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Taiwan: Proposal to Grant Witnesses Right to Legal Assistance During Questioning

(Jan. 9, 2018) On December 22, 2017, two members of Taiwan’s legislature, John Wu and Lin Wei-chou of the Nationalist Party (Kuomintang, KMT), made public at a news conference a proposed draft amendment to Taiwan’s Code of Criminal Procedure that would give witnesses who are being questioned by prosecutors or investigators the right to have a lawyer present. (Sean Lin, Lawyers for Witnesses Bill Proposed, TAIPEI TIMES (Dec. 23, 2017).)

Section 2, articles 175 through 196-1, under chapter 12 on evidence of the Criminal Procedure Code, is on witnesses. The draft amendment calls for changes to article 175(1), 192, and 196(1). (Li Jen-lung, In the Wang Bingzhong Case, Witnesses Have No Lawyers to Accompany and Argue for Them, Pan-Blue Puts Forward a Proposal to Amend the Law, TAIWAN TIMES (Dec. 22, 2017) (in Chinese); Code of Criminal Procedure (as last amended Dec. 12, 2007), LAWBANK; Chinese text (July 28, 1928, as last amended Nov. 16, 2017), LAWBANK.)

Article 175, the main target of the proposed amendment, sets forth the procedures to be followed by persons summoned as witnesses by a law enforcement agency, “but does not say they can request the presence of a lawyer when being questioned,” Wu and Lin pointed out. (Sean Lin, supra.) Therefore, they maintain, “[t]he article effectively denies witnesses the right to seek legal advice when being questioned, which is clearly a loophole and an infringement of their human rights ….” (Id.) This is in contrast to defendants, who have the right under the Code to be accompanied by a lawyer when undergoing questioning, “effectively offering defendants more protection, which is unreasonable,” Lin stated. (Id.) Article 192 makes applicable to the examination of a witness the Criminal Code provisions on being examined at a scheduled time (Code of Criminal Procedure art. 74) and the provision of an interpreter or the permissibility of being examined in writing for the deaf or mute (id. art. 99).

Draft Provisions

Under the Code of Criminal Procedure, the accused has the right to remain silent. (Id. art. 95(2).) The draft amendment provides that witnesses have the right to consult a lawyer on whether to remain silent in response to certain questions, so as to avoid forceful elicitation of information from them by prosecutors or investigators—for example, by the threat of an indictment, Wu stated. (Sean Lin, supra.)

Under other draft provisions,

  • the entire questioning process would be recorded, as is the case when questioning defendants;
  • relatives within a certain degree of consanguinity to the litigant and persons obligated to maintain company confidentiality would be exempt from being questioned, as would a person of interest who could reveal information that would jeopardize national security or harm the public interest;
  • witnesses would be prohibited from hiring the same lawyer or using the same law firm as the defendant, in order to avoid collusion; and
  • more than one suspect sharing a lawyer or using the same law firm would also be banned, as would payment by another party of witnesses’ legal fees. (Id.)

Background

The proposal comes in the wake of the Investigation Bureau’s arrest of New Party spokesman Wang Ping-chung, who was listed as a witness in an espionage case implicating former graduate student Zhou Hongxu. (Id.) Zhou was accused of recruiting spies on behalf of mainland China and imprisoned in September 2017 for a year and two months, after being convicted by the Taipei District Court of violating Taiwan’s National Security Act. (Taiwan Jails Chinese Grad Student Zhou Hongxu for Recruiting Spies, HONG KONG FREE PRESS (Sept. 15, 2017).) Wang was taken to the Bureau and questioned for 18 hours without being allowed to be accompanied by a lawyer, and his access to the outside world was cut off. “That he was questioned as a defendant showed that prosecutors and bureau officials were exploiting the loophole,” Lin stated, adding, “[n]ever have witnesses been searched or arrested by warrant.” (Sean Lin, supra.)

The Pan-Blue Coalition stated in response to those who might question the timing of the proposal, in view of the Wang Ping-chung incident, that the proposed revisions have been under discussion for a long time in legal circles, and his case simply highlights this longstanding problem. (Li, supra.) Wu similarly stated, “the lack of legal protection for witnesses has long been a source of controversy in the legal sector,” and “other nations that follow the rule of law have long since banned law enforcers from questioning witnesses as they do suspects.” (Sean Lin, supra.)