Sun, May 16, 2004 - Page 8 News List

Respect for law critical to recount's credibility

By Vincent Wong 汪平雲

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 (連戰), People First Party (PFP) Chairman James Soong (宋楚瑜), President Chen Shui-bian (陳水扁) or Vice President Annette Lu (呂秀蓮).

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.

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