Mon, Apr 24, 2017 page6

• Criminal justice that protects the environment

  • By Yang Chung-han 楊宗翰
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  Since Advanced Semiconductor Engineering Inc (ASE) was found not guilty in 2015 of discharging tonnes of industrial toxic wastewater into the Houjin River (後勁溪) in Kaohsiung in 2013, environmental crime has reappeared in the media and has aroused public concern.

  The preparations last month for the National Congress on Judicial Reform also included discussions on the issue of combating environmental crime. The resulting resolution included a set of reform recommendations which mainly focus on increasing the punishments, enhancing techniques of prosecution and making offenders liable for environmental cleanup costs.

  These policy recommendations aim to resolve a range of practical difficulties in prevention and prosecution of environmental crime. However, deeper reflection on the legitimacy of the criminal justice system itself, issues of social inequality and the wider political economy of “green” crime in Taiwan is still needed.

  A close look at official statistics shows that Taiwan has a relatively unbalanced approach toward prosecuting and punishing environmental crime.

  In 2015, local prosecutors’ offices dealt with a total of 738 environmental crime cases. Out of those cases, 590 instances — or almost 80 percent — involved violation of the Waste Disposal Act (廢棄物清理法), while 88 cases — or 11 percent — were related to the Water Pollution Control Act (水污染防治法) and 52 cases — or 7 percent — were in violation of the Air Pollution Control Act (空氣污染防治法).

  The main type of environmental crime, waste dumping, provides a good example. The 590 cases involved a total of 1,560 defendants. Only 117 of these were corporations — 7.5 percent — while the others were individuals.

  As to the sentencing practices of the courts, more than 93 percent of those found guilty in 2015 received short-term imprisonment of less than two years as their main sanction. In addition, only 2.59 percent of the convicts were fined and another 1.5 percent were given more serious long-term prison sentences.

  Also of importance is that most of the environmental criminals do not have a high socio-economic status. About three-quarters do not have a college education, are over 45 years of age and already have a criminal record.

  The figures above and the related case law show that the nation’s criminal justice system repeatedly prosecutes and punishes a small group of individual offenders. These people might just be low-level employees, machine operators and drivers for waste disposal activities who are labeled and marginalized by the criminal punishment.

  However, the authorities so far have shown a limited ability to prosecute powerful corporations — such as ASE — and their influential decisionmakers.

  Globally, the EU has extensively examined both the pros and the cons of criminal sanctions when fighting environmental crime for the EU Environmental Crime Directive (Directive 2008/99/EC) and the European Union Action to Fight Environmental Crime project that followed it. The EU has provided its member states with a policy toolbox that ideally includes civil, administrative as well as criminal instruments. The latter might be viewed as a measure of last resort.

  Criminal sanctions can be powerful, but the question of who are actually being punished now and why they commit such crimes are also critical. In addition to criminal prosecution, the government needs to formulate more sophisticated monitoring and other self-regulation mechanisms to prevent environmental crimes — especially the serious ones committed by corporations.

  Yang Chung-han is a doctoral candidate at the University of Cambridge and a member of the Taipei Bar Association.
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