Amend laws to punish polluters

By Lin Yu-hsiung 林鈺雄  / 

Tue, Jun 20, 2017 - Page 8

Chi Po-lin (齊柏林) captured a powerful scene in his famous documentary Beyond Beauty: Taiwan From Above (看見台灣) — when the polluted Houjin River (後勁溪) turns red. The movie shocked many Taiwanese as it drew attention to the nation’s pollution problems in a new way.

Rivers are the mother of the land, but Taiwan’s rivers have been seriously polluted. The Houjin River, which is used to irrigate more than 1,600 hectares of agricultural land in the Kaohsiung area, is the epitome of the nation’s water pollution history, as it reflects the failure of environmental legislation.

Although Chi succeeded in bringing the environmental problem to the attention of the general public, the legislature has remained oblivious to the issue.

When the documentary was released in late 2013, Advanced Semiconductor Engineering (ASE) was found to be discharging toxic wastewater into the Houjin. The incident might have caused a public outcry, but that did not mean that ASE was punished.

The Kaohsiung branch of the Taiwan High Court in September 2015 overturned the guilty verdict in the first trial against five defendants associated with ASE for the river pollution, absolving them of any criminal penalties.

The Supreme Administrative Court also overturned the Kaohsiung Environmental Protection Bureau’s administrative penalty on the company, sparing it a NT$100 million (US$3.3 million at the current exchange rate) fine.

In the end, the company walked away scot-free, without paying a single cent. As Taiwan’s laws are so advantageous to companies making a profit while polluting the nation, it is not very strange that these lawbreakers do not see the nation the way the rest of us do.

Not surprisingly, late last month, a Ho Tung Chemical Corp plant in Kaohsiung’s Renwu District (仁武) leaked kerosene into the Houjin.

There is a reason such cases continue. The legislative, executive and judicial bodies are all responsible for companies’ attitudes toward the environment: In the process of curbing pollution, the legislature makes up the upstream, the executive branches the midstream and the judicial bodies the downstream.

To truly resolve the nation’s environmental problems, the legislature must first provide laws that can effectively fight environmental crime, so that the executive and judicial bodies can do their work effectively.

Using environmental crime as an example, the Criminal Code introduced environmental pollution crime — including river pollution — in 1999, in Article 190-1, but it is extremely difficult be find anyone guilty of such crime due to the way it is defined.

This is especially clear when contrasting the pollution crime defined in Article 190-1 to the way pollution of water bodies is defined in Article 324 of Germany’s Criminal Code.

The ASE case is but one example of how difficult it is to find companies guilty of pollution. Since the law is quite powerless in practice, it is imperative that the legislature takes the following steps to amend the law.

First, pollution crime in the Criminal Code must be amended. Having one effective article is better than having 100 useless articles.

Since the Criminal Code has been useless in pollution cases, it is necessary to resort to laws such as the Water Pollution Control Act (水污染防治法) and the Waste Disposal Act (廢棄物清理法), which has resulted in confusion in the application of the law and companies taking advantage of legal loopholes.

The best way to deal with pollution crime is to ensure that the Criminal Code is properly amended to effectively prevent water pollution.

Second, the element in the Criminal Code that defines pollution crime as one that “endangers public safety.”

Under Germany’s Criminal Code, deliberately polluting water bodies or causing the quality of water bodies to deteriorate can result in up to five years in prison, and failed attempts to do are also punishable, while unintentional pollution can result in up to three years in prison. Endangering public safety is not a main element in any of these offenses.

In contrast, Taiwan’s Criminal Code requires that prosecutors prove that a pollution case has “endangered public safety” to convict someone of pollution. As a result, many people charged with water pollution — including the ASE case — have been found not guilty simply because it was not possible to prove that they endangered public safety.

As for the Ho Tung Chemical case, in Germany the company would at least have been found guilty of unintentionally polluting a water body.

However, in Taiwan, how would it be possible to prove that dumping several tonnes of kerosene into the Houjin, which has already been heavily polluted from several other sources, would “endanger public safety”?

Since rivers are not static, any kind of chemicals released into them will naturally become diluted, no matter how strong or how toxic they are. As long as the legislature does not amend the law, the executive and judicial authorities will not be able to do much regardless of how hard they try.

Third, any profit made at the expense of polluting the environment should be forfeited. Environmental crime is essentially a kind of financial crime, the goal of which is to increase profit by saving money on waste treatment.

A key to fighting such crime, then, is to deprive people of the profit they have made from polluting the environment. Under the new confiscation system in the Criminal Code, it is now possible to seize the property of defendants and a third party involved, as well as related evidence in pollution cases, irrespective of whether the pollution was intentional or not. The problem is whether or not the education of legal practitioners will keep up with the new law.

However, there are different interpretations as to whether the huge funds required to restore a polluted area to its pre-pollution state can be confiscated from the polluter based on their profits. In order to eliminate further dispute, this is something on which the legislature needs to make a decision.

Chi sacrificed his life to protect the nation’s environment; legislators should follow his spirit and see to it that we have a pro-environment criminal code that protects the nation.

Lin Yu-hsiung is a professor in the College of Law at National Taiwan University.

Translated by Tu Yu-an