Death’s advocates: Taiwan’s reticent grand justices

Life, the great unknown, is based on nothing comprehensible, and offers not the shadow of an argument. Death, on the other hand, is clear and certain.
-- From A Short History of Decay, Emil Cioran (1911-1995) (original in French)

The death penalty is one of Death's servants. Its seems to enjoy an unshakable status, guarded by its master's authority. Thus, the validity of the death penalty seems taken for granted in Taiwan — a "clear and certain" truth that requires no explaining. Opponents of capital punishment form a small but vociferous minority. They nag and goad the death penalty establishment, seeking to wrest away Death's mantle of reason, but the colossus remains silent and unmoved.

Those who believe Truth to be on their side are usually slow to reason — or won't condescend to it. The arrogance of Truth is seen in an election where the underdog challenges the incumbent to a debate. He throws down the gauntlet, but waits for a response in vain. Why should a secure incumbent take the risk of battle? Our society's attitude toward abolishing the death penalty resembles this scenario, with Truth presumed to be on the side of the majority. The silent masses support the death penalty regime, so Truth stands with it. Confronted with the cries of the minority, the majority simply plays deaf, rarely offering even "the shadow of an argument."
This perspective may shed some light on the stance of the Council of Grand Justices, which has quietly and consistently sided with the death penalty. The justices have displayed great reticence and, with scant comment, thrown out successive cases challenging the death penalty. This is exactly what one would expect of the death penalty’s advocates. When, in 1985, the grand justices first upheld the death penalty for the crime of drug peddling (J.Y. Interpretation No. 194), they tersely set the tone for their subsequent treatment of death penalty challenges. The law in question "was enacted as necessary to maintain national security and social order, and does not conflict with Article 23 of the Constitution," they said.

In 1990, J.Y. Interpretation No. 263, the grand justices held that a provision of the Act for the Control and Punishment of Banditry (now repealed) that imposed the death penalty for kidnapping with the intent to obtain ransom (regardless of the circumstances and outcome of the crime) was severe. They noted, however, that the act also allowed for a reduced sentence, and said this was "sufficient to avoid an excessively severe punishment, and so not in conflict with the Constitution."

In J.Y. Interpretation No. 476 of 1999, their most recent interpretation on the issue, the justices upheld another law that imposed the death penalty for drug peddling (the Drug Prevention and Control Act):

The statutory penalties of a death sentence or life imprisonment ... are sanctions imposed by a special law for the purpose of strictly prohibiting hazardous drug offenses, and are necessary to maintain national security and social order and to advance public welfare. They do not violate Article 23 of the Constitution, nor do they conflict with Article 15 of the Constitution.

It can be said that since J.Y. Interpretation No. 194, the reasons cited by the grand justices for upholding the death penalty have consistently been wrapped in a cloak of maintaining national security and social order and advancing public welfare. For such noble and just purposes, it is supposedly natural that severe crimes justify severe punishment, even the death penalty.
By the time of J.Y. Interpretation No. 476 in 1999, the grand justices had begun to show impatience with petitions challenging the death penalty:

However, in the exercise of the country's power to impose criminal penalties ... the principal of proportionality is not violated as long as the penalty provisions in the law are consistent with legitimate purposes, necessary means, and proper limits as required by Article 23 of the Constitution. Merely arguing that special penalty provisions of special criminal laws for specific matters have a bearing on people's lives and bodies, and citing unrelated provisions of general criminal law, does not permit the conclusion that they violate the aforesaid constitutional intent. 

J.Y. Interpretation No. 476 seemed to sound the death knell for abolishing capital punishment. It was the third strike for death penalty opponents, and in the long decade since, the grand justices have shut the door on the issue. They've said what needed to be said and will devote no more breath to the matter. (Note, for example, their dismissal of the two petitions on behalf of Chong De-shu.)

The unspoken secret: Public opinion trumps all
Why is the death penalty not unconstitutional? What merits clinging to capital punishment? In J.Y. Interpretation No. 476, the death penalty's proponents were forced to put into words what had been an open but unspoken secret:

[I]n the exercise of the country's power to impose criminal penalties, when the legislature enacts special criminal penalty provisions for specific purposes ... insofar as those purposes do not contradict the expectations of the country's people, viewed from the perspective of history, cultural background, and the current state of society, and are consistent with the people's faith in the law, such provisions cannot be deemed illegitimate.

This passage suggests the death penalty is constitutional because Taiwan has a long "history" of capital punishment, a "cultural background" that supports it — as reflected in the saying "use severe laws to restore order in troubled times" — and a "current state of society" in which the majority of people support it. Capital punishment does not at present "contradict the expectations of the country's people" and is "consistent with the people's faith in the law," so how can it be unconstitutional? But if we look beyond the premises of "history" and "cultural background," which are just window dressing, the grand justices are actually giving only one reason: the "current state of society."

If public opinion were enough to determine the constitutionality of a law, surely a Nielsen opinion poll would do — why do we need grand justices? In Interpretation No. 476, the justices are pandering to the public’s basest instincts. And so we are reminded of the formidability of the death penalty: Truth is on its side simply because the majority of people are on its side.

‘Restrict’ does not mean ‘deprive’
In the petition that prompted J.Y. Interpretation No. 476, the petitioner raised an issue that deserves careful reflection: Where is the boundary between the right to life under Article 15 of the Constitution and the government’s legislative power to restrict the public’s fundamental rights under Article 23 of the Constitution? Given that the country is obligated to respect each person’s right to life (Article 15), can it at the same time legislatively impose the death penalty (Article 23)? J.Y. Interpretation No. 476 soft-pedals this question and squanders the chance to discuss conflicts between fundamental rights. Instead, it simply states that "the principal of proportionality is not violated" and that "arguing that special penalty provisions ... have a bearing on people's lives and bodies ... does not permit the conclusion that they violate the aforesaid constitutional intent." So the death penalty provisions "do not violate Article 23 of the Constitution, nor do they conflict with Article 15 of the Constitution." 

Article 23 of Taiwan's Constitution begins: "All the freedoms and rights enumerated in the preceding articles shall not be restricted by law." The framers deliberately used an exception-clause construction to strengthen the guarantee of fundamental rights and underscore the principle of "make no law" infringing these freedoms and rights. The framers did not write "All the freedoms and rights enumerated in the preceding articles may be restricted by law," but chose a construction designed to make clear that lawmakers do not have the authority to restrict the freedoms and rights of the people. Only in exceptional circumstances and out of necessity are they permitted to restrict such freedoms and rights through legislation. When reviewing whether lawmakers have overstepped their authority, a competent interpreter of the Constitution should, recognizing the care that the framers took, adopt the rigorous standard that exception clauses “shall be narrowly construed.” The interpreter certainly should not side with legislation that infringes the rights of the people.

Article 23 of the Constitution establishes the principles of proportionality and non-delegation, and it further establishes a "principle of limitations." Each of these has a basis in the literal language of Article 23. The principle of proportionality is invoked in the language "except such as may be necessary." The principle of non-delegation is invoked in the language "shall not be restricted by law except ..." (i.e. insofar as freedoms or rights may be restricted, this must be done by enacted law and may not be delegated). And a principle of limitations is invoked in the use of the word "restricted." That is to say, lawmakers are not empowered to deprive without limit the people of their rights and freedoms. The lawmakers may, at most, use legislative means to restrict the rights and freedoms of the people, but not to take them away. For example, consider the following provisions of Taiwan's Civil Code: "No one shall be permitted to waive his liberty" (Article 17, paragraph 1) and "Liberty may not be restricted in any manner contrary to public order or good morals" (Article 17, paragraph 2). These provisions corroborate the principle that the freedoms of the people may be restricted but not taken away.

Life is the foundation of rights and freedoms — without life, there is no space for these. The death penalty takes away life, and in doing so deprives a person of his or her rights and freedoms. This literal and systematic interpretation demonstrates that the guarantee of the right to life under Article 15 of the Constitution and the principle of limitations under Article 23 not only do not conflict, but are in fact in harmony. The right to life is constitutionally guaranteed and no one may be deprived of it. Likewise, people's bodies, freedom and property also enjoy protection under the principle of limitations.

Suppose the legislature enacted a law by which violators would forfeit all of their property into the state coffers and be barred from owning property for the rest of their lives. Could a law that fully deprives a person of property rights pass a constitutionality review? Further suppose that the legislature enacted a law requiring that violators be injected with a toxin that induces a permanent vegetative state. While spared death, the violator would be confined for life, able to breathe but not to move. Could a law that fully deprives a person of physical health and personal freedom pass a constitutionality review?

Considering these less severe examples, if a law condemns violators to death — the ultimate deprivation, deprivation of life itself — can this pass a constitutionality review? Astonishingly, we are told the answer is "yes." But if legislation that deprives people of life is constitutional, then what stands in the way of laws that take away the freedoms described above? Such an absurd interpretation ignores the fundamental intent of Article 23 of the Constitution — that restriction does not include deprivation — and undermines the prohibition against excess and the spirit of restraint embodied in the proportionality principle of the same article.

The cavalier treatment of the proportionality principle in J.Y. Interpretation No. 476 has taken some of the luster off earlier grand justice rulings that invoked this same principle in declaring laws unconstitutional. By paying lip service to this principle, Interpretation No. 476 is, ironically, a textbook example of precisely how it should not be interpreted.

A full advocacy system for death penalty cases

Is the public brave or naive?
There is a longstanding and widespread lack of confidence in the judiciary among Taiwan's citizens. The quality of court judgments is particularly disparaged. How do we reconcile opinion polls showing that skepticism towards the judiciary is nearly as prevalent as support for the death penalty? Evidently, the conviction of some supporters of the death penalty is so strong that it overrides their distrust in the courts. But do not assume that these "true believers" are willing to lay their lives on the line for the death penalty, or would support capital punishment if they risked being wrongfully convicted by an error-prone court. It is doubtful that they are prepared to embrace martyrdom for their cause. Rather, most of these death penalty proponents consider themselves good, law-abiding citizens. They are complacent in their belief that "it would never happen to me."

But life takes its own course. A wrongful conviction can strike like a bolt from the blue, and for that poor person it's not a matter of being good or bad but of having good or bad luck.

The long road to abolition
For all its shortcomings, Interpretation No. 476 deserves some credit, if only for blatantly revealing that the death penalty is not merely a judicial matter. The grand justices do not live in a vacuum and they cannot ignore public sentiment. There is no shortcut on the hard road toward abolition: The public must first be convinced to accept a society without capital punishment. To hope that the grand justices will spontaneously pave the way to abolition is nothing but a pipe dream.

The wide gulf in the number of opponents versus supporters of the death penalty has made a rational, sustained dialogue between the two camps impossible. Occasional flashes of engagement arise in response to specific cases, then quickly disappear again in the ebb and flow of current events. By the measures of the "state of society," the "expectations of the people" and their “faith in the law" cited by the grand justices, it seems the death penalty's own demise will be a long time coming. So can we only sit and "wait for death?" No. The anti-death penalty movement cannot pin all its hopes on the grand justices. We must work in concert to build support for abolition at the grassroots level through education and through cultural and other spheres. If we can gradually transform people's thinking, when the time is ripe, change will come. A gradual, mild approach toward abolition may prove the best option, avoiding the social backlash that could result if the justices were to strike down the death penalty before the public is prepared. Persuading the public will not be easy, but this is work that sooner or later must be done.

A moratorium in practice
Until it is abolished, we must seek a gradual reduction of the death penalty in the law and in the courts. We must appeal to legislators to cut the number of crimes punishable by death; to prosecutors not to seek the death penalty; to judges not to hand down death sentences; and to the Minister of Justice not to sign execution orders. We can block executions by keeping the death penalty in a state of "hibernation."We should also seek adjustments in litigation procedure. In particular, we should strive to strengthen advocacy in death penalty cases by establishing a full advocacy system. This means making counsel mandatory for anyone accused of a crime punishable by death. Counsel should be required throughout the entire course of the proceedings, from the prosecutors’ investigations, to the trial and execution of the sentence. This would mean guaranteeing legal counsel to all defendants and death row inmates who have not retained counsel themselves. The legislature should amend Article 31, paragraph 1, of the Code of Criminal Procedure to require that prosecutors investigating any case with a maximum penalty of death ask the court to appoint a public defender or lawyer for the accused if no attorney has been retained.

Furthermore, as mentioned in the previous chapter by Yeh Ting-chun (葉亭君), Article 388 of the Code of Criminal Procedure should be repealed. This article stipulates that Article 31 (concerning mandatory appointment of public defenders) "does not apply to trials of third instance." In other words, defense counsel is not mandatory in final appeal trials. When a death penalty case enters this stage or any subsequent procedure demanding specialized legal knowledge, such as extraordinary appeals or retrials, some defendants or convicts who lack the means to retain an attorney are forced to represent themselves. Some even turn to their cellmates to help them scrape together a defense. Such defenses are never more than a blind effort and are futile. Mounting a competent death penalty defense is beyond the ability of many lawyers, let alone a person with little or no knowledge of the law.

In establishing a full advocacy system for death penalty cases, only very experienced criminal attorneys (those who have practiced at least five years and handled at least 50 criminal cases) should be retained as defense counsel or appointed as public defenders. Ideally, the lawyers in death penalty cases should be personally opposed to the death penalty. Only in this way can we expect the defenders to have the zeal and in-the-trenches experience needed to stave off the executioner.Even before a full advocacy system is in place, we can do our best to fight a flawed system by joining the Death Watch campaign coordinated by the TAEDP and the JRF, and by providing pro bono legal aid in individual cases, such as those of the Hsichih Trio, Hsu Tzu-chiang (徐自強), and Chong De-shu.

The need for specialized procedures
In addition to establishing a full advocacy system, there is a need to redress the Code of Criminal Procedure's application of ordinary criminal procedure to death penalty cases. To ensure that courts exercise requisite diligence commensurate to the severity of the penalty, rigorous procedures should be prescribed for death penalty cases. For example, the number of judges who hear the case at each court should be raised (e.g. to five judges at the District Court, seven at the High Court and nine at the Supreme Court). Judgments in death penalty cases should require a unanimous decision rather than a majority. When a High Court judgment is appealed to the Supreme Court, the Supreme Court should be required to try the case itself and hand down a concluding judgment rather than remanding the case to the High Court for retrial. In other words, death penalty cases should be treated as an exception at the Supreme Court, with the judges hearing issues of fact as well as issues of law to avoid cases bouncing repeatedly between the High and Supreme Courts.

Taking down Goliath
Lawyers in death penalty cases have consistently faced bureaucratic difficulties accessing the case files of their clients. The difficulty of accessing files that are absolutely crucial to preparing a defense underscores the lack of procedural protections in death penalty cases. As Yeh writes: "In the face of authority, such a minor technicality was like trying to stop the giant machine with a single, small stone."

In the face of an entrenched and formidable death penalty system, the TAEDP and other opponents of the death penalty are like David squaring off against the massive Goliath. The stones at their disposal may be small, but if hurled skillfully at critical spots in the machinery of death, they may yet bring Goliath down.