“Rules on the Handling of Criminal Cases by Lawyers” (2000) in order to regulate the handling of
criminal cases and guide lawyers’ defence, but there is only one chapter focused on defence work in
death penalty cases. Following ABA engagement with Chinese counterparts there was interest in
several provinces in developing standards for death penalty cases. In around 2010, lawyers’
associations in Shandong, Henan and Guizhou formulated “piloting” defence guidelines for death
penalty cases. These pilot guidelines provided suggestions on the selection of defence strategies,
advice on operational issues including interviews, reading files, investigation and evidence collection
as well as challenges for the defence during first-instance, second-instance and review procedures,
and risks to lawyers. Some scholars argue that the pilots played a positive role in improving defence
quality, but it seems that nothing has happened after the pilot projects ended.
For many lawyers the topic of performance standards was a sensitive issue. More participatory
research among lawyers is needed to understand the sensitivities, but the issue highlights concerns
that go well beyond the motivation and performance of lawyers to include obstacles facing lawyers
in the criminal process, low remuneration rates and lack of support from their professional bodies.
Lawyers in Indonesia, surveyed by ICJR, were very supportive of the idea that the Bar associations
should establish specific guidelines on providing effective defence in death penalty cases. Lawyers
and judges in Taiwan, interviewed by TAEDP, however, felt that there was no need, at this stage, to
establish a code of ethics or guidelines specifically for taking death penalty cases. Lawyers are guided
by the general Lawyers’ Code of Ethics and there are no guidelines regarding criminal cases. Lawyers
observed that there was no comprehensive training or education programmes for defence lawyers
in Taiwan so requiring them to adhere to a higher code of ethics or defence guidelines would be
unfair. However, lawyers did note that two lawyers had been disciplined by the Legal Aid Foundation
for providing poor quality pleadings in a death penalty case, with one also dismissed from his legal
aid job.
Defence lawyers in Taiwan felt that there was a lack of comprehensive
training and education programmes so requiring them to adhere to a
higher code of ethics or defence guidelines [in death penalty cases]
would be unfair.
Conclusion
The lack of a regional human rights mechanism is an obstacle to developing a common discourse on
the human rights implications in Asia of using the death penalty. In the absence of such a mechanism
The Rights Practice and our partners in Asia hope that sharing experience across the region will
stimulate debate on the use of capital punishment and establish higher expectations of the criminal
justice system within retentionist countries. Decisions to introduce a moratorium or take other steps
to reduce the use of the death penalty lie with each country’s national authorities, but we believe
that developments and trends in the region can inform public understanding and shape the climate
for policy making.
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