Taiwan justices nix prosecutor bugging

The Constitutional Court gave a gift to the Taiwan people just before the Lunar New Year by declaring that discussions between defence lawyers and clients under detention can no longer be taped or monitored by prison authorities or provided to prosecutors as of May 1.

Occurring in the midst of a rollback of Taiwan human rights protection under the restored right-wing Chinese Nationalist Party (Kuomintang) government, this decision is definitely worthy of praise by human rights and judicial reform advocates and should be cherished by all Taiwan citizens.

On January 23, the Constitutional Court issued Interpretation Number 645 which deemed ``unconstitutional`` Article 23 Section Three of the Detention Law, which has allowed detention centers to directly monitor and tape meeting between detained defendants and their defence lawyers.

The interpretation also voided Article 28 of the same law, which authorized detention centers to provide tapes and transcripts of such discussions to prosecutors for reference in prosecution against the defendants and even, as in the case of Cheng Wen-lung, the defence lawyer for ex-president Chen Shui-bian, attorneys themselves.

In their judgement, the 15 judges of the Council of Grand Justices stated that the monitoring and taping of such meetings violated the substance of constitutional rights of defendants to ``receive the assistance of lawyers`` and impeded the ``full dialogue`` with their attorneys that is necessary for the realization of their fundamental human rights of judicial defence.

The grand justices also found that such monitoring violated the principle of ``proportionality`` in Article 23 of the Republic of China Constitution, which mandates that the people`s constitutional freedoms and rights shall not be restricted by law unless necessary to prevent infringement upon the freedoms of other persons, avert an imminent crisis or maintain social order.

The new interpretation brings Taiwan closer to accordance with Article 11 of the 1948 Universal Declaration of Human Rights, which mandates that ``everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he (or she) has had all the guarantees necessary for his defence.``

Even though protection of the human rights of defendants in our judicial system remains inadequate, this milestone judgement will help ensure that all defendants can exercise their constitutional right to have the assistance of legal counsel and have full freedom of consultation to ensure their right to a fair and free trial.

Covert disregard

Although the Ministry of Justice properly issued an order to detention centers to cease such taping as of February 5, the MOJ seems to be simultaneously trying to duck and weave out of the requirement to respect the new judgement.

A MOJ spokesman stated after the Constitutional Court issued its interpretation that prosecutors could still arbitrarily issue written orders to wardens to continue such unconstitutional monitoring ``if prosecutors believe that the defendant or defence lawyers`` might ``destroy, fake or alter evidence or collude with accomplices or witnesses`` based on a loophole in Article 34 of Code of Criminal Procedures.

To require the monitoring, video and audio voice taping of all meetings between detained defendants and their defence attorneys and providing transcripts for the uncontrolled use by prosecutors is an exercise in overkill that gives prosecutors an immense advantage as well as opening possibilities for grave abuse.

Moreover, since the very same language is used to justify incommunicado preventative detentions in the first place, the MOJ`s intent appears to be to ``pretend to obey the orders overtly but to disregard them covertly.``

If prosecutors believe that it is necessary to impose restrictions on consultations between detained defendants and lawyers, we believe they should be required under the interpretation to the courts and the defence will naturally have the right to appeal any such court order.

A warning shot

The new interpretation was well timed as it took place one day after news media reported that the MOJ will soon plans to propose major revisions to the Detention Law, which has not been revised since the early 1950s when Taiwan was under KMT martial law rule and is grossly out of kilter with international standards.

While the purpose of placing a defendant under detention may ostensibly be to prevent his or her flight from Taiwan or to prevent tampering with evidence, the defendant is nonetheless entitled to the constitutional protection of the presumption of innocence and his or her constitutional rights, including that for a fair defence, should be respected.

But this requirement is gravely compromised at present by the excessive period of maximum detention (two months) and by the lack of access to counsel that seriously impinge on the right of a defendant for a fair defence.

Besides being bugged, discussions between detained defendants and their defence attorneys are usually held in noisy and cramped rooms and can last no longer than 30 minutes, thus making full and free discussion of the legal case, much less review of the massive stacks of legal documents, extremely difficult.

Moreover, the handcuffing of even prominent defendants such as ex- president Chen Shui-bian and former National Security Council secretary-general Chiu I-jen and the forcible shaving of the latter`s head while in detention hint at the degree to which the assumption of innocence and the other human rights of most detainees are respected in the breech.

Despite promises by Ma for a liberalization, the MOJ`s revisions would impose even more strict and arguably unconstitutional restrictions on the human rights of defendants and even lawyers.

For example, proposed changes to Article 64 would give judges and prosecutors the right to arbitrarily order monitoring and taping of all meetings between defendants and lawyers and other visitors if defendants are suspected of using such meeting to collude with others and in all cases involving ``corruption`` or ``money laundering,`` even if the defendant was not originally placed incommunicado.

Moreover, draft revisions to Article 65 would ban defence lawyers from publically discussing statements by defendants in their meetings that were not directly related to the case and would also prohibit lawyers from discussing matters deemed to be unrelated to the case to his or her client during detention center meetings.

Such new restrictions would seem to gravely transgress the constitutionally required presumption of innocence and trample on the rights of free speech of both defendant and attorney and would strip away what meagre defences defendants held under incommunicado detention would have against trial by media.

Lawyers could conceivably be banned from informing a defendant that he or she was being slandered and prohibited from relating the defendant`s rebuttal to the news media.

Fortunately, Interpretation 645 puts the KMT government on notice that the Constitutional Court is unlikely to tolerate such a turning back of the clock on Taiwan human rights.

The MOJ should therefore retract its reactionary revisions and substitute changes that will improve software and hardware conditions for consultations between detained defendants and their lawyers that will protect the confidentiality of such discussions and the rights of all people for fair trial and defence in line with international human rights standards and the spirit of Interpretation 645.