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For Taiwan (election) on May 16, 2004……

Respect for law critical to recount's credibility

`Until the High Court has come to a decision on the disputed ballots, a prior announcement of one's own version of the recount result adds to pressure on the court and only results in harm to the court's public credibility.'

By Vincent Wong

The recount of the ballots cast in the presidential election began on May 10, and the public is bracing for a new wave of political attacks. Behind the recount, however, there are still a few fundamental legal issues that need to be clarified.

First of all, what is the recount's objective? From a constitutional perspective, the main objective should be to respect the people's right to vote. This should also be the basic guiding principle. The ballots, sealed and stored by the courts until last Monday, were cast by people exercising their right to vote. These ballots are the expression of the sovereign will of the people; they are not the private property of either Chinese Nationalist Party Chairman (KMT) Lien Chan, People First Party (PFP) Chairman James Soong, President Chen Shui-bian or Vice President Annette Lu.

The recount's single objective should therefore be to honestly reflect the public will, to sincerely highlight the choice made by the public on March 20. This is nothing that the green and blue camps can deal with through negotiations and secret, underhanded dealings.

Based on a fundamental respect for the people's right to vote, the utmost should be done to verify the ballots cast as being valid, unless it can be determined with some certainty that the voter intended to have the ballot invalidated. When a ballot is declared invalid, it must therefore be done in clear accordance with the law.

This term, a translation of the German term Vorbehalt des Gesetzes, encompasses a few important values. First, voters have to cast the ballot with their choice marked on it into the ballot box. This is an important action in which the voter exercises the right to vote, and the effect of this action should not be lightly reversed. Requiring that those participating in the recount "split hairs trying to find faults" in the hope of overturning the election result shows contempt for and violates the people's right to vote.

Second, the determination of invalid ballots should be objectively regulated by "laws representative of public opinion." Concretely speaking, administrative staff and judges must rely only on the objective reasons stated in the eight clauses in Article 60 of the Presidential and Vice Presidential Election and Recall Law when determining the validity of a ballot. Managing and judging the ballots in accordance with the law, there can be flexibility neither toward a stricter nor toward a more lax interpretation.

Third, the determination of ballots' validity should be based on the image examples announced prior to the election. The principles of legal stability and predictability prescribe that there can be no changes after the election. If there are arbitrary changes to the announced examples after the election, how could we then know the future fate of the ballot we held in our hand when standing in front of the ballot box?

Fourth, the determination of the validity of a ballot must comply with the equality principle -- in other words, one uniform set of standards must be adopted, and everything must be done to minimize discrepancies resulting from individual subjective interpretations. During the recount, the supervising judges at each district court do not have the right to pass judgement on disputed ballots. They can only make detailed notes and submit all such ballots to the High Court for a decision. The reason for this is that, apart from regulations in the Code of Civil Procedure, it also helps implement the equality principle.

Since the supervising judge in each District Court only can provide notes with each disputed ballot and not make a decision, the decision in the end has to be made by the High Court. The decision by the KMT and the PFP to announce the daily "recount results" is thus a mistaken decision that both misleads the public and is disrespectful of the judiciary.

The daily progress still has to be reviewed and determined by the High Court, which means that there may be future changes to the results. This could easily create misunderstandings among the public. Until the High Court has come to a decision on the disputed ballots, a prior announcement of one's own version of the recount result adds to pressure on the court and only results in harm to the court's public credibility.

The questions of whether the right to vote, the legal stability principle and the equality principle will be respected and whether the invalidity of votes will be determined pursuant to the law have major implications for democracy and the rule of law. We are waiting to find out if this is a judicial or a political recount.

Vincent Wong is a lawyer.

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On May 16, 2004 ……

More good will and truth

By Chen Ming-chung

As far as "Chinese" on both sides of Taiwan Strait are concerned, no amount of good will from President Chen Shui-bian will ever be enough. [Ma and Wang say recount is only one of the blues' tactics, May 11, page 3]. Like an athlete, you give an inch, he will want a foot.

The only "truth" the pan-blues demand is to confirm their wild, imaginary accusations. After decades of official or unofficial investigations, where is the "truth" of the Lafayette brigade scandal? The truth about the murders of Lin Yi-hsiung's family? Are the blues so capable of solving these murders that they demand Chen's government to do the same?

Chen should not have allowed any "recount" that is not prescribed by law. By now, it is painfully clear, this kind of good will is not appreciated by the blues. Rather, it is seen by the blues as one of Chen's weaknesses to be further exploited.

Chinese on both sides of the strait only respect and understand power. They are incapable of respecting themselves or others. As each vote is sacred, even winning by one vote should be seen as sacred, let alone 29,000 votes.

But the blues are obviously incapable of such democratic faith. Only to regimes like the PRC or KMT's authoritarian rule will they submit their loyalty.

The blues are so used to writing their own laws, serving as lawmakers, interpreters and executioners all at the same time, that not even an open election will make them concede defeat.

Taiwanese should stand up. To love and to protect Taiwan means to stand up against the pan-blues' nonsense.

Chen should stand up for his rights and the rights of Taiwanese voters. Do not concede more than the law prescribed, or the law will be compromised. The nation will be held hostage by the blue wackos.

Chen Ming-chung, Chicago, Illinois

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