Food Safety Oversight Has Failed, Yet the Government Obsesses over Penalties
United Daily News editorial (Taipei, Taiwan, ROC)
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
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.
2014.09.29 02:14 am