Wu Ching-chin 吳景欽
（Wu Ching-chin is an associate professor, chair of Aletheia University’s law department and director of Taiwan Forever Association）
（作者為真理大學法律系副教授兼系主任、永社理事）
Translated by Edward Jones
TAIPEI TIMES / Editorials 2015.08.20
http://www.taipeitimes.com/News/editorials/archives/2015/08/20/2003625755
Tainan City Council Speaker Lee Chuan-chiao (李全教), of the Chinese Nationalist Party (KMT), has for a third time applied to have the judge presiding over his trial on charges of election fraud recused. To say that Lee might be attempting to stretch out the judicial process would be an understatement. Lee’s position as Tainan City Council speaker sparked a row between the city government and the council, but legally speaking, it is not going to be easy to remove Lee from office.
Late last year, the Tainan District Prosecutors’ Office started to investigate allegations against Lee of vote-buying, and charges against him were brought this year.
The Local Government Act (地方制度法) does not contain specific regulations regarding the removal or suspension of a local city council speaker from their post. Therefore, when determining whether a city council speaker implicated in a criminal case should be allowed to remain in office, one can only refer to the regulations for relieving councilors of their duties. According to Article 79 of the act, councilors may only be removed from office if they have been involved in criminal activity for which they have been given a term of imprisonment and that sentence has been finalized.
Article 100 of the Civil Servants Election And Recall Act (公職人員選舉罷免法) stipulates that council speakers convicted of vote-buying may be handed prison sentences of between three and 10 years. However, the act falls under Article 376 of the Code of Criminal Procedure (刑事訴訟法) and therefore must be decided by the Supreme Court at a third-level appeal. This means that although Lee has been charged with vote-buying, the trial process is going to be long and drawn out and a sentence lies far in the future. This is why it is difficult to shake Lee from his perch.
Lee’s campaign managers have been charged with vote-buying, and while the criminal case is ongoing, this is why prosecutors have opened a lawsuit to nullify Lee’s election as Tainan City Council speaker, as provided for under section 120, Article 1 of the Civil Servants Election And Recall Act.
In accordance with Article 127 of the act, the final stage for this type of lawsuit is a second-level hearing at the Supreme Court, and at each stage, the relevant court should complete its review process within a period of six months.
Article 120, clause 3 of the Civil Servants Election And Recall Act stipulates that, even if an elected politician is found not guilty of involvement in vote-buying, this would not affect the outcome of a separate legal action to invalidate the politician’s election.
All the above regulations can be used to resolve the status of the Tainan City Council speaker and determine whether or not he should remain in office. A clear decision from the courts would indirectly resolve the dispute that is currently raging between the Tainan City Government and the city council.
The only setback is that under Article 37 of the Code of Civil Procedure (民事訴訟法), the litigant has to submit a request for the judge to be recused from the case and the trial would be halted. Although the judge presiding over Lee’s case might well believe that, by making such a request, Lee is simply trying to prolong the trial process, the court would prefer to avoid accusations of political interference in such a sensitive case. The court would not dare to continue with the proceedings and thus Lee is able to use recusal as a primary delaying tactic.As a result, the original aim of a speedy legal challenge to Lee’s election would certainly have been thwarted.
