After the gruesome knife attack that killed the little girl in Taipei last week, Taiwan is again embroiled in a debate on the death penalty. Proponents call for its swift use, sometimes blatantly advocating for the disregard of due process for the suspect by encouraging vigilante justice, whereas abolitionists have been relatively silent, knowing that anything they say would be used against them, including as justifications for death threats to them and their relatives. Many people, positioning themselves in the rational middle ground, urge dialogue and communication on issues such as the efficacy of the death penalty under different theories of punishment and addressing root causes of violent crimes such as mental illness or drugs, however misguided.

I have been unsystematically monitoring news sites and Facebook pages this past week to see the discussions generated by the killing. The most interesting comment I saw was one that blamed President Ma Ying-jeou for the supposed increase in violent crimes in Taiwan, as it was he who, in 2009, spearheaded the effort to pass legislation – Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (Implementation Act) – to incorporate the UN International Covenant on Civil and Political Rights (ICCPR) into domestic Taiwanese law. ICCPR Article 6(2) states:

‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.’

Presumably, the argument is that as the death penalty can now only be imposed on ‘the most serious crimes’, the law severely hampers judges’ ability to punish criminals. No longer can they make decisions independently or rely solely on domestic standards when deciding whether to deprive people of their lives. Instead, President Ma transplanted this foreign standard onto our society, one that has not yet met the conditions to abolish capital punishment. As potential killers know that the standard to impose the death penalty is now much higher, they are no longer deterred from killing. In short, this little girl died because of President Ma.

President Ma has been falsely accused. It is in fact he who ensured that the death penalty is still the law in Taiwan. He accomplished this in two ways. First, while President Ma advocated for the passage of the ICCPR (on a side note, President Chen Shui-bian wanted to do the same but the KMT-led Legislative Yuan blocked his efforts), he did not push for the inclusion of the Second Optional Protocol to the ICCPR, Article 1(1) of which states:

‘No one within the jurisdiction of a State Party to the present Protocol shall be executed.’

By specifically not including the Second Protocol in the domestic legislation of Taiwan, which he could have persuaded the Legislative Yuan to do given his popularity and party standing in 2009, President Ma preserved the ability of Taiwanese judges to impose the death penalty and the Ministry of Justice to sign off on execution warrants.

Second, President Ma also ensured that ‘the most serious crimes’ provision would not have much teeth and therefore would not impede judges from imposing the death penalty. The term is not defined in the ICCPR though it has been expanded on, albeit also quite vaguely. The Human Rights Committee stated that it ‘must be read restrictively to mean that penalty should be a quite exceptional measure’ while the UN Economic and Social Council asserted that it ‘should not go beyond intentional crimes with lethal or other extremely grave consequences.’ Though the second interpretation has persuasive value at most under Taiwan’s legal framework, the first is unquestionably domestic law per Article 3 of the Implementation Act:

‘Applications of the two Covenants should make reference to the legislative purposes and interpretations by the Human Rights Committee.’

The fact that the domestic legislation only incorporated the ICCPR verbatim and did not seek to explicitly define ‘the most serious crimes’ or ‘read restrictively’ provides judges much leeway in determining whether the death penalty can be imposed. This allowed President Ma to claim Taiwan has acceded to the ICCPR while still permitting executions, knowing that as the judiciary does not have a consensus on this term and is still full of judges who are strongly in favor of capital punishment, many would interpret the ICCPR flexibility to justify executions that may not meet international standards.

By not incorporating the Second Protocol and not defining the ‘most serious crimes’, President Ma safeguarded the practice of capital punishment in Taiwan. Regardless of whether this was by sinister design or a result of pushing through the law without due consideration, death penalty proponents should be thankful of President Ma for preserving the existence of capital punishment in Taiwan today. Ungrateful commenters who suggest President Ma has done anything to curb the use of the death penalty should be wary given his expertise in defamation law.

(Feature photo of Taoyuan International Airport warning sign, by Jiang, from Wikicommons)

 

Bob Kao

M. Bob Kao is a California lawyer and PhD Candidate at the Centre for Commercial Law Studies, Queen Mary University of London. He has degrees from Wesleyan University, University of California, Berkeley, and University College London. He blogs at Taiwan Law Blog.