(Friday, Nov 10, 2006, Page 8, Taipei Times)
Article 52 of the Constitution provides 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."Interpretation No. 388 of the Constitutional Court says that this article aims to "pay respect to and provide protection for the president," and to ensure that "political stability and the development of foreign relations can be maintained." The interpretation further states this "privilege or immunity which excludes the president from criminal prosecution is designed for the post of the president," not "given for personal protection." Article 52 is not an immunity that the president can personally renounce. Chief Prosecutor Eric Chen (陳瑞仁) questioning of the president on two occasions constitutes a violation of the Constitution.
Though the president agreed to cooperate and provide an explanation, he did not put aside his immunity; but since the investigator used unconstitutional testimony as the basis for bringing the indictment, shouldn't the constitutionality of the indictment be publicly evaluated?
Second, the indictment alleges that the president and first lady used the privileges of office to fraudulently buy gifts, and also claims that though Chen Shui-bian (陳水扁) could not be charged because of presidential immunity, he will be charged after he leaves office. If the president is not liable to criminal prosecution, then how can the prosecution announce that the president is involved in corruption? By the time the president's term is over, personnel changes could mean that a new prosecutor will be in charge of the case. If the new prosecutor comes to a different conclusion than Eric Chen, surely this would undermine public trust in the investigative procedure?
Third, Article 11 of the UN Universal Declaration of Human Rights says in part that "everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial."
Secret investigations that lead to criminal indictments are generally not published on the Ministry of Justice's Web site. Contrast this with the publicly available judgements published on the Judicial Yuan's Web site. As long as this indictment contains charges not proven in a court of law, to protect the rights of the defendant, the current situation should be considered a secret investigation, and details should not be made public.
Fourth, the prosecutors should write a calm and even-handed appraisal. Although Eric Chen believes that the president and the first lady have committed some questionable actions, as long as the court has not come to a guilty verdict, a report which states that the president was "using his office to increase his salary" will cause public ridicule. And what if some portion of the corruption charges -- 20 percent, 30 percent or 50 percent -- are not actually true?
Fifth, according to the record, the prosecution asked to interview the first lady on Nov. 1, but because of illness she asked to be questioned on Nov. 15. If the prosecutors believed that the first lady still had something they ought to hear, why not question her? Bringing the indictment at this stage naturally causes people to gossip, and this is a far cry from being careful and thorough, principles the investigators and the legal system should follow no matter what sort of case they are dealing with.
The heart of this indictment is whether or not the president and first lady stole money from the state affairs fund, a charge serious enough to influence political stability. Considering the spirit of Article 52, how can the threat to political stability be considered so unimportant?
So even if the president was found to have engaged in massive corruption and bribery that were brought to international attention, your honor would still think that it should be overlooked, and the will of the Taiwanese people (90+%, according to a poll) ignored?
回覆刪除I am unaware of any legal opinion, other than your honor's, who thought that the presidential immunity extends to the procurement of evidence. Your conclusion above is thus very curious. And this evidence -- statements by Mr. Chen himself -- also was not the only evidence used to indict or convict him. Please do not forget that foreign governments have already provided evidences of his guilt, except they were intercepted by his cronies. Nonetheless, even a cursory review of the above reveals a desperate attempt to defend a criminal that was already convicted by law. This article fails to ask the bigger question: when is a president accountable to his people for his actions? Can he, per your honor's suggestion, conceal his crimes behind his immunity, even after he left office?
The high court had already answered that in the negative. The evidence can hardly be clearer. This article's attempt to acquit a criminal on procedural issues, and failure to address the substance of the charges brought, are both very, very disappointing.