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Experts divided on state secrets ruling

Legal experts attending a forum yesterday were divided over the ruling of the Council of Grand Justices on presidential immunity and "state secret privileges" concerning President Chen Shui-bian's (陳水扁) controversial "state affairs fund."

On "state secret privileges," the justices ruled on Friday that the president enjoys such prerogative of not divulging state secrets in the form of verbal testimony or material evidence.

The legislature must enact a special law regulating the president's right to refuse providing testimony and evidence concerning national security, national defense and foreign affairs. Before the legislation is implemented, the justices said, the president must explain whether the revelation of such information endangers the interests of the nation.

Regarding presidential immunity, the justices declared that the president is immune from criminal prosecution unless he or she is involved in treason or inciting internal disorder.

The presidential immunity, however, covers only the president and does not extend to his or her family members, the justices ruled, adding that the president "in principle" cannot abandon such privilege but prosecutors do not violate the Constitution if the president opts to forsake such prerogative and cooperate with prosecutors' investigation efforts. The president can resume such privilege at any time when he deems it to be necessary, the ruling said.

Any evidence gathering or interview with the president concerning a legal case must not confine the president's individual liberty nor impede the normal operation of the presidential duties, it said.

Prosecutors must not conduct the interview with the president at the prosecutor's office and the president can reject such a request and those for a search or detain.

Before a special decree is enacted to regulate the president's rights in this regard, all requests must be reviewed by a five-person special court composed of senior presiding judges of the High Court.

Except with the approval of the president, all search or detain orders cannot be conducted without the consent of the special court.

As for the defense lawyers' request for an injunction, the justices refused to take up the petition, saying the issued was addressed in the ruling.

Lin Ming-Hsin (林明昕), a law professor at National Taiwan University, said the ruling was "abstract" and failed to provide sufficient rationale and solid reasoning for the argument.

While the public had expected the justices to help rule on the particular problems, Lin said, it seemed they were afraid of using their power for fear of being criticized for meddling in court proceedings.

Lin said the justices' vague position was one of the longstanding problems with the country's constitutional system.

Their unwillingness to take a stand in controversial issues has resulted in more constitutional disputes, he said.

To deal with the situation, Lin called on the public to pressure the administration to amend the Constitution or write a new one, amend existing laws or enact new legislation.

Max Huang (黃國昌), an associate professor of law at Academia Sinica, said he was "touched" by the ruling because it had been reached by the justices almost unanimously during the deliberation process.

He expressed regret, however, that the interpretation was "abstract" and that they failed to specify how the case should proceed.

"I'm not sure whether it is fear or wisdom," he said.

Her Lai-jier (何賴傑), a law professor at National Chengchi University, said he did not think the justices had the power to tell the district court how to pursue the case nor did he think they wanted to be specific in their ruling because the more precise the ruling, the more their credibility would be questioned.
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