Constitutional review: Role of lawyers and Bar Associations in Taiwan

Session 1: Constitutional Review — The Role of Lawyers and Bar Associations in Taiwan

The Role of Lawyers in Taiwan

本文係以前台灣律師全國聯合會國際事務主委身份，於2016年在蒙古舉辦亞洲律師公會理事長高峰會（Presidents of Law Associations in Asia Summit，POLA Summit）時發表

Chapter 2 of the Constitution of the Republic of China (Taiwan), encompassing Articles 7 through 24, delineates the fundamental rights and duties of the people. Notably, Article 8 stipulates that personal freedom shall be guaranteed. It mandates that, except in cases of flagrante delicto as provided by law, no individual shall be arrested or detained other than by a judicial or police organ adhering to legally prescribed procedures. Furthermore, no person shall be tried or punished except by a court of law in accordance with due process. Any arrest, detention, trial, or punishment executed outside these statutory procedures may be lawfully resisted. Section II of Article 8 further guarantees individuals the right to petition a court for a trial following arrest or detention.

Moreover, transcending what the members of the National Assembly could have anticipated upon the Constitution's adoption on December 25, 1946—amidst the outbreak of the Chinese Civil War—Article 23 establishes a robust framework for civil liberties. It dictates that the freedoms and rights enumerated in the preceding articles shall not be restricted by law, except when strictly necessary to prevent infringement upon the freedoms of others, avert an imminent crisis, maintain social order, or advance the public welfare.

Consequently, safeguarding human rights and upholding the rule of law in Taiwan necessitates a legal profession that adheres to the highest ethical and professional standards. Reflecting these constitutional imperatives, Article 1 of the Attorneys Act prescribes: "Attorneys shall dedicate themselves to protecting human rights, promoting social justice, and contributing to democratic governance and the rule of law." It further states: "Guided by these professional goals, and in the spirit of self-regulation and autonomy, attorneys shall strive to faithfully execute their professional responsibilities, maintain social order, and improve the legal system." Under this statutory mandate, the definition and role of lawyers in Taiwan encompasses, but is not limited to, the following core objectives:

1. Protecting human rights;

2. Promoting social justice;

3. Contributing to democratic governance; and

4. Advancing the rule of law.

The Role of Bar Associations in Taiwan

In alignment with this mission, philosophy, and the principles of self-regulation, Article 11, Paragraph 1 of the Attorneys Act stipulates that an attorney is not entitled to practice law until they have obtained membership in a local bar association. Membership in a bar association is a statutory right for all duly licensed attorneys. Article 11, Paragraph 3 further provides that a national bar association may be established upon the motion of at least seven local bar associations and with the concurrence of a majority vote from all bar associations, restricting the formation of such associations to only one per organizational level or jurisdiction.

The Taiwan Bar Association (TWBA), serving as the national bar association, alongside its 16 constituent local bar associations, operates strictly in accordance with these principles. These organizations not only provide continuing legal education to enhance professional skills and service quality but also oversee ethics and disciplinary matters to ensure institutional self-regulation. Furthermore, the TWBA and the 16 local bar associations actively promote human rights by hosting scholarly forums, forming alliances with domestic civil society groups, and participating in political, social, and judicial reforms, as well as legislative amendments, to foster democracy and the rule of law.

To address diverse demands regarding legal ethics, law reform, social advocacy, governance, and international relations, the TWBA maintains 29 specialized committees, which are categorized as follows:

1. Committees on Ethics and Discipline: The Attorneys' Ethics Committee, Legal Practice Development Committee, Law Journal Editing Committee, and the Attorneys' Benefits and Complaints Handling Committee.

2. Committees on Law and Regulation: The Public Construction Committee, Commercial Law Committee, Civil Law Committee, Criminal Law Committee, Administrative Law Committee, Civil Procedural Law Committee, Criminal Procedural Law Committee, Financial and Economic Law Committee, Environmental Law Committee, Intellectual Property Rights Committee, and the Social Law Committee.

3. Committees on Social Reform: The Consumer Debt Clearance Committee, Human Rights Protection Committee, Judicial Reform Committee, Constitutional Reform Research Committee, Consumer Protection Committee, Labor Relations Committee, Women and Children Problems Research Committee, and the 228 Judicial Justice Fund Management Committee.

4. Committees on Government and International Relations: The International Affairs Committee, Mainland China Affairs Committee, Parliament Coordination Committee, Regulation Arrangement Committee, Adjudication Practice Committee, and the Non-Litigation Procedure Committee.

5. The Attorneys' Study Center: This center is responsible for administering pre-admission training for newly qualified attorneys.

The chairs and members of each committee, along with the executives of the Center, are nominated by the President of the TWBA and confirmed by the Board of Directors.

Similarly to the TWBA, local bar associations—demarcated by county and district court boundaries—engage extensively in regional legal aid programs, public interest activities, and advocacy for underprivileged communities to pursue social justice.

Challenges in Legal Practice Reform

Established in 1948 during the height of the Chinese Civil War, the TWBA has traversed a long and arduous path to realize its institutional purpose: "promoting social justice, protecting human rights, and contributing to democracy and the rule of law." As articulated on its official website, the TWBA pursues three primary aims:

1. Furthering the reform of the judiciary and the legal system;

2. Encouraging compliance with the Code of Ethics for Lawyers and elevating the status of the profession; and

3. Promoting Taiwanese jurisprudence while establishing connections with global legal ideas.

Currently, the most pressing challenge confronting the TWBA pertains to the definition and institutional role of bar associations within a rapidly shifting market. The legal market has become fiercely competitive due to economic downturns and a contracting market for legal services. An expansion of university law departments has yielded a higher volume of graduates. Concurrently, government policy has fixed the bar exam passing rate at approximately 10%, a significant increase from the historical 3% to 4%. Consequently, the number of newly admitted lawyers has more than doubled since 2011, with nearly one thousand new practitioners entering an already saturated market each year.

Under the traditional framework of Article 11, Paragraph 1 of the Attorneys Act, practitioners were required to join local bar associations to practice within specific judicial districts. The cumulative annual fees required to maintain membership across multiple jurisdictions imposed a significant financial burden, particularly on younger lawyers. As a result, the reform movement advocating for a "single membership, nationwide practice" (單一入會，全國執業) model has emerged as a fundamental challenge to the structural existence of the TWBA and the 16 local bar associations.

Proponents acknowledge that the success of this reform could inadvertently jeopardize the viability of smaller local bar associations with limited memberships, particularly those in agricultural or economically disadvantaged counties. Legal services in these regions might deteriorate as practitioners gravitate toward metropolitan bar associations offering superior infrastructure and networking opportunities. This structural dilemma presents a profound challenge for Taiwanese lawyers; navigating constitutional reviews and balancing statutory requirements will be pivotal in reconciling the competing demands of the various stakeholders involved.