At the end of 2008, the China’s milk-adulteration scandal finally entered into the judicial process after its first exposure half a year ago, with four courts and 20 suspects been brought to trial, in which including Ms. Tian Wenhua, the 66 year-old former board chairwoman and general manager. At this special situation, Ms. Tian and her Sanlu Group is the victim of the whole food security system. They are both evil and sufferer of the potential rules of China Dairy Industry. And now, they are pushed into the centre of the court.
In this criminal jurisdiction with most broad attention, people pay close attention to what kind of crimes and punishments will be acquired by the suspects, and more importantly, what kind of roles the government, judicial authority and public opinion will play in this judicial activity.
THREE CHARGES
It is said in the indictment of Shi Jia Zhuang procuratorate that the lawsuits brought this time are just first set of cases in the whole. There are 3 types in 20 suspects: the first one is that Zhang Yujun and other 5 suspects produced and sold melamine mixture which is deemed as the chief criminals in this toxic baby milk scandal that shock the country. It is them who created the special ‘protein powder’ that becoming the resource of this public disaster. However, in perspective of some Article specialists, it still exist some problems when investigating the penalty for them, because the melamine itself is poison-free or slightly poisonous by itself, so it is hard to declare them guilty only for their producing behaviour.
It is reported that World Health Organization (WHO) is doing the research on the toxicity of melamine and it already gets into the animal test procedure, but the clear definition still cannot be obtained before the final report comes out. At last, the judge invoked Article 115 that crime of endangering public security by dangerous means to investigate the 6 suspects’ responsibility, which means they could be sentenced to death at highest.
The second type is Geng jinping and other 9 people added the melamine mixture into the original milk and sold to Sanlu Group Ltd. At the court, the objection of them been accused was the least. So the prosecutor required the judge investigate the responsibilities by the crime of producing, selling poisonous food that the highest penalty could be death. According to the huge amount of toxic milk sold out and seriously consequence, these ten small business people may become the most possible man that been sentenced to death in this case.
The third type is the crime of Sanlu Group and its person in charge, which are the most followed with interests by the public and with most objection as well. In the court, Tian Wenhua’s personal lawyer Mr. Liang Zikan did the “plead no guilty”, he believed that all the evidence that provided by the public prosecutor is apparently not enough to constitute the crime accused to Sanlu group or Ms Tian Wenhua and other defendants. Furthermore, the responsibility the Sanlu Group should afford is civil remedy, rather than that for crime.
In Mr. Liang Zikan’s defend suggestion, the strongest point is that there is no authoritative organization making the conclusion examination and maintaining that the milk powder made by Sanlu was the only brand that has been linked to infant illnesses or even death. Otherwise, in the period of the public prosecutor being accuse the crime behavour, melamine has not been listed as the item that must be tested in Diary regulated by the country, neither the testing standard which has not been released until 7th October 2008. Adding Melamine into milk powder is the potential rules known by almost the whole Diary Industry. In the following testing, almost all of the famous well-known brands, involving Yili, Mengniu, were tested out containing melamine. Therefore, is it all due to Sanlu milk powder for as large as the amount of 3 hundred thousand sufferers? This is indeed an very arduous task of collecting evidences. In fact, Sanlu afford the responsibility for an offence for the potential rule of this industry, and Ms Tian seems more like to be a victim for the whole food security administration and supervision system.
For this reason, the prosecutor did not bring its suit to the court using the original ‘crime of manufacturing or selling toxic or harmful foodstuff” but the ‘crime of manufacturing or selling fake and inferior products’ which is more broad and ordinary. And the key different here is that the highest judgment of the former is the death sentence, while that of the latter one life sentence. It also means as the main person in charge of the institute crime, Ms Tian can keep alive at least. In the mean time, Professor Chen Zhonglin, who is famous criminal law specialist and Dean of Faculty of Law of Chongqing University, considered that it is rational to bring a suit by the crime of manufacturing or selling fake and inferior products, because although Ms. Tian and other defendants were fully aware that the melamine cannot be used as food addictive, they went on manufacturing milk powder inclusive of this material. However, as melamine is poison free or slightly poisonous by itself, and it cannot do any harm to human body if not been mix with, almost all the countries had not work out a criteria about the lowest content before then. So it is hard to maintain the crime of manufacturing or selling toxic or harmful foodstuff.
Responsibility of Government
Before the last day of 2008, 20 defendants had been brought to the trial. In fact, with opening a court session for the first time, the queries have never broken off, one of which is that why there is not even one person in charge of government supervision department been investigated responsibilities.
Except direct responsible departments like State Food and Drug Administration and Bureau of Quality and Technical Supervision, in the detail of Sanlu case published by the court, the some other government departments took part in this event as well. The crime procedure of Sanlu suited by the prosecutor is from 1st August 2008 when the test report confirmed that the Sanlu milk powder was polluted by melamine to 12th September when compelled to cease the manufacture and selling.
When Mr. Liang Zikan defended for Mrs. Tian Wenhua, he disclosed the whole process: in the second day of the problem discovered, which is 2ed August, Sanlu Group submitted a written report to the government of the city of Shi Jiazhuang that informed the situation that milk powder been polluted by melamine accurately, and earnestly requested the government making an appearance to order some related offices to investigate and deal with accordingly those illegal milk station operator. Accordingly, the government of the city of Shi Jiazhuang sent the vice major and assistant secretary-general to Sanlu Group in person in the same day. They fully affirmed the decision of the company board but fail to order the production stopped.
On the 20th August, Mrs Tian Wenhua reported to the government in oral, followed by the second round in written, in which not only reflected accurately about the children being ill, but earnest requested the government to report to a higher body. But no agreement had been received.
“In terms of Criminal Law, there are the suitable accusation and judicial procedure in law to investigate the criminal responsibilities of concerned government department in this case.” said by Vice Professor Zhen Heyu, criminal law specialist of South China Normal University. However, Zhen also admitted that although there over 20 regulations about Dereliction of Duty in Chapter 9 of the Criminal Law listing the relevant penalties on health, environment protection, inspection and forestry for the related government departments, correspondent judicial precedents are seldom to meet, as a result, it is hard to find a case to describe the Dereliction of Duty in the real life.
On the standing conference of the State Council on 17th September 2008, Premier Wen Jiabao has required that the related parities and person must be investigated firmly and seriously. Until then, Li Changjiang, who was head of General Administration of Quality Supervision, had already took the blame and resigned, as well as Wu Xianguo, the Secretary Municipal Committee of the CPC of Shi Jiazhuang and the Major Ji Chuntang, Vice Major Zhang Fawang etc.. After all, from the perspective of disciplinary sanction, it is quite severe to deal with the toxic milk powder scandal. However, “the disciplinary sanction is not equal to the responsibility for a crime. Although the procedural of investigating the responsibilities for crime aimed at government official has not started at present, it cannot rule out this possibility to continue investigating the law responsibilities.” Said by Chen Zhonglin, who also suggested that as for Sanlu case, it is totally possible to investigate the crime of dereliction of duty of some person in charge and he believed that judicial authority will make correspondent decision after ascertain the facts.
Public Opinion and Law
It still exists in such major case that the information disclosure is deficient and the judicial process is not transparent, which are the drawbacks inherent in the administration of justice of China. Xu Zhiyong is a lawyer of the Open Constitution Initiative, which is a commonwealth law organization based in Beijing. He and other volunteer lawyers have been taking action for the Sanlu Tainted Milk Case and entrusted for the responsibilities from over 220 sufferers’ parents from 20 provinces. On 8th December, Xu Zhiyong started legal proceedings against Sanlu Group to the High Court of He Nan Province. “They haven’t made a statement yet, just revealed that being in research,” said by Xu Zhiyong.
When it later transpired that the court of Shi Jiazhuang would hear this case publicly, they took the criminal proceeding combined with civil procedure to the intermediate people’s court of Hebei province. However, it hasn’t accepted and hears the case yet; furthermore, Xu Zhiyong and the victims even were not allowed to join the trial at that day. It caused a consequence that the public were wanting in the knowledge in detail of the trial, and three utterly different accusations mentioned at last make the justice of China face the criticize that ‘take little, but have to operate on the position of eminent relent’ again. As a result, numerous media and netizen query that why not suing the Sanlu Group by the crime of manufacturing or selling toxic food?
Tian Wenhua was brought to the trial promptly at the end of 2008 is deemed as putting down the popular indignation, making an explanation to the public, however, what is exactly the public opinion? Although the final result has not come out, the divergence between the public opinion and the law can be seen dimly. And such situation should be quite familiar with Chinese people, from Liu Yong case in north-east in 2003 to Xu ting case short time before, and then today’s Tian Wenhua’s trial. Among these criminal cases with great public effect, the conflict between public mind and law is common occurrence.
Li Xinquan, a farmer of Runan country in Henan Province, whose 8 months daughter is one of the victims of this toxic milk scandal and been ill in August and died at 10th September, said to the media that he thought it would not be enough to sentence Tian Wenhua to death from his heart as a lot of baby died because of them, but after a hesitation, he supplemented that they still trusted the court decision.
“In fact, if the pubic has an efficient knowledge of the fact, the masses a reasonable,” said by Chen Zhonglin. It has also been proved by some sufferers met by the reporters that most of them still trust the law. Therefore, compared to several years ago, the spirits of democracy have already been deep in people’s heart. As to the relationship between law and the public mind, Chen Zhonglin has more profound thought: “there should not have been some gap, even though the law needs to reach a compromise to the public opinion, since the law is originally the expression of public’s will.” He also said that the gap often happens for two reasons. First is information dissymmetry which makes the general public be not able to obtain complete information; The second is in some condition the opinion of authorities do no professional. Take Xu Ting case for example, after the first judgment, most of the general people thought it’s abnormal re-sentencing, but almost no experts thought of combining with the regulations of general provisions of criminal law to explain this problem. So it can be said that most of our people can make the right judgment provided that they have knowledge of the true fact. So the change in original sentence is not the humiliation of the law, instead the law experts should thank to the public opinion for that vivid lesson that only to be reasonable can we understand the law system correctly and adhere to the law cardinal principles.
The Test of Judicial System
As to those sufferers who trust the law, it is doubtable at present that what kind of practical problem can be solved by the law. While Tian Wenhua and other 20 suspects were brought to the trial, Li Xinquan ran into snags and be foiled at Bureau of Health of his native place and the court. He wish he could get the compensation for the baby’s death, as the amount of 30000 yuan paid for the medical fee was borrowed from villagers. And the government has put forward a compensatory scheme as well: 200000 yuan for the death, 30000 yuan for patients with severe and 2000 yuan for the general patients
When it comes to year 2009, over 20 provinces has already started the compensation scheme accordance with national unified provisions. However, Li Xinquan is not in this range. ‘when I went to Bureau of Health for the money, they said there were no compensation for the death before 11th September at the moment, which classified as the specific case.’ Li Xinquan said. Then Under the suggestion of the lawyer, he went to the Country Court to suit Sanlu Group, but the answer is not put on record without any reason. Ironically, His baby died on 10th September, just a day before the government announced the Toxic Milk Powder Scandal officially. ‘Is that means there nothing I can do?’ Li Xinquan asked the reporter unceasingly.
‘In the situation of Li Xingquan, he still needs to get her compensation through judicial channels,” said by Professor Ma Changhua, well-known Tort Law specialist and professor of Zhongnan University of Economics and Law. At present, all the compensation were achieved by administrative means which can assemble various resources promptly and with higher effective comparing to judicial channel, but cannot be substitute for. So far the amount of victims and compensation are only the result of administrative effect, and it must be unreasonable places,
The announced amount victims are nearly three hundred thousand, but it is hard to count up the sufferers like Li Xinquan who were left out of the statistics to dates. The trial of Sanlu Group just means the beginning of the aftermath of the incident of the Toxic Milk Powder Sandal. Such a huge public crisis cannot be resolved in several months, or even years. In 1955, Japan also happened similar case which is Morinaga milk powder toxic scandal, where the judicial procedure had continued for 20 years and the compensation problem has not been not ended till today.
However, Mr Chuanghua also suggested that a lot of difficulties will be faced on the way to judicial channel, especially to the individual defendant; the toughest thing is collecting the proof that can prove the baby drinking the Sanlu milk powder all the time instead of other brands, and it is extremely hard to obtain the certified proof. As to Li Xinquan, at the moment all the proof is just three empty bag of Sanlu milk powder. ‘We are contracting other Tort Law experts to have a relevant seminar wishing bring out a complete opinion letter to our bit for the final solution.’ Ma Changhua said. Once the compensation suits are brought to the judicial procedure, a huge number of cases will be faced by judicial authorities in different places. So they hoped the highest court could give a example that can be quoted for other similar cases.
In terms of justice system of China, if it keeps close its door to the victims to bring their suits, it will greatly weaken the trust of the public to the authority of justice. But if it open that door, a series of unprecedentedly difficulties will appear. After all, this melamine milk powder scandal will test the justice of China for a long time and it’s just the beginning.
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