Friday, January 22, 2010

PRC in Taiwan: New Restrictions on Defense Lawyers Demanded by MOJ

Read the whole thing, but Jerome Cohen has done the island another service in publicizing the proposed Ministry of Justice curbs on defense lawyers. It compares Taiwan to the PRC, savage in its civility. Read closely and carefully.
....By contrast, the Taiwan government’s new interest in curbing vigorous defense lawyers does constitute “news”. Although Taiwan’s president Ma Ying-Jeou recently took the occasion of the island’s Law Day to call for greater government efforts to promote judicial reform and human rights, his Ministry of Justice (MOJ) has been moving in the opposite direction.

Last year, the Ministry, concerned about the conduct of ex-president Chen Shui-Bian’s defense lawyers in its ongoing corruption prosecutions against him, failed in its efforts to impose disciplinary sanctions against one of Chen’s lawyers for supposed ethical violations. Now it is trying to introduce legislation to punish “obstructions of justice” that will inevitably restrict defense lawyers’ activities.

The MOJ has proposed to amend the criminal code in several ways that threaten the modified adversarial legal system that Taiwan adopted a decade ago. Instead of supporting the equal contest between prosecutors and defense lawyers on which that system is based, the MOJ proposals, reflecting traditional Chinese distrust of defense lawyers, would subject Taiwan’s lawyers to some of the same dangers confronted by their counterparts in China, including significant prison time.

One amendment would punish anyone, including lawyers, for abetting defendants or others to “fabricate, alter, destroy or conceal” important evidence in criminal cases, even when their advice has been ignored and caused no harm! Further, it would punish anyone for abetting defendants to make false statements concerning important facts in trial or investigation. Thus, if a court rejects the defendant’s claim that his pre-trial confession was coerced by police, his lawyers might be prosecuted for having urged him to repudiate the confession. This “Sword of Damocles” hangs over Mainland lawyers, sometimes intimidating them from giving such advice, despite the prevalence of pre-trial torture.

Equally troublesome is the proposal to punish “illegitimate use” of important evidence outside of court. But what use is “illegitimate” and what evidence is “important”? The MOJ has stated that the provision is meant, among other things, to prevent documents from public trials being revealed at press conferences. Yet this would prevent freedom of speech and information essential to monitoring of the judicial process by the media and the people. Such restrictions, to the extent they exist in other democratic societies, are generally justified by the need to protect jury deliberations against media pressures, but Taiwan has no juries.

Even more problematic is the proposal to punish lawyers not only for contempt of court but also for contempt of prosecutors! Legal systems require effective and fair procedures for punishing refusal to heed reasonable court orders. But, in a system where lawyers and prosecutors are supposed to be equal competitors in their efforts to persuade a neutral judge, it is ludicrous to punish lawyers for failing to obey prosecutors.
The Ministry of Justice's response in Chinese is here. Note how the Chen case is being used as leverage against defense lawyers, once again providing evidence that the Chen case is all about politics. But seriously Dr. Cohen, what did you guys expect when you helped lever Ma into power?

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1 comment:

Anonymous said...

Apparently China reads US email messages too (or at least the headers), but they did it using some kind of FBI system or the like. For some reason, Americans don't seem too upset about that.

And with MySpace, LinkedIn, Twitter, Facebook, and the like. Well, Facebook employees are very well-known for having poor ethics and snoop in other people's data all the time, ESP to spy on friends and other acquaintances. That's just nuts.