Kaohsiung Mayoral Election Nullification: Legalities and

UNCLAS SECTION 01 OF 02 TAIPEI 001457 SIPDIS SIPDIS DEPT FOR AIT/W, EAP/TC, INR/EAP FROM AIT KAOHSIUNG BRANCH OFFICE E.O. 12958: N/A TAGS: PGOV TW SUBJECT: Kaohsiung Mayoral Election Nullification: Legalities and Politics REF: A) 2007 Taipei 1382 B) 2007 Taipei 0520 C) 2007 Taipei 0273 D) 2006 Taipei 4152 SENSITIVE BUT UNCLASSIFIED, PLEASE PROTECT ACCORDINGLY ¶1. (SBU) Summary: The recent Kaohsiung District court decision to nullify last December's Kaohsiung mayoral election has surprised both the Green and Blue camps, each of which hopes to turn the situation to its advantage. While the decision has produced no clear "winner" at this point, the final outcome of this case, which will work its way through higher courts over the coming months, could well affect DPP and KMT plans as they gear up for legislative and presidential elections early next year. End summary. Legal Uncertainties and Judicial Firsts -------------- ¶2. (U) The Kaohsiung High Court on June 15 annulled (DPP) Mayor Chen Chu's 2006 mayoral victory, ruling that she violated the Election and Recall Law by using illegal means to interfere with Huang Chun-ying's election campaign. Mayor Chen will remain in office while appealing her case to a higher court (see ref A). In a six-page dissenting opinion attached to the ruling, Judge Ku Chen-hui argued that, although Chen Chu's negative after-hours campaign tactic clearly violated the law, it did not affect voters' rights to cast a free ballot. According to Ku, (KMT) mayoral candidate Huang Chun-ying's inability to counter the vote-buying accusation did not impede voters from making their own assessment of the situation. Some KMT lawmakers have questioned the legality of the court's decision to publish this dissent, arguing that current laws ban disclosure of judges' deliberations leading to a final verdict. Some people in Kaohsiung, however, consider the publication of the dissent a promising step toward judicial transparency. ¶3. (SBU) Former Kaohsiung District judge Chen Chien-jong told AIT/K that court's decision was a "first of its kind." He pointed out that: -- This is the first time a junior judge (Huang Hsuen-fu),who has just completed judicial training and is not approved to independently issue judgments, was named as an accompanying judge on such a sensitive case. -- It is rare for a presiding judge (Huang Hong-ching) to disregard the judgment of an appointed judge (Ku Chen-hui) who handles the entirety of the case, including the collection of evidence and interviews. -- Finally, it is uncommon for an appointed judge to make his dissenting opinion public. The court usually publishes only the final judgment and keeps files related to controversial judgments confidential. SIPDIS ¶4. (SBU) According to former judge Chen, in a typical case the presiding and appointed judges make independent arguments while the accompanying judge's vote determines the final verdict in a split decision. Chen questioned the legal reasoning behind the verdict, agreeing with Judge Ku Chen-hui's criticisms. Chen, who personally knows the presiding judge, asserted that the verdict clearly reflected the judge's pro-Blue political leanings. ¶5. (SBU) Kaohsiung Chief Prosecutor Wang Jun-li told AIT/K that the nullification lawsuit had gone directly to the District court, bypassing the prosecutors' office and impeding their involvement in the investigation. The judgment has generated debate among his colleagues. According to Wang, presiding judge Huang Hong-ching used a public opinion poll that found 1,593 voters were distinctly influenced by the alleged vote-buying videotape to support his judgment that there was a definite negative impact on Huang Chun-ying's campaign. Wang said some in the prosecutor's office questioned whether this poll provided direct or clear enough evidence to warrant the ruling. Public Opinion -------------- ¶6. (SBU) The nullification verdict took both the Blue and Green camps and the general public by surprise. Taiwan Times Reporter Chen Hung-rui said that the public's reaction to the court ruling has been polarized, with pan-Blue supporters applauding and pan-Green supporters rejecting the ruling. Public confusion about the details of the lawsuit has not been helped by President Chen's criticism of the District Court ruling as support for vote-buying. TAIPEI 00001457 002 OF 002 Claims by KMT lawmakers that the published dissenting opinion was a "leak" have also increased public misunderstanding. Some people have suggested that the court's ruling might be intended to deter candidates in future election from resorting to last minute smears against opponents, which raises concerns about judicial activism. (Note: Although unusual, the court itself decided to publish the dissenting opinion and make it a public document. End Note.) ¶7. (SBU) The District Court's ruling has had no effect on the city government so far. The Kaohsiung City Election Commission has not been instructed to prepare for a possible by-election. An AIT/K contact said that if the High Court denies Mayor Chen-chu's appeal, then the Executive Yuan would remove her as Mayor and notify the Central Government Election Commission. The Kaohsiung City Election Commission would then be directed to begin the by-election process. Political Effects -------------- ¶8. (SBU) Political effects of the nullification verdict on the pan-Blue and pan-Green camps remain unclear. National Chung Chen University Professor Soon Hsieh-wen expects the ruling will negatively affect the DPP's electoral prospects in the coming year, and he views President Chen's public criticism of the verdict as a DPP attempt at damage control. Sun Yat-sen University Professor Shin Chuei-ling, however, noted that the DPP has effectively contested the ruling, while the KMT has failed to take advantage of the situation to sustain its attacks against the DPP. National Sun Yat-sen University Professor Kuo Chih-Wen told AIT/K that the annulment would only help the KMT in the short-term, arguing that the DPP presidential campaign will be strengthened if Mayor Chen wins the appeal. ¶9. (SBU) KMT Legislator Lo Shih-hsiung told AIT/K that although the KMT is not particularly "thrilled" about the ruling because it does not make Huang Chun-ying Mayor of Kaohsiung, it hopes the ruling will deter "last minute, negative campaigning," which has long been a DPP tactic. Lo was not optimistic that the ruling would be upheld upon appeal, but predicted that even a loss could energize pan-Blue supporters. ¶10. (U) In the meantime, the battle lines between the Blue and Green camps are being drawn. The Kaohsiung City Government Information Department held a press conference on June 20 to replay the videotape, which showed Huang Chun-ying's campaign aide distributing cash to voters mobilized for a Huang campaign rally, and alleged Huang was involved in vote-buying. KMT Huang Chun-ying has now sued President Chen Shui-bian and Kaohsiung Mayor Chen Chu for libel and asked for compensation of NT$10 million and NT$5 million respectively. Local pro-Blue press commentators charge that the DPP Kaohsiung City Government is fast becoming Mayor Chen Chu's new campaign headquarters whereas the KMT-dominated Kaohsiung City Council has hunkered down as a command center for Huang Chun-ying's new assault. Comment -------------- ¶11. (SBU) The appeal of the nullification will take several months, some say as long as half a year, to wind its way through the next court of appeals. The timing of the decision could play into the upcoming presidential and legislative elections scheduled for early next year. Thiele Young