Prologue Journal

After Taiwan rules to uphold death penalty, the next battle abolitionists face is in the court of public opinion

• prologu5
• 10/06/202410/06/2024

Hong Kong Free Press

Hsieh Chih-Hung was just 20 years old when he was arrested for a crime he did not commit and sentenced to death.

Accused in June 2000 of killing an 18-year-old woman and a 68-year-old man in Taiwan, he soon found himself on the stand on double murder charges.

“My family, they tried everything they could for me, to tell the judge, to tell the court that I was innocent,” Hsieh told HKFP, speaking in Mandarin and Taiwanese through an interpreter.

“I believed that our judicial system worked,” he said. “But then we received the judgement.”

After a trial that relied on a confession which Hsieh alleges was extracted by torture, he was found guilty in October 2001 and given a death sentence.

“After that, I lost my trust in the system,” he recalled. “I felt desperate. I felt there was no space for me to exist in this world.”

Widely viewed as one of Asia’s most liberal democracies, the death penalty is still in force in Taiwan, with the most recent execution taking place in 2020.

In April, there was hope among opponents of capital punishment that this could change after 37 death row inmates launched a legal challenge against its use.

However, while the Constitutional Court on September 20 further restricted the death penalty to the most serious crimes, it ruled that capital punishment was in line with Taiwan’s constitution.

It represented a partial victory for death row inmates, who may now be granted appeals under the new judgement. But for many opponents of the death penalty the ruling was seen as a setback.

Wrongful execution

While Hsieh was eventually freed from death row in 2020, 19 years after he was wrongfully sentenced to death, others have not been so lucky.

The Taiwan Innocence Project (TIP), an NGO founded to exonerate wrongfully accused inmates, believe there have been multiple instances of individuals being executed for crimes they never committed.

“Mistakes will happen, and the death penalty cannot be undone, so we believe in abolishing it once and for all,” said TIP Deputy Director Ko Yun-Ching.

In 1996, Taiwanese Air Force Private Chiang Kuo-Ching was convicted of the rape and murder of a five-year-old girl. Although he was exonerated in 2011, the judgement came too late. Chiang had been executed 14 years earlier.

But posthumous exonerations of this sort are rare.

Speaking in the TIP office, the walls of which are stacked full of evidence, case files, and legal documents, Ko explained that once an inmate has been executed, lawyers lose one of their most important sources of evidence – the suspect.

Hsieh agreed. “Once you have lost, or murdered, one of the key witnesses in your case, then you have very limited evidence to find out what really happened,” he added.

A right to life

Opponents argue that even if individuals committed the crimes for which they were condemned, the state should not have the right to take their lives.

“We think the death penalty is a form of state violence,” said Wu Jiazhen, Deputy Director of the Taiwan Alliance to End the Death Penalty (TAEDP).

“It doesn’t mean we think what they did is okay,” Wu said. But “it is not okay for us to kill them. I think that’s the essence of human rights.”

In the 19 years Hsieh spent on death row, he interacted regularly with individuals who had committed heinous offences. This allowed him to better understand the human being behind the crime.

“When a [criminal] case becomes a case, the reason is not because the person is evil, but because he or she is a human,” he said. “We should get rid of all this prejudice and view them as a person.”

Although the Constitutional Court cited the death penalty’s deterrent effect for would-be perpetrators, opponents like Wu say it may undermine attempts to reduce crime by shifting the focus away from solving societal issues that contribute to people offending in the first place.

“Many social issues will be ignored because the government or the people think the death penalty is the resolution to these problems,” she said.

Court’s ruling ‘a huge setback’

For the 37 death row inmates who took their challenge to the Constitutional Court, the ruling may be seen as a small victory.

The decision to tighten the conditions under which the death penalty can be applied, for example by requiring unanimous judgements, means that many will now be able to appeal their sentences.

But for those who oppose capital punishment as a matter of principle, this ruling has been seen as a double-edged sword.

Cheng-Yi Huang, a research professor at Academia Sinica’s Institute of Jurisprudence, said the judgment may make the fight to abolish the death penalty through the courts even more difficult.

In order to mount a new challenge to the Constitutional Court on the issue, lawyers will have to wait for a case around which they can form a very strong argument.

But because the Constitutional Court has restricted the use of the death penalty, there are likely to be fewer such cases in the coming years.

“I think this is a huge setback,” Huang said. “In the next decade I don’t see there being any chance to challenge the death penalty.”

‘I still agree with the death penalty’

With the path through the courts more difficult, advocates may have to focus on abolishing the death penalty through legislation. But here they also face challenges, Taiwan’s population remains heavily in favour of capital punishment.

“I still agree with the death penalty,” said Chen, a Taiwan local interviewed in Taipei’s vibrant Ximen district. “Maybe my thinking is old school, but I think most people in Taiwan agree with me.”

A 2024 poll by the Taiwan Public Opinion Foundation suggested that almost 85 per cent of those aged over 20 support the death penalty.

Another conducted by the Foundation for the People in 2022 showed that over 88 per cent of respondents believe the death penalty helps prevent serious crime.

“Those who were hurt had the right to live,” said Chen, referring to people who had been murdered. “Because somebody took their life away, I think [offenders] should pay for that.”

With support for the death penalty high amongst voters from all major parties, opponents have struggled to make headway with politicians.

The Kuomintang, Taiwan’s main opposition party, has long been in favour of capital punishment and even protested the Constitutional Court’s recent ruling for going too far against its use.

The ruling Democratic Progressive Party, often viewed as more socially liberal, has meanwhile been criticised for being silent on the issue. “They think [being] anti-death penalty will cost them votes,” Wu said.

Despite the difficulties ahead, some advocacy and NGO groups remain hopeful. For Hsieh, one step forward would be for Taiwanese people to be more frequently confronted with conversations about capital punishment.

“I hope the death penalty can be more openly discussed,” he said.

And while the Constitutional Court’s ruling has once again thrust capital punishment back into the national debate, for him their judgment is bittersweet.

“I appreciate and fully respect the judgement,” he said. “I believe that this can be helpful for future cases. But it is still regrettable not to see the punishment cleared out of our judicial system.”

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