Fri, Nov 10, 2006 - Page 8 News List

Prosecution should defer to spirit of Article 52

By Hung Ying-hua 洪英花

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 (陳瑞安) 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.

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