The Taiwan Bar Associations and Judicial Reform Foundation Weigh in on the Abuses of the Ministry of Justice

Monday December 01, by Jerome F. Keating Ph.D.

The evidence mounts and it seems like it will never end. On Nov. 21, in a Joint Statement, the Taiwan Bar Association, the Taipei Bar Association and the Judicial Reform Foundation expressed their dissatisfaction on the abuses demonstrated by Taiwan's Ministry of Justice (MOJ). The MOJ appears to be selectively carrying out its vendetta against Taiwan's former president and members of the Democratic Progressive Party. Taiwan's President Ma Ying-jeou who appointed the Minister of Justice tries to dodge the guilt by claiming that is the MOJ business. The Joint Statement reads.

In recent days, the defense counsel for detained former president Chen Shui-bian released a 10-point statement from former president Chen regarding his hunger strike, and Chiayi County Commissioner Chen Ming-wen released his will through his defense counsel. According to media reports, two incidents have attracted the attention of the Ministry of Justice (MOJ) and caused it order prosecutors to investigate whether these statements are in violation of any laws.

Defense counsel is the only weapon of protection for a criminal defendant facing the power of the state. An effective and comprehensive defense system is thus a prerequisite for fair trials. Therefore, in the "Basic Principles on the Role of Lawyers" (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), Article 16 stipulates: "Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; ... and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics." Furthermore, Article 20 states: "Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority." These rules clearly show that only when defense attorneys' professional activities are not subject to retribution, legal or otherwise, from the authorities can they perform their duties properly, without fear.

The MOJ is the supervising authority for all lawyers in the country, and its prosecution agencies are frequently in antagonism to defense attorneys. Therefore, for the MOJ to make any such comments about the statements of either of these defense attorneys not only reduces the ability for them to provide effective defense in these two cases, but it also has potentially far-reaching impacts on the defense system as a whole. This cannot be allowed to pass lightly, especially when violations of the principle of confidentiality of investigations have been a long-standard concern in our country. In the case of former president Chen, officials from the Minister down to front-line prosecutors, police, and Bureau of Investigation personnel face widespread suspicion about leaks to the media, which has covered each step in the investigation almost in real time every day, revealing extremely detailed information about the content of the investigation. To date, there has been no adequate explanation of this situation. The contrast between the steadfast refusal of the MOJ to address these concerns and its swift reaction to these defense attorneys, especially that of former president Chen, nearly inevitably leads to the conclusion that indeed the MOJ's intent is to intimidate the attorneys. These incidents touch upon the core of the defense system, and they also involve the development of freedom of speech, the rule of law, and democracy. Therefore, in the public interest, we must make the following points.

First, the current Lawyers Law and legal ethics rules in our country do not clearly regulate the public speech of defense attorneys outside the courtroom. We may take as a reference the "Model Rules of Professional Conduct" promulgated by the American Bar Association (ABA). Rule 3.6 ("Trial Publicity") provides that a lawyer should not make a statement about the case that "will have a substantial likelihood of materially prejudicing" an upcoming proceeding. However, notwithstanding this condition, "a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." Thus, although a defense attorney certainly does not have unrestricted freedom to publicly comment on a case, exceptions to the general limitation can be made in order to ensure the fairness of the trial. In our country, where prosecutors, police, and investigative personnel act as though the principle of confidentiality of investigations doesn't exist, how can they invoke the principle to limit defense attorneys' utterances made for clarification of public perceptions. Due to the secrecy of investigations, compared to trials, abuses of power are more possible (torture and other wrongful forms of interrogation being the classic example). When such abuses occur, their exposure by defense counsel is nothing less than necessary for the public interest.

Second, as we can see from the ABA rules, the scope of defense attorneys' speech outside the court is a matter of legal ethics. As such, the initial determination of whether a violation has occurred is to be made by the autonomous professional organization to which the lawyer belongs, in this case the Bar Association. Since the essence of the defense system is in opposition to the power of the state, it is inappropriate for the state to decide the scope of such speech. Therefore, if the MOJ actually intends to use this case to clarify the unclear rules in this area, out of respect for the autonomy of the Bar, it should raise the issue for discussion with the Bar Associations, which, if a consensus is reached, could incorporate the new standards into the code of legal ethics. Until this is done, the MOJ should not make any comment on the speech by an attorney in a particular case, in order to avoid any apparent threat or intimidation to the particular attorney.

Third, before the MOJ throws the first stone, it should put its own house in order. In other words, before demanding changes in the behavior of defense attorneys, it should implement an effective system to preserve confidentiality of investigations on the part of the prosecutors, police, and investigative personnel. At present personnel from the those handing individual cases right up to the Minister of Justice seem to have no restraint whatsoever in their comments and leaks to the media; this must be corrected swiftly. The MOJ should consider the example of the United States and other countries and adopt clear standards for all its personnel when speaking to the press regarding what matters can and cannot be revealed (the latter including, e.g., the content of the statements by defendants and witnesses), and should expressly prohibit reporters from entering prosecutorial offices. In this regard, ABA "Model Rules" Rule 3.8 can be a useful reference. It states that "prosecutors shall... refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule."