The Death Penalty: Other Considerations

The Death Penalty: Other Considerations
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 11, 2010

Minister of Justice Wang Ching-feng invoked the concept of "reason and tolerance" while publicly calling for a moratorium on executions. Minister Wang has long advocated abolishing the death penalty. Following her appointment, the Ministry of Justice has continued to push for the gradual abolition of the death penalty. Current Vice Minister of Justice Huang Shi-ming was recently nominated for the position of Prosecutor General. When questioned by the Legislative Yuan, he said he advocates the abolition of the death penalty, but feels that until the death penalty is abolished, those already sentenced should be executed. This is why Wang Ching-feng felt compelled to express her solemn opinion on the matter.

The gradual abolition of the death penalty has been going on for the past decade. The policy has not been any easier to implement merely because any particular political party was in office. The legal code still includes the death penalty. Over the past several years the courts have sentenced over 40 persons to death. Whether the Minister of Justice should sign death penalty orders has become a issue. Huang Shi-ming, in his capacity as Vice Minister of Justice, has openly expressed views at odds with the Minister's. That is not not unusual. Minister Wang Ching-feng says she understands the Vice Minister's position, and that his views do not diminish her respect for him. Hers was a concrete expression of reason and tolerance. The Minister of Justice is boldly making policy trade-offs. As a result, the death penalty issue has once again come to the fore.

The death penalty raises issues pertaining to democracy and the rule of law. Those who favor the death penalty believe that the public demands it. Those who advocate the abolition of the death penalty and a moratorium on executions, believe the public opposes it. Opponents of the death penalty believe that once the death penalty has been abolished, alternatives will be found. Opinion polls that resort to simplistic dichotomies are unreliable. The death penalty is too final. The risk of mistakes is too high. This is not an issue that the public can decide. Controversy over the death penalty is hardly confined to the Republic of China. Such debates have been going on throughout the world for some time. They continue to buzz around one's ear. During the 21st century however, calls for the abolition of the death penalty have become the global norm. Last year the Republic of China Legislative Yuan passed two human rights bills. Two provisions of the Charter of Universal Human Rights will be incorporated into our legal system. Existing laws and regulations must be amended and fully implemented before December 10, 2011. The abolition of the death penalty has become the Republic of China's urgent homework assignment.

Advocates of the death penalty say the court has ruled that the Ministry of Justice may not refuse to carry out executions. Those with reservations about the death penalty say the authority to carry out the death penalty belongs to the courts. When and how it is implemented should be considered discretionary, comparable to an executive power. The Convention on Human Rights includes two provisions on the death penalty. They make the carrying out of the death penalty on Taiwan seem hasty. One provision states that the condemned has the "right" to request commutation of his sentence. But the Republic of China still lacks a protocol for such cases. To carry out death sentences prior to the enactment of remedial legislation is a violation of the convention and the law. Another provision in the convention states that although the Convention on Human Rights has yet to explicitly repudiate the death penalty, national governments must not obstruct or delay efforts to abolish the death penalty. Although the convention has yet to explicitly repudiate the death penalty, the Ministry of Justice may not use this as an excuse to not grant a moratorium on executions. Minister Wang's legal reasoning may be subtle. But it has a solid legal foundation.

Minister Wang's article mentions the recent killing of a police officer. This case demonstrates the danger of the death penalty. Ten years ago, police officer Lin An-shun died during a gun battle with drug dealers. Two defendants were charged with homicide. One of the defendants was named Li. One of the officers on the scene failed to identify him as one of the shooters. As a result Li was found not guilty of homicide. He was sentenced to five years for illegal possession of firearms. Because the prosecutor failed to appeal, Li was released after serving out the full term of his sentence. The other defendant was named Chan. He was tried fived times. During his last two trials, the court discovered that the man who killed the policeman was not Chen, but Li. Chen was convicted of attempted murder for wounding another police officer, and sentenced to life imprisonment. Put simply, the High Court's rulings have been inconsistent. Lin An-shun died in the line of duty. But his murderer has escaped justice.

The case underscores a problem. The problem is not who should or should not have been sentenced to death. The problem is that during the administration of justice it is difficult to avoid mistakes in identifying those guilty of murder. The reason the suspect in the Lin murder case escaped justice, is that prosecutors and police lacked forensic evidence. They must reduce reliance on eyewitness testimony and even defendants' confessions. They must collect crime scene evidence, including abandoned guns, fingerprints, bullets extracted from the slain police officers, and obtain convictions by means of scientific evidence. Had this been done, this miscarriage of justice would never have happened. The prosecution chose not to appeal. The courts tried the case five times in ten years, on the basis of limited evidence. The result was this strange ruling.

Think about it. If evidence gathering is as sloppy as this when a police officer has been murdered, what can we expect in other homicide cases? The families of the deceased police officers have nowhere to turn to. From this we can see how poorly crime victims are protected. None of these are problems that can be solved by means of the death penalty. The legal system remains error prone. Under these circumstances, the risks the death penalty imposes exceed those permissible under the rule of law.

Minister Wang has the courage to call for an end the death penalty. Her responsible approach deserves affirmation. Prosecutors must improve their forensic evidence gathering techniques. Only then can they avoid weakening their criminal prosecution efforts. They must actively assist crime victims and their families. These are issues the Ministry of Justice must address as they deal with the death penalty. Only this can solve the problem, and eliminate the rationale for the death penalty.

爭辯廢除死刑之外該思考的課題
2010-03-11
中國時報

法務部長王清峰部長以〈理性與寬恕〉為題公開撰文呼籲暫停執行死刑。王部長一向主張廢除死刑，她上任之後，法務部也持續推動她上任之後即已確立「逐步廢除死刑」的政策。日前現任法務部政務次長黃世銘因被提名擔任檢察總長在立法院與立委對話，說到他贊成廢除死刑，但認為在死刑廢除前，已定讞者應予執行。王清峰鄭重撰文表達立場，緣由在此。

逐步廢除死刑，是近十年來，未因執政黨更易而由政府持續採取的政策。由於法典中仍有死刑存在，法院也於數年之間，累積判決了四十餘起死刑確定，法務部長應否簽署執行死刑命令，遂成一項議題。黃世銘身為次長，公開說出與部長理念並不一致的想法，並不尋常；王清峰部長則表示可以理解，不會稍減她對次長的尊重，這是具體展現理性與寬容；法務部長面對政策是非勇於取捨，於是又一次將台灣在死刑問題上何去何從的嚴肅考驗，端上檯面。

死刑，同時涉及了民主與法治的辯論。贊成死刑的人士經常以為死刑是民意的要求，主張廢除死刑與停止執行死刑違反民意。死刑的反對者，則傾向認為廢除死刑之後的替代途徑很多，簡單二分法的民意測驗並不可恃；而且死刑過於絕對，犯錯的危險又高，不是單純交由民意可以決定的問題。此類辯論，不但在台灣，而且在全世界長期進行，不絕於耳；然而進入廿一世紀之後，全面廢除死刑，似乎已是地球村裡的共同發展趨勢。在台灣去年由立法院制定兩項人格公約施行法，將被目為普世人權憲章之兩項人格公約引入我國法制，而且要求應於民國一百年十二月十日之前全面修改現行法令規章以求配合之後，死刑的執行，也已成台灣必須改弦易轍的功課。

主張執行死刑的論者以為法院判決確定，法務部沒有不執行的權力；採取保留態度的人則認為判處死刑是司法審判權，何時及如何慎重執行則為行政權的裁量。人權公約對於死刑的兩項規定，都已使得台灣當下執行死刑顯得操切。其中一項規定是賦予死刑犯請求減刑的「權利」，但台灣至今仍缺乏考量個案減刑的法律程序，在未立法彌補之前執行死刑，勢將違反公約及施行法的要求。公約的另一項規定，則不許國家主張人權公約並未明文否定死刑而阻止或延緩廢除死刑的努力，法務部也就不能以公約並未否定死刑為由而拒絕延緩死刑。王部長的文章，說理委婉，其實文章背後的法理基礎確有所本。

王部長的文章裡，談到最近定讞的殺警案，足可顯示死刑的危險性。十餘年前警察林安順在緝毒槍戰中殉職，被控殺警者為兩個被告之中的一人。其中李姓被告因為槍戰在場的刑警事後並未指認其開槍殺警，殺人部分無罪，只依非法持槍判刑五年，又因檢察官並未上訴，已經定讞而且服刑期滿出獄。另一位陳姓被告則於更審五次之後，日前經最後兩次更審法院認定殺警者為李姓被告而非陳姓被告，依殺人未遂（殺傷其他警察）而判處無期徒刑定讞。簡單地說，最高法院先後判決歧異，以致林安順殉職，兇手卻未得到應得的刑罰。

此案顯示的問題，其實不在誰該不判處死刑，而在於司法審判認定誰是殺人兇手的過程很難避免發生錯誤。林案凶嫌逍遙法外的真正原因，在於檢警的蒐證舉證不足，如能減少倚賴目擊證人甚或被告的口供，而是依照現場蒐集棄槍的指紋以及殉職警察身中的子彈做為定罪的科學證據，本案當不致發生檢方放棄上訴而法院歷經五次更審卻在有限的證據之間徘徊十餘年後做成歧異判決。

試想，連殺警案的警察蒐證工作尚且如此，一般的刑案調查證據水準，豈非可見一斑？本案中殉職警員家屬求助無門，尤可知犯罪被害人保護工作鬆散不足的程度。凡此，不但不是實施死刑可以解決的問題；更顯示了死刑免於錯誤的司法環境距離理想甚為遙遠時，動用死刑的風險就已超出法治國家可以容許的範圍。

王部長勇於呼籲停止執行死刑，為政策負責的態度值得肯定。然而檢方強化科學蒐證工作要求以免追訴犯罪不力，積極針對犯罪被害人及家屬施以援手慰助，都是法務部處理死刑問題應同時著力的重要環節。這也才能真正解決問題，去除培養死刑的溫床。