Death Penalty Trends in Asia Have Possible Implications for China. (2011/04/13, DUI HUA HUMAN RIGHTS JOURNAL)


Death Penalty Trends in Asia Have Possible Implications for China

In Asia, the latest controversy over the use of the death penalty erupted not in mainland China but across the strait in Taiwan. In January, the defense ministry there was forced to issue a public apology for a wrongful execution in 1997, followed in early March by the execution of five prisoners without notifying their families.

Advocacy groups decried the executions, the European Union expressed its revulsion, and protests broke out. Taiwan's leadership has responded defiantly. In late March, President Ma Ying-jeou announced that Taiwan would keep carrying out executions of death row inmates as its laws mandate but that the government, which has reduced the use of the death penalty, maintains a policy to phase it out through existing laws and regulations-as in the recent replacement of mandated death sentences with discretionary sentencing.
An informal four-year moratorium on executions in Taiwan-no one had been put to death since 2005-came to a swift but somewhat anticipated end last year. In April 2010, Taiwan executed five inmates just days after swearing in new Minister of Justice Tseng Yung-fu, a former prosecutor whose strong support for capital punishment stood in sharp contrast to his pro-abolitionist predecessor, Wang Ching-feng, a former human rights lawyer who had been forced to resign when conservatives from ruling Kuomintang objected to her refusal to consent to executions. 

While executions in Taiwan have sharply decreased since the early 1990s, the handling of capital crimes there has not always met basic standards of human rights and criminal justice. For one, Taiwan does not routinely inform family members of the condemned in advance of an execution. Taiwan also lacks procedures for those under sentence of death to seek a pardon or commutation-a right recognized under the International Covenant on Civil and Political Rights, which Taiwan has legally agreed to implement. 

Death Penalty Politics, Opinions & Laws

The global trend against capital punishment appears to be having limited impact in Taiwan, Japan, and South Korea-the three industrialized Asian democracies with death penalty laws-where the issue has generally been left to the discretion of a few officials.

Polls show that the public in all three places overwhelmingly wants to retain the death penalty. Polling in Taiwan and South Korea has revealed over 70 percent support for capital punishment, and results of a 2010 survey show more than 85 percent of respondents in Japan favor keeping it. In contrast, only small minorities support full abolition. Although Korea has a state-issued moratorium and has had no executions since 1997, a 2009 poll showed less than 20 percent in favor of abolition. And the numbers are positively miniscule in Taiwan, where only about 2 percent in a 2010 poll supported abolition.

Though considered "abolitionist in practice," Korea still has a staggering 110 crimes subject to the death penalty, or twice the number as in China. In early 2010, Korea's Constitutional Court deliberated over capital punishment for the second time, ruling by a narrow 5-4 majority that the death penalty is constitutional. The previous ruling, in 1996, upheld the legality by a wider margin of 7 to 2, so last year's decision may signify that Korea is moving closer toward abolition.

There's substantial political will in all three places to find a middle ground that would effectively ban the death penalty without legally abolishing it. Korea's Ministry of Justice is thinking to replace the death sentence with life without parole, and in late 2010, a justice ministry task force in Taiwan made the samesuggestion. Called a "special life sentence" in Taiwan, it is as popular with the public there as retaining the capital option. This past January, Japan's new justice minister, a long-time opponent of capital punishment, ordered his staff to consider getting rid of the death penalty. 

Some Common Ground with China

The death penalty, like any punishment, is subject to errors that undermine its legitimacy. In Taiwan and Japan, prisoners on death row have been exonerated and freed. Torture has been used to extract confessions from innocent people who have later been executed, as seen with the presidential apology in Taiwan. In such instances, it's possible to draw parallels between China and its neighbors. China has also set death row prisoners free, admitted that innocent people have been executed, and reassessed its death penalty practices; China has made much of its increasingly "careful" use of capital punishment, and the Supreme People's Court's more stringent final review of death sentences has been credited in helping to reduce executions. (Read more about wrongful convictions and executions in the US and China in Dialogue Issue 42.)

Even lawmakers in China and Korea-two countries at opposite extremes of the spectrum of death penalty use-share a common problem: how to decrease the huge number of crimes eligible for the death penalty. Even if its efforts are more symbolic than substantive, China is actually ahead of Korea in this regard. In February, China's National People's Congress Standing Committee approved changes to the Criminal Law that removed 13 crimes (among a total of 68) from death penalty eligibility. Meanwhile, cutting down on capital offenses in Korea is only at a discussion stage. Of the 110 crimes punishable by death, only 12 are serious violent offenses. Many of the rest are political, economic, ideological, and administrative crimes, and their status as offenses punishable by death stands as a relic of Korea's authoritarian past.

Besides some widely criticized executions in China, none in recent times in that part of the world have been condemned as much as those in Taiwan, where the current political environment holds little promise for the 40 prisoners who remain on its death row. At least the contested political process in Taiwan is likely to ensure that a healthy public debate continues, a debate that will influence the fate of capital punishment there and in Asia more broadly.