A Single Standard for Vote-Buying Prosecutions

A Single Standard for Vote-Buying Prosecutions
China Times Editorial (Taipei, Taiwan, ROC)
A Translation
November 28, 2007

The State Public Prosecutor General's Office launched its "Project Minefield" with a great deal of fanfare. It boasted that it had cast a dragnet over 3,000 cases of vote-buying. The very next day, ironically, the Kaohsiung District Court announced its ruling on the Kaohsiung Mayoral Race Per Diem scandal from last year. The court ruled that the 500 NT Per Diem the DPP issued to supporters had nothing to do with vote-buying! They were merely "wages" paid to participants in election rallies. Everyone involved was ruled "not guilty." Even the Ministry of Justice was outraged by the court's ruling, and issued a stern warning that same night: Those involved in the Per Diem scandal should not assume they won't be prosecuted.

When the public questioned the handling of the State Affairs Confidential Expense case, the Discretionary Fund case, and other major cases, the Ministry of Justice merely offered explanations and clarified doubts. It did not react as strongly as it has now. For the Ministry of Justice to express a legal opinion on an isolated case is extraordinary. The ministry's reaction underscores its concern about the negative impact this ruling may have on future vote-buying prosecutions.

The Kaohsiung Per Diem decision defied the average person's common sense understanding of what it means to buy votes. For several years, both the ruling and opposition parties have been competing to catch the other engaging in vote-buying. Issuing Per Diem is recognized by both camps as vote-buying. Catching someone red-handed issuing Per Diem has become an effective campaign tactic. To cite a random example, during the Taipei County Magistrate Election two years ago, Democratic Progressive Party candidate Luo Wen-chia's election campaign was videotaped issuing its supporters 300 NT in Per Diem. Whether the videotape had a decisive impact on Luo's election campaign and led to his loss is hard to say. Although the Banqiao District Court handed down a suspended sentence, it unequivocally ruled that issuing Per Diem was vote-buying.

The Taipei County Magistrate Election was not the only case. The Kaohsiung Mayoral Election last year was another. A campaign worker for Taiwan Solidarity Union legislator Luo Chih-ming also issued participants in an election rally 500 NT in Per Diem. He was sentenced to three years and two months in prison, and deprived of his political rights for three years. When one compares the sentences doled out to Ku Hsin-ming and Tsai Neng-hsiang, one has to wonder, was there really that much difference between 300 NT and 500 NT in Per Diem for attending a evening election rally?

For several years, the ruling and opposition camps have resorted to large scale mobilization to increase attendance at their rallies. Any large-scale event involving tens of thousands or even thousands of supporters, inevitably necessitate tour buses to transport flag-waving, slogan-shouting supporters. Not all these supporters are constituents from the candidate's own electoral district. Campaign workers responsible for mobilizing these supporters know perfectly well it is impossible to recruit that many people willing to spend hours riding buses, wolfing down brown bag lunches, and shouting campaign slogans, without paying them "wages." The only question is how they are to be paid. One must never get caught. One must never issue Per Diem on the buses, where there is no place to hide.

It is true that some individuals who issued Per Diem in the past have been found "not guilty." The justification given for such verdicts was that Per Diem and voting did not amount to a quid pro quo. Per Diem was merely "wages for work on behalf of the campaign." Admittedly, prosecutors and judges must be discrete before convicting someone of a crime. One cannot convict based on mere suspicions. Whether there was a quid pro quo is something that must be verified. But how did the judge determine that there was no quid pro quo? Elections require secret ballots. Judges cannot demand that people who were issued Per Diem reveal how they voted. Are we really going to check recipients against voter registration lists to see whether they were qualified to vote? Or are we simply going to take one side at its word?

Ku Hsin-ming admitted during his trial that people on the bus said they were voting for candidate number one, and that he replied, "Uh huh." Nevertheless the judge ruled that because so many people were talking at the same time, Ku could not be sure what they meant! If we are to believe the judge, Ku Hsing-ming's testimony and the testimony of supporters on the bus jibe. If we are to believe the judge, these supporters were on their way to a rally, but didn't know whose rally they were going to, and had to verify whose rally they were going to before deciding whom to vote for.

These campaign supporters were recruited by local party bosses. Certainly the local party bosses knew who they were supporting. Rallies have become an integral part of election campaigns. As a result, the staging of rallies has evolved into a profession all its own. Rally organizers have become hired guns able to take on jobs at a moment's notice. If the judges presiding over such cases accept such rationalizations, it will be increasingly difficult to prove that issuing Per Diem constitutes vote-buying. Any vote-buying activity can and will be disguised as Per Diem, as "wages for work on behalf of the campaign," exempt from prosecution. How will the prosecutors who laid down 3000 land mines be able to investigate vote-buying? Will they simply indict everyone and let the judges separate the sheep from the goats? Suppose every candidate who issued Per Diem then lost his election bid decides to file suit? Isn't that a frightening prospect? If public prosecutors abide by this decision, and fail to indict those who issue Per Diem for campaign rallies, how can they indict those who hold fund-raising dinners?

On the eve of the election, at the very moment public prosecutors have promised comprehensive anti-corruption initiatives, the Kaohsiung District Court dropped its bombshell. Just as the legal system must adopt a single standard for the Four Princes Discretionary Fund cases, so it must adopt a single standard for the Per Diem cases. Only then can the public trust the legal system and reconcile its judgments with common sense. Only then will controversy over public prosecutors' vigorous investigation of vote-buying die down.

中國時報 　2007.11.28
查賄該訂出統一的標準了
中時社論

　就在最高檢察署大張旗鼓推出「布雷專案」，號稱布下三千多天羅地網查察賄選的隔日，高雄地方法院對去年高雄市長選舉走路工疑案做出一審判決，指五百元走路工並無選票的對價關係，而是給參與造勢晚會者的「工資」，全案無罪！這個判決一出，連法務部都傻眼，連夜發出聲明呼籲：不要以為走路工就一定不涉刑責。

　即使國務機要費、特別費等重大案件，外界責難、懷疑湧入之際，法務部都沒有這麼反應直接，僅僅被動說明和澄清疑慮。法務部對單一判決做出特別聲明，確實是非常非常特殊的狀況，也凸顯這個判決確有可能對未來的查察賄選造成相當影響。

　高雄走路工案的判決，確實改變過去一般人對賄選的「常識性定義」。尤其在這幾年，朝野藍綠競相抓賄，「走路工」不但被認定應屬賄選，甚至也成為攻擊對手的選戰方法。隨便舉例，前年底台北縣長選舉，民進黨候選人羅文嘉陣營就被拍到支持者為他發放三百元走路工的錄影帶，這支錄影帶對羅的選舉造成重大衝擊，雖然很難講因此讓他落選，而最後板橋地院審理後亦確認為賄選，但以緩刑處分。

　不只台北縣長選舉的例子，同樣是去年高雄市長選舉，候選人之一台聯立委羅志明的競選幹部，也是發給參加造勢晚會的民眾三百元走路工，結果被判刑三年二個月，還褫奪公權三年。對比古鋅酩和蔡能祥的無罪境遇，真不免讓人懷疑，這三百元和五百元的造勢晚會走路工，真的差這麼多嗎？

　事實上，這幾年選舉，朝野陣營習慣性地以動員方式擴大造勢，任何大型晚會，不要說萬人晚會，即使數千人的場合，都難免有遊覽車載運民眾，以為搖旗吶喊助勢之用。這些遊覽車載來的民眾，當然不可能都屬選區內擁有投票權的選民；負責動員的黨政幹部，多數人心知肚明，要找這麼多肯花數小時坐車、吃便當、喊「凍蒜」的民眾，不給點「工資」是不可能的，只是給的方法要格外注意，千萬不能給逮到小辮子，尤其不能在車上發放，讓自己躲都無處躲。

　過去發放走路工判無罪的案例不是沒有，認定無罪的理由和這次判決如出一轍，認為沒有對價關係，而是「催票的工錢」。檢審要入人於罪，當然要慎重，不能看到影就說有罪，對價關係確實應該是一個必須考量的標準。只是法官怎麼認定有沒有對價關係呢？選舉是秘密投票，法官既不能要求拿到走路工的民眾報告他到底投給誰，難道要一一比對民眾戶籍所在地，確認他們到底有沒有投票權？還是只聽信一面之詞呢？

　在這次個案上，法官認為，古鋅酩雖在審理時承認，有民眾在車上講要投給一號，他也說「嗯嗯」，但因為一路上都有人在講話，他無法確認自己的意思到底是什麼。從相信法官、古鋅酩與車上民眾的說詞推衍，這群在車上準備前往造勢的民眾，還不能確認到底自己是參加哪一位候選人的場子？才要確認一下，是不是要投給一號。

　從輔選實務來說，助勢民眾既是樁腳號召動員，至少樁腳應該知道自己是支持誰？是誰的樁腳，但是，當造勢晚會成為選戰主流，自然會衍生出專門因應動員的「特殊行業」：可以隨時接案的臨時工。如果承審相關案件的法官，未來都接受這個社會現實，走路工是否賄選的認定勢必愈來愈困難，而任何可能涉及賄選的行為，都可以藉由舉辦造勢晚會，順帶發放「助勢工資」而免責，那布下三千地雷的檢察官，還能如何查察賄選呢？他是不管三七二十一，全部先起訴再丟給法官嗎？萬一所有因涉入走路工又落選的候選人，全部以此為影響選舉之變數，在選後提出選舉訴訟，這選務爭端豈不多得嚇人？檢察官若依此判決，造勢晚會的走路工不起訴，那餐會要不要起訴？

　值此大選前夕，檢察官宣示全面查賄的同時，高雄地方法院的判決確實像丟下一顆震撼彈，或許，就像天王特別費應該訂定統一的標準和見解一般，有關查賄的標準，檢審應該取得法律的齊一見解，如此才不致任由民眾「常識性的判準」懷疑司法公信力，也可有效緩和檢察官雷厲風行查賄可能引爆的衝突。