No ‘grace period' for violating life

Sat, Mar 19, 2011 - Page 8 

By Kao Yung-cheng 高涌誠

On Tuesday, the Taipei Times ran an article, "Explaining the process of capital punishment," penned by Deputy Minister of Justice Wu Chen-huan (吳陳鐶) deflecting criticism that the executions on March 4 were illegal. I welcome the ministry's response to our concerns, but would like to point out a number of problems with his argument.

First, Wu defends the Amnesty Act (赦免法). It is important to respond to this, because this is the heart of why the executions were illegal. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) grants all death row inmates the right to seek a pardon or commutation, and since the ICCPR was incorporated into domestic law in 2009, proceeding with executions in the absence of this right violates the law.

In his article, Wu said on the one hand that the act already grants inmates the right to seek a pardon, and on the other hand that, at any rate, the government has two years to amend it if needed. I will start with the latter statement and then return to the first.

Wu cites the Constitutional Court's dismissal of an application for judicial review last year. In that dismissal (Decision No. 1358), the Council of Grand Justices ruled that Article 8 of the Act to Implement the ICCPR and the International Covenant on Economic, Social and Cultural Rights (公民與政治權利國際公約及經濟社會文化權利國際公約施行法) gives the government two years to fix any laws and regulations that don't comply with these covenants.

The government does indeed have two years to identify and amend problematic laws. No one is disputing that, but there is a difference between saying the government has two years to amend the law and saying it has two years to violate the right to life.

There is no "grace period" for infringing on this most fundamental of rights. If the government wants to take two years to amend the Amnesty Act, that is one thing, but in the meantime, it cannot violate Article 6 of the ICCPR by proceeding with executions in the absence of the right to apply for a commutation or pardon. Article 6, which specifies safeguards for the right to life, took effect in Taiwan on Dec. 10, 2009 - not this coming Dec. 10. 

Second, it is important to clarify that the Amnesty Act in its current form does indeed violate Article 6. Wu said prisoners already have the right to apply for a pardon or commutation, but in reality there are no procedures in place for this. The inmates executed this month are a case in point. In 2009, four of them petitioned President Ma Ying-jeou (馬英九) for commutations. Copies of their petitions were submitted to the Ministry of Justice, as the ministry is not allowed to execute inmates who have pending applications for judicial remedies.

The inmates never received a response. Now that they've been executed, a host of questions remains unanswered. Did Ma consider their petitions? Did he reach a decision?

If so, when? Why weren't the inmates or their lawyers informed? Alternatively, did Ma ask the ministry to decide for him, or is it possible that the ministry unilaterally decided it could reject applications on behalf of the president?

The Constitutional Court recognized that the Amnesty Act is problematic: By saying that the government has two years to amend it, the court confirmed that changes are needed.

In his article, Wu mentioned other channels for judicial remedies, such as extraordinary appeals and applications to reopen death row cases. There are any number of problems with the procedures that the ministry has defended over the past weeks, and these run too long to list here.

We have brought our concerns repeatedly to the ministry to no avail. Yet the way laws are implemented in practice is just as important as their formulation on paper. We urge the ministry to stop ignoring procedural flaws in the death penalty system.

Finally, Wu wrote in his article that the inmates executed on March 4 had received "a forceful defense" by their lawyers. He does not mention that four of them did not have either private lawyers or public defenders at the Supreme Court, but does mention their cases being remanded repeatedly. No number of remanded trials (which are handled by the Taiwan High Court) can replace the right to legal representation at the Supreme Court - the court of final instance. The right to counsel applies for the complete legal process from start to finish. This, too, is clear in the ICCPR.

Kao Yung-cheng is a pro bono lawyer for a number of death row inmates. He is the head of the Taipei Bar Association's Judicial Reform Committee and the vice chairman of the Taiwan Alliance to End the Death Penalty.