Food Safety Oversight Has Failed, Yet the Government Obsesses over Penalties

Food Safety Oversight Has Failed, Yet the Government Obsesses over Penalties
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
September 29, 2014

Summary: Sun Yat-sen once related a story about a longshoreman who kept a lottery ticket in his carrying pole. Ecstatic that he had won the lottery, he flung his pole into the sea. When working toward a goal, one must never let one's imagination run amok. One must never forget one's roots. Think about it. If in order to punish Chang Guann, we sacrifice the rule of law, we may win the lottery, but we would have thrown away the pole.

Full Text Below:

The Executive Yuan recently approved a draft amendment to the Food Safety and Health Administration Law. It increased the fines tenfold for food companies that counterfeit foodstuffs. It also increased the criminal penalties for unscrupulous operators. Profiteers blindly pursuing profit at the expense of consumer safety, should be heavily penalized. But the laws have been amended six times in seven years. We are now in the embarrassing situation of amending the law for the seventh time. Leave aside the question of what these government agencies have in mind. Has focusing exclusively on heavy penalties after the fact resulted in neglecting preventive measures?

Worse still, under intense public pressure, certain individuals and government agencies, such as the Ministry of Health and Welfare, have proposed making the laws retroactive. They hope to impose heavy penalties on the Chang Guann Company, which was responsible for the rancid oil scandal. If this happens, it would set a national precedent for ex post facto law. Chang Guann may be heavily fined. But doing so would establish a negative precedent that destroys the rule of law.

Penalties must not be retroactive. That is a fundamental principle of democracy and the rule of law. The reason is obvious. How can the government formulate new laws that punish people for past conduct? For example, using asbestos, or using methyl chloride as a refrigerant in refrigerators. Scientific studies later showed that asbestos and methyl chloride are carcinogenic or pathogenic substances. Future use must of course be prohibited. But passing ex post facto laws to punish manufacturers who produced these products before they were made illegal, turns people into criminals against their will. The result can only be economic and social chaos. We would be no different from an authoritarian regime.

The Executive Yuan draft amendment to the Food Safety Law has three key points. One. It increases administrative fines tenfold for unscrupulous vendors. The maximum fine would be 200 million NT. Two. It increases sentences for manufacturers who defraud the public to seven years in prison. Fines would also be increased tenfold. Three. It abolishes industry regulations for court imposed fines. It plugs legal loopholes from the Chang Chi Foodstuff fake oil scandal. It imposes administrative fines of 1.85 billion NT. The court imposed fines of 38 million NT. The principle of double indemnity and provisions for priority penalties resulted in a paltry 38 million NT fine. This loophole has been plugged by provisions for the Chang Chi Foodstuff fake oil scandal.

In short, according to the rule of law, criminal penalties may not be retroactive. This is essential to ensure public trust in the justice system. Whether the issue is increased fines or longer sentences for manufacturers, ex post facto laws are unacceptable. Justice Minister Luo Yingxue notes that ex post facto law punishments amount to ex post facto subversions of democracy. This may not please the public. But it is the truth. It is something political appointees must uphold.

Take the Executive Yuan draft law. Only one provision pertains to the Chang Guann scandal, the provisions for the Chang Chi Foodstuff fake oil scandal. The Kaohsiung City Government has fined Chang Guann 50 million NT. Future ill-gotten gains may also lead to hundreds of millions in fines. According to current food safety laws, once Chang Guann pays the court imposed fines, it can avoid administrative penalties. The new law would abolish the court imposed corporate fines, as long as the legislature amends the law before the court imposes its sentence. Chang Guann could not escape administrative penalties by paying the court imposed fines.

The Food Safety draft law plugs past legal loopholes. It restores some measure of justice. But strictly speaking, the blind pursuit of heavier sentences without considering how the law would apply in practice, often leads to new problems when the law is found to be inadequate. It also reflects carelessness and haste by the executive and legislative branches. These result in broad brush laws that fail to discriminate.

In recent years, all sorts of food safety problems have arisen. Government policies often focus exclusively on increased penalties. This shows that government agencies are already at their wits end. Food safety management cannot rely only on the food companies' conscience. It must be rooted in a transparent and effective system of oversight. If the government system is circumspect and reliable, food companies will have little opportunity for deceit. Current health and welfare agencies rely on piecemeal, stop-gap measures. They do not know how to establish sound mechanisms that address the problem at its source. The result is seven amendments to the Food Safety Act in seven years, and Draconian punishments that still have not solved the problem. The crux of the problem is systemtic inadequacies.

When Shang Yang amended the laws, he first established credibility by keeping his word. The government must win first the public trust. More importantly, the authorities must fulfill their commitments. In the final analysis, the system is ill-conceived. Oversight is lacking at the front, and punishment is not swift enough at the back. These are the root cause of endless food safety problems. Fines may be increased and sentences may be lengthened. But as long as operators divest themselves of their holdings, lawsuits may drag on for years without resolution.

Under the circumstances, arguments that "new laws should be retroactive" may pander to the desire to punish profiteers. But opportunistic pandering to mob sentiment is not how a responsible democratic government should behave. Fortunately the Ministry of Justice has insisted that the law be non-retroactive. The Executive Yuan's final draft did not violate the principle of double indemnity. It did not turn the clock back on the rule of law.

Sun Yat-sen once related a story about a longshoreman who kept a lottery ticket in his carrying pole. Ecstatic that he had won the lottery, he flung his pole into the sea. When working toward a goal, one must never let one's imagination run amok. One must never forget one's roots. Think about it. If in order to punish Chang Guann, we sacrifice the rule of law, we may win the lottery, but we would have thrown away the pole.

食安監督機制失靈，卻一心想著嚴刑重罰
【聯合報╱社論】
2014.09.29 02:14 am

行政院會近日通過《食品安全衛生管理法》修法草案，對攙偽假冒廠商的罰鍰提高十倍，另加重不肖業者的刑度及罰金。奸商一味逐利而罔顧消費者安全，自應嚴刑重懲；但面對七年修法六次、如今又將七度修法的窘況，不論政府部門其實都該思考：一味強調事後的嚴刑重罰，是否反而疏失了制度的防範設計？

尤有甚者，在強大的民意壓力下，不論是當前的若干輿論或當事的主管機關衛福部，都提出「溯及既往」的主張，希以新法重懲餿水油案禍首強冠公司。一旦此舉成真，我國首開紀錄將刑罰溯及既往，就算能重罰強冠，勢必也將寫下破壞法治的惡例。

刑罰「不溯及既往」，是民主法治的根本原則。道理非常明白：政府怎能制定新法，去懲罰人民過去的行為？舉例而言，以往石棉瓦、使用氯甲烷做為冷媒的冰箱充斥人們生活周遭，但隨著科學研究顯示石棉或氯甲烷是致癌致病物質，當然必須禁止使用；然而，若立法「溯及既往」，要對以前曾生產的業者論處刑責，豈非變成強行入罪於民？如此一來，不僅經濟及社會秩序將大亂，也與威權體制無異。

檢視這次政院版食安法草案，重點有三：一是提高不肖廠商的行政罰鍰十倍，即最高可罰兩億元；二是加重不法業者攙偽假冒的刑度至七年徒刑，罰金也加十倍；三是取消法院對業者判處罰金規定，以修補之前「大統油案」的法律缺口。在大統假油案中，行政上處罰鍰十八億五千萬元，而法院判處罰金三千八百萬元，卻因「一事不兩罰」原則及優先適用刑罰規定，最後僅能罰三千八百萬元了事。此一缺口，透過俗稱之「大統條款」予以彌補。

簡言之，根據法治原則下的罪刑法定、不溯既往、信賴保護等基本精神，無論是對廠商提高罰鍰、對業主提高刑度或罰金等規定，均不宜作回溯之主張。法務部長羅瑩雪說，若刑罰可溯及既往等同「顛覆民主」，此語也許不符若干民意之期望，卻是實情，也是政務官該有的堅持。

就政院版草案看，唯一可適用於強冠案的條文，就是「大統條款」。目前強冠已被高雄市政府裁處五千萬元罰鍰，將來不當利得計算出來後，還可能再被裁罰數以億計的巨額罰鍰。若依現行食安法，強冠繳了法院判處的罰金後，即可逃過行政罰；但因新法草案取消了法院判處企業罰金之條文，只要立法院趕在強冠判決前通過修法，強冠即無法以繳罰金逃避巨額行政罰鍰。

《食安法》草案彌補過往立法缺口，算是還給社會一個公道。但嚴格而論，一味追求加重刑罰，卻不通盤思考法律在實務上的適用是否周全，每每碰到新的事件便發現法條不敷所需，這也反映出行政及立法部門的粗疏草率，使法律的功能變得太過扁平。

近幾年，面對層出不窮的各類食安問題，政府往往只能施展重罰策略，足見主管部門已黔驢技窮。食安管理不能僅指望廠商的道德良心，故必須建立在制度的透明及監督的有效之上；如果政府的制度周延可靠，廠商為惡取巧的空間就被壓縮。而如今，衛福部門卻往往只是頭痛醫頭、腳痛醫腳，不知從源頭建立良好的機制；結果七年七修食安法，濫用「重典」，仍治不了「亂世」，其癥結恐怕更在制度不當。

商鞅變法徙木以立信，除了政府必須取信於民，更重要的是「公權力必須貫徹」。歸根究柢，政府的初始制度設計不良，第一線的監督查察不力，而後端的懲處不夠迅速有效，才是食安問題層出不窮的根本原因。畢竟，就算罰金、刑責再高，只要業者能脫產、訴訟牽拖數年不決，仍無濟於事。

在這種情況下，「新法可溯及既往」之說或許滿足了民眾「重懲奸商」的想望，但以取巧、媚俗的心態去迎合民意，又豈是負責任的民主政府所應為？所幸，法務部能堅持「不溯及既往」的原則，政院版草案也終未違逆「一事不二罰」原則，沒有肇下一場開法治倒車的災難。

國父當年「扁擔與彩票」的寓言，說明行事絕不能心存妄想、而丟了根本。試想，如果只是為了重懲強冠，卻犧牲國家的法治精神，那跟中了彩券、而丟了扁擔有何兩樣？