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Feature: Dissenting judge sparks debate in annulment case

Huang Chun-ying smiles after the Kaohsiung District Court ruled in favor of Huang's lawsuit requesting that the result of the Kaohsiung mayoral election last December be annulled during a press conference on Friday. PHOTO: HUANG CHIH-YUAN, TAIPEI TIMES

The Kaohsiung District Court judges' decision on Friday to annul Kaohsiung Mayor Chen Chu's (陳菊) victory in the Dec. 9 Kaohsiung mayoral election stirred up much debate, particularly as one of the judges in charge of the suit publicly opposed the verdict.

The court in charge of the lawsuit consisted of three judges. While Preceding Judge Huang Hung-chin (黃宏欽) and another judge agreed that Chen had lost the second case, Judge Ku Chen-hui (古振暉) did not support the decision and has expressed his doubts about the ruling's legality in a six-page footnote attached to the ruling.

Huang's action was considered rare in common courtroom practice, said judicial experts.

Former Tainan judge and currently Kaohsiung prosecutor Chang Hsueh-ming (張學明) said: "It is very unusual for a judge to publish his opposition on the ruling paper and indicate he does not back the verdict."

"His point of view would have been considered as the judges of Taiwan High Court listened to the case," he said. "I expect an intense crossfire during the second trial."

Preceding Judge Huang said in the ruling that Chen lost the suit mainly because she violated the Election and Recall Law (公職人員選舉罷免法), using illegal means to hinder her rival's campaign.

The ruling said the Chen camp's press conference on the eve of the election accusing Chinese Nationalist Party (KMT) candidate Huang Chun-ying's (黃俊英) camp of vote-buying violated the Election and Recall Law, which stipulates that election candidates must stop campaign activities at 10pm on the eve of elections.

The ruling said the vote-buying allegation made by Chen's camp at the press conference had spread via TV and radio reports. Chen's camp also spread it by sending text massages to Kaohsiung voters, which impacted Huang's chances in the election, the ruling said.

Huang Hung-chin said that the purpose of banning campaign activities on the eve of elections is to avoid any surprise attack on campaign rivals and so to ensure procedural justice and a fair competition.

The ruling said that the press conference held by Chen's camp left Huang Chun-ying's camp no time to explain or clarify the matter before the vote, putting Huang in an unfair position in the race.

"The tactic ... was enough to influence the election result," the district court ruled in its verdict.

The vote-buying allegation made by Chen's camp turned out to be valid and Kaohsiung prosecutors have indicted Ku Hsin-ming (古鋅酩) and Tsai Neng-hsiang (蔡能祥) -- both charged with vote-buying. Ku, who rented buses to transport Huang's supporters to an election-eve rally, is believed to have paid voters NT$500 each "to vote for the KMT Kaohsiung City Councilor candidate."

Tsai was suspected by prosecutors of supplying the funds.

Last Friday's ruling said that while the evidence showed that the two men had engaged in vote-buying, there was nothing to prove Huang's involvement in this, as Chen's team had said in its press conference.

However, Ku outlined questions challenging the ruling.

First, he said, if Huang's camp could not prove that Chen's claim that "Huang was paying `walking fees' (走路工) to those who attended his campaign rally" was ill-motivated, the court should not have interpreted it as a slanderous move or illegal campaign gambit.

Second, Ku said that since the Chen camp's negative campaign tactic at most violated the regulations relating to the period for campaigning, voters' voting rights were by no means affected by such an infraction.

Consequently, he said, Chen had not broken any fundamental election-related principles which would justify the annulment ruling.

Ku said the evidence showed it was Chen's campaign team -- not Chen herself -- who led the accusation campaign, and that therefore Chen was not the main defendant in the case and should not be responsible for the incident.

He said it is common for candidates to make revelations about or attack their rivals during election campaigns and that these should be protected under freedom of speech.

He further argued that such accusations should be assessed by the voters themselves, the media and government authorities in charge of holding elections.

Lin Ching-tsung (林慶宗), a prosecutor with the high court's Kaohsiung office, said he was surprised by the ruling, but said the Democratic Progressive Party (DPP) should not have criticized the verdict, because the criticism might leave a bad impression on the judges who will be taking over the case following Chen Chu's appeal.

President Chen Shui-bian (陳水扁) said yesterday it was unfair for the court to punish Chen Chu for revealing the Huang camp's vote-buying activities.

He said he was confident Chen Chu would complete her term as mayor and believed Kaohsiung residents felt the same.

KMT presidential candidate Ma Ying-jeou (馬英九), meanwhile, said yesterday he hoped the Taiwan High Court would uphold the ruling.

Although the court's ruling provoked mixed responses, Ma said he believed the verdict would be helpful in wiping out "dirty tricks" in future elections.

DPP presidential candidate Frank Hsieh (謝長廷), however, slammed Ma's remarks yesterday, saying Ma's comments were interfering with the judicial process.

ADDITIONAL REPORTING BY CNA
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