The Kaohsiung Court Decision

(Ming Pao)  The Taiwan Decision Showed Guts! (台灣這個判決很有種!)  By Nan Fang-shuo (南方朔).  June 18, 2007.

[in translation]

On June 15, a Taiwan court rendered an extremely important decision: During the Kaohsiung mayoral election at the end of last year, the Democratic Progressive Party candidate Chen Chu had used an inaccurate accusation against her opponent Huang Chun-ying (Kuomintang) and won by the small margin of 1,114 votes.  Therefore, the election result has been annulled.  This means that a new election must be held.

The annulment of the election result will need to re-affirmed during a second hearing upon appeal.  The first decision is not the final verdict, because the principal can appeal.  Nevertheless, this court decision must qualify as a harbinger in the chaotic political scene of Taiwan today.  For the longest time in electoral politics in Taiwan, everybody knows that the judiciary has been intimidated by politics.  Therefore, it does not matter what abominable methods that one must use, the point is to get elected and the judiciary will not dare to follow up afterwards.  Everyone who is involved in politics believes that.  As a result, Taiwan has witnessed disgusting elections rarely seen elsewhere in the world.  When the election comes around, people buy votes, manufacture rumors, slander maliciously, make character assassination as well as use any number of other tricks.  While "negative campaigning" takes places everywhere in the world, very few countries manage to go as far as Taiwan.  This is an extreme form of power politics in which anything goes is the norm.

During the 2004 presidential election, there were the "two bullets."  People were arguing about whether this whole thing was staged.  At the time, one Democratic Progressive Party legislator said openly: "Even if this is staged, it reflects our skill."  When the lack of scruples become a 'skill,' how can the practice and quality of elections be good?  Democracy in Taiwan is a "poor-quality democracy," and this can be seen in the practice and quality of the elections.

During election time in Taiwan, the law goes "on vacation."  After a while, those involved in electoral politics have figured out a "sure-win technique."  That is, they wait until the last night before the election to deploy their most powerful attack and leave no time for their opponents to respond.  In 1998, Frank Hsieh was elected the mayor of Kaohsiung thanks to a tape recording at the last moment.  In 2004, Chen Shui-bian was elected president and the key was undoubtedly the two bullets on the eve of the voting.

During the Kaohsiung mayoral election at the end of last year, the corruption cases around Chen Shui-bian were creating an atmosphere that was extremely unfavorable to the Democratic Progressive Party candidates.  To win in this situation became the biggest test.  The Chen Chu campaign team repeated the tried-and-true "sure-win technique."  After all campaign activities were supposed to cease by law, they called a press conference to say "Huang Chun-ying has been caught in vote-buying."  They used a videotape as the evidence and had the exaggerated claim that Huang Chun-ying was buying votes.  Apart from the accusations made at the press conference, they also mobilized the underground radio stations and used mobile telephone SMS to spread the word.  As the voting was taking place, even Chen Shui-bian made critical remarks over this.  Faced with this "sure-win technique" of last-minute attack, the Huang Chun-ying was unable to make an effective response due to the lack of information and time.  It is hard to estimate the exact destructive effect of this step taken by the Chen Chu camp.  But Chen Chu went from a small deficit to squeak out a very narrow win, so this step has definitely changed the overall outcome.

After the election was over, Huang Chun-ying filed related lawsuits.  There were two parts in the lawsuit.  The first part asserted that voting was irregular with and asked for a re-examination of the ballots for the purpose of annulling the election as a whole.  The other part complained about the election techniques and asked for the election of Chen Chu be annulled.  Concerning these lawsuits from Huang Chun-ying, all of the people in Taiwan did not think that success could come based upon past history.  Even the Democratic Progressive Party was confident that nothing could happen.  During the preceding week, Chen Shui-bian went to see Chen Chu and told her that it would be okay.

So everybody was surprised because the Kaohsiung District Court decided to annul the election of Chen Chu in this case that people had no hope for.  The reasons are precedent-setting:

Firstly, the decision showed clearly that election methods such as the "sure-win technique" are against the principles of fair elections and may be listed as "an illegal method."

Secondly, the decision showed the belief that the candidate and his/her campaign team are bonded together, and the candidate is therefore the beneficiary of illegal methods.  Although the candidate did not stand in the frontline of the press conference to use illegal methods to attack his/her opponent, he/she should be regarded as at one with the team and must therefore bear legal responsibility.

While there have been previous lawsuits filing for the annulment of election results, the judiciary has been afraid of politics.  The judges naturally tend to think that the election has been held already and there was no point in having further arguments.  So they just want the case to be dismissed and therefore they look for the reasons to dismiss the case.  The cowardice of the judiciary is the true cause for the poor quality of democracy in Taiwan.  

But this Kaohsiung court decision was different.  It has obviously elevated the judiciary back to its proper height.  It examined the definition of "illegal method" from very common values.  It also used common values to define "responsibility" by refusing to let the principal get away with the claim that she was not personally present at the press conference held by her campaign team.  If this decision stays after the second hearing, it will become a legal precedent in the judicial history of Taiwan.  As such, it will be a deterrent against various electoral plots and tricks in the future.

By this decision, the District Court judges showed that they were not afraid of the ruling Democratic Progressive Party and showed that the judiciary was above politics.  That is praiseworthy.  When we charged that the judges were "afraid" of politics in the past, we cannot deny that it is not easy to be a judge in Taiwan.  The reason why the "judiciary was afraid of politics" is because politics can be frightening.  For example, when prosecutor Eric Chen filed charges in the state fees case, he was lacerated by the Democratic Progressive party.  The prosecutor who was investigating the special fees of Ma Ying-jeou was threatened by the Democratic Progressive Party central and the Democratic Progressive Party legislative group twice before charges were filed.  He was warned that if he did not file charges against Ma Ying-jeou, the Democratic Progressive Party would mobilize the masses to surround his current house and his family house back in his hometown so that he "cannot return home."  When the people in politics only want the judiciary to serve as their tools and otherwise trample upon justice, the prosecutors and the judges are afraid of defending justice and the dignity of the judiciary.  In the "poor-quality democracy of Taiwan," the root of the problem is with the politicians and the mobs who are their supporters.  When the judges and the prosecutors cannot escape these threats, one cannot expect much from the judiciary.  Without the arbitration of the judiciary, the ruthless politics obviously cannot be held in check.

When the decision was announced that the election of Chen Chu was annulled, the Democratic Progressive Party immediately rose to the attack.  The green media launched a tide of criticisms.  They did not have anything to argue with, so they simply said that the judges were "blue."  It does not matter whether what we do is right or wrong; everyone who does not support us must be "blue."  This is a reflection that in Taiwan, "rights and wrongs don't mean anything and only your political position matters."  This is a society accustomed to reach its goals by fair means or foul, a society that no longer believes that there is a line between what can or cannot be done.  This is a society that does not believe that one can possibly be wrong; even the most illegal act can be rationalized by "color" or "political position."  When there is an inability to self-reflect on these values, how can there be an "excellent-quality democracy" in Taiwan?

According to Taiwan law, the request to annul the election of Chen Chu will be decided at the second hearing.  Chen Chu has decided to appeal.  I cannot say whether the initial verdict will be upheld upon appeal.  Nobody had any expectations about the first hearing, so those judges were under relatively light pressure.  That may be the reason why they were able to reach that decision.  At the second hearing, the judges will surely be facing much more powerful pressures and even threats.  How will they cope with those pressures and threats?  Under the type of political culture in Taiwan, I am not too optimistic!