From seventy-eight to zero
| Author | Fort Fu-Te Liao |
| Date | 01 April 2008 |
| DOI | 10.1177/1462474507087197 |
| Published date | 01 April 2008 |
| Subject Matter | Articles |
From seventy-eight
to zero
Why executions declined aft er
Taiwan’s democratization
FORT FU-TE LIAO
Academia Sinica, Tawain
Abstract
This article examines, from a legal perspective, why executions in Taiwan declined from
78 in 1990 to zero in 2006. The inquiry focuses on three considerations: the number
of laws that authorized employment of the death penalty; the code of criminal
procedure; and the manner in which executions were carried out, including the manner
in which amnesty was granted. The article argues that the ratification of international
covenants and constitutional interpretations did not play a significant role in the decline,
and that several factors that did play a role included the annulment or amendment of
laws, changes in criminal procedure, establishment of and further amendments to guide-
lines for execution and two laws for reducing sentences. This article maintains that the
absence of executions in 2006 is a unique situation that will not last because some
inmates remain on death row, meaning that executions in Taiwan will continue unless
the death penalty is abolished. However, the article concludes that the guarantee of the
utmost human right, the right to life, can be sustained in Taiwan through the demands
of democratic majority rule.
Key Words
amnesty • criminal procedure • death penalty • execution • human rights policy •
Taiwan
INTRODUCTION
The Republic of China (ROC) attained administrative power over Taiwan in 1945. In
December 1946, the ROC adopted its Constitution, of which Chapter 2, Articles 7 to
24, enshrined the people’s rights and obligations. However, many thousands were killed
soon after this in the ‘228 Massacre’1of February 1947. In May 1948, the ‘Temporary
Provisions Effective during the Period of National Mobilization for Suppression of the
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1462-4745; Vol 10(2): 153–170
DOI: 10.1177/1462474507087197
Communist Rebellion’ (Temporary Provisions) was adopted. Martial Law was instituted
in May 1949, and during the ‘White Terror Period’ that followed, both the Temporary
Provisions and the Martial Law rigorously circumscribed most of the rights guaranteed
by the Constitution (Liao, 2001: 91). Because of the state of emergency and Martial
Law, many special criminal laws were adopted which subjected numerous crimes to the
death penalty, some mandatorily.
Following a prolonged period of rule under the Temporary Provisions and Martial
Law, Taiwan’s democratic processes commenced in 1986. The first real opposition
party, the Democratic Progressive Party (DPP), announced its formation in 1986, and
then-President Chiang Ching-kuo decided not to repress it. Martial Law was lifted in
July 1987. Chiang died in January 1988, and then-Vice President Lee Teng-hui was
sworn in as president. The Temporary Provisions were abolished in May 1991, and
fresh elections for all seats of the Legislative Yuan (LY, Congress) were held in 1992.
The first direct presidential election was held in 1996, and the incumbent president
and Kuomintang (KMT) candidate Lee Teng-hui was elected. In May 2000, when
DPP candidate Chen Shui-bian was elected President, the KMT’s 55-year rule over
Taiwan ended. This series of events gradually turned Taiwan into a real democratic
state and brought the values of human rights into Taiwan society and politics.
As some scholars have argued, the more authoritarian a country is, the more likely
it is to employ the death penalty (Boulanger and Sarat, 2005: 5). Although democra-
tization in Taiwan did not go so far as to render it an abolitionist state, the number of
executions per annum declined in the first 20 years after democratization. Interestingly,
the decline was not immediate; the number first increased and then decreased in several
stages. First, from 1987 to 1990, the number of executions per year2went from 6 to
22, 69 and 78 respectively3(Ministry of Justice (MOJ), 1991: 159, 170). The 78
executions in 1990 marked the peak of the 20-year period. The numbers then declined
starting in 1995, when 16 persons were executed (MOJ, 1998: 146); 35, 18 and 17
persons were executed in 1992, 1993 and 1994, respectively (MOJ, 1994: 146, 1995:
143). The numbers rose again to 22 in 1996 (MOJ, 1998: 147) and to 38 in 1999
(MOJ, 2000: 156), before they finally declined to 3 in 2005 (MOJ, 2004a: 167, 2005:
172) and 0 in 2006.
This article examines, through the lens of several legal considerations, why the
number of executions in Taiwan dropped from 78 to zero during this period. In my
view, three factors are particularly relevant: first, the number of laws prescribing the
death penalty for various crimes; second, the manner in which criminal procedure is
applied to determine whether a person receives the death sentence; third, the manner
in which the executions are carried out, and the availability of ways to reduce sentences
or even to grant amnesty.
As to the first factor, the second part of this article (‘Unsuccessful incorporation’)
explains why Taiwan has not incorporated international human rights standards so as
to abolish the death penalty or at least limit its ambit. In the third part (‘Unpromised
constitutional context’), I review constitutional law to demonstrate that constitutional
provisions and interoperations in Taiwan did not guarantee the right to life but rather
endorsed the mandatory death penalty. Thus, attempts to abolish the death penalty
failed, leaving the ambit of the death penalty to be regulated by the laws. Finally, the
fourth section (‘Narrowing the ambit of death penalty laws’) reviews laws annulled or
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