The Kaohsiung City Election Commission on Tuesday last week approved the signatures gathered in the second phase of the high-profile attempt to recall Kaohsiung Mayor Han Kuo-yu (韓國瑜). The Central Election Commission (CEC) is to review the case today.
According to Article 87 of the Civil Servants Election and Recall Act (公職人員選舉罷免法), a recall vote must be held within 20 to 60 days after a case is established. This vote would mark the first established recall of a mayor at the special municipality level.
Han on Wednesday last week sent attorney Yeh Ching-yuan (葉慶元) to file a request with the Taipei High Administrative Court to halt the recall vote.
He also dispatched Chinese Nationalist Party (KMT) Kaohsiung City Councilor Chen Li-na (陳麗娜) and another lawyer to the Kaohsiung District Prosecutors’ Office to file charges against CEC Chairman Lee Chin-yung (李進勇) and the recall campaign leaders, accusing Lee of breaching the act and the campaign leaders of forging documents.
Han’s lawyers argue that Article 75 of the act states that “no proposal of recall may be filed against a civil servant who has not been in the position for one year,” so the campaign’s signature collection for the first stage of the recall process, which started in June last year, less than a year after Han took office on Dec. 25, 2018, contravenes the law.
Regarding the timing of a recall case, the CEC on April 8, 1997, said: “Apart from the regulation that no proposal of recall may be filed against a civil servant who has not been in the position for one year, there is no other restriction of the time for raising a proposal.”
In other words, collecting signatures for a recall case is not bound by the law’s restriction of time.
In the past, the establishment of election-related bribery cases was affected by different judicial determinations of the time when the bribery was committed.
This caused confusion as some prosecutors’ offices indicted a candidate while others did not on similar cases, and courts at different levels have issued conflicting rulings.
It raised the question of when vote-buying should count as bribery: when it occurred after the official election notice was issued, after the prospective candidates had registered or even after a campaign rally had started.
To resolve the confusion, the government in 1983 amended the law, adding “or a person qualified to be a candidate” to “anyone who has registered as a candidate” in Article 89 (Article 97 in the current version) to apply the law to registered and prospective candidates at all times.
In short, election-related bribery committed at any time should constitute bribery.
To file a recall proposal against a civil servant one year after that person has assumed office, preparatory work — including signature gathering and campaigning — must be conducted earlier.
The CEC’s 1997 administrative explanation serves as a legal basis, showing that there are no other restrictions on the time a bribe is proposed.
A similar logic can be found in the law amendment that solved the past controversy over the time when the act of bribery was committed.
Vote-buying at any time and any place is a crime.
To put the issue in legal terms, filing a lawsuit against the leaders of the recall campaign for “jumping the gun” in collecting signatures and contravening the law is more about interference and does not bear much practical significance.
Wang Chou-ming is director of the Anti-Bribery Research Office and convener of the Taichung Election Commission’s Panel of Supervision.
Translated by Chang Ho-ming
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