Taipei, April 23, 2024 — In a pivotal session today, the Constitutional Court held oral arguments concerning the constitutionality of the death penalty. The National Human Rights Commission (NHRC), represented by Commissioner Kao Yung-cheng, served as an expert agency, presenting its comprehensive analysis based on international human rights treaties. The Commission’s stance was supported by investigation reports from the Control Yuan, input from the UK-based Death Penalty Project, and contributions from international experts, including Professor Carolyn Hoyle of Oxford Law, Professor Jeffrey Fagan of Columbia Law, and Dr. Dainius Žalimas, the former President of the Constitutional Court of Lithuania.
The Commission stressed that the right to life is the cornerstone of all human rights and is deemed inalienable by numerous international treaties. Taiwan has progressively incorporated the 9 core international human rights instruments into its domestic legislation, and judiciary decisions have often reflected these standards. Based on concluding observations and recommendations from the 2013, 2017, and 2022 treaty reviews, the NHRC urged the government to abolish the death penalty in compliance with international covenants and implement appropriate measures to mitigate the harm and damage resulting from crimes and protect the right to life.
Commissioner Kao emphasized that human rights violations—including torture and unfair trials—were frequently observed in death penalty cases, from the investigation phase through to execution. He cited numerous investigation reports from the Control Yuan to support these observations. Commissioner Kao also referenced the case of Wang Xin-fu, where key evidence was found to be insufficient, to draw attention to the irreversible and unacceptable risks associated with the death penalty.
In their contribution to the discourse, the Death Penalty Project (DPP) clarified in a specially commissioned report that legal restrictions on rights should not lead to the destruction of fundamental rights. This expert opinion points out that the death penalty exceeds the specified "restriction" on the right to life as permitted under Article 23 of Taiwan’s Constitution, thereby violating the principle of proportionality. Professor Carolyn Hoyle's analysis of Taiwanese judicial decisions reveals the arbitrariness of the death penalty, as exemplified by wrongful convictions such as the 1997 case of Chiang Kuo-ching, which exposed systemic flaws in the criminal justice system. Additionally, Professor Jeffrey Fagan's research which examines data from various countries, shows that death sentences or executions are not associated with increases in the homicide, murder or robbery rates in Taiwan or elsewhere. Their research conclusively undermines the argument that the death penalty acts as a deterrent, as it is not supported by empirical evidence.
Globally, the experience of most countries has shown that while the death penalty may appear to deliver a sense of divine justice for victims’ families, it fails to uncover the truth of the crime, achieve true justice, or fulfill compensatory needs. Furthermore, it is ineffective in preventing similar tragedies from occurring again. Dr. Dainius Žalimas, the former President of the Constitutional Court of Lithuania, stressed in his presentation to the NHRC that the constitution should be viewed as a “living Constitution” that evolves alongside societal progress. He emphasized that a constitution should uphold the right to life and human dignity as its core principles, which should not be compromised by the death penalty.
In response to the petitioner's attorney's questions about the deterrent effect of the death penalty and the interpretation of Article 6 of the ICCPR, Commissioner Kao explained that the NHRC bases its operations on international human rights treaties and collaborates with international bodies. The Commission, supported by research from global scholars, finds no empirical evidence supporting the death penalty’s deterrent effect. Kao noted that without credible evidence of deterrence, the death penalty’s constitutionality remains unjustifiable. He further clarified that Article 6 of the ICCPR demands a comprehensive interpretation: While its second clause does not outright ban the death penalty, any application must undergo rigorous scrutiny to ensure it does not arbitrarily deprive someone of their right to life, as stated in the first clause. Additionally, the sixth clause of the article prohibits its use to delay or halt the abolition of the death penalty.
In response to Justice Jan Sheng-lin's inquiries about the Ministry of Justice's claim that no international review has explicitly stated that the death penalty violates international human rights treaties, and concerning the protection of victims' rights, Commissioner Kao pointed out that international review committees have consistently recommended that Taiwan should abolish the death penalty. Particularly in 2022, they issued a seven-point opinion emphatically stating that the death penalty constitutes a cruel, inhumane, and degrading form of punishment, and strongly recommended that the Executive Yuan immediately announce a moratorium on executions. They also noted that the existence of the death penalty impedes Taiwan's goal of becoming the benchmark of human rights in Asia. Commissioner Kao clarified that safeguarding the rights of the accused and protecting victims' rights are not contradictory but are intertwined within the scope of the right to life as stipulated in Article 6, Clause 1 of the ICCPR. Commissioner Kao emphasized that protecting the interests of both parties is crucial; he noted that should the Constitutional Court ever declare the death penalty unconstitutional, he believes that the NHRC’s focus on the protection of the victims' rights will be ever more strengthened.
The NHRC points out that the movement to abolish the death penalty has become a dominant trend in human rights advocacy, backed by international law. With three-quarters of the nations around the globe having already done away with the death penalty, the Commission calls on the nation to champion the right to life and human dignity, heal the scars left behind by violent crimes, and protect the families of victims who seek justice. The NHRC ardently hopes that by upholding everyone's rights and dignity, Taiwan will emerge as a foremost champion of human rights in Asia and significantly contribute to humanity’s advancement.