Protesting the Legal Aid Act Draft that Feigns Means-Testing While Expanding Authority—Joint Statement Opposing Hasty Amendments to the Legal Aid Act

Photo source / Legal Aid Foundation

The Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan reviewed the draft amendments to the Legal Aid Act (hereinafter referred to as the "Legal Aid Act Draft") on March 18, 2019, concluding the revision of Article 5 concerning the review regulations for mandatory defense cases and the addition of Article 34-1 regarding the provision to prevent malicious complaints by prosecutors. Civil society organizations issued a statement expressing opposition to the hasty legislative amendments:

1. The Draft Lacks Means-Testing Effects and Continues to Waste Public Interest Resources

   Legal aid is a precious public interest resource of the state. It is heartbreaking that chaotic situations have occurred where defendants drive Mercedes-Benzes to the Legal Aid Foundation. However, Article 5 of the Legal Aid Act Draft, under the guise of "means-testing," replaces legal aid lawyers with public defenders, which still allows defendants driving Mercedes-Benzes to continue abusing public defenders who are likewise public interest resources. Such superficial amendments merely require the Judicial Yuan to hire additional public defenders to cope with the situation.

2. The Addition of Contract Public Defenders Violates the Resolutions of the National Judicial Reform Conference

   Before Article 5 of the Legal Aid Act Draft was even amended, the Judicial Yuan extensively recruited "contract public defenders" on April 1 of this year, which inevitably raises suspicions. More importantly, the 1999 National Judicial Reform Conference already resolved to abolish the public defender system. Because public defenders are subject to the supervision and evaluation of the courts, it is difficult for them to exercise their duties independently of the courts, and the protection of the defendant's right to defense will be severely compromised. The 2017 National Judicial Reform Conference did not overturn the previous resolution either. Now that the Judicial Yuan is violating the National Judicial Reform Conference resolutions, it should specifically present its justification to the public.

3. The Provision to Prevent Malicious Complaints by Prosecutors is Hastily Designed and Difficult to Enforce

   The Judicial Yuan supports the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan in adding the provision to prevent malicious complaints by prosecutors; however, this provision has not been fully discussed by various sectors, triggering a flurry of letters of protest from prosecutors. Furthermore, the draft provisions are insufficiently comprehensive, failing to consider other situations such as the abuse of litigation by private prosecutors' agents. If passed and implemented hastily, it will inevitably lead to the drawback of having well-intentioned objectives that are difficult to execute.

4. Calling on the Judicial Yuan and the Legislative Yuan to Suspend the Promotion of the Legal Aid Act Draft

   Finally, whether it is preventing the abuse of legal aid resources or preventing malicious litigation, both involve the proper utilization of state resources and constitute major judicial reform policies. We call on the Judicial Yuan and the Legislative Yuan to suspend the promotion of this legislative amendment. The Judicial Yuan should broadly incorporate opinions from all sides, carefully evaluate the impacts and effects brought by the amendments, and then re-propose a new draft, which would be the responsible approach to reform.

Statement-Issuing Organizations

Covenant Watch
Judicial Reform Foundation
Taipei Bar Association
Taiwan Association for Human Rights
Taiwan Indigenous Peoples Policy Association
Taiwan Labour Front
Taiwan Alliance to End the Death Penalty
Debt Debtors' Self-Help Association
Yung-She
Taiwan Association for Innocence
Garden of Hope Foundation
(Listed in the order of Chinese stroke count)