‘Selective Vetting’ as a Factor in the Taipei Mayoral Election

Legal observations and advice on an opportunity for campaign reform
柯文哲:政黨輪替正常化-從北市開始-1280x853
C. Ed Hsu
By

As the year-end nine-in-one elections draw near, the high-profile Taipei mayoral election has entered a new era in electoral politics, characterized by a selective “vetting” of Sean Lien (連勝文) of the Chinese Nationalist Party (KMT) and Ko Wen-je (柯文哲), who is running as an independent, for the candidates’ character and suitability.

Recent opinion polls seem to have exacerbated the phenomenon. Several polls have shown that Ko’s lead over Lien has narrowed to between 10 and 20 percent, down from more than 20 percent earlier, with more than one-third of voters remaining undecided. As a result, campaign strategists have resorted to intensified rhetorical exchanges in a bid to mobilize undecided voters. Lien’s political and business ties with China, along with his vested interests in major Taiwanese corporations, have come under scrutiny. Meanwhile, Ko’s “creative accounting” of patients’ donations and for a discretionary research account (known as the MG-149 account) at NTU hospital, have also become the subject of intense attention for potential abuse. In addition, several of Ko’s contacts were required to report any and all business transactions with the candidate.

Under such “vetting,” even false accusations and subsequent vindication may influence undecided voters. Consequently, as a matter of campaign strategy it may be important to examine the selective and targeted use of “vetting” practices.

This article offers observations on the legal aspects of “vetting” political candidates, problems with such selective vetting, and how candidates should react. It concludes with advice for the Ko camp and for future Taipei mayors on campaign reforms to improve future elections.

The analysis demonstrates that Mr. Ko, finding himself in a vulnerable position and a likely victim of wrongful “vetting,” has very limited legal remedies to undo the damage done to his reputation from the unfair “vetting” process. Since he is being targeted for “vetting,” it is advisable for Ko to speak publicly on major issues only if and when under the advise of legal counsel, or defer to his spokesperson for public statements.

 

Vetting: a necessary evil for democracy

As just discussed, Ko’s finances, as well as personal conduct (e.g., discriminatory remarks against a female candidate), have recently been subjected to selective “vetting.” Ko’s campaign office maintains that the accusations were unfounded, and has complained about the “unreasonable” and “selective” enforcement of “vetting” practices. It may be helpful to review whether “vetting” is warranted, the extent to which the practice is unreasonable, and what remedial actions, if any, Ko may turn to in order to rebuild his image.

The vetting of candidates is a necessary evil in democracy. Transparency is a distinctive feature of a democratic society, particularly in elections where voters are entitled to know such items as a candidate’s finances, personal conduct, and previous coverage in the media to make an informed decision. To this end, vetting can theoretically be an effective device to thoroughly investigate candidates to determine whether they are suitable for a job requiring public trust.

The general idea is that if there are skeletons in a candidate’s closet, it is preferable to disclose them earlier than later, and before giving him or her the keys to high office. For example, residents of Hong Kong would certainly have benefited from early knowledge of (through vetting) chief executive C.Y. Leung’s (梁振英) receipt of an alleged US$6 million from Australian companies before his appointment. Unfortunately, no such mechanisms exist in the Special Administrative Region, let alone in China.

In a democracy, vetting is often warranted and not subject to privacy protection. Whining about it is not helpful.

We may then ask whether there exists a boundary of unreasonable vetting, and what remedial actions someone like Ko should take if illegal vetting unduly damages his reputation. In other words, could Ko sue for injunctive relief to stop unfounded, or wrongful, vetting?

Existing laws provide little means to restrict vetting, and even then, what constitutes unreasonable vetting has not been clearly defined. Therefore, the people and the media have almost free rein to vet political candidates.

Candidates’ ability to take legal action remains very limited. Depending on the nature and extent of the incurred damage, a candidate may take action under relevant legal theories, but the lawsuit could easily be dismissed due to his or her status as a public figure and political candidate. For example, to seek injunction or to collect, a candidate can sue under the theory of “defamation” — as either a civil tort or criminal offense for wrongful damage to one’s character — but the bar is very high and the plaintiff is required to prove elements such as the intent of the defendant, including knowingly or recklessly disregard of the facts, to defame the defendant out of actual malice.

“Actual malice,” which could substantiate charges of defamation against a public figure, is often subject to dismissal, largely because it is difficult to prove the defendant’s contemporaneous knowledge of the untruthfulness of the alleged defamation. Alternatively, a candidate can take legal action under the “intentionally and inappropriately causing a candidate’s losing an election” of the Election and Recall Law (選罷法). In such a case, the proof would be (a) the intent of the actor and (b) the dissemination/publication of untruthful statements that caused a candidate to lose. Once again, this entails a very high burden of proof that often is difficult to meet.

Having said all this, we can now ask whether the selective vetting of candidate Ko is lawful or not. As unfair as it may seem, it is not illegal. At present, no law exists that prohibits such behavior against a political candidate.

Because of this, two problems present themselves:

  1. The selective vetting of some candidates and not others violates procedural justice which requires that all due process be followed, including fair and comprehensive vetting of all candidates; and
  2. The candidate nominated by the incumbent government often is a beneficiary of selective vetting, because the incumbent government can exercise its power and influence, and mobilize its administrative resources to influence vetting outcomes.

The high burden of proof that is required in such cases has resulted in several campaign losses over the years. Several recent candidates from the Democratic Progressive Party (DPP) have lost elections due in part to unfair and biased vetting practices. One notable example was the TaiMed/Yu-chang Biologics case against DPP Chairperson Tsai Ing-wen (蔡英文) during her 2012 presidential bid. (Tsai was eventually cleared of all charges, but only after she had lost the election.) Current laws provide no remedy whatsoever for injuries to a candidate’s image or loss in an election as a result of wrongful vetting.

 

Advice

What can Ko therefore do to confront the selective vetting practices, particularly those raised by Lien’s camp? Unfortunately, there is not much for him to do. It would nevertheless be advisable for him to stick to a policy of transparency by producing documentation and being receptive to vetting. The more transparent Ko is, the less likely it is that voters will not vote for him.

Just as importantly, Ko must avoid making mistakes, including acts or speeches that can generate confusion or misinterpretation. Lien was trained in law, and his camp is looking closely to take advantage of Ko’s straightforward public speeches. Consequently, the KMT has sought to provoke Ko with questions of all kinds, regardless of their legality or truthfulness. On this note, because Mr. Ko’s campaign has pledged to abide by high moral standards, and because he has a history of misspeaking and being misquoted, it is evident that speaking to the media is not really his strongest suit. Since Ko has been singled out for selective vetting, he would be advised to consider deferring his responses to any and all sensitive questions to his campaign spokesperson, and that he only speak in the presence of a legal counsel for the campaign.

And what could Mayor Ko do after (and if) he is elected? To start with, he could work with legislators to either introduce appropriate laws or amend existing election laws to penalize selective vetting practices targeting specific candidates, or to mandate public disclosure of all candidates on all election-related sources. Ultimately, every effort should be made to close the loopholes and avoid future situations in which the incumbent government can abuse its power by using administrative resources to engage in selective vetting.

 

Ed Hsu studied law at the University of California, Hastings College of Law. He is an adjunct professor teaching policy and management in California. He is currently on leave in Taipei and can be reached at: chsu@faculty.umuc.edu

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