Joint Statement Regarding the Ministry of Justice's Attention Drawn by Former President Chen's Defense Counsel Issuing a Hunger Strike Statement on His Behalf

According to recent media reports, after visiting former President Chen who was detained incommunicado at the detention center, his defense counsel issued a ten-point fasting statement on his behalf. Additionally, Chiayi County Magistrate Chen Ming-wen, who was also detained incommunicado, released his suicide note through his defense counsel. This drew the attention of the Ministry of Justice, which specifically instructed the Department of Prosecutorial Affairs to study whether the lawyers' remarks violated relevant laws and regulations.

Given that defense counsel is the sole weapon upon which a criminal defendant can rely when facing the prosecution of a powerful state apparatus, the effective and sound operation of the defense system is a prerequisite for a fair trial. Therefore, Article 16 of the Basic Principles on the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, stipulates that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, or improper interference, and that they shall not suffer, or be threatened with, prosecution or administrative, economic, or other sanctions for any action taken in accordance with recognized professional duties, standards, and ethics. Article 20 of the aforementioned principles stipulates that lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal, or other legal or administrative authority. The above provisions explicitly declare that only when defense counsel are free from legal or non-legal forms of retaliation for displeasing those in power through their advocacy activities can they perform their duties normally and free from fear. Accordingly, as the competent authority for lawyers nationwide—while the prosecutors under its jurisdiction are frequently in an adversarial relationship with criminal defendants and defense counsel—any comments made by the Ministry of Justice regarding the remarks of the defense counsel for former President Chen and Magistrate Chen Ming-wen will exert a profound impact on the scope of defense in the said cases and the long-term development of the entire defense system. Utmost caution is therefore required. In particular, the violation of the principle of non-disclosure of investigations by prosecutors, police, and investigative personnel who leak case information that ought to be kept confidential to the media has long been criticized by the public. In former President Chen's case, from the Minister down to the relevant handling personnel, overwhelming public skepticism regarding whether the principle of non-disclosure of investigations was violated has been faced, yet no explanations sufficient to dispel doubts have been seen to date. The media continue to report the interrogation contents of the relevant parties in meticulous detail on a nearly simultaneous broadcast basis day after day. Comparing the two, while the Ministry of Justice can remain unmoved in the face of external doubts, it rapidly turns its attention to whether the issuance of a hunger strike statement on behalf of former President Chen by his defense counsel violates the law. It is difficult to avoid the speculation of whether an intent to intimidate underlies this action. As this concerns the foundation of the defense system, involves freedom of speech and the sound development of democracy and the rule of law, and is intimately connected to the public interest, we are compelled to point out the following:

First, regarding public statements made by defense counsel to the media outside the courtroom, there are no explicit regulations in the current Attorney Regulation Act or Code of Ethics for Attorneys. With reference to Rule 3.6 of the ABA Model Rules of Professional Conduct, if such statements involve the merits of a case and create a substantial likelihood of materially prejudicing the fairness of a future trial, they certainly should not be made. However, even if such concerns exist, if another party's recent public statements or reports have severely prejudiced a client's rights to a fair trial, defense counsel may make retaliatory public statements to the extent necessary to protect the client's rights. Accordingly, while public statements concerning the merits of a case made by defense counsel to the media outside the courtroom are theoretically not entirely unrestricted, exceptions still exist within these restrictions to ensure the defendant's right to a fair trial. In our country, given that prosecutors, police, and investigative personnel themselves already treat the non-disclosure of investigations as a dead letter, whether defense counsel can be further restricted from publicly expressing views to clarify public misconception on the grounds of non-disclosure of investigations is a matter worthy of reflection. In particular, because investigations are secretive by nature, they are more prone to breeding abuses of power compared to trials conducted openly (unlawful interrogation methods such as torture being typical examples). If abuses of power and violations of law have indeed occurred in a specific case, the exposure by defense counsel to generate public attention can be described as nothing less than a requirement of the public interest.

Second, as can be seen from the aforementioned ABA provisions, the boundaries of defense counsel's extrajudicial speech are inherently a matter that should be governed by codes of professional ethics for attorneys, and whether a violation has occurred should likewise be determined in the first instance by the self-governing body of the profession, namely the bar association. The reason for this is that the defense system is inherently in an adversarial posture against state power; therefore, it is inappropriate for the state to determine the boundaries of defense counsel's speech. Consequently, if the Ministry of Justice truly intends to clarify this legal status characterized by unclear norms through former President Chen's case, it should publicly solicit the opinions of the bar associations under the overarching premise of respecting lawyer self-governance. Any concrete conclusions reached should also be entrusted to the bar association to be incorporated into the Code of Ethics for Attorneys. Prior to this, the Ministry of Justice should refrain from making any commentary on the remarks of defense counsel in individual cases to avoid being interpreted as a threat or intimidation directed against them.

Third, the Ministry of Justice should bear in mind that before shaving others, one must first shave oneself. Therefore, while placing demands on defense counsel, it should establish effective mechanisms to implement the non-disclosure of investigations by prosecutors, police, and investigative personnel. The current phenomenon—ranging from individual handling prosecutors and institutional spokespersons to the Minister—where individuals speak almost unreservedly to the media should be corrected as soon as possible. The Ministry of Justice should reference the legal systems of the United States and formulate a set of speech guidelines clearly stipulating what personnel under its jurisdiction may and absolutely may not disclose when speaking to the media (such as the statements of defendants and witnesses) and strictly prohibit reporters from entering prosecutors' offices. In this regard, Rule 3.8(f) of the ABA Model Rules of Professional Conduct, which stipulates that a prosecutor shall not make extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and shall exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with a prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making, serves as a useful reference.