Brian Hioeby Brian Hioe
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AS THE KMT continues with efforts to freeze the Constitutional Court, views on capital punishment are set to become a political dividing line. That is, as nominees are discussed and contended between both parties, the KMT will justify blocking the DPP’s nominations on the basis of capital punishment.
Legislation proposed by KMT legislator Weng Hsiao-ling aims to specify a minimum number of justices on the Constitutional Court for there to be majority rulings. Namely, there are only eight justices that currently sit on the bench of the Constitutional Court, with seven having retired after their terms ended in October.
With the KMT having passed such legislation last week, if it then blocking any justices nominated by the Lai administration from taking office, this will effectively freeze the Constitutional Court. The KMT’s aim in freezing the Constitutional Court would be to prevent it from striking down legislation it seeks to pass on the grounds of unconstitutionality, such as it did regarding powers that the KMT sought to arrogate to the legislature from the judiciary and executive branches of government earlier this year.
Public blowback earlier this year regarding what was perceived as a power grab by the KMT led to the series of protests known as the Bluebird Movement. As efforts by the KMT to fundamentally rearrange the balance of powers in Taiwan continue, this has led to further protests, with 15,000 gathering outside of the legislature during the night that the KMT sought to push through its legislation aimed at freezing the Constitutional Court.
In making the issue of justice appointments about their stances on the death penalty, the KMT would be leveraging on strong social support for the death penalty. Survey after survey, whether conducted by pro-capital punishment or anti-capital punishment advocates, indicates strong social support for the death penalty. This would be with the view that capital punishment is a deterrent for violent crime. As such, in order to use the issue to fan up anger against the pan-Green camp, the KMT has accused the DPP of having caused a rise in violent crimes in Taiwan by refusing to implement the death penalty in past years.
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Indeed, a recent ruling by the Constitutional Court narrowed the scope in which capital punishment could be used but did not rule it as unconstitutional. In this sense, the judgment was a middle-of-the-road ruling which did not please either advocates or opponents of capital punishment. Nevertheless, the KMT framed the ruling as a DPP-orchestrated de facto ban of the death penalty.
Members of the pan-Blue camp went on the attack after the ruling. New Taipei mayor Hou You-yi, for example, a former police officer, has criticized the apparent disregard for justice for victims. Advocates of capital punishment have also called for its swift resumption. Singer Pai Bing-bing, an advocate for the use of the death penalty after the murder of her daughter in 1997, called for the execution of all of Taiwan’s 37 individuals on death row.
More generally, the Constitutional Court has sought to maintain a reputation for neutrality. In striking down the legislative powers sought by the KMT earlier this year, the Constitutional Court took the view that the process by which the KMT sought the powers–accused by opponents of circumventing review mechanisms in the legislature–was constitutional. But the powers themselves were deemed to be unconstitutional. This would be another example of when the Constitutional Court was highly conscious of its public reputation and that the KMT was likely to leverage on any perception that it was lacking in neutrality as grounds for political attacks.
Still, this would prove another case in which the KMT has sought to use fundamental human rights as ammunition for political attacks. The KMT has long been the party in Taiwan that preferred maintaining capital punishment, while the DPP has been more ambivalent on the issue. It may be, in fact, fitting of the party’s social values that it has sought to incorporate advocacy for capital punishment into a crucial component of its strategy to dismantle the fundamental balance of powers in the Taiwanese government system, as part of its efforts to expand unrestrained power.
It is to be seen whether the public sides with the KMT, then, particularly seeing as support for capital punishment is a popular issue, or whether the public will be more attentive to the KMT’s attempts to use the issue to freeze an entire branch of government. But with the Constitutional Court now called on to review the constitutionality of the KMT’s laws, aimed at freezing it it is likely to act similarly in framing judgments as nonpartisan.