Continuing to Repair the Killing Machine: A Commentary on Taiwan’s Constitutional Court Judgment 113-Hsien-Pan-8 (2024)

Date of Publication:
5 December 2025

Lin Tzu-wei
Legal Director, Taiwan Alliance to End the Death Penalty (TAEDP); J.S.D., National Chengchi University

Suggested Citation
(APA) Lin, T. W. (2025). Continuing to Repair the Killing Machine: A Commentary on Taiwan’s Constitutional Court Judgment 113-Hsien-Pan-8. (2024) EAYSA Anchor (Perspectives). https://eaysa.org/continuing-to-repair-the-killing/
(MLA) Lin, Tzu-wei. “Continuing to Repair the Killing Machine: A Commentary on Taiwan’s Constitutional Court Judgment 113-Hsien-Pan-8 (2024).” EAYSA Anchor (Perspectives), 2025, https://eaysa.org/continuing-to-repair-the-killing/
(Harvard) Lin, T.-w., 2024. Continuing to Repair the Killing Machine: A Commentary on Taiwan’s Constitutional Court Judgment 113-Hsien-Pan-8 (2024). EAYSA Anchor (Perspectives). Available at: https://eaysa.org/continuing-to-repair-the-killing/

Abstract

Taiwan’s Constitutional Court heard oral arguments on the constitutionality of the death penalty in April. After five months of deliberation, on September 20, the Court pronounced the Judgment 113-Hsien-Pan-8 hereafter referred to as “Judgment No. 8”). Despite the issues raised during the hearing, the ruling refrained from deciding on the constitutionality of the death penalty as a legal penalty. The decision can only be described as a major disappointment—a big build-up but a weak payoff.

A Historic Opportunity Missed for Taiwan’s Constitutional Court

Had the Court declared the death penalty unconstitutional, it would have upheld the value of human rights and led Taiwan beyond the instinctive reactions of revenge and deterrence. Such a ruling would have broken the cycle of hatred and opened the possibility for societal healing. Instead, the Court compromised. While numerous countries have abolished the death penalty through judicial rulings, Taiwan’s Constitutional Court deviated from this path with Judgment No. 8, forgoing a chance to make a significant human rights statement.

A careful reading of Judgement No. 8 reveals numerous flaws, including significant gaps in constitutional arguments. The concurring and dissenting opinions written in support of the death penalty lack substantive legal or philosophical grounding. Moreover, Judgment No. 8 lacks consistency with the Court’s past rulings in that the decision only provided a narrow constitutional interpretation of the death penalty as prescribed for murder under criminal law. Whether this was a strategic move to avoid public backlash, a result of political pressure, or a genuine reflection of the justices’ beliefs is an issue worth further exploration. Some scholars have criticized that political considerations heavily influenced the Court’s ruling, undermining its constitutional role. Others went even further, arguing that Judgment No. 8 reinforced the Court’s role as a political tool rather than a guardian of the constitution.

While Judgment No. 8 did not directly address the constitutionality of the death penalty, the ruling indirectly revealed the system’s lack of procedural safeguards. Taiwanese legal scholars and civil rights organizations have long criticized the numerous deficiencies in the judicial process for death penalty cases, including the lack of mandatory legal assistance throughout the trial, the absence of oral argument proceedings before the Supreme Court until 2012, non-unanimous decisions from the judges for death sentences, and the imposition of the death penalty on defendants with mental disabilities, regardless of when the disability occurred. Judgment No. 8 acknowledges that these issues violate defendants’ rights to legal defense and due process.

Judgment No. 8 stipulated that death penalty rulings must further confirm whether the crime meets the International Covenant on Civil and Political Rights’ criteria of the “most serious crimes,” and that the procedures for investigating and adjudicating these cases must adhere to the strictest standards. If any of the 37 current death row prisoners were sentenced to death for crimes that do not meet the “most serious crimes” standard, or if their cases contained violations of due process, they would be granted the opportunity to seek extraordinary appeals for relief.

A review of the 37 death penalty cases reveals that the majority of the involved offenses do not meet the ‘most serious crimes’ standard outlined in Judgment No. 8. Moreover, a glaring procedural flaw is the absence of pre-sentencing reports in all cases. Therefore, it cannot be said that these death sentences were issued according to “the strictest standards of due process,” as Judgment No. 8 would demand. Given these problems, the Ministry of Justice should refrain from carrying out these sentences, and the Prosecutor-General should file relief motions for these 37 individuals in line with the Court’s ruling.

Since the release of Judgment No. 8, some media outlets and public figures have claimed that the decision effectively abolishes the death penalty. Additionally, some legislators have proposed to include life imprisonment without parole as a legal penalty. These reactions have sparked concerns about the push for harsher penalties in the wake of Judgment No. 8. It is no wonder that legal experts are now warning that the Constitutional Court may bear moral responsibility for the punitive trend in criminal justice policies in the coming decades.

What’s Next for Taiwan’s Abolitionist Movement?

When will Taiwan abolish the death penalty? The road ahead may be even more challenging. However, it is crucial to emphasize that, even after Judgment No. 8, the death penalty remains in violation of various international human rights conventions that Taiwan has incorporated into its domestic law. Judgment No. 8 should not become an obstacle to the government’s commitment to these obligations.

As long as the death penalty remains, government authorities will continue to cling to the false premise that “Taiwan is not ready for abolition.” Instead of investing effort in researches and strategizing policies that could genuinely protect society and ease the public’s worries, the government responds to victims’ pain and societal demands for public safety by retaining the death penalty. This reluctance to move forward with meaningful reforms is stagnating progress.

Both the government and civil society must continue to engage in dialogues. After Judgment No. 8, Taiwan’s abolitionist movement cannot afford to slow down. There are many existing difficulties and emerging issues that need to be discussed and new challenges that must be addressed. The death penalty is not a fixed institution in a democracy. Taiwan, having experienced both authoritarian rule and democratization, should not view the death penalty as an inevitable choice. Issues such as prison reform, rehabilitation and reintegration, public safety, and the protection of human rights should not be held hostage by the existence of the death penalty.

Looking back at Taiwan’s movement for human rights and judicial reform, there have been successes: The Criminal Code and the Code of Criminal Procedure have been revised several times. The continuous recording during police interrogation was enforced since 1997. The mandatory death penalty was finally abolished in 2006 and the number of crimes applicable for death sentence was greatly reduced over the years. The cross-examination system was introduced into the criminal courts in 2011. The principles of international human rights conventions were introduced in court since 2009. Conducting psychological and mental evaluations of defendants during trials, and conducting social investigations on defendants before sentencing have become a norm in the last decade. Most of these improvements were made possible in exchange for the lives of every individual case, especially the wrongfully convicted.

We are gratified that over the past two decades, we have been able to successfully rescue these wrongfully convicted from death row, namely, the Hsichih Trio, which is commonly known as the Su Chienho case（蘇建和）, Hsu Tzuchiang（徐自強）, Cheng Hsingtse（鄭性澤）, and Hsieh Chihhung（謝志宏）, while we failed to save the lives of Chiang Kuoching（江國慶）, Lu Cheng（盧正）, and the Du brothers（杜氏兄弟）. Among the 37 current death row prisoners, at least two—Wang Xinfu（王信福） and Chiou Hoshun（邱和順）—are still fighting to clear their names with the help from their lawyers and civil organizations. Hopefully, Taiwan’s judicial system will respond courageously to our appeals and prevent the creation of more death penalty victims.

In Taiwan, both opponents and supporters of the death penalty share a commitment for a safe and peaceful society. The difference lies in their beliefs: some believe that the death penalty helps achieve this goal, while the others know that it does not. Moving forward, the government and civil society must continue their efforts, with the hope that one day, the death penalty will no longer exist in Taiwan.

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.

Share this article