On Monday, district courts began recounting all ballots cast in the presidential election. This great project is of extreme importance to both President Chen Shui-bian (
How does one recount more than 13 million ballots? Who should carry out the recount? Could it be done quickly? How should disputes be dealt with? Just how difficult these questions really are was implied when the Taiwan High Court on May 3 gathered representatives of all the nation's district court judges and registrars -- there were constant arguments and discussion.
The court has decided that each recount team shall consist of a judge, a court registrar, one representative from each party, and two election workers to assist with the recount; that the Central Election Commission's regulations for valid ballots declared prior to the election shall remain in place; and that disputed ballots shall be copied, sealed and sent to the High Court together with a written record for verification. Despite these measures, the success of the endeavor will still depend on the court's wisdom and efficacy.
A total, simultaneous recount is without question also a challenge to the two parties' legal teams. Due to doubts concerning the acceptability of party workers or members of the public participating in the recount, the Taiwan High Court demanded that both parties should appoint qualified lawyers or intern lawyers to participate in the recount. This was turned into an unexpected extraordinary mobilization of lawyers, with each of the two parties gathering over 600 lawyers, an astonishing number.
During this period, I heard of lawyers who were unwilling to participate in the recount because they don't want to be labelled "green" or "blue." There were also lawyers who first signed up with the green lawyers' team, only to switch to the blue team when they found that their compensation was higher. As a lawyer myself, I fully respect the choices made by my fellow lawyers, and I also hope that society will refrain from equating the behavior of lawyers performing their professional duties with the political stance of the party they are working for in the recount.
A bit more worrying is the blue camp's recount instructions, which were recently revealed to the public. One sentence in the manual required that lawyers participating in the recount should "have the courage to voice disagreement and must split hairs trying to find faults." It caused a strong reaction from the green camp's team of lawyers, who said they would act in the same way. This would result in a high number of disputed ballots that would all have to be sent to the Taiwan High Court, where they would have to be dealt with one by one. If this really will be the case, it will not run counter to the original intent of the Taiwan High Court's demand that lawyers or intern lawyers participate in the recount, but I am afraid that it will lead to further social unease.
I hope that all participating lawyers will think carefully. The Taiwan High Court held negotiations with lawyers from both sides on May 4, reaching consensus that if a dispute over ballots arises, the two sides must state their opinions clearly and substantively, and not engage in sweeping, abstract disputes. If they do, judges will be allowed to immediately order lawyers disregarding the rules to desist from further participation in the recount.
In addition, the Attorney Regulation Act (律師法) and the Ethical Rules for Attorneys (律師倫理規範) state that lawyers must treat their legal duties as public duties, and when carrying out their duties, they should consider the legal rights and public interests of the defendant. These regulations also state that lawyers must not handle matters entrusted to them in an inappropriate manner, and that they may not represent a defendant in baseless lawsuits, appeals or complaints. In other words, if lawyers participating in the recount should arbitrarily voice their disagreement, they would be in violation of professional ethical regulations. I also want to alert my fellow lawyers to the fact that, in case of graver violations, they may even be disciplined in accordance with Article 39 of the Attorney Regulation Act.
Both legal staff in the courts and the participating lawyers are writing history in Taiwan's first-ever lawsuit demanding the invalidation of the election of the president and the vice president and a full ballot recount. I sincerely hope that this will offer an opportunity to increase the dignity of the judiciary and of lawyers.
I also call on the government, opposition and the general public to maintain their reason and their respect for the judiciary, so that the high social cost resulting from this election will also include a lesson in democracy and the rule of law.
Shirley Lin is executive general of the Judicial Reform Foundation.
Translated by Perry Svensson
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