VZCZCXRO6613
PP RUEHCN RUEHGH
DE RUEHIN #1457/01 1780151
ZNR UUUUU ZZH
P 270151Z JUN 07
FM AIT TAIPEI
TO RUEHC/SECSTATE WASHDC PRIORITY 5807
INFO RUEHBJ/AMEMBASSY BEIJING 6971
RUEHGH/AMCONSUL SHANGHAI 1200
RUEHCN/AMCONSUL CHENGDU 1979
RUEHSH/AMCONSUL SHENYANG 5947
RUEHGZ/AMCONSUL GUANGZHOU 0373
RUEHHK/AMCONSUL HONG KONG 8223
UNCLAS SECTION 01 OF 02 TAIPEI 001457
SIPDIS
SIPDIS
DEPT FOR AIT/W, EAP/TC, INR/EAP
FROM AIT KAOHSIUNG BRANCH OFFICE
E.O. 12958: N/A
TAGS: PGOV TW
SUBJECT: Kaohsiung Mayoral Election Nullification: Legalities and
Politics
REF: A) 2007 Taipei 1382 B) 2007 Taipei 0520 C) 2007 Taipei 0273 D)
2006 Taipei 4152
SENSITIVE BUT UNCLASSIFIED, PLEASE PROTECT ACCORDINGLY
1. (SBU) Summary: The recent Kaohsiung District court decision to
nullify last December's Kaohsiung mayoral election has surprised
both the Green and Blue camps, each of which hopes to turn the
situation to its advantage. While the decision has produced no
clear "winner" at this point, the final outcome of this case, which
will work its way through higher courts over the coming months,
could well affect DPP and KMT plans as they gear up for legislative
and presidential elections early next year. End summary.
Legal Uncertainties and Judicial Firsts
---------------------------------------
2. (U) The Kaohsiung High Court on June 15 annulled (DPP) Mayor Chen
Chu's 2006 mayoral victory, ruling that she violated the Election
and Recall Law by using illegal means to interfere with Huang
Chun-ying's election campaign. Mayor Chen will remain in office
while appealing her case to a higher court (see ref A). In a
six-page dissenting opinion attached to the ruling, Judge Ku
Chen-hui argued that, although Chen Chu's negative after-hours
campaign tactic clearly violated the law, it did not affect voters'
rights to cast a free ballot. According to Ku, (KMT) mayoral
candidate Huang Chun-ying's inability to counter the vote-buying
accusation did not impede voters from making their own assessment of
the situation. Some KMT lawmakers have questioned the legality of
the court's decision to publish this dissent, arguing that current
laws ban disclosure of judges' deliberations leading to a final
verdict. Some people in Kaohsiung, however, consider the
publication of the dissent a promising step toward judicial
transparency.
3. (SBU) Former Kaohsiung District judge Chen Chien-jong told AIT/K
that court's decision was a "first of its kind." He pointed out
that:
-- This is the first time a junior judge (Huang Hsuen-fu), who has
just completed judicial training and is not approved to
independently issue judgments, was named as an accompanying judge on
such a sensitive case.
-- It is rare for a presiding judge (Huang Hong-ching) to disregard
the judgment of an appointed judge (Ku Chen-hui) who handles the
entirety of the case, including the collection of evidence and
interviews.
-- Finally, it is uncommon for an appointed judge to make his
dissenting opinion public. The court usually publishes only the
final judgment and keeps files related to controversial judgments
confidential.
SIPDIS
4. (SBU) According to former judge Chen, in a typical case the
presiding and appointed judges make independent arguments while the
accompanying judge's vote determines the final verdict in a split
decision. Chen questioned the legal reasoning behind the verdict,
agreeing with Judge Ku Chen-hui's criticisms. Chen, who personally
knows the presiding judge, asserted that the verdict clearly
reflected the judge's pro-Blue political leanings.
5. (SBU) Kaohsiung Chief Prosecutor Wang Jun-li told AIT/K that the
nullification lawsuit had gone directly to the District court,
bypassing the prosecutors' office and impeding their involvement in
the investigation. The judgment has generated debate among his
colleagues. According to Wang, presiding judge Huang Hong-ching
used a public opinion poll that found 1,593 voters were distinctly
influenced by the alleged vote-buying videotape to support his
judgment that there was a definite negative impact on Huang
Chun-ying's campaign. Wang said some in the prosecutor's office
questioned whether this poll provided direct or clear enough
evidence to warrant the ruling.
Public Opinion
--------------
6. (SBU) The nullification verdict took both the Blue and Green
camps and the general public by surprise. Taiwan Times Reporter
Chen Hung-rui said that the public's reaction to the court ruling
has been polarized, with pan-Blue supporters applauding and
pan-Green supporters rejecting the ruling. Public confusion about
the details of the lawsuit has not been helped by President Chen's
criticism of the District Court ruling as support for vote-buying.
TAIPEI 00001457 002 OF 002
Claims by KMT lawmakers that the published dissenting opinion was a
"leak" have also increased public misunderstanding. Some people
have suggested that the court's ruling might be intended to deter
candidates in future election from resorting to last minute smears
against opponents, which raises concerns about judicial activism.
(Note: Although unusual, the court itself decided to publish the
dissenting opinion and make it a public document. End Note.)
7. (SBU) The District Court's ruling has had no effect on the city
government so far. The Kaohsiung City Election Commission has not
been instructed to prepare for a possible by-election. An AIT/K
contact said that if the High Court denies Mayor Chen-chu's appeal,
then the Executive Yuan would remove her as Mayor and notify the
Central Government Election Commission. The Kaohsiung City Election
Commission would then be directed to begin the by-election process.
Political Effects
-----------------
8. (SBU) Political effects of the nullification verdict on the
pan-Blue and pan-Green camps remain unclear. National Chung Chen
University Professor Soon Hsieh-wen expects the ruling will
negatively affect the DPP's electoral prospects in the coming year,
and he views President Chen's public criticism of the verdict as a
DPP attempt at damage control. Sun Yat-sen University Professor
Shin Chuei-ling, however, noted that the DPP has effectively
contested the ruling, while the KMT has failed to take advantage of
the situation to sustain its attacks against the DPP. National Sun
Yat-sen University Professor Kuo Chih-Wen told AIT/K that the
annulment would only help the KMT in the short-term, arguing that
the DPP presidential campaign will be strengthened if Mayor Chen
wins the appeal.
9. (SBU) KMT Legislator Lo Shih-hsiung told AIT/K that although the
KMT is not particularly "thrilled" about the ruling because it does
not make Huang Chun-ying Mayor of Kaohsiung, it hopes the ruling
will deter "last minute, negative campaigning," which has long been
a DPP tactic. Lo was not optimistic that the ruling would be upheld
upon appeal, but predicted that even a loss could energize pan-Blue
supporters.
10. (U) In the meantime, the battle lines between the Blue and
Green camps are being drawn. The Kaohsiung City Government
Information Department held a press conference on June 20 to replay
the videotape, which showed Huang Chun-ying's campaign aide
distributing cash to voters mobilized for a Huang campaign rally,
and alleged Huang was involved in vote-buying. KMT Huang Chun-ying
has now sued President Chen Shui-bian and Kaohsiung Mayor Chen Chu
for libel and asked for compensation of NT$10 million and NT$5
million respectively. Local pro-Blue press commentators charge that
the DPP Kaohsiung City Government is fast becoming Mayor Chen Chu's
new campaign headquarters whereas the KMT-dominated Kaohsiung City
Council has hunkered down as a command center for Huang Chun-ying's
new assault.
Comment
-------
11. (SBU) The appeal of the nullification will take several months,
some say as long as half a year, to wind its way through the next
court of appeals. The timing of the decision could play into the
upcoming presidential and legislative elections scheduled for early
next year.
Thiele
Young