According to Article 52 of the Constitution, the president is not, without having been recalled or having been relieved of his duties, liable to criminal prosecution unless he is charged with having committed an act of rebellion or treason.
This article explains presidential immunity, and since that is a privilege that is given in order to protect the office of the president, not the president as an individual, the president does not have the right to relinquish it. As for the right to immunity itself, that is merely a temporary procedural barrier; once the president steps down, any criminal offense that he or she might have committed during the presidency can still be prosecuted.
However, whether the immunity also precludes searches of the president’s office or summoning the president to testify is not clearly stipulated in the article.
This lack of clarity became more controversial when the Supreme Prosecutors’ Office’s anti-corruption team searched the president’s office in connection to investigations into the special allowance fund when former president Chen Shui-bian (陳水扁) was still in office. This forced Chen to file a request for a constitutional interpretation, to which the Council of Grand Justices gave Interpretation No. 627. Pursuant to the intent of this interpretation, although no investigation, prosecution or trial may be commenced against an incumbent president, necessary evidentiary preservation may still be conducted, such as the investigation of a crime scene and inspection of objects.
The problem is that such an investigation could invade the president’s right to maintain secrecy. Hence the Council of Grand Justices explicitly stated that, unless relevant provisions of the Code of Criminal Procedure (刑事訴訟法) are amended to restrict the search and seizure in places where the president carries out his functions and resides, law enforcement agencies should, in order to protect state secrets, call on the president to willingly produce the evidence. If the president refuses to do so, prosecutors can file a motion with the High Court, which can assemble a special tribunal made up of five judges to decide if a search warrant should be issued.
However, not only does the Council of Grand Justices’ explanation conflict with the Code of Criminal Procedure and give the impression that the justices are superior to lawmakers, it also complicates the procedure, erecting more barriers against investigations into any criminal offenses committed by the president.
As such, regarding the case of illegal political donations in which President Ma Ying-jeou (馬英九) might be involved, the Special Investigation Division can, if necessary, file an application for a search warrant with the court in order to search the president’s offices, residence and the Chinese Nationalist Party’s (KMT) offices. It can also summon the president to testify as a witness or a relevant party.
However, the president can still easily reject such searches or summons to testify on the grounds that state secrets are involved. In addition, since the Council of Grand Justices set up such high barriers against issuing a search warrant, the chances that prosecutors will be allowed to search the president’s offices and residence are indeed very slim.
Besides, there is unfortunately also a big question mark as to whether the Special Investigation Division has the wisdom, as well as the courage, to uncover any corruption or criminal offenses committed by the person in power.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Ethan Zhan
An old Latin adage reads: Si vis pacem, para bellum. Translated it means: “If you wish peace, then prepare for war.” This adage has many variants and claims to authorship, but what is most important is its message for a peaceful Taiwan. Why should Taiwan prepare for war? The reasons are many and obvious. Certainly, such preparation is not because Taiwan wants war or is a warlike nation. Instead, the answer is found in its neighbor, China. The Chinese Communist Party (CCP), which rules China as a one-party state, is ambitious and troubled — and that combination makes war a viable option,
Hypersonic weapons are defined as armaments capable of traveling at speeds faster than Mach 5 and can be broadly classified into two types: hypersonic glide vehicles (HGV) and hypersonic cruise missiles. The former are launched into the upper atmosphere by ballistic missiles. The vehicle is then separated from the booster to maneuver, or glide, toward its target. The latter can be launched from a jet plane or rocket to reach supersonic speed before igniting a scramjet engine to achieve hypersonic speeds. As the US engages in a great-power competition with China and Russia, all three countries are racing to field hypersonic
As a Reserve Officers’ Training Corps (ROTC) cadet, I frequently get asked how quickly the Chinese People’s Liberation Army (PLA) might overrun Taiwan if it invaded before 2040. My answer is that the PLA will not be able to take over Taiwan within that time frame, because the more eager the PLA is to complete the task in a short period, the more likely it would fail — and fail big. Having a slim chance of winning is what keeps the PLA from taking action. From time to time, some PLA leaders or keyboard fighters make threats — one of the
With the World Bank and the IMF yesterday starting their annual meetings, all eyes are on Evergrande, China’s second-largest property developer, which apparently cannot repay about US$300 billion it owes to banks, bondholders, employees and suppliers. With the property giant teetering on the edge of bankruptcy, the world is being forced to contemplate a scenario it had never seriously considered — a made-in-China financial crisis. Observers have been quick to draw parallels between the Evergrande debacle and past crises. Some compare it to the 2008 crash of the US investment bank Lehman Brothers, which triggered a massive banking and financial crisis.