Sidelights | Seminar on "Speaking Up for Disobedience: Accompanying Defense in Social Movements and Civil Disobedience"

The Peculiarities of Accompanying Defense in Social Movement Protests

Accompanying defense cases during social movement protests generally differ from standard retained cases. In ordinary retained cases, clients and lawyers usually have ample time to communicate and become acquainted. In contrast, during accompanying defense, a lawyer's first contact with the client may take place right at the police station. In the high-pressure, uncomfortable environment of a police station, maintaining good quality attorney-client interviews is often difficult. Furthermore, because clients may have just finished participating in a social movement, suffering from prolonged fatigue and stress, and experiencing a state of high excitement, the likelihood of an effective statement is reduced. Under such circumstances, how to build a relationship of trust within limited interview time is a major challenge. Here, Attorney Ch'en Hung-ch'i suggests that "carrying an adequate supply of name cards" is a great trick. This creates a sense of familiarity and connection between the client and the lawyer, preventing them from being total strangers to each other's names and backgrounds, which makes it easier to build trust and more conducive to the client fully expressing the facts of the case afterward.

In accompanying defense cases, lawyers should remind clients of the upcoming procedures and potential issues they will encounter so that clients do not feel ambushed. For example, after being apprehended and brought in, the process typically involves:

1. The first police interrogation record
2. Investigation by the investigative team of the respective precinct
3. Transfer to the Prosecutors Office for secondary questioning

During the investigation by the investigative team, usually only identity verification takes place; however, under special circumstances, a second police interrogation record may occur. To prevent clients from being frightened or caught off guard by this, it is essential to warn clients beforehand of the possibility of a second police interrogation record, and to remember to ask for the lawyer's presence if this happens.

What to Do in Interrogation Scenarios That Violate the Law or Border on Violation?

In social movement protests, one may encounter a high degree of malice from police officers. There are many reasons why they might act this way—perhaps caused by prolonged duty stress, pressure from superiors, or hostile behavior from clients, etc. Consequently, police officers may adopt a harsh attitude or even attempt to provoke the lawyer. How should one conduct oneself in this situation? Attorney Ch'en Hung-ch'i breaks this down into several scenarios for us to discuss together!

The Nuclear-Grade Weapon: The Right to Remain Silent

Reviewing the three scenarios above, one can see that accompanying defense takes many forms, and navigating it is a highly complex issue. Here, Attorney Ch'en Hung-ch'i specifically points out that the client's "right to remain silent" is a crucial right. Pursuant to Article 95, Paragraph 1, Subparagraph 2 of the Code of Criminal Procedure, a defendant may remain silent. "Remaining silent" may sound insignificant; however, for the police, a client remaining silent can be quite troublesome. Police may feel pressured and dislike having an empty record; thus, making good use of the right to remain silent is a vital trick!

Under what circumstances should this nuclear weapon (the right to remain silent) be invoked forcefully? There is actually no fixed standard. If police attitude is hostile and inducement borders on malice, one can certainly remind the client at the appropriate moment and exercise the right to remain silent somewhat firmly. Afterward, one can explain to the prosecutor that improper police interrogation conditions led to the exercise of this right.

Finally, Attorney Ch'en Hung-ch'i emphasized that when fighting for clients' rights, lawyers should "try to maintain taste and dignity without always having to assert things aggressively." In other words, avoid becoming the target of conflict with the police unless strictly necessary, so as to prevent "innocent bystanders from getting dragged into the dispute"!

The Importance of "Immediate Application for Habeas Corpus" and "Retroactive Accountability"

Sharing his personal experience, Attorney Ch'en Hung-ch'i noted that in the prominent Korean workers' case, client Lee Sang-eun was unlawfully arrested. Through previous similar incidents and the legal team's repeated trials and efforts, they realized: if apprehension procedures are found to be illegal, there is no need to cling to accompanying the client on-site; one should immediately apply for habeas corpus! In that case, the legal team secured the release of client Lee Sang-eun precisely by applying for habeas corpus immediately.

In addition, Attorney Ch'en Hung-ch'i shared that if one wishes to hold police officers retroactively accountable following improper interrogations, official letters can be dispatched to the "Inspectorate Office," with copies sent to multiple different units and administrative agencies to urge their attention.

"Civil disobedience can be said to be a right of resistance. People achieve illegal outcomes through rights conferred by the Constitution. Through small-scale resistance, we pull a constitutional system nearing out-of-control back onto the right track—much like sneezing or coughing to remind the body that something is wrong."

During the discussion, Professor Wei Pei-hsuan stated that whether it is assembly and procession or civil disobedience, both require courage, involve huge stakes, necessitate stepping forward directly, expose individuals to the public's bare scrutiny, and even require confronting the front lines of the state.

Professor Wei Pei-hsuan noted that in Taiwan, it is difficult to evaluate civil disobedience as legal; it can only be described as "sympathetic illegality." For example, in the case of the famous Rice Bomber—Yang Ju-men—Taiwanese judiciary could only assist in sentencing or rely on presidential pardons, but fundamentally it is difficult to deliver an acquittal.

So how should we help defend clients when exercising this right of resistance known as civil disobedience? Professor Wei Pei-hsuan stated that defense focuses are unlikely to be placed on "justification grounds" (grounds for blocking illegality). Instead, one should be pragmatic and fight for the client through "statutory elements" and "culpability." For instance, if a client with physical or mental disabilities refuses police inspection and is accused of "obstructing official duties," our defense direction might be that "the police were not exercising official duties at all," meaning the client did not obstruct official duties!

Finally, Professor Wei Pei-hsuan pointed out that whether in civil disobedience or assembly and procession, situations frequently arise where police officers are fully aware that certain actions are illegal yet still carry out unlawful enforcement. Such situations may occur due to instructions from superiors or power dynamics that require the immediate suppression of public voices. They also do not fear administrative disciplinary action because they are doing what their superiors like, ensuring that someone will continue to "protect them" in the future.

How should we respond then? What we can do is to "hold them accountable to the end," "maintain continuous attention," and "keep speaking out" so they know that someone is always watching these actions and putting pressure on superiors; we must also let them know that they cannot evade responsibility every single time. Only in this way can we ensure that the government cannot use illegal means to maintain the stability of its power! Only thus can we protect the functioning of democracy and ensure that the people's voices are never ignored.