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Taiwan: Parts of Detention Law Held Unconstitutional

(Apr. 7, 2009) On January 23, 2009, Taiwan's Constitutional Court, which consists of a 15-member Council of Grand Justices, issued an interpretation that deems article 23, paragraph 3, and article 28 of the Detention Law unconstitutional. (Interpretation No. 654 [in Chinese], Justices of the Constitutional Court, Judicial Yuan, website, Jan. 23, 2009, available at Under the article 23 provision at issue, detention center officials are to supervise defense attorney-defendant interviews, thereby allowing them to monitor and tape record the meetings, irrespective of whether it is necessary to fulfill the purpose of detention or preserve detention facility order, the interpretation states.

Under article 28, if the speech, actions, or correspondence of the defendant can provide referential material for a criminal investigation or trial, the material should be reported to the public prosecutor or the court. According to the Court's interpretation, this means that the information obtained from monitoring and taping of defense attorney-client meetings could be used as evidence in determining the facts of the defendant's crime in the criminal investigation or in court, which would harm the implementation of the defendant's right to self-defense and a fair trial and conflict with article 16 of the Constitution of the Republic of China (on Taiwan), which guarantees the right to institute legal proceedings. (Detention Law (issued Jan. 19, 1946, last amended Dec. 27, 2006) [in Chinese and in English translation], (last visited Apr. 2, 2009).)

Thus, the Court held, a criminal defendant and his defense counsel should be able to fully and freely communicate with each other, and significant confidential communication that enables the defender to assistant the defendant should receive the protection of the Constitution. Although the exercise of such a right to communicate freely cannot be unrestricted by law, the interpretation stated, to tally with the Constitution, it must only conform to the proportionality principle provision of article 23 of the Constitution and be concrete and clear. Under article 23, enumerated constitutional rights and freedoms “shall not be restricted by law except such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.” (Constitution of the Republic of China (Taiwan), Office of the President website,
(last visited Apr. 2, 2009).)

The interpretation therefore states that those portions of the Detention Law that did not conform to the intent of the Court's interpretation would be void as of May 1, 2009. (Interpretation, supra.) It has been pointed out that the interpretation aligns Taiwan more closely with article 11 (1) of the Universal Declaration of Human Rights, mandating the right to a public trial in which the defendant “has had all the guarantees necessary for his defence.” (The Universal Declaration of Human Rights, United Nations website, (last visited Apr. 2, 2009); Taiwan Justices Nix Prosecutor Bugging, TAIWAN NEWS, Mar. 9, 2009, EMIS online subscription database, available at

Soon after the issuance of the interpretation, on February 5, 2009, the Ministry of Justice (MOJ) ordered detention centers to cease the tape recordings. However, according to a news report, “the MOJ seems to be simultaneously trying to duck and weave out of the requirement to respect the new judgement [sic].” (TAIWAN NEWS, id.) Thus, an MOJ spokesman indicated that if a prosecutor believes that a defendant or defense attorney might “destroy, fake or alter evidence or collude with accomplices or witnesses,” the prosecutor could, based on a loophole in article 34 of the Code of Criminal Procedure, “still arbitrarily issue written orders to wardens to continue such unconstitutional monitoring.” (Id.)

The interpretation was issued the day after news reports appeared on plans by Taiwan's MOJ to propose a major overhaul of the Detention Law. Aside from the problematic articles addressed by the interpretation, critics find fault with the current Law's prescription of an “excessive” maximum detention period of two months and contend that in practice, aside from “being bugged, discussions between detained defendants and their defence attorneys are usually held in noisy and cramped rooms or can last no longer than 30 minutes,” and there are instances of detainees being handcuffed and having their heads forcibly shaved. (Id.)

Some of the proposed changes to the Law have also been criticized by opponents of the ruling Kuomintang (Nationalist Party). Draft article 64 reportedly would allow judges and prosecutors “to arbitrarily order monitoring and taping” of all meetings between the defendant and counsel, as well as with other visitors, if the defendant is suspected of using the meetings for purposes of collusion or where the case involves “'corruption' or 'money laundering,' even if the defendant was not originally placed incommunicado.” (Id.) Under the proposed draft article 65, defense attorneys are banned from publicly discussing statements made by defendants in meetings not directly related to the case and from discussing with the client matters deemed unrelated to the case during detention center meetings. (Id.)