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
With escalating US-China competition and mutual distrust, the trend of supply chain “friend shoring” in the wake of the COVID-19 pandemic and the fragmentation of the world into rival geopolitical blocs, many analysts and policymakers worry the world is retreating into a new cold war — a world of trade bifurcation, protectionism and deglobalization. The world is in a new cold war, said Robin Niblett, former director of the London-based think tank Chatham House. Niblett said he sees the US and China slowly reaching a modus vivendi, but it might take time. The two great powers appear to be “reversing carefully
As China steps up a campaign to diplomatically isolate and squeeze Taiwan, it has become more imperative than ever that Taipei play a greater role internationally with the support of the democratic world. To help safeguard its autonomous status, Taiwan needs to go beyond bolstering its defenses with weapons like anti-ship and anti-aircraft missiles. With the help of its international backers, it must also expand its diplomatic footprint globally. But are Taiwan’s foreign friends willing to translate their rhetoric into action by helping Taipei carve out more international space for itself? Beating back China’s effort to turn Taiwan into an international pariah
Typhoon Krathon made landfall in southwestern Taiwan last week, bringing strong winds, heavy rain and flooding, cutting power to more than 170,000 homes and water supply to more than 400,000 homes, and leading to more than 600 injuries and four deaths. Due to the typhoon, schools and offices across the nation were ordered to close for two to four days, stirring up familiar controversies over whether local governments’ decisions to call typhoon days were appropriate. The typhoon’s center made landfall in Kaohsiung’s Siaogang District (小港) at noon on Thursday, but it weakened into a tropical depression early on Friday, and its structure
Taiwan is facing multiple economic challenges due to internal and external pressures. Internal challenges include energy transition, upgrading industries, a declining birthrate and an aging population. External challenges are technology competition between the US and China, international supply chain restructuring and global economic uncertainty. All of these issues complicate Taiwan’s economic situation. Taiwan’s reliance on fossil fuel imports not only threatens the stability of energy supply, but also goes against the global trend of carbon reduction. The government should continue to promote renewable energy sources such as wind and solar power, as well as energy storage technology, to diversify energy supply. It
RSS