On 20 September 2024, the Taiwan Constitutional Court delivered its Judgment 113 Hsien-Pan-8 (English translation not currently available), upholding the death penalty, but with significant caveats. The case concerned 33 death row inmates’ challenge of legal procedures of their death sentencing and capital punishment’s constitutionality. In an order issued before the case’s oral argument, the Court outlined various legal issues to which the parties and expert witnesses were to respond. These included, for instance, ‘whether the death penalty, in addition to the right to life, is violative of other constitutional rights, e.g., the right to be free from torture and human dignity’. Procedurally, the Court also asked the conditions under which a death sentence could be imposed (defendants’ conditions, types of offences, etc.) ‘if assuming that capital punishment was constitutional’.

Somewhat curiously, in the judgment, the Court chose to evade analysing many of the questions that it raised in depth. On capital punishment’s alleged violation of the right to life, the Court perfunctorily noted that: ‘The protection of the right to life, despite being the most important constitutional right, is not absolute. Life is priceless and equal, and the prohibition against homicide has long been a traditional and widespread commandment in human societies. Thus, [t]he State may punish the offense of homicide to protect the lives of people for the purposes of just retribution and maintain social order, so long as the punishment conforms with the principle of culpability (nulla poena sine culpa) and the due process of law.’ [62-63; the underlined parts are quoted from the Court’s press release].

On this basis, the Court went on to do what has been criticised as ‘tinkering with the machinery of death’; that is, to tighten procedural constraints on capital sentencing and execution. For example, the Court devoted numerous paragraphs to introducing/ reaffirming legal safeguards by the UNHRC’s General Comment No. 36, thereby striking down several provisions in the Code of Criminal Procedure as unconstitutional (e.g. Articles 388 and 389 concerning the lack of mandatory legal aid and mandatory oral argument in death-penalty cases, respectively). Another curious point is that the Court Organization Act was also found unconstitutional because it lacked the requirement for unanimity in death sentencing. According to the Court, this was an important part of ‘the strictest due process requirements’ applicable in death penalty cases [111].

In truth, the Court found itself in a catch-22 situation. It attempted to show misgivings for capital punishment by strengthening procedural safeguards while not engaging in the heated debates over substantive issues. This ambivalence gives rise to the judgment’s idiosyncratic reasoning structure.

On the constitutionality of capital punishment per se, there was no sign of a sincere application of the Court’s well-established proportionality test. Despite claiming to have adopted its self-proclaimed ‘strict scrutiny test’, the Court failed to explain why, in weighing and balancing competing values, the ones underpinning capital punishment always prevailed.

On top of this, the Court made barely any reference to the rights to equality, human dignity and the prohibition against torture—issues around which much of the oral argument revolved. Inevitably, the majority’s disproportionate attention to procedural safeguards leaves an impression that it aimed at brushing aside substantive and  controversial issues as quickly as possible.

Regarding the due process requirements, similarly, an element of selectivity is readily observable. For instance, the Court omitted certain aspects of the aforementioned General Comment No. 36, such as the death row inmates’ right to ‘seek pardon or commutation of sentence’ (Art 6 ICCPR) and the procedural requirements attached. Moreover, the Court limited the unanimity-in-death-sentencing rule to professional judges only. The ‘citizen judges’—lay people often appointed to hear cases together with their professional counterparts—are not bound by the same requirement [111]. And once again, the Court offered no elaboration on why this must be so.

Indeed, this flawed judgment has created a major blow to the anti-death penalty movements in Taiwan. It remains sensible to expect, however, that the heightened procedural safeguards can bring Taiwan closer to the de facto abolition of capital punishment—time will tell.

*The titular quote comes from Callins v. Collins, 510 U.S. 1141 (1994) (Justice Blackmun, dissenting)