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Mao-hong Lin

Abstract

The incorporation of the International Covenant on Civil and Political Rights into Taiwan’s domestic law provided death row inmates with the legal basis to submit requests for the President’s mercy. However, Presidents have persistently ignored these requests without any response to the inmates, and the judiciary regularly dismissed the cases of the inmates by rendering decisions in support of the Presidents’ inaction. The court justifications for these decisions were that the clemency power falls under the executive prerogative, and that it is a political question in nature and therefore not subject to judicial oversight. This Article argues against these justifications. Firstly, the presidential clemency power is constrained by the principle of legality and due process in government decision-making. As such, the President is obligated to respond to the requests according to relevant laws and due process requirements. Secondly, the presidential clemency power does not meet the criterion for the political question doctrine in Taiwan. In the United States—the country from which Taiwan borrows the political question doctrine—the pardoning power is subject to judicial review and not treated as purely a political question free of any oversight. Additionally, under the right to an effective remedy, preserved in Article 2 (3) of the Covenant, Taiwan’s judiciary must adjudicate on cases brought by inmates on the merits, as their right to seek capital clemency would otherwise be violated. In viewing the presidential clemency power through the lenses this Article discusses, the power would no longer be a prerogative without limitations; instead, it would be a power exerted under the framework of human rights law with the checks and balances of the legislature and the judiciary.

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