Taiwan 2004 Presidential Election and Aftermath Reports and Commentaries

Thepeople spoke

l        80.27%of the 16.5 million eligible voters turned out.

l        The Taiwanese people once again demonstratedtheir commitment to exercising democratic rights.

l        Votingand counting was smooth and peaceful, with noreports of even minor violence, as witnessed by hundreds of election observersfrom around the world and thousands of local and international media.

Official results

l        Chen andLu have been officially re-elected, and it is notcorrect to describe the result as "undetermined."

CentralElection Commission Chairman George Huang Shih-cheng, in accordance with Art. 63of the Election Law, pronounced the result at 9 PM on Mar. 20, as follows:

1.        Chen/Lu: 50.11%

2.        Lien/Soong: 49.89%

 The CEC will officially publish the results in the gazette within sevendays of the elections, when they will have legal effect.

Results in line with polls

l        The election had been considered tooclose to call.

l        There is no evidence of any significant last-minute shift.

Theresult is exactly in line with the pre-election polls. From Mar. 1 until thelegally mandated cutoff of publication of polls on Mar. 10, mainstream pollsshowed the two candidates neck and neck, as follows:

*Gap expressed in terms of Chen/Lu, i.e. a positive numberindicates Chen/Lu in the lead, and a negative one indicates Lien/Soong in thelead.

Allof these are independent, professional polling organizations. Threeof the polls showed Chen leading, and three showed Lien leading. The averagegap of 1.3% in favor of Lien was well within the standard margin of error ofthese polls, and there were substantial numbers of undecided voters in eachpoll. Moreover, data from all polling agencies showed the gap narrowingthroughout the last two months of the campaign. Therefore, theassertion that Lien was "clearly leading" in the pre-election pollscannot be justified.

The recount

l        Any recount must be based on the rule oflaw.

l        The government supports holding a recount,and all government agencies are fully cooperating with all legal proceedings.All top government leaders have repeatedly promised to fully respect the resultof any legal recount.

l        Pending any legal judgment, the resultstands as announced, and Chen and Lu will take office on May 20 as scheduled.

Taiwan’selection law includes clear provisions for either side to apply to the court fora recount, and this procedure has been used several times in local elections inthe past. The Lien/Soong campaign has made such an application, and the court iscurrently considering it. The government fully respects their right, and willfully cooperate with any decision taken by judicial authorities.

Thesealing of the ballots was carried outimmediately after the pan-blue’s application by the designated judicialauthorities. This does not imply adetermination of wrongdoing, but is a standard precautionary measure topreserve potential evidence in any future investigation, and the government hasfully complied with the process.

Anyelection suits will be heard by the High Court, with a possibility of appeal tothe Supreme Court. Taiwan’s judicial authorities are fully independent of the executivebranch. All judges, including all members of both the High and SupremeCourts, are not political appointees, but a separate special category of publicservants. They are not allowed to be members of any party, and they haveguaranteed tenure, only subject to internal review by the judicial branchitself.

Theconstitutional court, called the Council of Grand Justices, does not hearlawsuits, including election cases, but only interprets the Constitution. Itsmembers are not ordinary judges, but senior legal experts. They are appointed bythe president with the consent of the Legislative Yuan. The current members wereconfirmed by the opposition-controlled Legislative Yuan in September 2003.

OnMar. 23, President Chen met with the heads of all government branches. Hereiterated the government's hope for a speedy recount and promised to respectthe outcome. He emphasized that the legal procedures must be followed, and thejudicial system respected. In order to create any new recount procedures,relevant laws would have to be amended; however amendments proposed by the DPPcaucus to create a procedure for automatic recounts within seven days of a closeelection were blocked by the pan-blues in the Legislative Yuan on Mar. 23. Sinceit is fully possible to carry out a proper recount under the law, calls by somepan-blue figures for a state of emergency to be imposed simply to expedite theprocess are totally unnecessary. The government is not and has nevercontemplated any such drastic step, which could have serious consequences forTaiwan's political stability.

Accordingto current Taiwanese law, the result announced by the CEC is valid unless anduntil a new result is announced also by the CEC, at the end of any recountprocess. Art. 107 of the Election Law stipulates that a challenged election doenot affect the powers or duties of the incumbent, and Art. 65 stipulates thatthe incoming president and vice-president will take office at the appointed time(May 20), regardless of any pending legal challenges.

Note:further details of related laws are provided in Annex 1.

Pollingprocedures

l        This is a fair and transparent process.

l        Both parties actively participate at alllevels and all stages.

l        Allegations of fraud are not credible.

Electionadministration structure:

1.        Central Election Commission (all parties represented)

2.        City/County Election Commissions (all parties represented on each); note,the pan-blue camp is in power in 14 local governments, and the pan-green in 11,which means that the pan-blue had administrative power over the conduct of theelection in a majority of localities.

3.        Polling station staff are recruited by local ECs, consisting of neutralmembers of the community (teachers, etc.). Almost all staff have experience inconducting previous elections.

Ballotsare counted in each polling station, and the opening of ballot boxes and thecount are witnessed by official party representatives from each party. Inaddition, hundreds of international observers and thousands of domestic andinternational reporters and photographers canvassed the country, but failed toobserve any violations.

Thissystem has reduced outright election fraud to a bare minimum in Taiwan. The mostrecent case where serious election fraud was proven occurred after thelegislative election in 1995, when the KMT was determined by the court to haverigged the ballots to engineer the defeat of a DPP candidate.

Pollingstations have on average 1000 voters, and each has several staff, one policeman,and one party agent from each side. Furthermore, no polling stations returned100% for the DPP. Therefore, in order for the party to have "stolen"30,000 votes, it would have had to have absolute control over hundreds ofpolling stations, and every single one of these at each station. It is simplynot plausible that so many different polling station officials, police, andespecially KMT representatives could be so controlled. Even the KMT admitsthat they have yet to identify any evidence of any malfeasance.

Invalid Ballots

l        337, 297 (2.5%), compared to 122,278 (1%) in2000

l        Distributed evenly throughout all cities andcounties in Taiwan.

ReasonableExplanations:

1.    The Legislative Yuan, led by the pan-bluecaucuses, amended the Presidential and Vice Presidential Election and Recall Actin October 2003, mandating a stricter definition of valid ballots, andall election commissions followed the new standards in this election for thefirst time. This naturally increased the number of invalid votes.

2.    A group of social activists called the "OneMillion Invalid Ballot Alliance" launched a campaign calling on peopleto reject both candidates by purposefully invalidating their ballots. It iscertain that this campaign had at least some success, as witnessed byindividuals who have openly declared after the election that they indeed soinvalidated their votes.

The assassination attempt

l        No major sympathy vote detectable

l        No influence of heightened securityprocedures

Sincethe final result fell in the middle of the range of pre-assassination attemptpolls, it is difficult to perceive any direct impact of the attempt on theresult, despite its very shocking nature. Moreover, the accusation of conspiracyby the pan-blue camp the night before the election could possibly have had animpact in the other direction, although again such an effect is not directlyobservable. Of course, in such a close election, any tiny shifts could have beena factor, but so were many other events during the course of the campaign.

Accordingto standard military regulations, as revised in 2003, any presidential electionrequires the military to maintain a state of heightened alert. The troopsrequired to be on duty on March 20 were fewer than 38,000 in number. In previouselections, some 13,000 of which (approx. 1/3 officers, 2/3 enlisted men) wouldhave been permitted special short-term leave (usually half-day) to vote, butfollowing the revision in 2003, this procedure is no longer available duringpresidential elections. It is also noteworthy that some enlisted men are not yetof voting age, as well as the fact that the normal turnout rate of soldiers islower than that of the general population. The assertion that the votes ofsome 200,000 soldiers were affected is simply false.

Theattempted assassination, therefore, did not have any impact on the deploymentof Taiwan’s military forces. Presidential security units, naturally,upgraded their own state of alert as a result, but this could not have had asignificant effect on the outcome of the election. Furthermore, neither theseunits nor the regular army were deployed at or near polling stations.

Demonstrations

l        No significant violence

l        Life in all cities returned to normal byMonday morning; business, tourism, etc. unaffected

Demonstrations by oppositionsupporters occurred in three cities in Taiwan on Saturday night and Sunday, andcontinued in Taipei on Monday. Although these demonstrations are technicallyillegal, the government has adopted a tolerant attitude andrefrained from forcibly dispersing them to prevent furtherinflaming passions.

Negativeimpact of demonstrations:

1.        Casualties: several citizens and policemen injured, none critically, inthe Kaohsiung truck ramming incident late on March 20.

2.        Property damage: Doors of the prosecutor’s office in Taichung broken onMarch 21; graffiti on the walls of the Foreign Affairs Ministry on March 21.

3.        Traffic: slowed in central Taipei, certain bus lines rerouted. By Monday,only two streets remained closed. Other transport in Taipei and all transport inother parts of the country have functioned normally throughout.

4.        Stock market: On March 22, the first day of trading after the election,the TAIEX fell by 455.17 points, or 6.68%, to 6,360. Although this is itsbiggest percentage drop since January 1996, the government has not activated theNational Stabilization Fund to intervene in the market. On Mar. 22, the indexdropped again, but only by 2.9%. Private analysts expect the market to stabilizearound 6,000 points and then rebound, based on confidence in Taiwan’s economicfundamentals, despite short-term volatility.
AnnexI

Relevant Legal Issues in thePresidential Election Dispute

l        The Central Election Commissionhas announced Chen Shui-bian and his running-mateAnnette Lu of the Democratic Progressive Party (DPP) as electedPresident and Vice President on March 20 pursuant to Article 63 of Presidentialand Vice Presidential Election and Recall Law.

l        The electedPresident Chen Shui-bian and Vice President AnnetteLu shall take office on the day of the expiration of the term ofthe incumbent President and Vice President (May 20) pursuant to Article 65 ofPresidential and Vice Presidential Election and Recall Law. The election suitsshall not affect the day of taking office.

l        There are two types of electionsuit the candidate may bring to the court:

1)    When an election commission hasviolated the law so as to affect the results of an election, a candidate maybring a suit against that election commission to request nullifying the electionpursuant to Article 102. When the court has adjudicated and declared theinvalidity of the election, the election shall be null and void. A period oftime shall then be set in which a by-election be held.

2)    When the number of ballots won bythe elected President and Vice President is so inaccurate as to haveaffected the election results, a candidate may sue the elected President andVice President for the nullification of a candidate being elected pursuant toArticle 104. When the court has adjudicated and declared the invalidity of thecandidate being elected, the Central Election Commission shall announce theaccurate election results according to the judgments by court.

l        Pursuant to Article 107, ajudgment on the invalidity of an election or of a candidate being elected shallnot affect official duties undertaken as an elected official during the periodof his taking office.

l        Pursuant to Article 111, electionsuits shall be finally adjudicated in the court of second instance (SupremeCourt) and be no more de novo trial. Each competent court shall make judgmentwithin six months.

l        The Presidential and VicePresidential Election and Recall Law does not authorized the Central ElectionCommission to recount the ballots. In election suits procedure, the competentcourt may seize and recount the ballots according to the Code of CivilProcedure. If criminal cases occur, the prosecutor or competent court may seizeand recount the ballots according to the Code of Criminal Procedure.

Relevant Articles

Presidentialand Vice Presidential Election and Recall Law

Promulgated by presidential decree (84)hwa tsung (1) yiNo. 5889, on August 9,1995

Amended and Promulgated by presidential decree (92)hwatsung (1) yi No. 09200201091, on October 29,2003

Section Three   Candidates

Art. 29           After the deadline of Presidential and Vice Presidential candidateregistration and before the balloting day, if any of the Presidentialcandidates dies, the Central Election Commission shall proclaim the electionactivities quit and fix another date for a new election.

Ifthe election is proclaimed quit, a certificate of completion of a jointsignature campaign obtained before the cessation of the election shall still bevalid for the new election.

SectionSix   Casting and Opening ofBallots

Art. 60         A ballot shall be invalid in anyof the following circumstances:

1.Itis not prepared and distributed by the election commission in charge.

2.It is not according to mark for one single ticket ofcandidates by theprovisions of the preceding Paragraph.

3.Themark is put outside the marking column of the ballot or in such a place thatthe elector choice cannot be ascertained.

4.Theballot is altered after marking.

5.Theballot bears a signature, name chop, fingerprint, words or any other writingsign.

6.Theballot is torn so as to cause imperfection.

7.Theballot is so stained that the elector choice cannot be ascertained.

8.Theballot is not marked with the tool prepared by the election commission incharge.

Theinvalid ballot as prescribed shall be determined in the preceding Paragraph bythe chief administrator together with the chief inspector of the ballot openingstation. If there is a disagreement between them, it shall be voted upon anddecided by all inspectors. In the event of a tie, the ballot shall be declaredvalid.

SectionSeven   Election Results

Art. 63          Aticket of candidates which receives a majority or plurality of ballots shall beelected.If two or more tickets of candidates receive equal numbers of ballots, are-balloting shall be held within 30 days after the balloting day.

If there is only one ticket of candidates, the ballotsit receives must beat least 20 percent of the total number of electors to beelected. If the election result is that no one is elected, a re-balloting shallbe held within 30 days after the balloting day.

Art. 64           If a Vice Presidential candidate dies and the Presidential candidate ofthe same ticket is elected to the Presidency, the Vice Presidency shall beregarded as vacant.

If either the elected President or the elected Vice President dies beforetaking office or has his election declared null and void by judgment beforetaking office, the position will be regarded as vacant.

Ifboth the elected President and the elected Vice President die before takingoffice or have their election declared null and void by judgment before takingoffice, both positions shall be regarded as vacant and a new election shall beheld should be conducted in six months from the day ofdeath or the day receiving the affirmance from the court.

Art. 65          Theelected President and Vice President shall take office on the day of theexpiration of the term of the incumbent President and Vice President.For any persons who are elected in the re-holding of an election or after are-balloting and who thus cannot take office on the day of the expiration of theincumbent President and Vice President, the terms of office shall still becalculated as beginning from this date.

Chapter Six   Electionand Recall Suits

Art. 102         Whenan election commission has violated the law so as to affect the results of anelection or a recall, a prosecutor, a candidate,the person under recall process and the initiator of a recall case may,within fifteen days after the proclamation of the name list of elected personsor the proclamation of the result of a recall is made, bring a suit againstthat election commission before a competent court to request nullifying theelection or recall.

Art. 103         Ina suit of nullifying the result of an election or a recall balloting, when thecourt has adjudicated and declared the invalidity of the election or recall, theelection or recall shall be null and void. A period of time shall then be set inwhich a by-election or recall be held. Where the law violation involvesonly apart of the election of the recall process, the part of the election orthe recall process involved shall be null and void, and a re-balloting on thenullified part shall be held within a fixed period.

Art. 104         Whenan elected official has one of the following deeds,the election or recall organ, the prosecutor, or a candidate may, withinthirty days after the proclamation of the list of the elected officials, suefor the nullification of the election in a court with competent jurisdiction:

1.The number of ballots won bythe elected official is so inaccurate as to have affected the election results.

2.A person who employs threat,violence, or other illegal means obstructs candidates from engaging incampaigning, qualified voters from exercising casting rights freely, or staff ofelection affairs from executing duties.

3.A person commits acts specifiedin Article 84, Subparagraph 1 of Paragraph 1 of Article 87, Paragraph 1 ofArticle 89 or Paragraph 1 of Article 146 of the Criminal Code.

4.A person commits acts specifiedin Paragraph 1 Article 86 sufficient to affect the election results.

The deeds specified in thepreceding Paragraph shall not, when the court has adjudicated and declared theinvalidity of the elected official, be affected by the part of absolution of thecriminal judgment in the same case.

Art. 106        Theelection of a person shall be null and void after the court has adjudicated thesuit for nullifying his/her being elected and has declared his/her electioninvalid. The persons duly elected inan election had taken office; the date from the court has adjudicated and declared theinvalidity of the elected official, the elected official is canceled

Art. 107        Ajudgment on the invalidity of an election or of a candidate being elected shallnot affect official duties undertaken as an elected official during the periodof his/her taking office.

Art. 110        Theappellate court in the place of the central government shall have exclusivejurisdiction as first instance over election and recall suits.

Art. 111         In an election or recall suit, the court trying the case shall establish aprovisional chamber and try the case in joint consultation. The court shall trysuch cases before handling any suits of other kinds. Election and recallsuits shall be finally adjudicated in the court of second instance and be nomore de novo trial. Each competent court shall make judgment within sixmonths.

Art. 112         Inaddition to the provisions regarding procedures for election and recall suitsset forth in this Law, those in the Code of Civil Procedure shall apply mutatismutandis;however, those provisions relating to the effect of abandonment, acceptance ofliabilities and admission of undisputed facts that do not apply to the actionsshall not apply.

Annex II

Geographic Distribution of Invalid Ballots

Source:Central Election Commission http://www.president2004.nat.gov.tw/cec/index.php