Print

Mail

wiki links

Editorial: The importance of immunity

On Friday the Council of Grand Justices handed down a ruling relating to the "state affairs fund" case in which President Chen Shui-bian (陳水扁) and first lady Wu Shu-jen (吳淑珍) are implicated. It supported the president's position and will have an enduring impact on the judicial rights and privileges of the Presidential Office.

The ruling confirmed that the president enjoys executive privilege to not divulge state secrets in the form of verbal testimony or material evidence.

Chen and Wu had alleged that part of the "state affairs fund" had been for purposes involving state secrets, and that they could not divulge some of the information and documents requested by prosecutors to establish that the "fund" had been used for the purposes they claimed.

With Friday's ruling, prosecutors may now be unable to prove that the "fund" was misappropriated by members of the first family.

The basis for the ruling was Article 52 of the Constitution, which articulates presidential immunity from criminal prosecution. But it does not articulate presidential privilege against divulging state secrets, which is likely to give opposition parties space to criticize the justices.

But if one considers the intent of the Constitution in regard to presidential immunity, the additional privilege confirmed by the ruling is not only consistent with the spirit of that immunity but also necessary to round out the purpose of Article 52.

The basis for presidential immunity from prosecution is the need to ensure the political stability of not only the office of president but the country as a whole. If the president can be prosecuted too readily or even thrown in jail during his term, he could not perform his duties as the Constitution and the mandate of the electorate require.

Similarly, if the president can be forced to divulge state secrets during a judicial investigation or in the process of being prosecuted, then the national interest could be jeopardized.

Most would agree that state secrets should not be divulged. However, most might also harbor concern that the president has the power to decide what constitutes a state secret and thus what should be outside the purview of the courts.

However, if the president should not decide on such matters, the question follows: Who should?

Some people might say the courts should decide. However, if judges are given this authority, they will have the power to decide on essentially political questions. This would be at odds with the principles of democracy and the separation of powers, and tip the balance in favor of the judiciary.

For the same reason, such power should not be in the hands of the legislature.

An additional concern is that the "secret" information so frequently handed to legislators has the tendency to become headline news within days. Based on the record of its current line-up, the ability of the legislature to maintain the secrecy of anything of any import is weak at best.

Friday's ruling may not please everyone. But it has a sound basis -- legally and practically speaking.
This story has been viewed 1167 times.