Response No. 2 on justice
In “Eroding justice: Open letter No. 2,” published in the Taipei Times on Dec. 2, the signatories again criticized Taiwan’s judicial procedures. Misunderstandings concerning Taiwan’s criminal procedure law are obvious here. Following its response published in the Taipei Times on Nov. 25, the Ministry of Justice of the Republic of China has deemed it necessary to clarify these misunderstandings.
1. There is a difference between pretrial detention and preventive detention. “Pretrial detention” is employed as a means of preventing defendants, who are alleged to have committed felonies punishable with a minimum sentence of five years’ imprisonment, from absconding and destroying evidence, but only where there are difficulties in prosecution, trial or the execution of a sentence. Such detentions are ordered by a judge or a panel of three judges when one of the aforementioned requirements is met. Should there exist any possibility of tampering with witnesses or evidence, detained suspects are barred from being interviewed and corresponding with anyone except their defense counsel(s). Open Letter No. 2 clearly shows a misunderstanding in that it suggested that such detentions might be politically motivated.
2. The correspondence issue: To avail detained suspects of legal assistance, those whose correspondence with the outside world is prohibited do retain the right to correspond with and be interviewed by their defense lawyers. Our laws protect the privilege of confidential communication between a lawyer and his client. But in the case where detention has been deemed necessary to avoid collusion with other defendants and witnesses, it is required that communications between the detained and his lawyer be recorded. This is an attempt to balance a suspect’s right to counsel with a need to prevent obstruction of justice. Once an investigation is completed, the documents, files and other evidence that prosecutors have collected will be submitted to the trial court, and the defense counsel may examine such evidence prior to the trial.
3. On investigation confidentiality: With respect to the allegation that prosecutors leaked information to the press, former president Chen [Shui-bian, 陳水扁] was considered a suspect in a 2006 corruption case in which his wife was indicted as his accomplice. The aforementioned case had been publicly tried for some time and had been reported on often. The media might have access to sources other than the prosecutor’s office, including the defense counsel, defendants and even witnesses.
4. On the lawyers’ code of ethics: In Open Letter No. 2, it was contended that a probe concerning Cheng Wen-lung [鄭文龍], the defense counsel for former president Chen, is confirmation of strong political bias in the judicial system. Please allow me to lay out the sequence of events to show that such a claim is not in keeping with the facts. The Taipei District Court ordered that Chen be detained on Nov. 11, and Mr Cheng communicated with the media about the situation on Nov. 12, issuing a 10-point statement on Chen’s behalf denouncing the “death of the judiciary.” Mr Cheng attempted to politicize the ongoing investigation and mislead the press, which may be considered to not only have the appearance of impropriety, but also to be a violation of the lawyers’ code of ethics. Therefore, the Ministry of Justice, the competent authority overseeing practicing lawyers, issued an official notice to the Taipei Prosecutors’ Office and the Taipei Bar Association to investigate whether any violation of ethics rules was made in conveying a detained suspect’s messages to the outside world. It is the duty of the Taipei Prosecutors’ Office and the Taipei Bar Association to decide whether or not to take action against Mr Cheng.