The New Minister of Justice Should Tell Us Whether He Intends to Abolish the Death Penalty

The New Minister of Justice Should Tell Us Whether He Intends to Abolish the Death Penalty
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 16, 2010

Minister of Justice Wang Ching-feng has resigned in response to the controversies over the death penalty and the prison break at the Taipei Detention Center. What position will the next Minister of Justice adopt regarding prison policy? Here are some major issues her successor must consider.

First of all, will he or she adopt a different position regarding the abolition of the death penalty? Yesterday President Ma noted that abolishing the death penalty and carrying out executions are two entirely different issues. On the surface, Minister Wang erred because she refused to carry out the death penalty, even though the law has yet to be amended. At a deeper level however, people favor harsh penalties during troubled times. They like the idea of an eye for an eye, and a tooth for a tooth. They simply do not understand why the death penalty should be abolished. That is the real reason Wang Ching-feng was forced to resign.

Why do so many countries the world over hope to abolish the death penalty? Do they care only about the rights of bad people and not the good? The Republic of China has undergone two changes in ruling parties. Abolishing the death penalty would surely meet with international approval. But the public on Taiwan is convinced the death penalty helps keep their community safe. Will newly appointed ministers reverse the policy of abolishing the death penalty? Or will they explain why the government should abolish the death penalty, and communicate their reasoning to the public?

Will the new ministers immediately sign 44 execution orders? Will they carry out all the executions at one time? Will they carry them out in batches? Or will they exercise their discretionary powers in deciding how to act? President Ma says he intends to govern in accordance with the law. Minister of Justice Wang Ching-feng immediately stepped down. In fact however, she failed to make her position clear. She left people with the impression she was reluctant to govern in accordance with the law. Of course she should resign. As we all know, the law authorizes the minister to order executions. If something is a law, it must be carried out. If something is not a law, it must not be carried out. Only then is one governing in accordance with the rule of law. Carrying out something that is not a law, is not governing in accordance with the rule of law.

The Republic of China will incorporate two human rights conventions into its domestic legal system. The International Covenant on Civil and Political Rights states that those sentenced to death have the right to request commutation of their sentences. Death row inmaters hae already submitted applications. Carrying out the law at this moment would violate the protocol for the reduction of sentences. If the minister hastily orders these executions, does that still constitute governing in accordance with the rule of law? The Grand Justices have offered two constitutional interpretations of the death penalty. One of them was during the martial law era. The legal reasoning was so backward as to be shameful. In fact, one execution being ruled constitutional does not make all executions constitutional. The Republic of China has already incorporated human rights conventions into its domestic law. Death-row inmates have already petitioned for a constitutional review of the death penalty, in accordance with the Republic of China Constitution in the 21st Century. According to existing regulations, inmates awaiting retrial or who have filed appeals may not be executed. If the minister fails to wait for the constitutional interpretation before carrying out executions, then he has failed to "govern in accordance with the rule of law." How can a minister committed to the abolition of capital punishment, hastily impose the death penalty?

Minister Wang's resignation shows that the Ministry of Justice failed to communicate with the public. It failed to convince the public that the abolition of the death penalty has nothing to do with the preservation of law and order. It also failed to care for and protect crime victims. When the government brings a criminal to justice, that is a form of condemnation. But mere condemnation is not enough. It must also help victims to escape victimhood and get on with their lives. No one has the right to demand that victims forgive their victimizers. But the government can help victims forsake the notion of revenge. This is one way to help victims of crime. Has the Ministry of Justice done enough in this respect?

Some say that if criminals commit crimes, why must the government rehabilitate them? Actually this is open to debate. The government need not compensate the victim on behalf of the victimizer. But it can help the victims to obtain restitution from victimizers. We are not advocating debt collection by means of physical coercion. But prosecuting criminals is a far cry from helping crime victims receive restitution. This should be considered a form of protection for crime victims. Government assistance to victims no longer able to support themselves as a result of crime, must not be considered restitution by those who committed the crime. That would mean valuing money more than the crime victim's distress. The government should also provide psychological counseling to help crime victims survive their ordeal, to put their suffering behind them, and begin life anew. Only then can crime victims forsake the notion of revenge. Most worrisome of all are government officials who would rally support for the government's crime fighting efforts by encouraging victims to hate their victimizers. These officials refuse crime victims resources that would enable them to put their suffering behind them.

Resource allocation has much to do with the penal system as a whole. Yesterday's escapee was a convicted inmate. The person left in the Detention Center was merely a suspect who had yet to be tried. Why was a convict placed in the same facility as a suspect? Why was the detention center being used as a prison? Failing to distinguish between detention and imprisonment is also a violation of of the provisions of the Human Rights Convention. Inadequate resources is no excuse to violate the basic principles of prison administration. This is the harsh reality the new Minister of Justice must confront and address.

If the new Minister of Justice has the courage to face up to his policy problems, if he does what he should, and refrains from doing what he shouldn't, the price we paid as a result of Minister of Justice Wang's resignation may be worth it.

中時電子報 新聞
中國時報 　2010.03.16
社論－死刑廢不廢 新法務部長應先講清楚
本報訊

法務部部長王清峰因是否執行死刑風波閃電去職，台北看守所即發生人犯掉包脫逃事件。下一位法務部部長將會採取什麼樣的刑事政策呢？以下是繼任人選必須嚴肅思考的重大議題。

首先，廢除死刑的政策難道要改弦易轍嗎？馬總統昨天指出，廢除死刑與執行死刑是兩碼事。表面上看，王部長錯在尚未修法廢除死刑就拒絕執行死刑；骨子裡面，其實社會根深蒂固治亂世用重典，以命償命的應報刑思想，根本不知道為什麼要廢除死刑，才是王清峰去職的真正原因。

仔細想想，為什麼世界上那麼多國家都要廢除死刑？他們都只重壞人的人權不重好人的人權嗎？台灣兩次政黨輪替，確立廢死政策，其實在國際間備受讚譽，可是台灣的社會大眾卻仍然深信死刑可保社會平安。新的部長會開廢除死刑政策的倒車嗎？還是要認真說明政府為何要廢除死刑，徹底進行社會溝通呢？

其次，新的部長要立即簽署四十四張執行死刑令嗎？是一次執行全部，或分批執行？還是要依法行使裁量權決定如何行事？馬總統說要依法行政，王清峰部長隨即下台，其實話沒說清楚，給人一種不肯依法行政的印象，當然應該去職。殊不知，法律賦予部長簽署死刑執行命令之權，該執行的執行，不該執行的不執行，才是依法行政。不該執行的付諸執行，就不是依法行政。

台灣甫將兩部人權公約納入國內法律體系，其中公民與政治權利國際公約賦予受死刑宣告者請求減刑之權利；死刑犯都已提出申請，現行法令卻無斟酌減刑的程序，部長貿然執行死刑，算是依法行政嗎？大法官雖曾二次釋憲談論死刑，有的是在戒嚴時代，有的說理觀念落伍令人汗顏。其實，一項死刑曾被認定合憲不能使得所有死刑一概合憲；何況台灣已將人權公約納入國內法，死刑犯已經聲請大法官釋憲檢討死刑在廿一世紀台灣的憲法環境，依照現行規定，聲請釋憲或再審或非常上訴期間不能執行死刑，部長不待釋憲就貿然執行，也對不起「依法行政」口號。繼續推動廢除死刑政策的部長，任何執行死刑的決定，怎可操之過急？

王部長去職事件，顯示了法務部除了與社會溝通不足，不能讓社會安心瞭解死刑存廢與治安良窳無關之外，也忽略了犯罪被害人的照顧與保護。國家將罪犯繩之以法，是施以譴責，但只做到譴責並不足夠，還要幫助被害人走出受害的困境，離開受害的時點繼續邁向人生。無人有權利奢求被害人饒恕加害人，但國家可以幫助被害人放棄報復的念頭，這正是犯罪被害人保護該為之事。多年以來，法務部在這方面做的夠不夠呢？

有人會說，罪犯造孽，為何要國家善後？這其實有待商榷。國家不必代罪犯賠償受害人，但可以積極協助受害人向加害人求償。我們並不鼓勵以刑逼民的討債手法，但是真正的犯罪，在完成追訴之後，協助被害人從犯罪利得中受償的途徑很多，應該是犯罪被害人保護事務的範疇。另外，國家對於因犯罪受害而生活無依者施以生活救助，不能認為是代加害人賠償，否則就是將金錢的價值看得比被害人的窘迫還重要。國家也該提供真正的心理輔導協助被害人走出困境，這樣才能讓被害人遠離受害時的情境，真正面對新的人生；唯有如此，才能讓被害人放棄報復。最令人擔心的，則是主政者寧讓受害人心懷恨意支持國家打擊犯罪，也不肯提供資源照顧受害人讓他們脫離受害當時的情境。

其實，說到資源配置，還與整體獄政有關。昨日掉包脫逃的是已定讞的受刑人，留在看守所中的則是未定罪的被告。受刑人與受押被告怎會同舍？看守所怎可當做監獄使用？看守所與監獄不分，其實也是違反人權公約規定的安排，資源配置不足並不能成為違反基本獄政原則的理由，卻正是台灣現在面對的現實，新的法務部長有責任改善這種惡劣的現實環境。

新的法務部長若能勇敢面對政策環境，有所為也有所不為，王部長去職而付出代價，就算值得了！