After more than a year of litigation, the Supreme Court today, ignoring the principles of democracy and justice, dismissed the KMT’s case seeking the invalidation of the 2004 Presidential election result.  In our view, what concerns us here is not just the ruling itself.  Nor is it only about the issue of justice. What really matters here is on what basis do we pass judgment on issues of just or unjust, right or wrong, and good or evil?  A judgment of this magnitude will definitely have far-reaching impacts on our history, politics, culture, education, and human nature.  We are profoundly disappointed in the decision.

Yet, it is our belief that history will hand down its “final judgment” on the 3/19 shooting incident, the holding of a referendum on the day of the Presidential election, the unjustified activation of the so-called national security mechanism, the election irregularities, and even this judicial trial itself.  We believe that history will eventually render us ultimate justice.

1.     The Supreme Court admitted that there were still many points of suspicion surrounding the 3/19 shooting incident; to one’s surprise, it rushed to the decision on the pretext of the approaching deadline for closing the case.

The Supreme Court today acknowledged in open session that there were still many points of suspicion surrounding the 3/19 shooting incident.  Although the deadline for closing this case was six months, the court naturally could extend it for investigation if there were still points of suspicion, as one of the functions of the court was the power to investigate.   Acting on the pretext that the deadline was approaching and that the appellant had failed to prove that Chen Shui-bian himself staged the 3/19 shooting incident, the Court said that it could not but dismiss the appeal. 

The case cannot be retried according to the Election Litigation Act.  In the future, even if the 3/19 shooting incident should eventually be proved to be self-staged, redress would not be possible. When people accuse those in power, who control all the resources of the state, of abusing power, the judiciary ought to be the final anchor.  However, the Supreme Court today rushed to judgment on the pretext of the approaching deadline while the 3/19 shooting incident was still clouded by suspicion.  In so doing, it has closed all doors of redress for the people.  In our view, it is a dereliction of duty on the part of the Supreme Court. 

2.     It was the opinion of the Supreme Court that the “Presidential Letter” sent by the President to request “the holding of a referendum on the day of the Presidential election” was a suggestion in nature, and that if there was indeed any violation of the law, the Central Election Commission was liable, not the President.   

Chen Shui-bian, in his capacity as the President of the Republic, knew full well that it was a violation of the law to “hold a referendum on the day of the Presidential election”; to one’s surprise, he requested it in a “Presidential Letter” to the Central Election Commission.  And the Central Election Commission complied without going through any Commission sessions.  A political duo performance like this amply illustrates the “conspiracy” structure between those in power who abused power and the subservient government agencies. Now, the Supreme Court, to one’s surprise, ruled that only “the Central Election Commission violated the law” and Chen Shui-bian was not liable because he was just making his opinion known to the Commission.  In contrast, in the famed Watergate case, Nixon was forced to step down only because he refused to hand out a tape recording during the investigation.   Obviously, the judiciary here was too lenient toward those in power.  It could be expected that they would abuse power even more brazenly in the future.

3.          The Supreme Court ruled that the illegal radio stations indeed should not have manipulated the Presidential election campaign, but it exonerated Chen Shui-bian from any liability.

The Supreme Court did not subpoena any person related to the illegal radio stations.  Shortly after the shooting incident took place on March 19, 2004, all of the illegal radio stations that were in the Pan-Green camp simultaneously launched rampant negative campaigns, maliciously accusing Lien and Soong of “conniving with Beijing to corner Chen Shui-bian.” Judging from the scale and consistency of such island-wide operations, there were ample reasons to believe that they were most likely coordinated by Chen’s campaign headquarters and not individual acts. Unfortunately, the Supreme Court exonerated Chen Shui-bian from any liability without even conducting any investigation into the case.

4.     How could deceased people, those who received ballots under false pretenses, and prisoners serving in prison all vote?

Regarding the so-called “potential invalid ballots”, such as ballots supposedly cast by deceased people, ballots received showing inconsistencies between signatures and names on the voters’ registers, and ballots supposedly cast by inmates serving in prison, the Supreme Court agreed to take the issue into consideration during the trial, but it unilaterally determined the number of those ballots to be 9,454.  Ironically, the High Court initially refused to consider those “potentially invalid ballots” and therefore never conducted any investigation in this respect.  So, how did the Supreme Court come up with the 9,454 potential invalid ballots, whereby determining that the numbers had not reached the gap between the two tickets, or 25,563 votes?

5.     A democracy is built on the separation of powers.  The most important goal of the judiciary, besides settling disputes, is to provide checks and balances against the executive branch.  The judiciary should not ignore justice, nor should it exist exclusively to serve politics.  The Supreme Court failed to exercise its constitutional function of providing checks and balances against the abuses of power by the executive branch.

The Supreme Court took the position that the Ministry of National Defense had the right to activate the so-called national security mechanism. Even if it had exceeded limits and deprived some members of the armed forces of their right to vote as a result of the activation of the mechanism, the court ruled that it was an act on the part of the Ministry of National Defense and had nothing to do with the President.  Its logic was similar to the one discussed in section 2 above, which argued that the “holding of the referendum on the day of the Presidential election” was an act on the part of the Central Election Commission, and not an act of the President.  However, the President is the commander-in-chief of the armed forces.  The Ministry of National Defense is under the Executive Yuan (the Cabinet), and the premier happened to be the campaign manager for Chen Shui-bian.  How could the Supreme Court intentionally ignore these simple facts and deliberately defend Chen’s innocence?  If this logic could hold water, the judiciary would naturally fail to check and balance whenever those in power abuse the resources of the state.  The abusive acts on the part of the entire state machinery in the service of the chief executive would be acts of the government agencies in the exercise of their functions, and would have no effect on the validity of his election.  Does this conform to the spirit of the separation of powers?  If the answer is yes, then why do we need the courts in the first place? 

Laws may be interpreted differently.  However absurd the logic was in the legal opinion adopted by the Supreme Court today, as long as the court had followed the rules of the games in handing the ruling, i.e., trial by due process of law, the KMT would be able to accept the outcome.  In fact, however, ever since the start of the two lawsuits last year before the High Court, one seeking the nullification of Chen’s election and one seeking the invalidation of the election itself, the High Court imposed many improper restrictions on the KMT lawyers, whose rights were also deprived.  For instance, the KMT legal team was denied access to the voters’ registers.  The lawyers were allowed to read files and evidence related to the shooting incident, but not allowed to photocopy, transcribe, or read them in collaboration with professionals.  It amounted to testing the memory of the KMT legal team.  Most of our requests for investigating evidence were denied.

Conversely, whenever the lawyers of the opposite side made a request for investigating evidence, the investigation immediately started.  If the basic right of a lawyer to read the file in the exercise of his functions was deprived, then how could the lawyer fulfill the burden of proof and defend justice and fairness?  The objective of instituting due process of law is to ensure that the outcome of the ruling produced through this process is fair, just, and to be trusted by the public.  If the court should ignore this process in handing down rulings, the final conclusion of the court decision would not be credible in the eyes of the public.  With such an end result, the judicial system has failed completely as arbiter.