Why a Thousand Lawyers Are Defying the GovernmentIn Taiwan, current laws do not allow for the existence of organizations like the ACLU
In July 2013, the Miaoli County Government tore down the Chang pharmacy in Dapu Borough and seized the land for an urban renewal project. The controversial case, which went back several years, had sparked heated argument within society over due process and the role of the courts, an argument that continues to this day.
What made that case particularly salient was the fact that when he was still premier, Wu Den-yih (吳敦義) had promised that the local government would not be permitted to take action until the courts had made a final ruling on the matter. And yet the demolition went ahead, and Wu, by then vice president, seemed reluctant to enforce his initial vow.
The actions of the Miaoli County Government provoked many civilians, including professor Hsu Shih-jung (徐世榮) of National Chengchi University (NCCU), who fought on tirelessly to prevent the state-sanctioned demolition. On July 23, 2013, professor Hsu entered a regulation area during a protest and attempted to petition President Ma Ying-jeou (馬英九). However, Hsu was quickly dragged away and arrested by police, which claimed that he had committed “Offenses Against Public Safety.” Fortunately for Hsu, the prosecutor saw things differently.
Personally, I didn’t think that the government was really interested in hearing the people’s voice. In fact, as the number of petitions grew nationwide, people were being arrested with increased frequency. I feared that people were starting to lose their freedom of expression, especially their freedom to criticize the government. That reminded me of a major case in 2008.
In 2008, the recently elected President Ma, who is generally considered to be “pro China,” invited Chen Yunlin (陳雲林), the then chairman of China’s Association for Relations Across the Taiwan Strait (ARATS), to visit Taiwan in November that same year. At that time, many Taiwanese who opposed the visit tried to assemble and protest, but failed to do so because the government had some of them arrested and forcibly dispersed others. To support them, many college students established the Wild Strawberry Movement to draw up a petition calling for amendments to the Assembly and Parade Act (集會遊行法). I was a founding member of that movement, and had actually drafted the proposed amendment in 2006 after a friend of mine had been charged with disobeying the very same Assembly and Parade Act. Some people invited me to join the recently established Alliance for the Amendment of the Parade and Assembly Act, and I was chosen to represent the group at a hearing of the Legislative Yuan regarding the issue. Sadly, we didn’t succeed.
One night in late July 2013, my classmate and lawyer Yu Tsung-ming (余宗鳴) created a social network called the Social Movement Pro Bono Lawyers Online, which regrouped lawyers who were interested in providing pro bono services with the assistance of friends from the NGO sector. Thus, we became the founders of this social network. After a week, the number of lawyers who offered their services had grown dramatically. The Judicial Reform Foundation (民間司法改革基金會，JRF) also cooperated with the lawyers.
Over time, the members of our group took on a number of cases, such as wind farms in Yuanli, Miaoli County, and the Huaguang Community in Taipei, which was being forcibly torn down. Additionally, more than 1,000 lawyers signed a petition against abuses of power by the authorities. We cited Japanese writer Haruki Murakami’s famous sentence as our intention: “Between a high, solid wall and an egg that breaks against it, I will always stand on the side of the egg.”
On August 6, 2013, about 100 lawyers representing the 1,000 lawyers gathered at the Ministry of Justice to deliver the petition. I was also invited by Newtalk, a web-based news organization, to discuss what the lawyers could do to assist social movements.
Our organization also played a prominent role the following year during the Sunflower Movement’s occupation of the legislature. Lawyer Ku Li-hsiung (顧立雄) and the JRF were able to bring together about 400 lawyers who were willing to provide pro bono services to members of the Sunflower Movement.
If you ask me why I choose to provide pro bono services to social movements, I would say that this is because a professor once told me that our duty is to protect the weaker elements in society to ensure equality. People of high social status and means can easily find excellent lawyers to represent them. And then there are those who have strong beliefs but little, if any, resources. Those were the people that Haruki Murakami was talking about in the quote above.
After I passed the National Bar Examination in 2007, I joined the JRF the following year and began dealing with public petitions. In 2009, several practicing lawyers and I helped two male clients with their call on the Council of Grand Justices to determine that Subsection 3 of Article 2 of the Compensation for Miscarriages of Justice Act (冤獄賠償法) be considered unconstitutional. Soon after assuming leadership of the JRF working committee in 2013, I advised the Foundation to strive for more innovation ideas. For instance, I proposed reforms to the administrative remedies mechanism. This remained an important, albeit largely ignored, issue until the emergence of a major case, the National Alliance for Workers of Closed Factories v. Council of Labor Affairs. I joined the group of pro bono lawyers to stop an attempt by the Council (now known as the Ministry of Labor) to sue the elderly and in many cases financially insolvent workers. Fortunately, we won that case.
Sadly, our society does no encourage lawyers to devote some of their time to pro bono cases; in fact, the decision by more than 1,000 lawyers to sign the petition was more an aberration than normal practice. What’s the matter with our legal system? I can point out three arguments.
First, there are about 8,000 practicing lawyers in Taiwan today, twice the number from 10 years ago. Salaries for rookie lawyers have declined rapidly in recent years, which means that new lawyers had a difficult time staying afloat financially and are therefore totally controlled by their employers, with not free time left for them to engage in pro bono work.
Secondly, even though the Judicial Yuan established the Legal Aid Foundation, lawyers usually regard cases from the Foundation as little different from normal cases. Moreover, the Legal Aid Foundation will pay lawyers for their work, but the fees are lower than the average for other types of cases. Consequently, lawyers tend not to think of such cases as pro bono work and generally don’t pay much attention to them.
Third, some lawyers’ organizations in the U.S., such as the American Civil Liberties Union (ACLU) and PILnet, specialize in public interest cases. Furthermore, law school professors who are also practicing lawyers can open legal clinic classes on campus to encourage students to cooperate with other organizations across the U.S. However in Taiwan, current laws do not allow for the existence of organizations like the ACLU. In addition, legal clinic classes in Taiwanese law schools are extremely rare occurrences, and what makes matters even worse if the fact that the professors are civil servants, which means that they cannot practice law at the same time.
Despite all this, I remain optimistic that more and more lawyers will be willing to devote some of their time and energy to public interest cases as permitted under Article 1 of the Attorney Regulation Act (律師法) which stipulates, “Attorneys take upon themselves the goals of promoting social justice, protecting human rights, and contributing to democratic government and the rule of law.”
It continues: “Guided by these professional goals, with the spirit of self-regulation and self-governance, attorneys should strive to faithfully execute their professional responsibilities, contribute to the preservation of social order, and work towards the improvement of the legal system.”
Clarence Chou is Attorney at Law at the Anchung Law Firm and Executive Commissioner of the Judicial Reform Foundation, and Executive Commissioner of the Campaign for Media Reform.