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
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