Sunday, February 08, 2009

Jerome Cohen on recent Legal Reforms

Jerome Cohen, Chinese law expert and longtime Ma Ying-jeou supporter, weighs in on the recent decision by the Council of Grand Justices to limit the power of the police and prosecutors to listen in on conversations between the accused and their lawyers.
Inching towards fairness
Jerome Cohen and Yu-Jie Chen


In the mainland's conservative climate, preoccupied with the spectre of rising instability rather than the promise of enhancing individual rights, prospects for further criminal justice reform seem to have stalled. And, even if the Criminal Procedure Law is revised, it is uncertain if detention centres would heed its requirements. The mainland has no constitutional court that can break a political-legal stalemate by insisting on legislative reform, nor does it even have a legal system strong enough to ensure the authorities respect existing laws.

Yet Taiwan does and, on Thursday, administration of justice on the island received another boost, thanks to the impressive Council of Grand Justices. Following the latest in the council's series of courageous interpretations, issued less than two weeks ago, the Ministry of Justice ordered all detention centres to stop their long-standing practice of listening in on and recording attorney-client conversations unless ordered to do so by prosecutors or judges who believe that, otherwise, the accused may try to falsify evidence.

The council decided that the Detention Law provision for authorising "supervision" of attorney-client meetings had been applied to include listening to and taping all such meetings without regard to the circumstances of each case and that this blanket interference violated the principle of proportionality and the right to litigation. The interpretation does not prohibit restraints on such communication if a court deems it "necessary", but it properly leaves the complex task of articulating applicable criteria, procedures and other details to the legislature. But the interpretation allows detention officials to continue to "observe" attorney-client meetings, if not always listen to or record them, even though that can be intimidating.

The council held another Detention Law provision unconstitutional to the extent that it permits the admission into evidence of conversations between the detained accused and his lawyer that have been illegally listened to and recorded. But, at least in the view of the Ministry of Justice, evidence gathered from legal taping will continue to be admissible, not only against the accused but also against his lawyer, should he or she be charged with misconduct.

To assure time for appropriate legislative and executive responses to its invalidation of these Detention Law provisions, the council delayed its invalidation until May 1. In view of the justice ministry's worthy instruction that, from Thursday, detention centres must generally cease listening to and recording attorney-client meetings, it will be interesting for those of us on the outside to "monitor" what impact it may have on Chen's defence.

Jerome A. Cohen is co-director of New York University's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. Yu-Jie Chen is a Taiwanese lawyer and 2009 NYU School of Law Robert L. Bernstein Fellow in International Human Rights


Ah-Ben said...

That is an excellent letter. I hope it gets some kind of response.

Tim Maddog said...

After the multiple genuine leaps backward we've seen under this administration, it's totally bizarre to call a half-assed move forward "Inching towards fairness" and "another boost" to the "administration of justice."

But it's not so surprising coming from Cohen. It fits right in with the ass-kissing of Ma we've seen him doing for a long time (he's a "longtime Ma Ying-jeou supporter," as you say). The surprising thing was when he actually had critical words about Ma.

Tim Maddog

Thomas said...

I think you are being a little unfair, Tim. Cohen's essay begins like this:

"As the corruption prosecution of Taiwan's former president Chen Shui-bian continues to illustrate, democratic political systems find it difficult to regulate contacts between detained suspects or defendants and their lawyers.

"Yet even authoritarian regimes, including Beijing, are under pressure to recognise the presumption of innocence and to reconcile their need to suppress crime with increasing popular demands for fair trials and, therefore, fair opportunities for those detained to communicate with their defence counsel."

This isn't a scathing attack on Ma or the KMT certainly. But the opening and closing sentences frame the essay in a way that indicates that Taiwan has had some problems with this issue (illustrated by the Chen trial) and that this move is simply one step in the right direction. He never says that Taiwan's system is fair or that no regression has taken place.

I am guessing that Cohen thinks he has already made his point about the trial itself in his previous two essays, which were both relatively scathing.

Sean Su said...

I thought this law only kicks in effect on May 1st, when Chen's case will be already well under way. This doesn't really change much in terms of existing cases.