Taiwan People’s Party Chairman and presidential candidate Ko Wen-je (柯文哲) said during a radio interview on Monday last week that someone had offered him up to US$200 million to concede and run as the vice-presidential candidate instead of the presidential candidate on a joint ticket with New Taipei City Mayor Hou You-yi (侯友宜) of the Chinese Nationalist Party (KMT).

After Ko made this revelation, Internet celebrity Chen Yen-chang (陳延昶), known as “Mr 486,” went to the Taipei District Prosecutors’ Office to file accusations against Ko linked to contraventions of the Presidential and Vice Presidential Election and Recall Act (總統副總統選舉罷免法) and the Money Laundering Control Act (洗錢防制法). If the offer originated from abroad, it could also have contravened the Anti-Infiltration Act (反滲透法).

Article 84, Paragraph 1 of the Presidential and Vice Presidential Election and Recall Act reads as follows: “Anyone who makes a candidate or a person qualified for a candidate agree to abandon the campaign or to perform certain campaign activities by asking for expected promises or delivering bribes or other undue benefits to the aforesaid party shall be condemned to fixed-term imprisonment of not less than three years and not more than ten years, and fined a sum of not less than NT$2,000,000 [US$63,542] and not more than NT$20,000,000.”

So, if someone offers such a person US$200 million for conceding to run for vice president, then even if that person turns down the offer, the person who made the offer has still committed an offense. If they come from abroad, then Article 7 of the Anti-Infiltration Act, which was enacted in January 2020, stipulates that their punishment would be increased by up to half.

The alleged offense is a very serious one and the investigating agency cannot treat it lightly.

However, before and after the Anti-Infiltration Act was enacted, there have been controversies over the clarity and applicability of its regulations.

First, what the act seeks to regulate does not include all sources of foreign infiltration, but only that perpetrated by hostile forces. However, as defined by Article 2.1 of the Anti-Infiltration Act, the term “foreign hostile forces” refers to “countries, political entities or groups that are at war with or are engaged in a military standoff with the Republic of China [or those] that advocate the use of non-peaceful means to endanger the sovereignty of the Republic of China.” This language is so vague that it could lead to arbitrary judgements.

The legal terms the Anti-Infiltration Act uses are very vague, such as being “instructed, commissioned or funded by the sources of infiltration.” Since this is not the kind of language used in criminal law, it possibly breaches the principle of nulla poena sine lege (no penalty without law), and makes it difficult for judges to decide on its applicability to a specific case. This makes it impossible to predict the outcome of such litigation.

Unsurprisingly, only a handful of people have been prosecuted under the Anti-Infiltration Act.

Furthermore, evidence of infiltration by foreign hostile forces needs to be obtained by requesting international mutual legal assistance in criminal matters, which is sure to encounter obstacles.

However, no matter whether the prosecutors’ office starts investigating this case based on media reports or because someone has filed accusations, the prosecutors’ office is likely to be subject to heavy pressures in the presidential election. It might prefer to be cautious, and this makes the Anti-Infiltration Act’s regulatory and preventive effects even weaker.

Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.

Translated by Julian Clegg