Lawyers are condemning a draft amendment to the Criminal Code (刑法) proposed by the Ministry of Justice that they say would extend the crime of perjury to defendants and make it illegal for defendants to “conceal evidence,” thus violating two fundamental legal rights: the right not to incriminate oneself and the right to remain silent.
The amendment would also subject lawyers to prosecution for “abetting perjury” by the defendant or for “inducing” the defendant to conceal evidence, they say.
The crime of perjury currently only applies to witnesses, as defendants have the right not to incriminate themselves.
The proposal is drawing condemnation from advocates of judicial reform and lawyers who say the law is meant to intimidate the defendant and defense counsel in criminal proceedings. The Taiwan Bar Association has passed a declaration condemning the amendment that is now in the process of being signed by 16 regional bar associations nationwide.
The right to remain silent and the right not to incriminate oneself are guaranteed in the Code of Criminal Procedure, articles 95 and 156, and in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) implemented by Taiwan last year.
These rights are protected in many countries and emerged centuries ago in the English legal system. They are rooted in systematic abuses by investigators and the courts, including coerced confessions and the presumption by judges that if a defendant does not answer a question, he or she must be guilty.
According to a copy of the draft amendment obtained by the Taipei Times, abetting perjury would be punishable by up to seven years in prison.
“Falsifying, tampering with, destroying or concealing” evidence would be punishable by up to three years in prison or a fine of NT$15,000. “Causing a defendant” to do any of these actions would be subject to the same punishment, as would using evidence altered or falsified by the defendant; “causing a person other than the defendant” to falsify, tamper with, destroy or conceal evidence; or using evidence altered or falsified by a person other than the defendant.
The amendment has yet to be passed by the ministry and sent to the legislature. In a statement on its Web site, the ministry deflects lawyers’ criticism.
“Although the defendant has the right to remain silent and not to incriminate himself,” it says, this is not the same as “the right to lie.”
“In the US, the defendant can choose to remain silent,” it says. If a person waives that right, he or she must “speak according to the facts.”
On Dec. 19, the bar association passed a declaration condemning the proposal. Other provisions of the same amendment that Taipei Times reported on last month would threaten journalists, lawyers and human rights activists with up to one year in prison for “inappropriately” publicizing details of court cases that are not gagged by law, and require lawyers to obey the “orders” of prosecutors and judges or face prosecution.
The law does not define the term “inappropriately” nor specify which “orders” of judges and prosecutors are referred to.
The bar association’s statement says the ministry is proposing to “strangle the defense” and “stop public scrutiny of the judiciary through intimidation.”
On the section of the amendment concerning perjury and evidence, it says the proposal is “not only a mockery of the defendant’s right to remain silent and not to incriminate oneself, but if the defendant is believed to have made a false statement or hidden incriminating evidence, then the defense counsel will be at risk” of being prosecuted.
The statement will be made public once it has been signed by the nation’s regional bar associations.
Lawyer Greg Yo (尤伯祥) said the rights to remain silent and not incriminate oneself are already weak in practice, though protected by law. Judicial reform comes slowly — some judges and prosecutors still do not agree with these rights, he said in an interview.
If the amendment is passed, lawyers would be intimidated out of talking openly with defendants about the details of their case, Yo said in an interview.
“What defense is there left to speak of then?” he asked.
Referring to the ICCPR and the International Covenant on Economic, Social and Cultural Rights, the national bar association says in its statement: “The Ministry of Justice has a legal duty to implement the two covenants to protect human rights,” yet is proposing an amendment that “infringes on human rights” and “restrict the lawyer and defendant’s space to put together a defense.”
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