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Inching Towards Fairness

Authors: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies, and Yu-Jie Chen, U.S.-Asia Law Institute, New York University
February 7, 2009
South China Morning Post


As the corruption prosecution of Taiwan's former president Chen Shui-bian continues to illustrate, democratic political systems find it difficult to regulate contacts between detained suspects or defendants and their lawyers.

Yet even authoritarian regimes, including Beijing, are under pressure to recognise the presumption of innocence and to reconcile their need to suppress crime with increasing popular demands for fair trials and, therefore, fair opportunities for those detained to communicate with their defence counsel.

Indeed, on the mainland, which has no independent judiciary to review pre-trial release and detention issues, the challenge of reconciling these interests is especially acute because, unlike in Taiwan, few accused are released pending trial. Under the mainland's revised Lawyers' Law, since June 1 last year a defence lawyer can discuss the case with a detained client and, to assure confidentiality, such discussions shall not be "listened to". Thus far, however, law-enforcement agencies have sought to limit the impact of this important reform.


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