4. Human Rights under Chen Shui-bian
4.3. Plans for a National Human Rights Commission
4.3.3. Second term and hopes of a NHRC fade
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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 amendments to the Criminal Procedure Law that overall played a large part in lowering the number of capital punishment sentences handed down.64 Furthermore, gains were to be made through an unintended application of the execution process.
Under the death penalty provisions in Taiwan, the minister of justice is required to sign a death warrant before an execution can proceed. Beginning in 2006, the newly appointed Justice Minister Shih Mao-lin stated his refusal to sign any death warrants during his term.65 This marked the start of the de facto moratorium on the death penalty in Taiwan. The general view on the position of the death penalty was that it was on its way out. Johnson and Zimring state: “In 2007, Taiwan finished its second consecutive year with zero executions; and…seem[ed] to be well on [its] way toward formal abolition.”66 While death sentences were still delivered by the courts and though not guaranteed in law, Taiwan was to witness no further executions for the remainder of Chen’s term.
4.4.4. Conclusion – Gradual abolition
While legal abolition of the death penalty was not achieved under Chen’s eight years in the presidency, several positive steps were taken during this time culminating the de facto moratorium. Legislative changes, notably the reduction in number of capital offences and the removal of the mandatory death penalty made a significant
63 Ibid.
64 Liao, 2008. pp. 162-163
65 Schafferer, 2009. p. 3
66 Johnson and Zimring, 2009. p. 191
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contribution to the lowering the number of death sentences and executions. Compared to the other two indicators, it is in this area that Chan made the most progress.
Johnson and Zimring, comparing Chen to his South Korean contemporary, Roh Moo Hyun stated:
“Both were born poor, worked as left-leaning lawyers before entering politics, served time in prison for anti-regime activities, became president because other candidates split the conservative vote, and were plagued during their presidencies by scandal, political defections, and low approval ratings. Yet both remained committed to ending executions and, in rhetoric and reality, to abolishing the death penalty.”67
Although Chen could not effect such abolition in law, for the final three years of his presidency, Taiwan recorded zero executions and this is to be commended.
4.5. Overall Conclusions – Chen’s human rights legacy In 2004, Chen stated:
“We have had a long wait for democracy. It has been well over half a century and I’m glad to say we have taken the right path from authoritarianism to democracy and this is a road of no return. This is also a correct path that we have taken. The road to democracy may be winding and is like a river taking many curves, but eventually the river will reach the ocean.”68
The same may be said of human rights development. Human rights and democracy are clearly connected and Taiwan has waited a long time for both. Once the process of human rights development has begun, it must continue. Without these protections in place guaranteed by law, by independent institutions and government commitment, more is needed. Chen spoke at length of his plans to make Taiwan into a human rights state. His election was momentous. The KMT regime had been defeated by an
outsider, a democracy advocate and a human rights campaigner but in eight years,
67 Johnson and Zimring, 2009. p. 203
68 BBC, 2004. Interview: Chen Shui-bian, 2004. BBC News. March 30. [Online] news.bbc.co.uk [Accessed: 15 March 2010]
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human rights action faltered. Policy objectives were highly credible but on an
implementation level, the human rights progress that was expected did not eventuate.
The major stumbling block to much of Chen’s attempts to build his human rights state was a hostile Legislative Yuan. Throughout his entire eight years in office, Chen lacked a majority in the legislature. This, no doubt, impeded his capabilities of implementing his human rights policies particularly in the cases of introducing a human rights law and establishing a NHRC. Partisanship and opposition suspicion of his motives hindered Chen’s ability to pursue his legislative agenda.
Another hurdle, in my opinion, that prevented Chen’s human rights policies being implemented was the shear amount of legislation being put forward. Particularly throughout the first term, the vast quantity of human rights legislation being put forward did not result in any being successful. Competing bodies were throwing around their draft laws and it is hard to see how this did not hinder their chances of successful passage. If the president had directed drafting efforts to be focused in one body, instead of several organs in the Executive Yuan and Presidential Office, perhaps their efforts then could have been concentrated on producing a draft acceptable to the Legislative Yuan.
This brings us aptly on to the next point and that is of Chen’s leadership and commitment to his human rights positions. Various scholars criticize Chen for his position on human rights and contend democratization (and human rights
development) worsened during his time in office. Copper, in a highly critical article, points out that Chen was ‘preoccupied’ with localization and independence and strongly contends: “He made little effort to expand upon the civil and political rights guaranteed and practiced in Taiwan and there was not only little or no progress in this realm but also a significant deterioration in some important areas.”69 These comments certainly give little weight to the policy objectives Chen espoused in his initial years in office. Copper does though concede that Chen’s focus on past human rights abuses, capital punishment and national identity contributed to Taiwan’s democratization.70 Schafferer raises the issue of dissatisfied human rights campaigners, who had strongly supported Chen’s election only to be disappointed and felt that human rights were
69 Copper, 2009. p. 471
70 Copper, 2009. p. 478
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only being given ‘lip-service’ by Chen’s administration.71 Others are more supportive.
Huang indicates that although Chen’s overall master plan did not get the expected results, there were other areas that had greater success.72 He cites bringing NGOs into greater prominence, the passage of legislation in gender equality and indigenous rights and, most successfully, implementing human rights education policies as examples of human rights progress under Chen.
Overall, Chen set himself high targets in improving the human rights situation in Taiwan. Inspired by righting the wrongs of the past and bringing Taiwan up to
international standards (and attempting to gain the support of the global community in the process), Chen’s human rights policy goal, ‘the building of a human rights state’
seemed to be a priority. Despite much initial effort, the desired results were not forthcoming. The reasons as per above contributed to this state of affairs.
Disappointment among those in Taiwan’s human rights community was the result.
Except for the de facto moratorium of the death penalty and gradual improvements towards reducing capital punishment, the expected gains across the three indicators did not follow. The international human rights treaties were not implemented, nor was a human rights commission established. It would be up to the next president to
complete what Chen had failed.
71 Schafferer, 2008. p. 3
72 Huang, 2008a. p. 184
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5. Human Rights under Ma Ying-jeou
Former Taipei Mayor and KMT-stalwart, Ma Ying-jeou was elected president with an over-whelming majority on 22 March 2008. This coming on the back of recent
success in the legislative elections two months prior saw the KMT truly back in its traditional position. The legislative elections were a disaster for the DPP, which was reduced to 27 seats in the Legislative Yuan.1 The KMT won a two-thirds majority and the overall Pan-Blue seat count reached an astonishing three quarters.2 Ma was very much the preferred candidate in the opinion polls over his DPP rival, Frank Hsieh and won the election with almost 59 per cent of the vote, the largest margin since direct presidential elections were introduced in 1996.3 This chapter will address Ma’s human rights policies and achievements over his term thus far. His term at date of publication may only be just over half way but there have been significant
developments in human rights nonetheless. We look first at the expectations of Ma and initial indications of his human rights policies before moving on to our
consideration of the three indicators.
5.1. Ma’s presidency and overview of his human rights policy
Prior to his election, Ma released a nine-point declaration on human rights. In it he pledged his support for various rights, both civil and political and, social and economic in nature. Clean government, fair trials, anti-discrimination, immigrant integration and poverty alleviation were among those rights contained in his declaration.4 His declaration, although espousing noble international human rights standards, was scant on policy detail and failed to explicitly state how these rights would be protected but nevertheless, human rights did feature in his election campaign.
Ma’s inaugural speech on 21 May 2008 was telling. Taiwan, ‘the beacon of
democracy’ had re-found its way, returned to its ‘core values’ and set an example for all ethnic Chinese communities in electing the KMT back to the presidency, Ma highlighted. He revealed his faith and optimism in the ROC Constitution by stating:
1 Copper, 2008. p. 9
2 Ibid.
3 Copper, 2008. pp. 60 and 72
4 Government Information Office, 2009a. A Government that Respects Human Rights and Freedom of the Press.
4 Government Information Office, 2009a. A Government that Respects Human Rights and Freedom of the Press.