The Continued Hypocrisy of Ma Ying-jeou's Government I

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Monday February 08, by Jerome F. Keating Ph.D.

The hypocrisy and pretense fostered by the government of Taiwan's President Ma Ying-jeou is once again demonstrated by Ma's former law professor as he observes how Ma's Minister of Justice attempts to make Taiwan emulate China. An edited version of this text appeared in English in the South China Morning Post (Hong Kong) on January 20, 2010 under the title "Under Threat," and appeared in Chinese on January 21, in the China Times (Taiwan) (繁體中文)(简体中文). by Jerome A. Cohen and Yu-Jie Chen. It is important to read this to understand the continuous and disparate double standard that Ma's people place Taiwan under. Wake up Taiwan!

The Chinese government's continuing attacks on human rights lawyers rarely make foreign headlines these days. Monitoring, intimidating, disbarring and prosecuting activist lawyers have become routine in China. Even the tragic "disappearance" while in police custody of defense lawyer/political reformer Gao Zhisheng-now feared to be dead-hardly attracts attention.

It is also unremarkable for even non-political Chinese defense lawyers to suffer sanctions. The recent conviction of Beijing lawyer Li Zhuang for allegedly counseling his client to lie and bribe witnesses would not have been noted abroad if the case had not involved Chongqing's extraordinary campaign to suppress organized crime.

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.

MOJ officials do not seem to realize that, under Taiwan's new adversarial system, for most purposes prosecutors can no longer be regarded as members of the "judiciary". Their status and functions are very different from those of judges.

The proposals-not yet submitted to the legislature-have understandably aroused strong opposition from the legal profession. Although the MOJ has stressed that the proposals are not targeted at lawyers, they will have an adverse impact upon lawyers' defense work. If they are enacted, Taiwan is sure to be further downgraded in the civil liberties ratings of major non-governmental organizations such as Freedom House, a strong American supporter that last week criticized recent setbacks in the island's protection of criminal defendants' rights.

It is far from clear that additional restrictions on defense lawyers are needed to guard against "obstructions of justice" in Taiwan. The MOJ has cited no empirical studies to show that existing laws and ethical rules are inadequate. Moreover, the vague language of each proposed criminal prohibition is an invitation to abuse and confusion that would inhibit the robust defense lawyering that a fair justice system requires.

Every country needs effective administration of justice. Yet, every country also needs vigorous lawyers to check abuses of the criminal process. If these MOJ proposals are enacted, the plight of Taiwan's defense lawyers may begin to resemble that of their Chinese counterparts.