In its interpretation of President Chen Shui-bian's (陳水扁) state affairs fund case, the Council of Grand Justices said that the president is immune from criminal prosecution and has the privilege of keeping state secrets.
The president cannot be investigated, prosecuted or put on trial while in office in connection with criminal activities, it said.
And when it comes to secrets concerning national defense and diplomacy, the president can refuse to testify and has the power to refuse to make the secrets public, it said.
In the spirit of this ruling, the current proceedings in the president's state affairs fund case should be stopped.
The pan-blue camp has emphatically argued that the first lady, not the president, is being charged, but the fact is Wu Shu-jen (吳淑珍) was targeted because of allegations concerning the state affairs fund, which only Chen has access to. As a result, the continued investigation of Wu's case is in essence a trial of the president and is equivalent to resisting or violating the Council of Grand Justices' ruling.
In Western democracies, it is common for presidents to have immunity from prosecution for criminal activities. The main purpose of immunity is to protect the president so that he can concentrate on running the country. This immunity also prevents the opposition from finding ways to sue the president just to attack the ruling party, which would affect its ability to govern and upset domestic political stability. If the president commits a serious violation of the law, then it is up to the legislature to decide whether he should be impeached.
Some may say that former US president Bill Clinton was sued during his time in office. While this is true, Clinton's case was not a criminal lawsuit but a civil one, where a woman accused him of sexual harassment. Congress only began to discuss his impeachment because he was accused of providing false testimony during the investigation of the case.
Under US law, an incumbent president can only be prosecuted in a civil case for actions taken prior to taking office or actions taken during the presidential term that are unrelated to official business. For example, former US president John F. Kennedy was once sued because of a traffic accident that took place during his campaign, and Clinton was sued because of alleged sexual harassment during his term as governor of Arkansas.
US courts do not hear civil cases that have anything to do with a president's official business. For example, if family members of soldiers killed in the war in Iraq were to sue US President George W. Bush, blaming his policy for the death of their children, the courts would not accept the case.
The US Constitution also guarantees that after a president's term is over, he or she enjoys absolute immunity regarding any official business while in office. This law was put in place to protect the president from concerns about a future lawsuit when implementing policy. Otherwise, as soon as there is a change in government, the opposition or ordinary citizens could sue the president and hold him or her personally responsible for certain policies. This would force the president to worry about the possible effect of every policy, hampering his or her ability to govern.
The state affairs fund case is a typical reflection of the systemic flaws left over from the Chinese Nationalist Party (KMT) regime, and the KMT is clearly using the case to fight a political battle. The pan-green camp must not feel obligated to play along and let the flaws of the old system spell the end of the first pro-localization presidency. It should do its utmost to completely remove the remnants of the old despotic system and put an end to the state affairs fund case once and for all.
Cao Changqing is a freelance journalist based in the US.
Translated by Jason Cox
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