—Ming-Sung Kuo, Reader in Law, University of Warwick (UK), and Hui-Wen Chen, Research Assistant, University of Warwick (UK)
Introduction: The Reform Jurisprudence Comes Full Circle?
Before the current Taiwan Constitutional Court (TCC) under the leadership of Chief Justice Tzong-Li HSU – call it Hsu’s Court – hit its halfway milestone, we argued in this space that the TCC aligned itself with a progressive agenda through its reform jurisprudence starting with the historic Same-Sex Marriage Case of 2017. As Hsu’s Court is winding down – with 7 (including Chief Justice Hsu) out of the 15 sitting Justices due to bow out at the end of October 2024 – the TCC delivered another landmark decision the Death Penalty Case on 20 September, upholding the constitutionality of some statutory provisions for death penalty (see here for an official English brief).
In its latest landmark, the TCC – with three justices recused – stands with the overwhelming public opinion in upholding the constitutionality of death penalty for some ‘most serious crimes’ involving premeditated murder, with a lone dissenter that categorically condemns the death penalty on constitutional grounds. Yet, through a convoluted judgment – comprising 17 holdings – the TCC has effectively hollowed out the statutory provisions for death penalty by imposing strict procedural requirements for the prospective imposition of death penalty on individual cases in the name of the ‘strictest requirement of due process’ (the second half of Holding No 1), only to see this pivotal holding adopted with a bare majority of 7 out of the 12 Justices hearing the case. Moreover, by laying down detailed remedial measures, the TCC allowed all the 37 individual petitioners for this constitutional interpretation to have their death sentences commuted or simply removed through the procurator-general-steered process of extraordinary appeal. Is the TCC’s Death Penalty Case the judicial culmination of a reform agenda in Taiwan or a Solomonic judgment aimed at accommodating both the majoritarian emotional needs for death penalty and the abolitionist progressive cause?
To answer the above question and shed light on the TCC’s ambivalence about the role it is expected to play in democratic Taiwan, we focus on the multiple crossroads at which the TCC finds itself in the Death Penalty Case. We argue that the TCC’s reform jurisprudence has rested on its role as the people’s court by answering the popular calls for reform; yet, as manifested in the Death Penalty Case, the TCC is struggling to align its reform jurisprudence with societal support, revealing the limits of its reform jurisprudence and the populist trait of the TCC as a people’s court. We start where the endgame of Hsu’s Court as a people’s court begins: the emergence of the abolition of death penalty as a non-majoritarian reformist cause in Taiwan.
Abolition of Death Penalty as a Non-Majoritarian Reformist Cause
Before the Death Penalty Case, the TCC had upheld the constitutionality of death penalty in 1985, 1990, and 1999. In the generation-long interval between the TCC’s last intervention and the Death Penalty Case, an abolitionist movement emerged. In the meantime, by ruling such petitions inadmissible, the TCC seemed to show no interest in taking up the matter again until the inauguration of Hsu’s Court in November 2016 following the landslide electoral victories of the reformist President Ing-Wen TSAI and her Democratic Progressive Party (DPP) early in the year.
Notably, some of the 34 petitions – comprising 37 petitioners – that led to the Death Penalty Case had come before the TCC even before Chief Justice Hsu held court. By putting these petitions on the back burner, the TCC simply lurked in the background of the noisy public debate prompted by the abolitionist movement. Without knowing whether the TCC would take up their cases, the petitioners languished on the death row for years, if not decades.
The TCC finally ruled these petitions admissible in January 2024 under the new Constitutional Court Procedure Act (CCPA), which came into effect on 4 January 2022. With the lower voting threshold for rulings on the constitutionality of statutes under the new CCPA, the TCC would be able to strike down a statute with a simple majority of sitting Justices instead of a two-thirds majority under the old statutory framework. Yet it took the TCC three months to hear the petitions after it decided to seize jurisdiction over the constitutionality of death penalty and another five months to deliver the Death Penalty Case.
Both the TCC’s long silence on the public debate stirred by the abolitionist movement and the late engagement of Hsu’s Court with death penalty speak volumes about the choppy political waters the TCC must navigate. Consecutive opinion polls indicate that over 80% of the population in Taiwan supports death penalty. Even the progressive DPP, which had once alluded to phasing out death penalty, distanced itself from the abolitionist movement. Under such circumstances, to side with the abolitionist cause, the TCC would present itself as a sheer counter-majoritarian institution – not only to the political branch but also to the people. To not betray its reform jurisprudence without defying the judgment of public opinion, Hsu’s Court could only buy itself time, treading gingerly on the constitutionality of death penalty.
In essence, the TCC cannot afford not to respond to the ‘legal emotions of the majority population (我國多數人民之法感情)’ (para 68). The TCC lays down the principle of non-absolute protection of the right to life as the normative and doctrinal hypothesis of its judgment through a twofold conflation. First, the right to life and the biological fact of life are conflated. Second, the State’s failure to secure the latter given the limits on its intervention and the State’s active restriction on the former are equalized. Instances of biological life giving way to otherwise unlawful acts under the State’s watch are therefore turned into constitutional recognition of the right to life being subject to balancing under the State law (paras 61-62). If Hsu’s Court simply stopped there, it would be a total self-betrayal. To keep the progressive flame of its reform jurisprudence alive, Hsu’s Court does not stop at upholding the constitutionality of death penalty – only to see itself standing at multiple crossroads and divided. To appreciate the convoluted reasoning in the Death Penalty Case, we must ask one crucial question: what would be the consequences of the TCC upholding the constitutionality of death penalty?
Principled Interpretation or Convenient Solution?
Despite the overwhelming social support for death penalty in Taiwan and public defiance in the face of international calls for abolition, the Taiwanese people and the government are also concerned about their reputation in the world and international reaction to a sudden mass execution. Yet the latter would be exactly the consequence of the TCC upholding the constitutionality of death penalty – if the TCC simply stopped at that key point. With the reputation of Taiwan and the TCC in the world at stake, Hsu’s Court must first find a way to restrict the imposition of death sentence on individual cases and then manage to extend such restrictions to the 37 petitioners. Here the TCC finds its institutional role at the crossroads of constitutional interpretation and convenient solution.
As noted above, the TCC’s normative and doctrinal hypothesis that the right to life is not absolute rests on a twisted conflation of life as right and life as biological fact. Starting from this normative position, the TCC simply leaves its own jurisprudence unaddressed as it used to when it was at a Zeitenwende in case law. Not only does it disengage itself from the past three judgments upholding the constitutionality of death penalty (para 149) but it neuters its case law enshrining the principle of human dignity (eg, here, here, and here). In the Death Penalty Case, human dignity itself becomes relative, too, as it is not what underlies all human rights but is rather something dependent on the biological fact of life – or rather ‘bare life’ – which is liable to deprivation under the guidance of, inter alia, the principle of proportionality (paras 63-65).
The TCC’s foregoing reasoning may be baffling in terms of constitutional interpretation but it soon makes sense when read against the general political atmosphere: the TCC has saved both the reform-leaning DPP government and itself from angry public reaction in justifying death sentence in general. The Death Penalty Case thus comes close to being a convenient institutional solution to a political quagmire. This point is made even more evident by the TCC mandating procedural requirements for the prospective imposition of death penalty on individual cases. Divided on the ‘strictest requirements of due process’ (the second half of Holding No 1), the TCC puts forward a miscellaneous list of conditions on imposing death penalty on individual cases. Apart from requirements for mandatory counsel throughout the whole legal process (Holdings 3-4) and oral hearing in the final appeal proceeding (Holding 5) and prohibition of applying or executing death sentence where those being tried for or having received death penalty are suffering from mental disorders or deficiencies (Holdings 7-9), it requires unanimity among professional judges in the multimember sentencing court through all instances of judicial proceeding (Holding No 6). The last one speaks to the TCC’s baffling judgement: it is hard to understand why the unanimity of lay judges sitting in the sentencing court is not required if the strictest requirements of due process are the bottom line for a lawful death sentence (see paras 111-112). Moreover, the TCC retroactively applies such procedural safeguards to the 37 petitioners (Holding Nos 11-14), while leaving intact all completed judicial proceedings that failed these standards in death sentences still on appeal (Holding Nos 3 and 6). At the crossroads of constitutional interpretation and convenient solution, the TCC suffers from inconsistency as manifested in the tangled reasoning and hodgepodge procedural requirements.
Between Equitable Remedies and Judicial Legislation
As noted above, to avoid the possible mass execution as a result of upholding the constitutionality of death penalty, the TCC must also apply the miscellaneous procedural requirements to the 37 petitioners. Such applications are expected to result in the death sentences imposed on these petitioners being commuted or simply removed rather than confirmed. Yet, to achieve this goal, the TCC finds itself at the crossroads of equitable remedies and judicial legislation.
Innovative remedies are not rare in the TCC jurisprudence. What is distinctive of the remedies in this case is that they are inferred from the principle of due process only in light of the varying conditions and judicial proceedings that led to the imposition of death sentences on the 37 petitioners. Hence all the 37 petitioners will be able to seek to have their death sentences removed through extraordinary appeals. The remedies in the Death Penalty Case are also distinctive as they are crafted in a way not to unsettle completed judicial proceedings, resulting in inconsistency in the prospective application of the miscellaneous procedural requirements (see Holding Nos 3-9).
The question is: with such detailed requirements, does the TCC leave any further space for the legislature in fleshing out the ‘strictest requirements of due process’? To reframe the question, is the TCC’s list of procedural safeguards a floor or a ceiling of such strictest requirements? If it is the ceiling, it would mean that any additional procedural requirement from the legislature in the future has nothing to do with due process as the TCC itself has already spelled out the highest demands of due process; if it is the floor or something short of the ceiling, the TCC effectively contradicts itself because the list of procedural requirements it mandates still falls short of the highest standard of due process. By going beyond the principle of the ‘strictest requirements of due process’ and crafting specific procedural safeguards in light of the 37 petitioners and existing court practices, the TCC is no longer just a provider of equitable remedies but functions as a judicial agent of legislation. Pre-empted by such detailed requirements, the legislature will have little incentive to respond proactively when its discretion is shrunk close to zero.
From the People’s Court to a Populist Court? The Limits of the TCC’s Reform Jurisprudence Revealed
In the lead-up to the CCPA’s enactment, we suggested that the TCC was indeed envisaged as a people’s court under the new procedural framework. Anticipating the CCPA, Hsu’s Court had prepared itself for the judicialization of the TCC proceedings. Under Chief Justice Hsu’s leadership, the TCC had reoriented itself away from abstract control of norms towards individual constitutional petitions even before the CCPA came into effect in 2022. Emerging from the TCC’s institutional reorientation is a people’s court, not a convenient problem-solving mechanism for the political branch that it was. Yet the Death Penalty Case has virtually dashed the foregoing self-image of Hsu’s Court.
As noted above, Hsu’s Court had not shied away from intervening in contentious social issues such as same-sex marriage and pension reform. Contentious as such issues might be, there was a clear social foundation and substantial political support for these reform items that had sat on the top of the DPP’s 2016 campaign platform. Even though not all the items on the victorious DPP’s reform agenda commanded a consensus or an evident majority support, a substantial portion of social forces was identified with the reform movement. Consider same-sex marriage. It divided public opinion indeed, but the DPP could rely on substantial social support to push through its reform agenda on marriage equality. Against this backdrop, the TCC had delivered its reform jurisprudence without inviting much political backlash.
In contrast, the reform-leaning DPP remained short of committing itself to the abolitionist cause given the public’s contrary attitude. Speaking to the ‘legal emotions of the majority population’ in justifying death penalty, the TCC has effectively subjected itself to a populist cause. Both the conflation of constitutional interpretation and convenient institutional solution for political intractable issues, and the blurring of equitable remedies and judicial legislation in the Death Penalty Case reveal the limits of a people’s court. Read alongside the reform jurisprudence, the Death Penalty Case shows that the TCC as a force for reform sees its limits when such reforms do not have sufficient social and political support.
To conclude, the TCC’s reform jurisprudence rests on its role as the people’s court by answering popular calls for reform. In upholding the constitutionality of death penalty in principle while rendering it virtually inoperable in individual cases, the Death Penalty Case is evidence that the TCC is struggling to align its reform jurisprudence with social support. The last movement of the TCC’s reform march tells the limits of its progressive agenda and the populist trait of the TCC’s self-image as the people’s court. For a non-Herculean court, a Solomonic judgment is just a big ask.
Suggested Citation: Ming-Sung Kuo & Hui-Wen Chen, Taiwan Constitutional Court’s Solomonic Judgment: Upholding the Constitutionality of Death Penalty at the Limits of Reform, Int’l J. Const. L. Blog, Oct. 10, 2024, at: https://www.iconnectblog.com/taiwan-constitutional-courts-solomonic-judgment-upholding-the-constitutionality-of-death-penalty-at-the-limits-of-reform
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