By Chen Shao-Ting* and Lin Mei-Jung*
Amnesty International Taiwan Group 1
Is it only a dream of Taiwan?
Concern for abolition of the death penalty can flourish only in
an environment that is genuinely concerned with human rights.
When President Chen Shui-Bian was inaugurated on May 20, 2000,
he made a strong commitment to enhance human rights in Taiwan.
He put forth three specific measures to take:
(1) to internalise the International Bill of Human Rights
(consisting of the Universal Declaration of Human Rights and the
two International Covenants on Human Rights); (2) to establish a
National Commission on Human Rights, as guided by the Paris
Principles; and
(3) to maintain close contacts with international NGOs in the
field of human rights. He followed it up by establishing an
advisory group on human rights in the presidential office, and
the Vice President chairs the group. Work has been proceeding on
all there fronts.
In April 28, 2000 the Chairman of the Board of Directors of Fu
Jen Catholic University (Taipei), Cardinal Paul Shan SJ,
delivered a letter of Pope John Paul II to newly elected
President Chen Shui-Bian, asking for abolition of the death
penalty.
It is in spirit of President Chen, and after summons from
Cardinal Paul Shan, one year later, Minister of Justice (Fa Wu
Pu) Chen Ding-Nan announced on May 17, 2001 that he wants the
death penalty abolished by year 2004, that is, within the
remaining three years of the present DPP administration. He
would introduce necessary legal reforms only when the public
accepts abolition.
In 1993, Taiwan Amnesty International Groups took the first step
to ask President Lee Teng-Hui to abolish the Death Penalty in
Taiwan. The answer from the Ministry of Justice was “the public
opinion doesn’t accept it yet, people and law experts believe
the death penalty still inspires horror and hence should still
be upheld. (1, AI Taiwan Groups activists)
So far, is this only a dream of Taiwan towards abolition of
death penalty? From 1948 to October 2001, Taiwan has executed
666(Official figures supplied by Ministry of Justice or 679
Hsieh's figures) peoples.
Law in Taiwan—the Constitution
The death penalty is unconstitutional. It not only deprives a
person of the right to live, it is also an offence against human
dignity and hence clearly against a Constitution that seeks to
protect human rights. (2 .Lin I-Min, 1993)
The Article 23 of the Constitution says that rights may be
“restricted” but not that they may be “removed”. Hence mandatory
and discretionary death sentences are all against the
Constitution. (3. Chen Chih-Hsiang, 2000)
A Review of Scholars in Taiwan
The scholars I quoted noticed that a key factor in the question
of abolition is that of popular feeling in society. From the
point of human society’s view, the death penalty has been around
for several thousand years. Moreover, some crimes, such as those
committed in wartime, still carry the death penalty.
Yet if abolition is correct in principle then why should persons
condemned to death in wartime, who had since repented, not be
shown mercy too? It would seem that even progressive countries
still retain the death penalty to some degree. Is it only
possible to abolish the death penalty when a state has developed
to an adequate level of legal culture and civilization? Or is it
rather that no matter what the development of the legal system
is, abolition should be carried out at once? Does it mean, is
abolition, whether partial or total, to be carried out no matter
what the customs and mood of the country are? Regarding death
penalty there is stillroom for discussion in Taiwan. (4. Chiang
Shu-Fen, 2001)
Survey May 2001.
1.Support for the Death Penalty is High
70 % of inhabitants in Taiwan support the death penalty both by
preference and in practice. 79.9% of the population support
retention of the death penalty in the law in Taiwan. Thus it
would seem that there are no conditions attached to support the
death penalty. However, when given the option of life
imprisonment instead of execution, support for the death penalty
reaches only 46%.
2.Abolition and Public Order
Over 60% people believe that the retention of the death penalty
is related to public order, and that crimes deserve to be
punished. It is clear that people in Taiwan believe that the
death penalty is related to public order, perhaps because they
believe that “a disordered world requires harsh punishments.”
Thus, when thinking about abolition of the death penalty, people
will mainly consider social order.
3.Reasons for Supporting or Rejecting the Death Penalty
As far as the reasons for supporting or rejecting the death
penalty are concerned, the highest score is for serious crimes
meriting punishment. The survey shows that retribution and
deterrence are firmly rooted in popular opinion. People's value
system is the main factor in deciding their attitude, whether
they are for or against the death penalty.
It would appear that there are regional differences in attitudes
regarding the death penalty. This regional difference is notable
in the response to the question whether life imprisonment is
considered an adequate replacement and also on the question of
abolition as such. It would appear that people living on the
outlying islands are more optimistic and more inclined to favour
abolition. This is perhaps because people on the outlying
islands have different values. (5 .Ben Chang Shia 2001)
Response To the Call for Abolition
The immediate steps to be taken to ensure the legality of
abolition in Taiwan will come in about three stages: By
executive amnesty (Presidential Pardon), restriction of the
number of crimes to which capital punishment is applicable and
complete abolition, and possible way forward on the legal front.
(6. Hsieh Jui-Chih 2001)
Until there is complete abolition, it should at last be
incumbent to reduce the use of the death penalty by:
(1)Reducing the number of mandatory sentences:
(2)Restricting the kind of persons who may be executed;
(3)Avoiding carrying out death sentences;
(4)Using the system of prolonging death penalty cases;
(5)Replacing the death penalty by long-term or lifelong
imprisonment;
(6)Putting into immediate effect a law of compensation for
victims of violent crime. (7. Chang Kan-Mei, 1988)
As summarized by Professor William A. Schabas, to accelerate the
trend toward abolition of the death penalty would require
concerted efforts on three different fronts:
First, encourage more countries to ratify or to accept the two
anti-death penalty protocols: Protocol NO.2 the International
Covenant on Civil and Political Rights and Protocol No.6 the
European Convention on Human Rights.
Second, suspend executions and impose a moratorium on the death
penalty where capital punishment continues to exist.
Third, adhere rigorously to the existing restrictions on the
death penalty, including: no death penalty for persons under age
18 and for pregnant women; no reinstatement of the death penalty
after its abolition; assurances of no capital punishment in
cases of extradition; and perhaps, treating the death penalty as
a form of cruel, inhuman, or degrading treatment. (8. William
Schabas, 2001, Taipei)
How do international trends toward abolition of the death
penalty affect Taiwan?
The death penalty is a practice of long standing in Taiwan. It
has been taken for granted by the general public. There are
three major perceptions or myths that sustain the practice of
the death penalty: (1) the death penalty definitely has the
deterrent effect, and is viewed as the answer to violent crimes;
(2) the death penalty satisfies the popular sense of
retribution; and (3) executions are deemed more economical and
reliable in dealing with heinous criminals. (9. Chen Lung-Chu,
2001,Taipei)
The task ahead is enormous, as polls have indicated that over 70
percent of people in Taiwan oppose the abolition of the death
penalty now.
Intense and extensive education is required. Minister Chen
Ding-Nan has stated that his ministry would work hard to
convince people that the death penalty is neither desirable nor
acceptable. He wants to tell the people that “the death penalty
is not a panacea to violent crime” and harsh punishment is not
the only solution to crime.
Pending a formal proposal to abolish the death penalty, the
proposal to abolish the Act for the Control and Punishment of
Banditry(懲治盜匪條例) and to make related amendments to the Criminal
Code are considered first significant steps because these
proposals would remove the mandatory death sentence for several
offences. The bills have gone through the first reading in the
legislature. Other related measures such as the maximum prison
term, the parole structure, and life sentence without parole are
being studied.
To abolish the death penalty here in Taiwan, Minister Chen
Deng-Nan can't do it alone. It is a huge task that requires the
concerted efforts of both public and civil sectors. It requires
the especially the joint efforts of human rights organizations,
bar associations, the media, and concerned citizens.
The people of Taiwan are proud of the achievements in the
transformation from authoritarian rule to a democratic state
committed to universal values of human dignity and human rights.
Continuing hard work is required for Taiwan to keep abreast with
and be part of the mainstream of the international human rights
community.
However, in the case of Taiwan, recent calls for respect for
Human Rights are sufficient to give objective reasons for
abolition. Taiwan is ready for it. Hence while the government is
declaring the importance of Human Rights, it is only a matter of
time before the death penalty will be abolished.
Concrete Steps to abolish the death penalty in Taiwan
First: It is according to spirit of the International Law to
amend the domestic legislation: To revise the current law,
namely to delete Criminal Code article 63 item 2 "under 18 years
old who killed consanguinity should be sentenced to death"; to
be based on the article 6 items 5 of "The International Covenant
on Civil and Political Rights" and to the Optional Protocols,
and Article 37 of "The Rights of the Child".
Secondly: Not to execute the death penalty. After 1982, Taiwan
has never executed in parents' murder case under 18 years old
persons.
Third: NGOs and government are working together to promote a
Human Rights Education program in the school and society.
Through documentation, Conference and Forum the concept of Human
Rights is popularized, to indulge people to understand the value
of life and meaning of Human Rights. Death penalty is not the
only punishment to solve the public security issue.
Toward the abolishment of the death penalty, the government has
to take the following measures:
-- Pending a formal proposal to abolish the death penalty, the
proposal to abolish the Act for the Control and Punishment of
Banditry and related amendments to the Criminal Code are
considered as first significant steps because these proposals
would remove the mandatory death sentence for several offences.
The bills have gone through the first reading in the Legislative
Yuan.
--Other related measures such as the maximum prison term, the
parole structures, and life sentences without paroles are being
studied.
--To advance gradually to reach the abolishment of death penalty
the amendatory acts are taken, to give consideration to protect
Human Rights and to defend public security.
--Permeability generally is under discussion and research to
achieve majority of public opinion for the cause:
To support the abolishment of the death penalty as a common
consensus, then to bring up before legislation the death penalty
in Taiwan.
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Chen Shao-TingProfessor of Political Science,
National Policy Adviser to the President, TAIWAN
Lin Mei-Jung Social Worker, Coordinator of Taiwan Grassroots
Women Workers' Centre; Secretary, Amnesty International Taiwan
Group 1.
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Sources and literature:
(1)Amnesty International Groups in Taiwan took action on
abolition the death penalty on May 25, 1993. Eight groups member
leader delivered a letter to President Lee Teng-Hui, asking for
abolition of the death penalty; a public hearing at Legislative
Yuan, concerning the issues; participated the Tokyo Conference
on July 10, 1993; a action in the front of Hyatt Hotel; Amnesty
International London Office sent a letter to President Lee
Teng-Hui, asking for abolition of the death penalty.
(2)Lin I-min, Taiwan University M.A. thesis, 1993, argues that
the death penalty is unconstitutional.
(3)Chen Chih-Hsiang, Justice Chen believes that death penalty
should abolished and replaced by Lifelong imprisonment. 2000.
(4)Chiang Shu-fen, “ABOLITION OF THE DEATH PENALTY: A REVIEW OF
SCHOLARSHIP IN TAIWAN”, Published by John Paul II Peace
Institute 2001.
(5)Ben Chang Shia, “Statistical Survey of Public Opinion
Regarding the Death Penalty in Taiwan” Published by John Paul II
Peace Institute 2001. The survey was conducted by telephone in
early May 2001. 1381 replies ha been received.
(6)Hsieh Jui-Chih, President Emeritus, National Police
University; “The immediate Steps to be taken to ensure the
Legality of Abolition in Taiwan” at Fu Jen International
Conference, 24-26 June 2001, Taipei. Lecture 7.
(1)Chang Kan-Mei, Professor of Taiwan University.
(2)William A. Schabas, “ International Law and Abolition of the
Death Penalty” at Fu Jen International Conference, 24-26 June
2001, Taipei
(9)Chen Lung-Chu, Chairman, the Taiwan New Century Foundation;
Professor of Law, New York Law School; President, the New
Century Institute (U.S.A.) “International Law and Abolition of
the Death Penalty: A Response with a Special Reference to
Taiwanese Perspectives and Experience” at Fu Jen International
Conference, 24-26 June 2001, Taipei.
本文发表於11月10日汉城亚洲论坛，国会山庄。亚洲废除死刑会议
时间：2001年11月9日至12日。 |