Regardless of Procedure, Justice Must Prevail—Please Promptly Establish a Legal Aid System

Article 10 of the Universal Declaration of Human Rights: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."
Article 11: "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 has had all the guarantees necessary for his defense."
Article 14, Paragraph 2 of the International Covenant on Civil and Political Rights: "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; ... and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it."

Therefore, providing corresponding assistance by the state to those who are financially incapable of hiring private attorneys so that they can enjoy the assistance of legal professionals is a system that a modern constitutional state emphasizing the protection of fundamental human rights ought to possess.

The United Kingdom's modern legal aid system dates back to the Legal Aid and Advice Act of 1949, which was subsequently updated by the Legal Aid Act of 1988. Our neighbors, Hong Kong, promulgated the Legal Aid Ordinance in 1967, and South Korea promulgated the Legal Aid Act in 1986; both have already implemented national legal aid systems. Several years ago, former Judicial Yuan President Shih Ch'i-yang took office and established the "Judicial Reform Committee," which passed three bulky volumes of reform proposals. One of these proposals was to "establish a legal aid system" (reportedly passed unanimously without objection by participants), and an official letter was sent to the Ministry of Justice to initiate planning. However, the matter has since sunk into oblivion without a trace. As one of the Four Asian Tigers, our governing authorities are overjoyed whenever our economic growth rate surpasses others; yet, when lagging behind and falling out of sight in the endeavor to assist the vulnerable and uphold the fallen, they still fail to seek improvement, which is truly shameful.

Article 16 of our Constitution explicitly stipulates that the people shall have the right of petition and of litigation, while Article 7 provides for the right to equality. Taken together, these two provisions mean that citizens must have not only formal equality of opportunity in judicial procedures, but also substantive equality—namely, equality of arms and equality of capability. Looking deeper, the right to litigation is a remedial right whose function is to ensure the realization and protection of the people's substantive constitutional rights (such as the right to work, the right to property, the right to life, and personal freedom). We must ask: When unscrupulous employers illegally dismiss workers, refuse to pay severance, pensions, overtime pay, or occupational disaster compensation, victimized workers who cannot afford litigation fees or hire legal representation are not only unable to obtain professional legal assistance to protect their due rights, but may even jeopardize their current jobs and livelihoods (often having to take leave to attend court), forcing them to reluctantly abandon their rights. Criminal defendants, because they cannot afford to hire defense counsel, suffer untold grievances and are deprived of their freedom or even their lives, leading to broken families and separated spouses. Dedicated and devoted housewives, unable to bear domestic violence, seek divorce or child custody battles, yet due to an inability to hire attorneys, must face protracted litigation procedures alone while juggling work and lacking any professional legal knowledge. As demonstrated by these universally existing real-life examples, for citizens lacking the financial means to receive professional assistance, not only is the right to litigation an empty constitutional phrase, but when their other fundamental constitutional rights are violated, they are left with nowhere to turn for help and may even suffer secondary victimization within the judicial process.

Secondly, as courts are meant to serve all citizens while judges' time remains eternally limited, legal representation by attorneys contributes to smooth and efficient court proceedings, alleviates judges' workloads, and correspondingly allows more citizens to access the courts more swiftly. One of the focal points of the recent official judicial reform conference is changing the current criminal procedure system, which has recently sparked a debate over the relative merits of the adversarial system versus the inquisitorial system. In reality, regardless of which system is adopted, criminal defendants—as well as crime victims or informants if prosecutors still fail to attend hearings and force victims to represent themselves—require the state to provide legal aid if they lack the financial means to hire defense counsel or legal representation (the current public defender system is largely dysfunctional and virtually nominal).

We hereby call upon the government to promptly legislate and allocate budgets to establish and implement a legal aid system. This is an inescapable obligation of the government, and it should no longer procrastinate or muddle through. Attorneys should also recognize that cooperating with the implementation of the legal aid system by providing standard-quality legal services to citizens who meet the statutory eligibility for legal aid—even when state-remunerated compensation is below average levels—is a social responsibility incumbent upon attorneys. Finally, it must be pointed out that regarding criminal procedures, in contrast to civil society organizations' proposal that legal aid should encompass both the investigation and trial stages (under comparative legislation, the investigation stage, especially the police interrogation phase, is the stage where legal aid is most needed and should most certainly be provided), the Judicial Yuan and the Ministry of Justice have instead proposed excluding the investigation stage from the scope of legal aid. Such a stance is deeply bureaucratic and self-serving, compelling one to look upon it with utter disdain and scorn.