Procedural Justice in Capital Punishment Enforcement

Following the September Political Strife and the March Sunflower Student Movement last year, procedural justice has undoubtedly become the most heavily promoted concept among the Taiwanese public. In the political strife, Ma Ying-jeou focused obsessively on substantive justice, arguing that Wang Jin-pyng's judicial lobbying deserved the harshest condemnation. Yet, he failed to anticipate that because Huang Shih-ming crossed the red line of procedural justice (such as abusive wiretapping and unauthorized reporting), public opinion ultimately shifted toward Wang, leading to Ma's total defeat. Meanwhile, the Sunflower Student Movement was famously sparked by "Chang Ching-chung's 30 seconds," where the legislative session's normal rules were completely bypassed as Chang hid to unilaterally announce the bill's passage, outraging the public and leading to the occupation of the Legislative Yuan. These two examples show that no matter how righteous the substantive goal may be, if the procedural means are questionable, they will obscure the legitimacy of the goal and even turn what is legal into illegal.

Regarding the issue of capital punishment, public support for the death penalty has consistently been extremely high in Taiwan. Even with a thousand reasons, opponents of the death penalty can hardly change such public sentiment. However, regardless of the endless debate between the two sides, there remains a single shared consensus: "The execution of the death penalty is irreversible; it must be handled with the utmost caution, and absolutely no errors can be tolerated." Therefore, when courts hand down death sentences, miscarriages of justice must be avoided, and before actual execution, the correctness of the judgment must be repeatedly verified and carried out according to established Standard Operating Procedures (SOPs). To ensure this, the Ministry of Justice enacted the "Directions for Reviewing the Enforcement of Capital Punishment Cases," which stipulates that the Supreme Prosecutors Office must confirm that a capital case has no grounds for retrial, extraordinary appeal, pardon, or reasons under Article 465 of the Code of Criminal Procedure, and that no retrial, extraordinary appeal, or constitutional interpretation proceedings are pending, before submitting the case to the Ministry of Justice for execution. Furthermore, the Ministry of Justice created a "Capital Punishment Case Review Checklist," requiring that all reasons preventing execution be checked off one by one before carrying out a death sentence. Based on these regulations, executing the death penalty should theoretically be rigorous, subject to multi-layered gatekeeping, and entirely error-free. But what is the reality? When those in power are determined to kill, an abundance of SOPs becomes useless, and to achieve their goal, flaws in the means do not matter. The Ma administration keeps repeating the same mistakes and failing to learn its lesson, which is not only infuriating but deeply lamentable.

Around 6:00 p.m. on April 29, the Ministry of Justice simultaneously carried out death penalty executions at four detention centers in northern, central, southern, and eastern Taiwan. This execution was kept strictly confidential, with the list of those to be executed completely unknown beforehand. Because the Ministry of Justice had begun preparations for the executions since late March, the brewing period was relatively long; for the Taiwan High Prosecutors Office and the detention centers, it was merely a matter of waiting for the execution order, so it could not be considered a surprise execution. Conversely, previous executions had shorter brewing periods and always took place on Fridays. Detention centers were only notified to prepare after the Minister signed the order. However, unlike this time—when confidentiality was maintained until the very last moment—the list of names in past executions was sent to the detention centers on the day of execution itself, meaning condemned prisoners awaiting execution were denied visits on that Friday. If lawyers found themselves unable to meet their death-row clients without reason on a Friday, they would generally have a strong inkling of what was happening. Therefore, what made this execution unusual was that because it fell on a Tuesday, the detention center did not know the list that morning, allowing Liu Yen-kuo's lawyer, Ch'iu Hsien-chih, to visit him and discuss a newly drafted extraordinary appeal, as well as persuade Liu to sign power-of-attorney forms for two other lawyers from the same firm. Neither the lawyer nor his client had any inkling that it was their final parting of life and death. At a little past 4:00 p.m., Lawyer Ch'iu suddenly learned that the death penalty would be carried out that day. Breaking out in a cold sweat, he immediately filed the extraordinary appeal verified by Liu Yen-kuo with the Supreme Prosecutors Office. Yet, shortly after 6:00 p.m., media reports revealed that Liu Yen-kuo had already been executed by firing squad. The following morning (April 30), he received a notice from the Supreme Prosecutors Office stating that the "Acting Prosecutor-General" had dismissed the extraordinary appeal application. The official document was dispatched by the Supreme Prosecutors Office at 7:00 p.m. on April 29, and the records indicated that the original copy was additionally sent to Liu Yen-kuo himself. Wait a minute? Wasn't he executed a little after 6:00 p.m.? How was the original copy dispatched at 7:00 p.m. supposed to be served to Liu Yen-kuo personally?

That is correct: once a death sentence is finalized, the Minister of Justice has the authority to sign an execution order. But isn't a prerequisite of execution adherence to the multi-layered SOPs? Do not the "Directions for Reviewing the Enforcement of Capital Punishment Cases" and the "Capital Punishment Case Review Checklist" mandate that cases with ongoing extraordinary appeal proceedings must not be executed? Was an extraordinary appeal submitted a little after 4:00 p.m. not an ongoing proceeding? Clearly, this execution of the death penalty by the Ministry of Justice was unlawful!

In truth, the Ministry of Justice has always worried that advance exposure of execution times and names would invite complications—such as emotional turmoil among death-row inmates, abolitionist groups mobilizing all means of rescue, defense lawyers using legal techniques to interfere, and so forth. Yet, upon closer reflection, none of these constitute valid reasons. If the Ministry of Justice truly believes that "the execution of the death penalty is irreversible; it must be handled with the utmost caution, and absolutely no errors can be tolerated," it should welcome everyone's assistance in examining whether capital cases are free of doubt (even if irrational technical interference occurs, truth can become clearer through debate, causing interference to recede). Why resort to clandestine executions instead? Furthermore, international human rights standards dictate that out of humanitarian considerations, families should be notified in advance of an execution. Judging by Liu Yen-kuo's execution this time, the Ministry of Justice killed simply for the sake of killing, completely disregarding "procedural justice." Lawyer Ch'iu Hsien-chih did not know on the morning of the 29th that Liu Yen-kuo would be executed that day, meaning the extraordinary appeal he filed was not deliberate technical interference designed to obstruct the execution, but rather a solid, substantive extraordinary appeal grounded in legitimate reasons. In other words, doubts remained in the case, failing to meet the criteria for capital punishment execution. Furthermore, even if the Supreme Prosecutors Office adopted a dismissive attitude toward interference and intended to reject the appeal immediately upon receipt regardless of its contents in order to facilitate the execution (the Supreme Prosecutors Office claimed it rejected the appeal at 5:00 p.m.), it would have been impossible to complete everything from drafting the original document to serving it upon Liu Yen-kuo personally within two hours. In its haste to kill, the Ministry of Justice did not hesitate to violate regulations, trampling "procedural justice" underfoot and completely destroying its public credibility.

Even more alarming is that the person who dismissed Liu Yen-kuo's final extraordinary appeal was none other than "Acting Prosecutor-General Lin Hsieh-te," a fact that actually exposes a major constitutional crisis involving the usurpation of authority. Pursuant to Paragraph 8, Article 66 of the Court Organization Act, the Prosecutor-General of the Supreme Prosecutors Office is nominated by the President and appointed with the consent of the Legislative Yuan. It is a position that requires the consent (review) of the legislative branch; that is, anyone assuming or exercising the powers of the Prosecutor-General must be approved by the Legislative Yuan. It is difficult to imagine how someone who has not been approved (reviewed) by the Legislative Yuan can "exercise the powers of the Prosecutor-General"? In particular, Paragraph 11, Article 66 of the Court Organization Act stipulates that if the office of the Prosecutor-General becomes vacant for any reason, the President shall re-nominate a candidate for appointment with the consent of the Legislative Yuan within three months. In other words, the Court Organization Act contains no provisions for a deputy or acting official when the office of the Prosecutor-General is vacant; rather, it mandates the restoration of a fully empowered Prosecutor-General within the shortest possible time. In other words, the statutory powers of the Prosecutor-General are exclusive and cannot be delegated to an acting appointee. This is the same rationale behind similar positions nominated by the President and confirmed by the Legislative Yuan, such as Grand Justices and Members of the Control Yuan—even when vacancies arise, one has never heard of "Acting Grand Justices" or "Acting Control Yuan Members." Of course, if it were not a power legally exclusive to the Prosecutor-General, but merely general administrative business of the Supreme Prosecutors Office, it could naturally be handled by an "Acting Prosecutor-General." However, pursuant to the Code of Criminal Procedure, an "extraordinary appeal" is an exclusive power of the Prosecutor-General and clearly cannot be delegated to someone else (because this "someone else" has not been reviewed and confirmed by the Legislative Yuan, and their capability to exercise extraordinary appeal powers is unknown). Therefore, during a vacancy in the office of the Prosecutor-General, all judgments regarding whether to file an extraordinary appeal should be suspended and must await the assumption of office by a newly appointed Prosecutor-General before proceeding—a principle that is exceedingly easy to understand. Nevertheless, the Ministry of Justice has repeatedly violated the principle of the separation of powers under the Constitution, asserting without any legal basis that an acting Prosecutor-General holds a "full delegation of office" and may exercise extraordinary appeal powers. This is clearly yet another egregious example of arbitrary unconstitutional acts and violations of "procedural justice" by the executive branch.

This execution of the death penalty by the Ministry of Justice demonstrates its willingness to violate "procedural justice" in order to carry out executions, leaving behind a lingering regret that casts doubt on whether "substantive justice" was truly achieved. In fact, not only does Liu Yen-kuo's case harbor doubts (was the female homeowner really killed by him?), but the Tu brothers' case has also sparked public suspicion. Furthermore, this is not an isolated incident; since former Minister Wang Ching-feng stepped down, human rights groups have pointed out regarding every single subsequent execution that the Ministry of Justice failed to adhere to SOPs, breached the Two Covenants, and fell short of "procedural justice." Yet, because the condemned prisoners are already dead, no one continues to care about these unlawful actions by the Ministry of Justice. Fortunately, we have learned that Control Yuan Member Li Fu-tien has officially launched an investigation into the Ministry of Justice's capital punishment execution procedures. It is our hope that one day the truth will be brought to light, and that the Ministry of Justice will learn its lesson: only by upholding "procedural justice" can true justice be achieved.