Practical Operations and Controversies review of Executive Privilege
Date Issued
2013
Date
2013
Author(s)
Wang, Hsien-Hsun
Abstract
Since the Justices of the Constitutional Court introduced the basic concept of “executive privilege” in Interpretations No.585、627, this privilege is still lack of specific operational criterion up to now. Interpretation No.585 has revealed that “…an executive chief, by the authority inherent in his or her executive powers, is entitled to decide not to make public any information that may affect or interfere with the effective operation of the executive branch.” It’s reasoning also exemplified three types information those could be not to disclosure：”…matters relating to such national secrets as national security, defense or diplomacy; internal discussions in the process of policy-making; and information regarding existing criminal investigations.” And highly respect the executive chief’s measurements and claims. But if we take a closer survey, it seems those contents and scopes of the three types of information might be over extended, or even boundless；There is still deficient of an check and balance system to the executive chief’s measurements and claims. Privilege like that exist under the principle of separation of powers might led to a certain amount of conflicts, especially causing invasions to other powers core functions, such as congressional investigation. The legal system in Taiwan still be silence to it.
As for the concrete definition and operational experience of executive privilege, the United State of America’s constitutional practice should be the most complete. This article will begin from introducing the body who can claim the privilege, the object and the boundaries of the privilege, and the main argues about the legitimacy of the privilege, to establish the shapes and background of the privilege system. Due to the privilege is gradually derived from the constitutional practice, we could only observe and study it from the major cases. Thus this article will take a close look into the U.S. practice, dividing evolution of the U.S. history into three periods, to understand the core issues such as “public welfare considering and executive information control.”、"the absoluteness or relativity of the privilege "、”the privacy issues ”、”the intervention of Jurisdiction ”、”the operations of minority government” and ”political intervene ”. Then we introduce the academic researches from constitutional theories to analysis and criticize those developments.
At the end, we look back to Taiwan constitutional and legal system, to examine the respects as government system、privilege information types、the body who can claim the privilege、law executing needs and the accountability of politics. Find out the designing directions the privilege for future legislation.
Subjects
行政特權
總統機密特權
權力分立
釋字第五八五號解釋
釋字第六二七號解釋
國會調查權
公益原則
責任政治
SDGs
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-102-R97a21030-1.pdf
Size
23.32 KB
Format
Adobe PDF
Checksum
(MD5):db5bb01d5c2ec344014c6fa53cb75894