(MY) Time to get tough on environmental crimes

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Cover Story

Time we got TOUGH!

By Sarah Sabaratnam sarah_s

 

June 11: OUR constitutional right to life includes the right to a clean

environment. However, these rights are often impinged upon by open burning,

black smoke from vehicles, water pollution, the dumping of hazardous wastes,

illegal hill clearing, non-compliance with Environmental Impact Assessments,

deforestation and unsafe technologies.

 

There are provisions in our laws for these crimes against the environment

but most times, they go unchecked.

 

Often, appointed stewards of our natural resources close both eyes to these

offences. In the few instances that the law is enforced, it seems the

punishment doesn't fit the crime.

 

" My biggest problem with this country, " says Gurmit Singh, environmentalist

and president of the Centre of Environment, Technology and Development,

Malaysia, " is that the prosecution doesn't even happen in the first place.

 

" And even if the case goes to the courts, a jail sentence is hardly meted

out. The prosecution doesn't push hard enough. "

 

How then can our right to a clean environment be guaranteed when the

deterrent value of the law seems low compared to the long reaching impact of

environmental crimes?

 

Whose fault is it then when the punishment doesn't fit the crime? Whose

responsibility is it to determine accountability and what sort of justice

can we seek for our environment and ourselves?

 

In India, anybody can lodge a report of a perceived crime against the

environment to the Supreme Court and the court can give directions for a

case to start.

 

" They have gone to that extent of giving people the right to give their

views about the environment, " says Gurmit.

 

Because those with the responsibility of protecting our environment fail in

their duty to seek justice, Gurmit suggests the need for a provision in our

laws for such public interest litigation, where an individual or groups can

go to court with a case.

 

" Governments need to show that they are serious about the environment and if

they are, they will look into this. The Indian court is thought to be the

most proactive court in the world because it allows this. "

 

In Malaysia, only the Attorney-General can take up public interest

litigation.

 

That does not mean the public should remain silent. A vigilant public can

make things happen as seen with certain members of the community in Cameron

Highlands. They have been instrumental in getting the authorities to enforce

the law against those who have illegally cleared land, poached wild orchids

and conducted open burning.

 

However, a vigilant public is helpless in court, if not for equally vigilant

enforcement authorities.

 

Says Gurmit: " If they don't enforce, you cannot prosecute. Most times, you

see our authorities allowing the offences to pile up like what the police do

as seen in the recent Ops Warta. "

 

At other times, the law isn't even enforced and there are not enough

officers to do the job.

 

" If the DOE (Department of Environment) or whatever agencies do their job

systematically, that will be the first step in preventing crimes against the

environment because people know the chances of being caught are fairly

high. "

 

Gurmit also wants enforcement and prosecution officials to be trained in how

they present evidence in court so that they can hold their own against

defence lawyers.

 

Next, the prosecution has an enormous responsibility in ensuring that the

offender is charged under the appropriate law which provides for a deterrent

sentence so that an example can be made of him.

 

Finally, the judge has a responsibility to educate himself on the importance

of the environment.

 

" How do you expose judges to the cost of damage to the environment? If the

judge has no understanding of the importance of forests, he can undo

whatever the prosecution has done. "

 

According to the First Statement in Malaysia's Vision 2020, the country

will, " ensure that her invaluable resources are not wasted. The land must

remain productive and fertile, the atmosphere clear and clean, the water

unpolluted, the forest resources capable of regeneration - able to yield to

the needs of the nation's development. The beauty of the land must not be

desecrated: for its own sake and for economic advancement. "

 

Considering the future and economic importance the nation puts on our

natural resources, it's a crying shame that despite adequate provisions in

our law, the courts don't seem to mete out enough of a penalty to deter

crimes against the environment.

 

For instance, for crimes against the National Forestry Act, sources say that

the longest a person has been sent to jail is one year (the Forestry

Department's director of enforcement was unable to confirm this statistic at

Press time).

 

Is it because penalties provided for in the Act are inadequate?

 

Forestry director-general Datuk Zul Mukhshar Md Shaari feels this isn't the

case.

 

He says Section 15 of the Act allows for any person guilty of taking forest

produce without a licence to be fined not exceeding RM500,000 and jailed not

less than one year, but not more than 20 years.

 

In addition, the law allows that a sum not exceeding 10 times the royalty,

premium and cess, as well as a sum not exceeding 10 times the value of

forest produce unlawfully removed, be paid to the State authority.

 

However, whether the courts are imposing these fines are another matter.

 

" It is really up to the courts, " says Zul Mukhshar. " You should be asking

the judge what criteria is being used to sentence the offender. "

 

Under the Environmental Quality Act 1984, the maximum fine is RM500,000. In

addition, the cost of cleaning up the environment (for instance, removing

and cleaning up dumped toxic wastes) can be imposed on the offender.

 

However, according to Department of Environment director-general Rosnani

Ibarahim, the problem is proving how much damage has been caused.

 

" If you have a factory dumping toxic waste in a river, it would be difficult

to assess how much damage has been caused and to ascertain the cost of

recovery if there are other factories along the river also releasing a load

into the river. It would be difficult to pin it down on the offender. "

 

She agrees that the maximum fine of RM500,000 is seldom imposed, though it

was heavy enough to be a deterrent.

 

Animah Fuad Kosai, chair of the Kuala Lumpur Bar Environmental Law

Committee, says pushing for heavier fines to deter crimes against the

environment is not the answer.

 

" People can afford to pay fines, " she says. Instead, she advocates combining

a carrot-and-stick approach. This involves strict, no-nonsense enforcement

as well as incentives for those who comply with the law.

 

First, she says, the prosecution needs to work harder and find the correct

charges to bring against the perpetrator.

 

" There would usually be enough evidence to charge an offender under several

different provisions in the law, " she says. However, most times only one

charge is brought against the offender. Animah proposes steps being used in

other countries to punish environmental crimes.

 

In Brazil, the promulgation of a new federal Constitution brought about a

groundbreaking chapter on the environment. By providing a clear definition

of environmental rights and an adequate distribution of general legal

responsibilities for environmental protection, the 1988 Constitution created

a new legal framework according to which the previously scattered

environmental laws should be interpreted

(www.brazilnetwork.org/enviro-crimes.htm).

 

The law allows for sanctions such as loss of tax incentives, a prohibition

of contracting with the public sector as well as of participating in public

bidding for a period between of three and five years. This will cause the

offender losses in the millions.

 

Another original development introduced by the new law concerns the

possibility of the punishment being revoked when the environmental damage is

properly repaired. Sentences have to establish the minimum value in money

for the reparation of the damage caused by the abuse, taking into account

the harm caused to people and/or the environment.

 

Animah says these measures can be introduced as conditions in carrying out

certain activities, but should we consider making it legislation, it should

apply to all States.

 

In Japan, a 1973 Compensation Law allows members of the public to seek

damages to health caused by pollution. A fund exists for this, where

polluters are made to put money in.

 

Animah also calls for banks and lenders to be more proactive and not provide

funding for companies with a bad environmental track record. " Banks are not

asking the right questions, like is the company environmentally-friendly? " ,

she says.

 

" Lenders should consider that companies that commit environmental crimes

risk having their vehicles seized, their operations seized or the land they

are operating on to lose its value because it is polluted. This affects the

banks directly so they should be inquiring into these things. "

 

Larger multinationals can also play their part by requiring that suppliers

meet certain conditions and to be ISO14001 compliant: " If enough MNCs did

this with regards to the environmental friendliness of suppliers, it puts

pressure on them to comply. "

 

In making the most out of our own laws, Animah says individuals can bring a

civil action against an offender, should they be directly affected by the

offenders' activities. For instance, if someone sets up a factory behind

your house and there is a chemical leakage, you and your neighbours can sue

for damages.

 

If the building of a new road causes soil erosion that damages your farm,

you can claim damages and loss of profit in a private suit.

 

" Damages for private law suits can run into the millions, " says Animah. If

the Malaysian public was more vigilant, the higher the damages get, the more

expensive it will be for those companies to protect themselves with

insurance. "

 

The list of suggestions can go on. The fact remains that there are many

examples out there in punishing environmental crimes and it is up to those

who are responsible to make the most of them.

 

Otherwise, we might as well take what Datuk Dr Rais Yatim, Minister in the

Prime Minister's Department, said - about the credibility of the present

Government being at stake due to the imperceptible delays in completing the

investigations of several high-profile cases by the police and the

Anti-Corruption Agency - with a pinch of salt.

 

And the public will continue to have very little confidence in our system,

especially after alleged political intervention on behalf of VIP

personalities close to the Government who are involved in crimes against the

environment.

 

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