Statement by the Taiwan Alliance to End the Death Penalty Regarding Calls to "First Execute Death Penalty Cases Where Sentences Have Been Finalized in Accordance with the Law"

On February 23, Legislator Wu Yu-sheng stated during an interpellation in the Legislative Yuan that he was not opposed to abolishing the death penalty, but that the 44 death row inmates with finalized sentences should be executed; on March 3, Prosecutor General-nominee Huang Shih-ming replied to legislators at a Legislative Yuan review committee that he personally supported abolishing the death penalty, but that an ordinance for the suspension of death penalty executions should be enacted, otherwise death penalty cases already adjudicated and finalized should still be executed; this morning (March 10), National Police Agency Director-General Wang Cho-ching also stated in response to an interpellation by Legislator Wu Yu-sheng in the Legislative Yuan that he believed finalized death penalty cases should be executed.

The Taiwan Alliance to End the Death Penalty is gladdened to see more people expressing support for the abolition of the death penalty, but holds a different view regarding calls to "first execute death penalty cases where sentences have been finalized in accordance with the law."

1. The Minister of Justice does not act unlawfully by failing to execute the death penalty.

   Article 461 of our Code of Criminal Procedure stipulates that after a death sentence is finalized, the prosecutor shall submit the case file to the "highest judicial administrative organ for approval." The so-called highest judicial administrative organ is the Minister of Justice. At the same time, the Minister may also order the executing prosecutor to deliberate based on whether there is a possibility of a retrial or extraordinary appeal in the individual case, which demonstrates that the Minister of Justice indeed possesses the lawful authority to review the correctness of judicial judgments (that is, the legislative spirit of the Code of Criminal Procedure originally did not view the Minister of Justice merely as a rubber stamp for executing the death penalty, but rather conferred upon the Minister the discretionary power of substantive review in order to ensure prudence and prevent arbitrary killing). Furthermore, the Code of Criminal Procedure does not stipulate within how many days the Minister of Justice must sign a death warrant, showing that the legislator intended for the Minister of Justice to possess the discretionary power to decide whether to grant immediate approval, so as to ensure prudence in the execution of the death penalty (by contrast, prosecutors and detention centers possess no discretionary power and must complete the execution within three days after approval).

2. The Minister of Justice's failure to execute the death penalty is a manifestation of the political responsibility of a political appointee in deliberating criminal policies and international human rights law obligations.

   Taiwan's judicial and criminal policy of gradually moving toward the abolition of the death penalty has spanned three Ministers of Justice: Ch'en Ting-nan, Shih Mao-lin, and Wang Ching-feng. Today, the Minister of Justice's suspension of signing death warrants remains within the scope of administrative discretionary power conferred by the Code of Criminal Procedure, and constitutes a manifestation of the political responsibility of a political appointee in deliberating criminal policies and international human rights law obligations, and is unlikely to constitute any criminal liability. Since the Minister of Justice is not required to approve executions within a deadline, nor is the Minister required to provide reasons for a decision of non-approval or to undergo judicial review, this proves that the Minister of Justice enjoys explicit legal authorization in the execution of the death penalty, which is also the proper operation of the separation of executive, legislative, and judicial powers with checks and balances among them.

3. Following the Enforcement Act of the Two Covenants, the non-execution of the death penalty is an inevitable outcome.

   The Enforcement Act of the Two Covenants passed by the Legislative Yuan entered into force on World Human Rights Day last year; therefore, the International Covenant on Civil and Political Rights (ICCPR) has constituted a binding and effective norm for our country, that is, a part of our substantive constitution. The provisions on the right to life under Article 6 of the ICCPR ought to be treated with prudence. Article 6 stipulates that the death penalty shall be restricted and used only for the "most serious crimes," that death row inmates have the right to seek pardon or commutation, and that the death penalty shall not be imposed on pregnant women or persons under 18 years of age... Regarding the content and implementation of the provisions of this article, Taiwan still has many deficiencies that need to be discussed within two years (Article 8 of the Enforcement Act), including provisions related to the death penalty. If provisions concerning the death penalty are abolished, pursuant to the proviso of Paragraph 1 of Article 2 of the Criminal Code, "if the law applicable after the commission of the act is more favorable to the actor, the most favorable law shall apply," death row inmates should be exempted from execution of the death penalty based on this provision.

4. Taiwan halting the execution of the death penalty is the correct path.

   The United Nations General Assembly successively adopted Resolution 62/149 in 2007 and Resolution 63/168 in 2008, calling for a "global moratorium on the use of the death penalty," which is an important and necessary step toward the abolition of the death penalty. Why do international civil society organizations, the United Nations, and the European Union work so hard to promote the suspension of death penalty executions? Its importance at the present stage lies primarily in the fact that most countries that have not yet abolished the death penalty maintain the death penalty out of habit, convention, and expediency. Facing the many dimensions and levels of the capital punishment system, they both lack serious engagement and confrontation, and lack necessary public debate. As a result, not only are necessary knowledge and information lacking, but well-considered policies (including possible alternatives) cannot be formed. Utilizing a global moratorium on executions to create time and space to initiate reflection, debate, and action on the death penalty issue means Taiwan is walking on the correct path!

5. Experience of other countries: No Minister of Justice has been held legally liable for malfeasance for refusing to sign a death warrant.

   From late November 1989 to March 1993, Japan experienced a period of nearly 3 years and 4 months where executions of the death penalty were suspended because two successive Ministers of Justice personally opposed the death penalty; from October 2005 to September 2006 during his one-year term, former Minister of Justice Sugiura Shōken, a devout Buddhist, refused to sign death warrants. In South Korea, starting with Kim Dae-jung assuming the presidency in 1998 and Roh Moo-hyun succeeding him in 2003, both pledged to abolish the death penalty and appointed Ministers of Justice who did not carry out executions, resulting in no executions being carried out from 1998 to the present. Yet, no Minister of Justice has been held legally liable for malfeasance for refusing to sign a death warrant.

6. At the 4th World Congress Against the Death Penalty, the abolition of the death penalty and the suspension of executions prior to abolition were once again affirmed as an irreversible global trend.

   The 4th World Congress Against the Death Penalty was held in Geneva from February 24 to 26, 2010. The United Nations' attitude toward the death penalty was seen even more clearly at this congress. In addition to the opening ceremony of the congress being held at the UN European Headquarters, important figures within the United Nations directly related to the issue of the death penalty attended the meeting and delivered speeches or reports, including Professor Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions; Professor Manfred Nowak, the Special Rapporteur on torture; as well as Professor Roger Hood and Professor William Schabas, who assisted the United Nations in submitting the five-year global overview report on the death penalty (both of whom spoke with the Taiwan delegation and encouraged Taiwan). At the closing ceremony of the congress, UN High Commissioner for Human Rights Navanethem Pillay personally attended the congress and received the congress declaration from child representatives of the US organization "Kids Against the Death Penalty." This was a very clear declaration action, representing the United Nations' re-establishment of its position supporting the global abolition of the death penalty.

   Professor Schabas pointed out at the congress that, according to his research, it can be optimistically predicted that global abolition of the death penalty is very likely to be achieved between 2015 and 2025 (even China has the intention to achieve the goal of abolishing the death penalty by this time point). However, the abolition of the death penalty cannot be achieved overnight. Even China, which executes thousands of people a year, must have a step-by-step policy, otherwise "it will soon find itself no longer on the schedule of global human rights."

   Although Taiwan is not a member of the United Nations, it should not place itself outside the international human rights framework. Furthermore, the international society holds many expectations for Taiwan's human rights progress, hoping that we can steadily move toward the abolition of the death penalty. The Ministry of Justice's suspension of death penalty executions and establishment of the "Research and Promotion Task Force on the Gradual Abolition of the Death Penalty" aim to build consensus on complementary measures and propose a plan that "makes the public feel at ease, victims feel reassured, and gives death row inmates an opportunity for self-renewal, atonement, and compensation to the victims." We are gladdened to see such developments. Otherwise, Taiwan may, as Professor Schabas said, soon "find itself no longer on the schedule of global human rights."