No Need To Halt Death Penalty Debate

By Cui Jia-wei (崔家瑋)

Chuang Sheng-rong (莊勝榮), a lawyer and former National Assembly delegate, recently argued in an op-ed (“Court to hear death penalty arguments,”Feb. 24, page 8) that the Judicial Yuan, with the term of its current president about to expire, should not address  the constitutionality of the death penalty.

Chuang says that as Judicial Yuan President Hsu Tzong-li's (許宗力) term nears its end, the issue of whether the death penalty is unconstitutional should be heard by the next president appointed by the incoming government, to reflect new public opinion. 

First, within the constitutional system, the judiciary inherently possesses a unique status. Its“counter-majoritarian difficulty”is  foundational knowledge for first-year law students studying constitutional law. The judiciary does not need to“conform to public  opinion,”but rather follow the principles of the separation of powers within a constitutional system, acting as a guardian of fundamental  rights.

Second, Taiwan does not have a constitutional history of avoiding significant issues as the term of the president of the Judicial Yuan nears  its end. Chuang confuses the functions of the“caretaker government”in the executive branch with those of the judiciary, while overlooking the judiciary's role in safeguarding fundamental rights.

Cases that can be accepted by the Constitutional Court are all closely related to the protection of fundamental rights under the Constitution. Demanding that constitutional judges cease their activities simply because the term of the president is expiring not only limits the judges' functions, but also runs counter to the goal of protecting rights as intended in the enactment of the Constitutional Court  Procedure Act (憲法訴訟法).

Constitutional judges do not have a pause button. It would be a departure from the constitutional system if they could not address  fundamental rights issues due to the expiration of the president's term.

Chuang argues that as constitutional judges have already stated in multiple cases that the death penalty does not contravene the Constitution, there is no need to address the issue, as it would destabilize the Constitution.

Regardless of the fact that constitutional stability is usually mentioned in the context of amending the Constitution, which is far from the  topic discussed here, this is not the first time the grand justices have revisited and changed their constitutional interpretations.

For example, in TCC Judgement 111-Hsien-Pan-2 (2022), Interpretation No. 656 was changed, deeming public apologies that infringe on people's freedom of expression unconstitutional. Similarly, Interpretation No. 791 changed the meaning of Interpretation No. 554, declaring Article 239 of the Criminal Code — which makes adultery a criminal act — unconstitutional.

These cases demonstrate that the Constitutional Court can revise outdated legal and constitutional views in response to societal changes, and constitutional stability should not be used as an excuse to hinder constitutional evolution.

Regarding the death penalty, Chuang points out that Interpretation Nos. 194, 263 and 476 have already addressed related issues, concluding they are constitutional. However, since these interpretations were made, Taiwan has undergone significant societal  transformations and changes in protecting human rights, such as the internalization of international human rights conventions and a  gradual increase in awareness of human rights. These are aspects that Chuang's call for constitutional stability fails to consider.

Moreover, Chuang's argument is flawed. Besides the substantial change made by TCC Judgement 112-Hsien-Pan-13 (2023), interpretations Nos. 194, 263 and 476 did not declare the death penalty unconstitutional. The first two were constitutional restrictions on“mandatory death sentences,”and the latter was regarding drug offenses, not murder cases currently under the Constitutional Court's review.

Chuang also mentions the wide range of issues involved in the death penalty debate, including public opinion, politics, law, religion, criminology and criminal policy. However, why Chuang emphasizes new public opinion while ignoring other aspects of the debate is unclear. He also overlooks that delaying the discussion of these issues does not necessarily lead to more comprehensive debates, failing to justify the necessity of delaying it.

Although the death penalty issue is indeed complex, pushing discussion of it back would not lead to better outcomes. Delaying it might seem to allow for more thorough discussion, but often it results in continued neglect, affecting the progress of fundamental rights. As seen in Interpretation No. 748, constitutional interpretations can lead to societal change. If the current discussion is deemed insufficient, the more appropriate action should be to promote further discussion, not passively assume it should be postponed.

Constitutions and societies evolve. As we move beyond the era of the National Assembly under the authoritative legislative body, our thinking must also advance.

Cui Jia-wei is pursuing a Master of Laws degree at National Taiwan University.

This article is published in Taipei Times on February 28, 2024 .