Lawyers and academics are attacking an amendment to the Criminal Code proposed by the Ministry of Justice that they say could send journalists, defense attorneys and members of human rights groups to prison for up to one year for publicizing information about ongoing court cases that is not currently prohibited.
The draft amendment would also make it illegal for lawyers and defendants to “disobey the orders” of judges and prosecutors, among other changes.
If passed, lawyers and others would be barred from “inappropriately” publicizing the details of evidence used in court — whether from the trial of former president Chen Shui-bian (陳水扁), the Hsichih Trio case or other trials. Violators would face up a prison term or a fine of NT$300,000.
However, the draft amendment, a copy of which was obtained by the Taipei Times, does not define the word “inappropriately.”
The amendment concerns articles 165, 168 and 172 of the Criminal Code. Last week, the ministry invited lawyers and academics to review and discuss the amendment. Several lawyers and academics have since attacked the proposal in op-eds in the Chinese-language press, including the Liberty Times (the Taipei Times’ sister newspaper), the Apple Daily and the China Times.
‘The amendment is in part a reaction to public pressure over controversial cases,” lawyer Greg Yo (尤伯祥) told the Taipei Times.
Yo and Hsinchu Bar Association director-general Lo Bing-cheng (羅秉成) both suggested the amendment was related to Chen’s trial. Early this year, Chen’s lawyers went public with recordings of questioning sessions with witnesses to back their claims that prosecutors’ records were flawed.
Yo, a defense lawyer in the Hsichih Trio case and two other long-running, controversial death penalty cases, said the amendment would make lawyers think twice before contacting media when they believe their clients’ rights are being violated.
Lawyers often hold press conferences to call attention to problems including concerns that a confession was extracted by torture, that a defendant was convicted based on confessions and not evidence or that prosecutors’ records of witness statements are inaccurate. (Records from questioning sessions with witnesses are not word-for-word transcripts but summarized versions.)
The amendment would bar “inappropriate” use of case details out of court by anyone who “has” this information or “knows” this information, the ministry’s draft says.
In an op-ed piece, Lo said “the scariest thing about this amendment” is that it not only includes lawyers, but also reporters and activists who sit in on cases and write about them later.
“Clearly, this clause would quickly suppress public scrutiny of the judiciary,” he wrote.
In an interview, Yo called the act “dangerous” and a way to “threaten” lawyers and reporters not to step out of line.
In the Hsichih Trio case, Yo said that if this legislation had existed earlier, the three defendants, in absence of adequate media coverage and the public outcry this has prompted, “would likely be dead.”
The proposal also bans “inappropriate” words or actions in court and “disobeying the orders” of a judge or prosecutor. It does not define these terms.
Yo said the changes are meant to intimidate lawyers. Taiwan’s courts switched to an adversarial system — in which the defense counsel can ask witnesses questions — less than 10 years ago.
“But the judges and prosecutors — especially the prosecutors — have never been happy with that change,” Yo said, adding that this is a way to rein in lawyers.
Disobeying a judge or prosecutor would carry a maximum punishment of six months in prison or a fine of NT$9,000. This could include orders that violate a defendant’s right to remain silent and not incriminate himself (enshrined in the Criminal Procedural Code), Yo said.
He gave an example at a district court this year in which his client declined to answer a judge’s questions.
The judge became angry and instructed Yo to have his client answer. Yo refused and an argument ensued. If the amendment is passed, Yo said defendants could be intimidated into obeying in this situation, while lawyers who argue with judges could be accused of “inappropriate” words.
The proposal also bans lawyers and defendants from “harassing” witnesses under penalty of up to three years in prison or a fine of NT$100,000.
It does not define “harass.”
If the amendment is passed, Yo said he “would not dare” talk to some witnesses associated with the prosecution even though “every serious lawyer must do so” to understand their testimony and prepare as thorough a defense as possible.
The ministry has defended the proposal on its Web site, saying that it must combat actions that “interfere with judicial independence” and are “worse day by day.”
These actions include destroying or tampering with evidence, harassing witnesses and calling press conferences to make public details of evidence, it said. Current law does not punish these acts, it said, causing the public to think that the law “indulges madness.”
The ministry said it is defending the judiciary from interference in line with international legal practice.
Lo and Yo reject that argument, saying it is instead protecting prosecutors and judges and strengthening their position.
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