The Council of Grand Justices yesterday confirmed the president's constitutional right to decide what constitutes a state secret and his right to refuse disclosure.
"The Council of Grand Justices ruled that the president enjoys immunity from criminal investigation and cannot be questioned by prosecutors during his tenure," Judicial Yuan Secretary-General Fan Kuang-chun (
Fan said the president is unable to give up the presidential immunity enshrined in the Constitution.
The council's decision, agreed upon unanimously by 13 grand justices, was made at the request of President Chen Shui-bian (陳水扁), who refused to produce documents during the trial of his wife for alleged corruption at the Taipei District Court, claiming that doing so would undermine national security.
The council yesterday said the president, within the authority conferred upon him by the Constitution and its additional articles, has the privilege to keep secret classified information concerning national security, national defense and diplomacy if he determines that their disclosure would compromise national security and interests.
This privilege includes the right to refuse to give testimony and to produce evidence for that purpose in court.
Noting that this privilege should be governed by legislation which does not actually exist, the council said the president may claim it even before the legislation is in place by proclaiming that national security would be jeopardized if he were to be questioned, make a statement or produce evidence.
In the absence of law governing this privilege, the judiciary and prosecution should deal with the president's proclamation according to the Code of Criminal Procedure, and the president may challenge or appeal their decisions or rulings following the same code, the council said.
As for information already produced by the president to the court, the president may still declare it classified in accordance with the law and the court should follow the law related to classified information when using it in a trial.
The council also said that the president's constitutional immunity to criminal prosecution for any crime other than offenses against the internal and external security of the state could not be forsaken by any individual serving as the president.
It does not mean that the president is inculpable, and he can be sued for offenses committed in office after he steps down, the council said.
This privilege will not exempt the president from his obligation to serve as a witness in the criminal trials of others, although he can be questioned only at places of his choosing, the council said.
Chen welcomed the council's decision in a statement issued through his office yesterday, and he urged the court to follow the ruling while trying his wife.
Democratic Progressive Party legislators yesterday welcomed the constitutional interpretation.
Chinese Nationalist Party (KMT) Secretary-General Wu Den-yih (吳敦義), however, said the constitutional interpretation marked "a dark day for Taiwan's judiciary."
He also questioned the independence of the Grand Justices as they were all nominated by the president.
Additional reporting by By Rich Chang and Loa Iok-sin
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