Fri, Nov 10, 2006 - Page 1 News List

Prosecutor may have violated Constitution: experts

STAFF WRITER , WITH CNA

A group of legal experts criticized Chief Prosecutor Eric Chen's (陳瑞仁) questioning of President Chen Shui-bian (陳水扁) as a violation of the Code of Criminal Procedure and the Constitution.

They said that the Taipei District Court should refuse to accept the case based on Item 1 of Article 303 of the Code of Criminal Procedure (刑事訴訟法), which stipulates that a case can be rejected if it has been initiated in contravention of the rules of procedure.

Other experts, however, said that Eric Chen had not violated the Constitution in questioning the president in connection with first lady Wu Shu-jen's (吳淑珍) indictment on charges of corruption and forgery.

Regarding the president's willingness to relinquish his presidential immunity, Winston Dang (陳重信), director of the Democratic Progressive Party's Department of International Affairs, said in a recent interview with the New York Times that since presidential immunity belongs to the office of president, relinquishing the immunity to criminal prosecution must follow legal procedure and could not be unilaterally decided on by the president himself.

The president is not allowed to serve as a witness in a trial involving the first lady, Dang added.

Some legal experts said that Article 52 of the Constitution is meant to ensure the functioning of the presidency, political stability and foreign affairs, rather than to protect the president as an individual.

One legal expert said that the president made a grave mistake when he decided to give up his presidential immunity to accept the prosecutor's questions without his lawyer's presence, while Eric Chen ignored the intent of Article 52, which could lead to the politicization of the judiciary's role in the case, constitutional controversy and political conflict.

Many experts also say that the intent of Article 52 to guarantee the independence of the judiciary is often ignored. They say that any investigation or indictment of an incumbent president is bound to put the judiciary at the center of a political storm which would threaten and even destroy the judiciary's independence and credibility.

However, legal experts in favor of Eric Chen's decision to interrogate the president believe that he did not violate the Constitution.

They say that Article 52 of the Constitution only stipulates that the president shall not be liable to criminal prosecution, but does not say that the prosecutor is not allowed to list allegations against the president in the indictments of other suspects.

Huang Jui-hua (黃瑞華), president of the Ilan District Court, wrote a letter to the editor of the Chinese-language Liberty Times (the Taipei Times' sister newspaper) on Wednesday accusing Eric Chen and his colleagues of having acted unconstitutionally by investigating the president while still in office.

Article 52 gives the president immunity from criminal investigation unless he is suspected of rebellion or treason, she said.

Huang yesterday said that she neither intended to influence the upcoming court case nor believed judges in the case would be influenced in any way, but was just discussing a constitutional issue, a topic that anyone may raise, and that she had not intended to discuss any "individual case."

"A court president, at any level of the court system, is unlikely to influence a presiding judge today. If he or she still thinks of such a possibility, then he or she is underestimating today's judges," she said.

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