Does the privilege of immunity conferred by Articles 32 and 73 of the Constitution upon the elected representatives for opinions expressed and votes cast whenever in session extend to criminal, civil and administrative liability possibly arising therefrom, but not including the recall taken by the electors in their constituencies?
The privilege of immunity, in respect of the speech and votes of delegates of the National Assembly (hereinafter referred to as "delegates") and members of the Legislature (hereinafter referred to as "legislators"), provided in Articles 32 and 73 of the Constitution means that delegates and legislators shall not be subject to criminal charges or civil liabilities, nor bear any administrative responsibilities, for opinions expressed and/ or votes cast in their respective houses, unless they are disciplined for contraventions of the respective internal disciplinary rules. Further, rights to recall are a form of the people's suffrage rights. Article 133 of the Constitution stipulates that elected representatives may be recalled, by the constituencies they represent, pursuant to the law. Delegates and legislators shall be responsible to electors in their constituencies for their speech and votes in the exercise of their offices. Thus, electors of a constituency may recall, pursuant to the law, delegates and legislators elected by the constituency, for reasons of improper speech and/or vote. The foregoing shall not be restricted by provisions in Articles 32 and 73 of the Constitution.
Article 25 of the Constitution stipulates that the National Assembly shall, in accordance with the provisions of the Constitution, exercise political powers on behalf of the whole body of citizens. Further, it is stipulated in Article 26 that the Legislature shall be the highest legislative organ of the State, and be constituted of legislators elected by the people, and shall exercise legislative power on behalf of the people. The National Assembly and the Legislature are both representative bodies constituted of popularly elected delegates or legislators. As a general rule of democratic states with constitutional order, the constitution grants delegates and legislators the privilege of immunity for their speech and votes, so that they may express the will of the people liberally and fully, properly perform their duty to oversee the government, and to make decisions for representative bodies on behalf of the people without hesitation. Article 32 of the Constitution stipulates that delegates shall not be held responsible outside the National Assembly for opinions expressed and/or votes cast at meetings of the Assembly; and Article 73 stipulates that legislators shall not be held responsible outside the Legislature for opinions expressed and/or votes cast within the Legislature. The aim of the foregoing Articles is to protect delegates and legislators from civil compensatory liabilities or criminal charges for opinions expressed or votes cast in the exercise of their offices, and unless they are to be disciplined pursuant to internal disciplinary rules, they shall not bear any administrative responsibility. This is a privilege granted to delegates and legislators so they will not be held responsible outside of their respective offices. Article 133 of the Constitution provides that elected representatives may be recalled by the constituencies they represent pursuant to the law. This system of the Constitution is founded on the notion of the direct exercise of rights by the people. According to the foregoing Article, once delegates and legislators have been in office for a specified period, electors may monitor and analyze such representatives' demeanor, attitude and voting stance, so as to exercise the electors' political responsibility. As to the reasons for proposing a recall, there is no need for their restriction. The recall provisions do not apply to representatives elected through legislative selections or by citizens residing overseas because they belong to no constituency. The Public Officials Election and Recall Act promulgated on August 2, 1991, provides in Article 69 that: "Recall of public officials may only be initiated by electors of the relevant constituency through presentation of a recall application to the Elections Committee. However, those who have not been in office for at least one year may not be recalled. Recall provisions have no application to persons elected through legislative selection or by citizens residing overseas." The said Article is enacted pursuant to this Interpretation. In summary, electors of a constituency may recall, pursuant to the law, delegates and legislators elected by the constituency, for improper speech and/or vote, without being restricted by Articles 32 and 73 of the Constitution. Translated by Wei-Feng Huang of THY Taiwan International Law Offices.