Joint Statement on the Public Defender System

In response to recent reports in domestic media that the Judicial Yuan intends to increase the number of public defenders, and considering that the quality of public defense is closely tied to the protection of criminal human rights and the realization of discovering the truth and preventing wrongful convictions in criminal proceedings, this statement is issued to raise public awareness and concern regarding the public defender system as follows:

1. Although Article 12 of the Public Defender Act stipulates that "Public defenders shall independently exercise their duties before courts and prosecutors," pursuant to Article 1, Article 7, and Article 21 of the same Act, as well as the Court Organization Act, the Regulations Governing the Administration of Public Defenders, and the Directives for the Employment, Training, Business Administration, and Evaluation of Contracted Public Defenders by Courts, public defenders are established within courts at all levels below the High Court and are subject to administration, supervision, and evaluation by their affiliated courts. In other words, under the current legal design, public defenders are subject to evaluation and control by the court on the one hand, while on the other hand, they are required to exercise their duties independently of the court like ordinary defense counsel. However, facing the court that supervises and evaluates them, it is hard to imagine how public defenders can truly exercise their duties independently.

2. Although the appointment of a public defender to represent a defendant originates from a state assignment, they nonetheless exist to guarantee the criminal defendant's right to the assistance of counsel. The scope of defense encompasses not only the prosecution by the prosecutor, but also whether the court complies with relevant laws and due process requirements during trial, and further extends to whether the court's judgment on the case is lawful and appropriate. However, the current legal system places the public defender under the very court they are supposed to oppose and subjects them to the court's supervision and evaluation, severely undermining the independence of public defenders in advocating for the defendant's interests.

3. Furthermore, because public defenders are subordinate to the courts, their defense functions have been limited due to improper institutional design and insufficient resources, leading to external criticisms that the public defender system is a mere formality. The 1999 National White Paper on Judicial Reform cited this reason to resolve to abolish the public defender system. Today, however, the Judicial Yuan goes against the resolution of 1999 and intends to increase the number of public defenders, seemingly wishing to retrace the failed path of the past that was subject to widespread criticism.

4. In July 2015, the Legislative Yuan, considering that a defendant's reliance on a lawyer is the most crucial safeguard for the right to litigation, and that the trial of serious criminal cases directly affects the court's judgment to restrict or deprive a defendant of their liberty and right to life, amended the law to explicitly stipulate that in felony (mandatory defense) cases, neither the defendant's financial status nor the merits of the case shall be examined. Under this state policy, the Legal Aid Foundation, in accordance with relevant policy norms approved by the Judicial Yuan, may assign up to three defense counsels to represent a defendant in major criminal cases. Compared to the market rates for defending major criminal cases, the total fee of NT$90,000 designated by the Legal Aid Foundation for assigning three attorneys at a single court instance falls far short of the fee standards for attorneys with adequate defense competence in the market. The intent and policy formulation of the Legislative Yuan and the Judicial Yuan in safeguarding human rights are deeply commendable.

5. However, the Judicial Yuan now goes against the resolution of the 1999 National White Paper on Judicial Reform, the direction of the Legislative Yuan's legal amendments in July 2015, and its original policy direction by intending to increase public defenders, seemingly attempting to revert to the aforementioned failed path. While how the public defender system should operate and its scope of application are choices of state policy and cannot inherently be judged as simply superior or inferior, the prerequisite must be the establishment of independence for public defenders in the execution of their duties, personnel administration, powers, and responsibilities, along with the provision of adequate resources and training, rather than subordination to the courts, which creates a malformed trial ecology that blurs the distinction between the judiciary and the defense and unduly impacts defendants' rights. If the Judicial Yuan truly intends to expand the operation of public defenders, it should not merely increase the headcount of public defenders; instead, it must thoroughly review the public defender system, endowing public defenders with the requisite independence, professional competencies, ethical norms, and sufficient resources to truly ensure trial fairness and the protection of defendants' rights.

Co-signing Organizations

Taiwan Criminal Defense Lawyers Association
Judicial Reform Foundation