Difficulties encountered

elections approaching in the following year, the draft law failed to make it onto the Legislative Yuan’s agenda and disappointingly was neither debated nor voted on during Chen’s first term.

4.2.4. Difficulties encountered

As fast as Chen made attempts to implement human rights standards, his attempts were met with stiff opposition. In December 2003, both the ICCPR and ICESCR were submitted to the Legislative Yuan for ratification; however, at the time, the KMT Party dominated the legislature.²⁸ Article 1 of both covenants contains the right to self-determination and KMT legislators were intent on submitting reservations to this article. Huang states: “It was reliably reported that the Legislative Yuan was

suspicious that the new Administration would use Article 1 to promote moves towards Taiwanese independence.”²⁹ Additionally, Liao asserts that there was also a reservation under Article 6 of the ICCPR (right to life) declared.³⁰ Furthermore, objections were raised to Articles 8 and 12.³¹ One can only assume that legislators (especially, the Nationalists) did not want any ambiguity over the legality of the death penalty, compulsory military service or the residence of Mainland Chinese citizens.

The DPP sought a rehearing in the Legislative Yuan to attempt to get around these reservations but the legislature was not cooperative and as such, the ratification of the two covenants did not proceed. Chen’s ratification of the covenants would not turn out to be the effortless process that one might have predicted.

4.2.5. Efforts post-2004

After a fierce election battle for a second term, Chen was narrowly re-elected in 2004.

Yet this second term was not to turn out any more productive in terms of completing Chen’s human rights agenda. Copper declared: “As it turned out civil and political liberties faded as a topic of conversation in the Chen administration and disappeared as a political goal.”³² Other issues began to dominate Chen’s presidency and human rights action waned. Huang refers to the corruption cases surrounding the President

28 Hwang, S.-D. 2004. A Comparison of Voting Coalitions in the Legislative Yuan Before and After Party Turnover of the Year 2000 (In Chinese) Journal of Electoral Studies, 11:1

29 Huang, M. 2008b. The ‘Human Rights Diplomacy’ Campaign of the Chen Shui-Bian Administration 2000-2004.

Presented at the International Conference on Human Rights Protection and Practice in Taiwan, National Cheng Kung University, Tainan, 3 October.

30 Liao, F.-T. 2008. From Seventy to Zero: Why executions declined after Taiwan’s democratization. Punishment and Society. 10:2 153-170, p. 156

31 Legislative Yuan, 2003. (In Chinese) Gazette of the Legislative Yuan, 92:5. p. 694 and p. 737

32 Copper, 2009. p. 471

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and a gradually reduced concern for human rights.³³ Although a later Bill of Rights in 2005 and Human Rights Law in 2006 were mooted by the Executive Yuan’s Human Rights Protection and Promotion Committee and the Research, Development and Evaluation Commission respectively, these draft laws were never pursued through the legislature. Faced with a non-majority in the Legislative Yuan over the terms of both his presidencies, Chen was not able to ratify or implement international human rights standards into ROC law. His grand plans created initial optimism but over the course of his eight years, focus shifted and the protection of international human rights standards remained wanting.

4.3. Plans for a National Human Rights Commission

We will now move to an analysis of Chen Shui-bian’s plan for a National Human Rights Commission (NHRC) for Taiwan, which similar to his intention to implement the international human rights treaties into a Taiwan human rights law featured as a keystone in Chen’s overall human rights agenda – building a human rights state to showcase Taiwan’s democratic credentials to the world. In the 2000 presidential election campaign, after a coalition of human rights NGOs had endorsed the idea, a group led by human rights campaigner, Peter Huang effectively lobbied all three main candidates to support a NHRC for Taiwan.³⁴ The KMT candidate Lien Chen, Pan-Blue independent Hsu Hsin-lang and Chen during their candidacies all made

campaign pledges in favour of a NHRC. Plans for an independent human rights body were confirmed in Chen’s inaugural address. He stated: “We hope to set up an

independent national human rights commission in Taiwan, thereby realizing an action long advocated by the United Nations.”³⁵

This pledge was significant. It was the first time a ruling president had discussed establishing a NHRC and by initial indications, it appeared Chen truly wanted to act on his word. In just his second press conference, Chen confirmed his pledge for a NHCR, stating that the problems of where to place the commission under Taiwan’s constitutional framework must be overcome. This was to be a reoccurring problem for Taiwan’s NHRC. He stated: “Most importantly, we must push for the establishment

33 Huang, 2008. p.184

34 Liao, F.-T. and Hwang, J.-Y. 2002. Think Globally, Do Locally – Internationalizing Taiwan’s human rights regime. Taiwan’s Modernization in Global Perspective, Chow, P. Ed. New York : Praeger. 79-102, p. 91

35 Chen, 2000.

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of a national human rights commission,” and followed it by announcing his plans to establish the aforementioned Presidential Human Rights Advisory Group.³⁶ Later that year in September, the president’s support for a NHRC was stated in unequivocal terms:

“I want our country to be built on human rights. We must promote the establishment of a national human rights commission, so human rights in the ROC will become a new standard in the 21^st Century. These are not

slogans.”³⁷

The following year, Taiwan hosted an international conference on NHRCs, which Chen personally attended. There he argued that the NHRC remained the ‘priority’

among the human rights policies he outlined in his inauguration.³⁸ It was clear Chen attached great importance to the setting up of such a committee, realizing its

fundamental role in any human rights regime.

4.3.1. The White Paper’s proposals

The 2002 Human Rights White Paper outlined the establishment of a NHRC in Chapter 2. It recognized that several competing draft laws had been prepared on the topic since 2000.³⁹ Among these was an organic law draft from a coalition of NGOs, the Chen administration’s organic bill, a Ministry of Justice-drafted National Human Rights Commission Investigative Powers Enactment Law as well as a bill by a KMT Legislative Yuan member. Foreseeing that there would be ‘multiple competing drafts’

before the legislature, the white paper set out various principles Chen envisioned for Taiwan’s NHRC. On the question of such a body’s necessity, it states: “This is something our country needs in terms of human rights infrastructure at its current stage of human rights development.”⁴⁰ The white paper put forward the view that an NHRC should be institutionally situated under the Office of the President, with a similar status to that of Academia Sinica. Institutional independence was seen as a top priority and, in the absence of constitutional amendments, this status was considered

36 Liao, F.-T. 2001. Establishing a National Human Rights Commission in Taiwan: The role of NGOs and challenges ahead. Asia-Pacific Journal of Human Rights and the Law, 2:2 90-109. p. 101

37 Ibid.

38 Liao, 2001. p. 102.

39 Executive Yuan, 2002. pp. 39-40

40 Executive Yuan, 2002. p. 40

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the preferred option. The conflict between the Control Yuan and a NHRC was also dismissed in the document. It outlined that the Control Yuan’s functions as articulated under the constitution are different and more limited than the role of a human rights body. A NHRC’s duties include human rights promotion, education, awareness, advising the government in matters of human rights protection as well as the

investigation of human rights violations. Such violations would not inherently always involve government agencies and this along with the above mentioned duties clearly go beyond the government monitoring functions of the Control Yuan. The white paper adds: “As far as the objective of guaranteeing human rights is concerned, the investigative powers of the Commission [NHRC] and those of the Control Yuan should be complementary, not mutually antagonistic.”⁴¹ Furthermore, the paper envisioned the NHRC’s investigative powers to be of a similar kind to those of the Fair Trade Commission and to have the purpose of establishing the truth of a situation but such results would not be legally binding. The white paper, thus, outlined clear guidelines for the future NHRC expected in Chen’s first term.

4.3.2. Draft legislation

With a myriad of competing draft legislation on this issue, it appeared as though agencies were working against each other. In 2001 the Presidential Human Rights Advisory Group, after much discussion, released two draft laws: the Draft Organic Law on the National Human Rights Commission and the Draft Law on the Powers of the National Human Rights Commission. These bills were known as the ‘Presidential Version’.⁴² The Draft Organic Law sought to conform to the ‘Paris Principles’ on model NHRCs. It proposed a NHRC to be set up under the Office of President with a wide scope of functions. Set out in Article 1 of the law, the proposed functions included developing and reviewing human rights promotion and protection policies and laws; producing an annual national human rights report; human rights education and public awareness; implementing international human rights norms and overseas human rights co-operation; and, other related matters. The supplementary draft law on the commission’s powers was to further clarify the proposed commission’s role and the contents contain provisions delineating the competencies of the NHRC so as not to impede on the powers of the Control Yuan, but still allowing the NHRC to

41 Executive Yuan, 2002. p. 42

42 Huang, M. 2003. Advocacy, Debate and Prospects of Taiwan’s National Human Rights Commission: the view of NGOs. (In Chinese) [Online] www.scu.edu.tw/hr/articles/mab/mab_20031221.doc [Accessed 20 May 2010]

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investigate human rights violations. Opposition from the Control Yuan and its supporters ensued.

Although Chen had indicated his strong support for a NHRC and much attention had been given to legislative drafting in this area, the Legislative Yuan did not echo the president’s sentiments. Schafferer (referring to KMT legislators) contends: “They did not see the need for such a commission and mainly argued that the Control Yuan as the ‘sole’ investigative body was responsible for investigating human rights abuses.”

43 Even as these two draft laws failed to gain momentum in the legislature, all attempts to implement such a body had still not ceased. The above-mentioned Draft Human Rights Basic Law of 2003 also made allowance for the establishment of a NHRC in its Chapter 4, Article 51. Such continued attempts were to meet the same fate. With the presidential election of 2004 approaching, Huang stated that political parties of both sides were concerned not with policy formulation and implementation, but with winning the election and under these circumstances; it was declared

‘impossible to achieve a breakthrough before the election’.⁴⁴

4.3.3. Second term and hopes of a NHRC fade

As was seen in the case of Taiwan’s Human Rights Act, the second term of Chen’s presidency was not to prove any more fruitful in establishing a NHRC. Surely, what Schafferer referred to as the ‘Han nationalists’ staunch opposition to the establishment of a NHRC’⁴⁵ did not help. With other priorities at hand, focus shifted elsewhere. Ye stated that after 2004, government lobbying the legislative passage of a NHRC gradually disappeared.⁴⁶ Was Chen’s support for a human rights institution genuine?

Commentators have suggested that pro-human rights positions were used for campaigning purposes and that talk of ‘human rights’ was just a mantra and lacked commitment.⁴⁷ Looking back on his time in office, in a press release in 2007, Chen expressed that it was unfortunate that opposition parties did not support the legislation

43 Schafferer, 2008. p. 2

44 Huang, 2003.

45 Scafferer, 2008. p. 2

46 Ye, T.-C. 2009. 以機構作為規範的配套:兩公約與國家人權委員會[Online] TAHR.

www.tahr.org.tw/files/newsletter/201003/014.pdf [Accessed: 10 April 2010]

47 Schafferer, 2008 at 3 and Copper, 2009. p. 471

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he put forward on such initiatives as the establishment of a NHRC. He states: “It dealt a significant blow to Taiwan’s efforts to becoming a nation based on human rights.”⁴⁸ 4.4. Policy towards the death penalty and progress towards abolition

Arguably, it is in this indicator that Chen’s administration had the most success in the human rights arena. The above two mentioned indicators deal with what Chen

referred to as ‘creating the infrastructure for a human rights state’, this next section moves away from this and looks at the topic of implementing human rights in a specific area – the right to life and the right against cruel, inhumane and degrading punishment. The abolition of the death penalty needed no further infrastructure development, amending the Criminal Code and legislation would suffice and this was considered in Chapter 8 of the white paper under the heading ‘The Short-term

Agenda’. In keeping with his goal of building a human rights state, Chen’s

administration did not fail to address the issue of the death penalty; however, support for its immediate abolition was not found, notwithstanding signs of optimism in this regard too upon Chen’s election. Chiang states: “Hence while the government is declaring the importance of human rights, it is only a matter of time before the death penalty is abolished.”⁴⁹ Faced with unsupportive opinion polls on the issue and after initially appearing to be not high on Chen’s agenda, we will now consider the progress that was eventually achieved in reducing the scope of the death penalty in Taiwan.

4.4.1. The administration’s position on abolition

The 2002 white paper called for ‘step by step’ measures to reduce the scope of its application. It states: “The death penalty reflects the erroneous traditional concept of using severe penalties to rule in times of chaos.”⁵⁰ This policy paper informed the reader that there is no evidence that justifies the death penalty on the grounds of deterring violent crime, and mention was made too of international trends that show over half the world’s states have abolished capital punishment. Nevertheless, the Taiwanese public’s view on the matter was used to justify a ‘go-slow’ approach. “As

48 Government Information Office, 2007. President Chen Shui-bian Meets Dutch Human Rights Expert Dr.

Theodoor C. Van Boven [Online] www.gio.gov.tw [Accessed: 10 April 2010]

49 Chiang, S.-F. 2001. Ryden, E. (Tr.) Abolition of the Death Penalty: a review of scholarship in Taiwan. Peace Papers 6, Taipei: John Paul II Peace Institute. p. 13

50 Executive Yuan, 2002. p. 84

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a consequence [of the concept of retribution and lack of human rights education], it is probably still impossible to entirely abolish the death penalty,”⁵¹ it states. Thus, it was not the policy goal of Chen’s administration to abolish the death penalty, but to reduce its high incidence by various measures, including the removal of mandatory sentencing and the reduction of capital crimes. For Liao, this was a policy of ‘gradual’

abolition in line with the limitations of public opinion.⁵²

4.4.2. Legislation and the death penalty

The process of legislative amendments aimed at achieving these goals had already begun prior to the release of Chen’s policy. At the instigation of the DPP government in January 2002, the Legislative Yuan repealed the Act for the Control and

Punishment of Banditry (a law which contained 10 offenses whose punishment was mandatory death).⁵³ Liao outlines a further five categories of offences in addition to the above-mentioned case of banditry that also attracted the death penalty and which people were being sentenced to death at the time of Chen’s election to office. These were: kidnapping for ransom, rape with homicide, drug dealing, robbery (occasioning death) and murder.⁵⁴ The death penalty was at the time available for two offences in which no death was necessitated, as many foreigners would be aware (in the case of drug offences) from the explicit warning one sees in English on arrival at Taiwan’s main airport. Under the anti-drugs legislation, the death penalty is available (though not mandatory) for the selling, trafficking and production of drugs as well as forcing another to use a class-1 drug.⁵⁵ Prior to Chen’s election, the penalty for the offence of

‘rape with homicide’ had changed from a mandatory death sentence to a discretionary one with the option of life imprisonment.⁵⁶ By January 2002, the mandatory death penalty for the offence of ‘kidnapping for ransom occasioning death’ was made discretionary, with again the option of life imprisonment and, for kidnapping for ransom where the victim is released without taking any ransom, the option of the death penalty was removed completely.⁵⁷ Also in 2002, the punishments for robbery causing death (felony murder) were widened to include a minimum sentence of 12

51 Ibid.

52 Liao, 2008. p. 158

53 Liao, 2008. p. 159 and Executive Yuan, 2002. p. 85

54 Liao, 2008. p. 158

55 Liao, 2008. p. 161

56 Liao, 2008. p. 160

57 Ibid.

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years imprisonment, a change from the previous life sentence or death penalty option.

As for murder, the death sentence remained as an option for the courts. The only significant legislative change to this during this period was the removal of the

discretionary death sentence in January 2005 that had been available to minors for the offence of killing one’s parents or grandparents.⁵⁸

A further significant legislative development came in December 2006. Mandatory death sentencing was removed for the last of the crimes in Taiwan that still mandated it. Those crimes were contained in the currency counterfeiting legislation and

Criminal Code of the Armed Forces respectively. The mandatory death penalty had thus been removed from Taiwan’s law books at last but as Liao points out, “Fifty crimes remained subject to the death penalty on a discretionary basis.”⁵⁹

Attempts to abolish the death penalty through general human rights legislation, as discussed in the first indicator, must also be looked at. The failed attempts to

incorporate international human rights standards into Taiwanese law, the Taiwan bill of rights attempts included articles on the abolition of the death penalty. Article 5 of the Draft Basic Law on Human Rights⁶⁰ specifically provided that the death penalty should be abolished. These draft laws, however, did not receive a welcome reception in the Legislative Yuan and did not pass.

4.4.3. Executive action

Besides legislative changes, executive action had a strong impact on the practice of the death penalty. In 2001, DPP Justice Minister Chen Ding-Nan expressed his desire to see the death penalty abolished in the president’s first term; however, this was qualified by the typical sentiment at the time that the government would only pursue such legal changes with the public’s support.⁶¹ Taiwan government opinion polls on the topic still indicated considerable support for the retention of the death penalty. In 2001 and 2002 the figures were 71 and 77 per cent respectively.⁶² Surprisingly though,

58 Liao, 2008. p. 162

59 Liao, 2008. p. 158.

60 Presidential Human Rights Advisory Group, 2003.

61 Johnson, D.T. and Zimring, F.E. 2009. The Next Frontier – National development, political change and the death penalty in Asia. New York: Oxford University Press. p. 214

62 Chiu, H.-Y. 2006. Deterrence, Dignity, and the Death Penalty: Analyzing Taiwanese attitudes toward the abolition of the death penalty. Taiwanese Journal of Sociology, 37

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figures that indicated overall pro-abolition sentiment were not more heavily relied on by the purportedly abolitionist government. When respondents were asked, also in Taiwan government opinion polls, whether or not they would still support the death penalty given the option of life imprisonment without parole for offenders, the numbers supporting abolition markedly increased. Chiu shows that 53 and 47 percent were for abolishing the death penalty in these circumstances, against 38 and 43

percent still insisting on the death penalty over the same time.⁶³ Prefacing abolition on consensus among the public, whether incidental or not, did not however speed up legislative moves to end capital punishment.

Improvements in criminal procedures laws were a more positive contribution to reducing death sentences. Liao points out that from 1990 to 2006 there were 17

Improvements in criminal procedures laws were a more positive contribution to reducing death sentences. Liao points out that from 1990 to 2006 there were 17

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