His Majesty King Tupou VI has withdrawn his assent to a controversial Food Act recently passed and submitted by the Parliament for final enactment.
In the Bill, the (unspecified) Minister is responsible for creating a National Food Authority, with a Director and a staff of ‘Authorised Officers’ who would have wide ranging powers as a ‘Food Police’. These ‘Food Police’ officers can stop, search, and make arrests and enter premises without warrants, all based on a ‘hunch’.
Their authority is over “the control of the cultivation, production, manufacture, storage, transport, packing, packaging, labelling and sale of all types of food, including food that is organically produced, genetically modified, dietetic or intended for infants or other population groups”. And includes “the preparation, handling and serving of food”.
That means everything from a home garden to a Church function to a roadside stand to a birthday function can be searched at will, and ‘samples’ taken with no recompense, by the Food Police.
If there are any damages during the search, the Authority or the officer responsible will not be liable to provide compensation.
If found guilty of a ‘Food Crime’, the punishment for an individual for a first time offence can be up $10,000 or imprisonment for a period of up to 3 years or both.
This all powerful Food Police is overseen and subject only to a “National Food Council”. The members’ and their method of appointment are not specified, except for disqualifications on the grounds of “infirmity”, ‘conflicts of interests’, and a criminal record.
The Food Police will have a regular budget from Parliament, but may also have an unlimited funding from donations and grants. The Bill does not require the Authority to disclose those sources of grants and donations, which means foreign food corporations can donate at will.
The King’s refusal therefore was to avoid giving too much power to this ‘Food Police’.
The Bill is now back in Parliament. Some in the House are still fighting for the Bill. On Wednesday (July 30th), the House slid into a verbal battle between those who wanted to limit the arbitrary powers of these state officers, and those who deem creating a new all-powerful Food Police justified ‘just in case’.
In an interesting twist, it was the Nobles Tu‘ilakepa, Tu’iha’ateiho, and Nuku who put up the strongest scrutiny of the powers of this Food Police.
The Nobles warned that the real and prevalent cases of abuse of powers of the authorities, should be of more concern than a hypothetical and future single incident of widespread poisoning caused by improper or unhygienic preparations of foods from a catering businesses. An incident that would be covered under other laws anyway.
The proponents of the Bill were an unlikely alliance of Ministers and (you wouldn’t guess this) the leader of the Demo Party, ‘Akilisi Pohiva and his party lieutenants.
Pohiva’s tagline: The interests of the one (business) cannot be more important than the interests of the one hundred thousand (population/consumers).
The Nobles focused instead on the civil rights of those one hundred thousand not to be subjected to search, seizure and arrest on a hunch. They continue to hammer home the point that people are more in danger from the arbitrary abuse of power, than a widespread abuse of the food industry for profit.
Pohiva said officers who want to search without warrants, don’t necessarily have to bash down doors.
“They can knock, and ask nicely. And if refused entry, then they can…”
Interestingly, it was the Nobles who vouched for limited powers of state officers, whilst popular MPs flaunted a ‘scare’ to justify the legislation.
Protracting the ‘possibility’ scenario, Minister of Police Siosifa Tu‘utafaiva said that people are generally dissatisfied with a search, with or without a warrant. Therefore according to him, the Food Police should be able to search upon suspicion. “They’re all generally dissatisfied [anyway]!”
As deliberations proceeded, there seemed to be confusions amongst MPs between a ‘random search’, and a ‘search without warrant’. The Bill does not provision for a random search, those activities are covered by other services like the Ministry of Labor and Commerce, and Ministry of Health Inspectors.
A ‘search without warrant’ is justified if an officer, by chance, stumbles upon a setting, whereby he deems he needs to break down a legal physical barrier (gate, fence, wall, door) to obtain evidence or to witness an offence. However, so the justification goes, the process of acquiring a warrant gives enough time for offenders to destroy evidence, escape detection, and therefore avert accounting to the law.
There was also confusion between ‘food safety’ and ‘food security’. Whilst the former deals with individual rights of consumers (for example against harm from the use of dangerous additives, substitutes, etc.), the latter deals with wider systemic affordability and access to food.
This Bill might actually undermine food security as fear of the Food Police drives people off the fields and shuts down market and roadside stalls, meaning more (expensive and unhealthy) imports are needed.
The Bill reaches deep into the agricultural sector (cultivation), and by implication, the tourism sector. These are pillars of Tongan economy, livelihood, culture, and government development strategy.
With the Bill intentionally confusing jurisdictions, and impinging on agriculture (and possibly land), the Bill poses more systemic problems to the wider economic system.
Wider systemic implications
The overreaching, unaccountable setup of the Bill poses serious risks to food security, economic security, and therefore fundamental national security issues.
The Council is tasked with regulating the Food Industry according to the Codex Alimentarius Commission, the International Plant Protection Convention (IPPC), and the World Organisation for Animal Health (OIE).
The Codex determines the ‘standards’, and changes them from time to time without Tonga’s control. The IPPC determines what plants may be eaten or not (no more kava?), and the OIE determines what sort of meat can be eaten (no more lo‘i hoosi?).
With all the above, coupled with a not-so-transparent funding source (throughout the year until auditing), the country is open to be more in danger from foreign companies encroaching and overwhelming local businesses.
There has never been any evidence that arbitrary intrusions and red-tapism have discouraged multi-national corporate adventurism, if that’s the intention of the Bill (to scare off investors).
Cabinet may have a false sense of security that the Minister can issue the schedule and regulations according to the Bill, freely. Foreign corporations have the wherewithal to prosecute (or delay) the life out of local competition and the Tongan government.
By the Bill’s standards and restrictions on how foods are to be produced, labelled, distributed and used, the only companies able to operate are multinationals.
This distorts the economy. And while small local vegetable planters and farmers may not be allowed to produce because they might be ‘substandard’, the shelves are already filling up with foreign grown, frozen, nicely packed and labeled vegetables.
Traditional foods, and traditional food-making processes, may be all illegal in the new regime, if a new outsider joins the game.
Genetically modified foods (only mentioned once and that in regards to infant formula), are not even taken cared of properly.
With this dis-incentivization of the local subsistent agricultural sector, which goes a long way to sustain household and family financial obligations, their little gardens can wither and die. Or just be seized with the owners punished for daring to to try to feed their own families.
Once that family food security goes, it will be followed closely by national food security, stability, and national security.
This sort of Bill is a typical populist ‘regulatory’ regime, distracting and deceiving new and under-developed markets, killing local producers and competitors and unhinging the economy for a corporate takeover.
When one Minister said that the reason for the Bill is to safeguard the people against the sort of issues China now faces, he can also contend that those businesses (KFC, McDonald’s) are the biggest perpetrators of all those abuses of food (and best deliverers of NCDs).
All countries, developed or developing, vehemently protect their economies, food industries, and agricultural sector from this sort of legislation. Those sectors are the ‘kill switch’ to almost all free trade agreement, including the WTO’s Doha Rounds which are now stuck in the mud as India tried to protect its domestic food security.
Ethical judgments are now in collision with populist, consumerist tendencies.
Looks like the Food Bill has the fingerprints of a foreign sponsor all over it.