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INSIGHT: Ruling upholds Chen's right to confidentiality

The Supreme Court on Friday affirmed President Chen Shui-bian's (陳水扁) "confidentiality privilege" and revoked a Taiwan High Court ruling that failed to properly address Chen's petition to reclaim a collection of documents and articles held by the Taipei District Court in its probe into alleged misuse of the "state affairs fund."

The Supreme Court told the High Court to make a new ruling on Chen's petition to reclaim the documents based on whether his explanation of the importance of keeping the documents confidential is justified.

The High Court on Oct. 22 rejected Chen's appeal to reclaim the documents based on a technicality. It said that because the documents seized by the district court were taken from the Presidential Office's accounting office, not Chen's office, Chen's personal appeal "was questionable."

It said the district court should first determine whether Chen himself or the Presidential Office secretary-general is authorized to request the return of the collection under the Presidential Office Organization Law.

Given that the law differs depending on the status or identity of the applicant, the High Court said the district court should not have made a judgment on Chen's request before it had deliberated on whether he had the right to make such a request in the first place.

If Chen is not a suitable applicant, the High Court ruling said the district court can simply turn down the request and need not check whether he is eligible to proclaim the documents as "strictly confidential" in accordance with the president's confidentiality privilege.

Against this backdrop, the High Court revoked the district court's previous ruling and demanded that the district court mete out a new judgment. Dissatisfied with the High Court ruling, Chen appealed the case to the Supreme Court.

The Supreme Court said in its verdict that since the Council of Grand Justices has recognized the president's confidentiality privilege in its No. 627 constitutional interpretation, other national agencies should respect or abide by the ruling.

Given such a privilege, the president is eligible to determine whether a document should be kept confidential for national security or national interest concerns, regardless of whether the document is still in his possession or has already been handed to any Presidential Office unit.

If the president is not allowed to determine the document's confidentiality once it has been handed over to another unit for documentation, the Supreme Court said the president's privilege would be undermined.

The Supreme Court also said the Presidential Office secretary-general is just the president's chief of staff and does not enjoy confidentiality privileges.

Based on this understanding, the Supreme Court said the High Court should decide whether the documents should be returned to Chen based on his explanation and not on who is eligible to apply for the return of the documents.

Chen asked for the return of the collection on Sept. 6 on the grounds that the collection were "strictly confidential" information under the protection of the Classified National Security Information Protection Act and should be kept secret permanently.

He said in his petition that the collection was labeled "strictly confidential" in line with Council of Grand Justices Ruling No. 627, which confirms the president's constitutional right to decide what constitutes a state secret and his right to refuse disclosure.

The collection consists of invoices, vouchers, magnetic records, written testimony by concerned individuals and data related to six secret diplomatic projects from 2002 to December last year.

The district court obtained the collection of documents and articles from a prosecutorial team that indicted the first lady and three other defendants in November last year on charges of corruption and forgery for allegedly embezzling NT$14.8 million (US$450,000) from the "state affairs fund," a special allowance fund set aside for the president's discretionary use for official purposes. Chen was named as a "joint perpetrator" in the case, but he was not indicted because of his immunity from prosecution as prescribed in the Constitution.

The lawyers of the president and the four defendants -- first lady Wu Shu-jen (吳淑珍) and three of Chen's former and incumbent aides -- appealed to the High Court on Oct. 15 after the district court turned down the presidential request for the return of the collection in a ruling issued on Oct. 5.

The district court based its rejection on the grounds that the president's proclamation of the collection of documents as strictly confidential is illegal.

According to the Council of Grand Justices Ruling No. 627 issued on June 15, the president is entitled to appeal to the Taiwan High Court over disputes with the district court or prosecution concerning the exercise of his confidentiality privilege.
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