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Chen asks for ruling on immunity issue

President is also seeking grand justices' interpretation on 'state secret privilege'

Chen asks for ruling on immunity issue

President Chen Shui-bian (陳水扁) yesterday officially petitioned the Council of Grand Justices for a ruling on the constitutional questions of presidential immunity and an executive "state secret privilege" in connection with the ongoing trial of first lady Wu Shu-chen (吳淑珍) and three former aides on charges of embezzling NT$14.8 million in presidential state affairs funds.
Deputy Presidential Secretary General Cho Jung-tai (卓榮泰) presented the petition on the president's behalf to Judicial Yuan Secretary-General Fan Guang-chun shortly before noon at the Judicial Yuan headquarters.
In a statement released by the Presidential Office, Cho noted that the president was Taiwan's head of state and had been directly elected through the democratic rights of all the nation's people and bore major powers and obligations, including appointing the premier, acting as commander in chief of the armed forces, deciding national security policy and promulgating laws and administrative orders based on the law of the land.
Given the nature of the president's powers, Cho noted, the Constitution provided the presidency, as a major constitutional agency, with guaranteed positions, functions and powers.
These include the stipulations of Article 52 of the Constitution which states that "the President shall not, without having been recalled, or having been relieved of his functions, be liable to criminal prosecution unless he is charged with having committed an act of rebellion or treason."
Moreover, Cho stated that under the principle of separation of powers, the president's special power to refuse to disclose in legal proceedings "military, diplomatic and national security secrets," or "state secrets privilege," "should be absolutely protected."
He said that the listing of President Chen as an "joint accomplice" in the indictment filed last November by Taiwan High Court prosecutor Eric Chen (陳瑞仁) against Wu Shu-chen and four ex-presidential aides and the continued trial of the case by the Taipei District Court were all "obviously unconstitutional."
Even though Chen agreed to questioning by the Taiwan High Court prosecutor, the petition argued, "the President cannot set aside the constitutionally given right of criminal immunity." The status of the interrogation of the president and the indictment as "unconstitutional actions is not influenced whatsoever by the fact that president was questioned," it stated. .
Cho stated that since the inclusion of the president as a "joint accomplice" implied a "community" with the other defendants, all legal proceedings on the case should be suspended under the principle of "litigation immunity" until after the end of the president's term.
Cho related that the petition urged the Council to immediately instruct the Taiwan Taipei District Court to cease proceedings on the case on the grounds that the trial is "unconstitutional" and that the decision by judges to open secret dispositions by the president to Taiwan High Court prosecutor Eric Chen infringed on presidential powers and endangered national security.
Executive Yuan Spokesman Cheng Wen-tsan stated yesterday evening that the president's action was "responsible" and reaffirmed that Premier Su Tseng-chang (蘇貞昌) had asked the Ministry of Justice to file its own petition on the question of how prosecutors should treat the temporary immunity granted to the president under Article 52.
Cheng said the Taipei District Court's decision to open files of testimony by President Chen and other materials on six secret diplomatic cases for review by prosecutors and defense attorneys had "ignored national security" and infringed on the president's constitutional powers to promote diplomacy and cross-strait policy.
Saying that as the Executive Yuan is Taiwan's highest administrative agency, Cheng stated that the Cabinet is inevitably affected by the "grave harm" done to national secrets, diplomacy and cross-strait relations caused by the court's actions and "should pursue constitutional and legal methods to deal with this issue and stabilize the political situation."
Cheng said that the action of prosecutors to pursue this case, which included the president as an "unindicted accomplice" was not in keeping with a 1996 decision by the Ministry of Justice to delay any criminal proceedings against a serving president until after the end of his or her term.
As the Ministry of Justice is subordinate to the Executive Yuan and as there were evident questions about the application of presidential immunity under Article 52, the Cabinet spokesman reaffirmed the request by Premier Su Tseng-chang to the MOJ as administrative supervisor of the prosecutorial system to petition the Council of Grand Justices for a constitutional interpretation.
Heavyweights in the DPP expressed support for the president's action.
Examination Yuan President Yao Chia-wen (姚嘉文) told The Taiwan News that he and other senior political and legal figures had told the president to take this action "a long time ago" to "clarify the legal position of the president under the Constitution."
"This is not for himself," said Yao, a former human rights lawyer, political prisoner and ex-DPP chairman.
"Any president should have a special position, obligations and corresponding privileges," said the Examination Yuan president.
"The president should focus exclusively on handling the affairs of state and any legal cases involving his person should be handled after he steps down from office," Yao stated.
Speaking to reports in Yunlin County, former premier Frank Hsieh (謝長廷) stated that "when there are conflicts in the powers and operations of state agencies, there must be an impartial agency to resolve such problems" and said he thought "it is proper for the Council of Grand Justices to make an interpretation."
Legal observers maintained that the president had justification to ask for the petition and that the fundamental issue concerned the presidency's powers and positions, not Chen personally.
Lawyer Kao Yung-cheng told The Taiwan News that "it is necessary to separate the political and legal aspects" in evaluating the petition for a constitutional ruling.
"It is the question of law that is at stake, not Chen Shui-bian individually or the state affairs fund case, but the unprecedented problem of how to resolve instances of conflict between the presidency and the law, and the Council of Grand Justices should naturally be the arbiter in such cases," Kao stated.
Kao disagreed with claims by opposition politicians that the president's actions showed that Chen was acting as an "emperor" and was contemptuous of the judicial system.


Updated : 2021-03-03 11:51 GMT+08:00