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 defence 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 defence 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 realise that, under Taiwan’s new adversarial system, prosecutors can, for most purposes, 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’ defence work. If they are enacted, Taiwan is sure to be further downgraded in the civil liberties ratings of major non-governmental organisations such as Freedom House, a strong American supporter that last week criticised recent setbacks in the island’s protection of criminal defendants’ rights.

It is far from clear that additional restrictions on defence 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 defence 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 defence lawyers may begin to resemble that of their Chinese counterparts.

This article was first published here at the US-Asia Law blog. An edited version of this text appeared in the South China Morning Post on January 20, 2010 under the title ‘Under Threat’.

Jerome A. Cohen is professor at NYU School of Law and co-director of the U.S.-Asia Law Institute. Yu-Jie Chen is a research fellow at the U.S.-Asia Law Institute.