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Analysis: DPP's Article 52 strategy could prove risky

The Democratic Progressive Party (DPP) runs the risk of sabotaging its image if it decides to file a constitutional interpretation of prosecutor's questioning of President Chen Shui-bian (陳水扁) over the controversial "state affairs fund," analysts said yesterday.

While the DPP has not yet reached a consensus over the issue, DPP caucus whip Ker Chien-ming (柯建銘) suggested that the party file for a constitutional interpretation on Article 52 of the Constitution, according to which the president enjoys immunity from prosecution unless charged with having committed an act of sedition or treason.

Allen Houng (洪裕宏), executive member of the Taipei Society, said that the DPP would give the public the impression that they were trying to protect Chen if they sought a constitutional interpretation from the Council of Grand Justices.

As Grand Justices' constitutional interpretation is time-consuming, Houng said that such a move could easily be interpreted as a DPP scheme to stall the judicial process.

"It does not solve the problem at all," he said.

If the DPP eventually decides to file the constitutional interpretation, Houng said that it would be a better for private groups, which do not have any association with the DPP, to do so.

Houng said his organization would not file such a request as they are a political pressure group that takes a stand on certain issues but does not call for action. Group members are banned from joining any political parties or participating in political activities, he said.

Since Chen relinquished presidential immunity by accepting prosecutor's questions without his lawyer's presence, Houng said Chen must keep his promise to step down if his wife is found guilty of corruption and forgery in her first trial. Opposition lawmakers must also respect the court ruling if Wu is proven innocent, he said.

Houng said that he opposed the third recall motion because it was a political move and he did not think the DPP or the Taiwan Solidarity Union would support it.

To solve the problem once and for all, Houng said that impeachment seemed to be a better and more feasible approach.

"Instead of leaving the case to district court judges, it would make more sense to let the Grand Justices decide the fate of the president," he said.

DPP legislators could argue that their support of an impeachment might be tantamount to admitting Chen is guilty, but Houng said impeachment is not final until the Grand Justices hand down the ruling.

The Law Governing Legislators' Exercise of Power (立法院職權行使法) stipulates that the consent of two thirds of the legislature must be obtained before the impeachment proceeds to the Constitutional Court.

In the US, Houng said that former US president Bill Clinton was impeached by the House of Representatives on grounds of perjury and obstruction of justice but he was acquitted because both charges were defeated in the Senate.

While the Law Governing Legislators' Exercise of Power states that the legislature can only impeach the president and vice president for sedition or treason, Houng argued that the legislation is unconstitutional and should be amended because the Constitution does not specify conditions for impeachment.

In the US, the president, vice president and all other civil officers can be impeached for treason, bribery or other high crimes and misdemeanors.

Y.C. Kao (高湧誠), executive director of the Judicial Reform Foundation, agreed that it would create a negative image for the DPP if they decide to request a constitutional interpretation from the Grand Justices as Chen voluntarily gave up his presidential immunity and accepted the questioning.

Kao said he did not think prosecutors violated the Constitution by questioning Chen but said that the district court has no right to hear the case. It would be a better idea for the Constitutional Court to handle the matter, he said.

His guess is that it is unlikely the Grand Justices will rule the prosecutors' questioning unconstitutional. They might question how Chen's testimony was obtained and ask that it be taken out of the indictment statement, he said.

Lawyer Hsu Wen-pin (許文彬), formerly a senior presidential adviser to Lee Teng-hui (李登輝) and Chen, agreed that by requesting a constitutional interpretation the DPP would make matters worse by politicizing the matter.

"It is a legal problem and should be dealt with through legal means," he said. "The judges of the district court assigned to hear the case can decide whether prosecutors' questioning of the president violates Article 52."

Hsu's interpretation of Article 52 was that prosecutors cannot question the president and that presidential immunity cannot be cast away by the president because it is a system meant to ensure the functioning of the presidency rather than to protect the president as an individual.
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