In the classic board game of Monopoly if you are rich enough and lucky enough you can get the much coveted "get out of jail free" card. This card allows a player who is unlucky enough to land on the "jail square" to pass through without having to lose a turn. In a game where getting around the board and buying and selling is the key to winning, the "get out of jail card" is worth its weight in gold. Taiwan's legislators have an unlimited supply of get out of jail free cards. They are provided in the ROC Constitution.
The fact that the Constitution provides what amounts to an absolute shield, as a practical matter, for any legislator to be immune from all criminal arrest and detentions is a situation that must change. I agree very much with the recent editorial (Aug. 28, page 8) that said, "there should be no holiday from justice" for legislators. In addition to the measures mentioned in that editorial, I would go further and recommend that the Council of Grand Justices hand down an "interpretation" of Special Article 4, the one providing the immunity for legislators, which effectively eliminates the protection. In lieu of that, a constitutional amendment should be passed to remove the protections of Special Article 4.
I am enough of a "Taiwan realist" to realize that neither situation is likely to happen in this eon. One defense frequently put forward to support legislative immunity is "oh, the US Constitution has the same immunity for legislators and it is a mature democracy, Taiwan should have it too." That is incorrect. The relevant passage in the US Constitution is Article 1 section 6 [1], which states: "They [members of Congress] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance..." On the very face of it the US Constitution's immunity is very different from Taiwan's. Congressmen can be arrested for all felonies. The Taiwanese Constitution's immunity is for all crimes, no matter how minor or how serious, unless the good legislator is actually caught in the act.
The US Supreme Court, very early on in its history, made clear that the Constitution provided very little immunity for Congressmen. As the Cornell Law school commentary on the Constitution correctly points out "This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. It does not apply to service of process in either civil or criminal cases. Nor does it apply to arrest in any criminal case. The phrase `treason, felony or breach of the peace' is interpreted to withdraw all criminal offenses from the operation of the privilege."
The US Supreme Court's major case on this privilege is Williamson v. United States. Although it was decided in 1908, it has a very modern relevance. Williamson was a legislator who was "indicted for allegedly conspiring to commit the crime of subornation of perjury in proceedings for the purchase of public land under the authority of the law." That sounds like something I read in the paper recently; land fraud dressed up to appear lawful, followed by lies.
The Williamson case discusses at length the history of legislator immunity and makes clear that even in the early history of the Common Law in England members of Parliament had no immunity from criminal prosecutions.
Put most simply, there is no basis in Anglo-American constitutional law for legislators to have "get out of jail for free" cards. It is time for Taiwan to end this practice as well.
Brian Kennedy is a member of the Board of Amnesty International Taiwan and of the Taiwan Association for Human Rights.
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