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Justices must act to save democracy

Justices must act to save democracy

We support the decision by President Chen Shui-bian to petition the Council of Grand Justices to issue a constitutional interpretation or clarification on the constitutional conflicts between the presidency and the Taipei District Court that have emerged from the trial on corruption charges of first lady Wu Shu-chen and three ex-presidential aides concerning the use of presidential state affairs funds.
Regardless of how media pundits or opposition politicians spin yesterday's action, the council should treat this petition as concerned with constitutional issues on to resolve conflicts between the institution of the president and the existing legal framework.
The petition is thus concerned with the constitutional position of the presidency as an institution and is not primarily concerned with the political or personal fate of Chen Shui-bian as an individual or even the state affairs case, even though clarification of the constitutional issues is essential to ensure a fair trial for Wu and the other defendants and to protect Taiwan's national security.
In the beginning, the Council of Grand Justices would have been the best location for judicial review of the controversy on the state affairs case as only the 14 judges, who also constitute the Taiwan Supreme Court, can simultaneously deal with the constitutional and legal as well as factual questions of whether the question of the errors or malfeasance in the accounting of presidential state affairs funds constituted "corruption."
This issue is critical since the Democratic Progressive Party administration of President Chen Shui-bian is effectively being tried for trying to make the use of presidential discretionary funds more systematic and accountable compared to the completely unaccountable authoritarian period under the late Kuomintang strongmen Chiang Kai-shek and his successor Chiang Ching-kuo and the partial accountability realized, with considerable difficulty, by the KMT "democratizing" president Lee Teng-hui.
However, the petition does not explicitly ask for a settlement on the conflict between the presidency and the Ministry of Audit on the definition and legal or accounting framework for such discretionary funds, but concerns the degree and nature of presidential immunity from any judicial investigation or action aside from accusations of treason or rebellion as stipulated in Article 52 of the Constitution.
In one sense, the submission of the petition constitutes a tacit admission that President Chen erred in agreeing to be questioned by Taiwan High Court prosecutor Eric Chen on the state affairs funds and thus appeared to set aside the litigation immunity of his office during his term for personal motivations, which may have been respect for the judiciary or a tactic to keep power or to protect his spouse.
Regardless, the petition clearly states that "the president cannot set aside his constitutionally given right of criminal immunity" because the presidency is a constitutional agency, not only the individual who acts in the role of Taiwan's head of state and chief of Taiwan's armed forces.
Therefore, the petition maintains that the president cannot be a defendant or witness in such criminal proceedings during his term of office and indicates that while Chen may have erred in accepting interrogation, the Taiwan High Court prosecutor nevertheless acted unconstitutionally in agreeing to interrogate the president and to list him as an non-indicted accomplice and to make use of his testimony as evidence in the Taipei District Court's trial and the court is equally engaging in unconstitutional acts by continuing with this case.
In sum, the principle to be resolved is the legal position of the president under the Constitution or whether the person occupying the presidency, whether Chen or any future president, should be allowed to handle affairs of state exclusively without concern for criminal prosecution, apart from rebellion or treason, or what the boundaries of such immunity should be.
National security at risk
However, an even graver threat to Taiwan's democracy and national security is posed by the irresponsible decision by Taipei District Court judges to ignore President Chen's declaration that content of his disposition on six secret diplomatic missions was "absolutely secret" and to negate the agreement between the president and the prosecutor that the related material would remain sealed.
As the content of the six cases may indeed be critical for national security and as the Taiwan Taipei District Court judges and prosecutors have a vested interest in declaring that they are not eligible for protection as "top secret," only the Council of Grand Justices have a high enough level to uphold the president's power to maintain the confidentiality of highly sensitive diplomatic activities.
The necessity for a certain degree of confidentiality in the external affairs of Taiwan, which is faced with the "clear and present danger" from the People's Republic of China militarily and diplomatically should be evident, but safeguards are likewise necessary to ensure that such an essential "state secrets privilege" does not become a blanket for wrong doing, malfeasance or corruption as the powers of the presidency under the KMT undoubted were.
Hopefully, the interpretation request will allow the Council of Grand Justices to determine where the balance should be drawn and how to handle such conflicts in the future.
In our view, the Council of Grand Justices should also view these two controversies and the "state affairs funds" should also be viewed through the broader prism of "transitional democracy" and "transitional justice."
After all, the origin of this case lies precisely in the difficulty of governance by a democratic government in the context of institutions that still bear the brand of authoritarianism and institutional corruption while faced with external and domestic threats to the fledgling democratic system.
We also believe that the president's decision to ask for a constitutional interpretation on these fundamental issues demonstrates that President Chen acted correctly by not accepting siren calls to resign from office.
To resign before the fundamental issues raised by the effort to remove the president through legal prosecution would have been a cowardly capitulation to the forces of authoritarianism without offering any opportunity to protect our democratic and legal system by facing the core issues at stake.
By facing up to his responsibility as a president, President Chen has provided the Council of Grand Justices an opportunity to take a clear step forward for Taiwan's transition by clarifying the position and powers and privileges of the presidency in a transitional democratic society.
We hope they will fulfill this responsibility.


Updated : 2021-05-17 22:03 GMT+08:00