for expressing society’s abhorrence runs deep, overcoming doubts about the accuracy of the judicial process and the morality of official killing.

In these circumstances, as Europe’s almost total abolition demonstrated, it takes committed, strong and imaginative political leadership to permanently halt executions. Yet, in most European countries, following abolition, public opinion has changed in its favor.

I wish Ms. Wang well in her impending campaign to stir the conscience of Taiwan’s people and politicians. Her success would accord with the spirit of the two major international human rights covenants recently adopted by Taiwan and reap the island a rich harvest in its “soft power” competition with China. But the more immediate consequence of her resignation is that official killing seems likely to resume.

An edited version of this article appeared  on March 17, 2010   the South China Morning Post under the title, “Tied to the cause,”  and in Chinese on March 18, 2010,  in the China Times(繁体中文). Illustration from South China Morning Post.

Professor Jerome A. Cohen is Co-Director of NYU School of Law’s US-Asia Law Institute and Adjunct Senior Fellow for Asia at the Council on Foreign Relations. See also www.usali.org