Throw environmental offenders
in jail
15/04/2006
NST-PROP By Salleh Buang
I have on several occasions in the past expressed in this column my feelings
of regret and dismay at what seems to be an inexplicable reluctance of part
of the judiciary to punish environmental offenders with custodial sentences,
even when the facts of a particular case warrant it.
By way of an example, in one reported case in 2001 where waste effluent
discharged into the river was more than 1,000 times above the safety limit
set by law, the Sessions Court merely imposed a fine of RM75,000 – or a
year’s imprisonment. The custodial sentence was, therefore, contingent upon
the defendant’s failure to pay the fine.
As expected, the offender - an established vermicelli manufacturer in
Malacca - escaped the custodial sentence by paying off the fine.
Nevertheless, the company appealed, arguing that the fine was too excessive.
The High Court, which dismissed the appeal and upheld the fine, also did not
see it necessary to jail the head of the company, although the law provides
for the offender to be jailed for up to five years.
There is abundant literature on the subject of “sentencing principles” that
say a jail term should be regarded as “a punishment of last resort”.
However, there should be exceptions to this general rule.
I believe one exclusion should be made for environmental crimes that are
committed deliberately and wilfully. These criminals go much further than
just pollute our air, land, streams, rivers and catchments.
They are completely destroying our streams and rivers, poisoning the air we
breathe, killing all living vegetation as well as depriving our farmers and
fishermen of their livelihood. Yes, they are causing irreparable and
irreversible damage. They affect not just us today, but also the source of
life and livelihood of our future generations.
In such an event, a jail term alone cannot be regarded as sufficient.
Environmental criminals should be made to do more to pay for their crimes.
In Australia, apart from imposing a fine and a jail term, the court can also
order an environmental offender to carry out clean-up work and compensate
those who suffered damage or who incurred costs in cleaning up or addressing
the damage.
The court can also order the offender to pay costs and expenses incurred by
the authorities during the investigation of the offence, as well as require
it to pay a sum equivalent to the amount of the monetary benefits derived
from the offence.
Beyond that, the court can order the offender to restore or enhance the
environment in a public place or for the benefit of the masses.
Finally, it can order the offender to carry out a specific environmental
audit of activities that it carried out previously and is continuing to do.
The Australian judiciary can make all these orders, in addition to or in
lieu of, any fine or custodial sentence.
Sanctions against environmental criminals can therefore take different
forms, and are intended to achieve at least two objectives. One, like the
law in Malaysia today, is to punish the offender with fines and
imprisonment.
The other, which is still missing in this country, is to force the offender
to compensate the victims, carry out proactive measures to return the
environment to its status quo and to prevent the recurrence of the offence
in the future.
In the United Kingdom, a study completed in 2004 revealed that the level of
fines imposed by the courts “neither reflects the gravity of environmental
crimes, nor deters or punishes adequately those who commit them”.
The study group urged the courts and prosecutors to bear in mind that
“unless the offender is ordered to pay much more than the profit he makes
from his crime”, there will be no real deterrent or punishment value to the
sentence imposed.
In short, the study revealed that the profit made by the offender from the
crime is never factored in or considered before the sentence is handed down.
The study concluded: “It is disgraceful that some companies openly boast
about their crimes, as though they manifested some sort of commercial talent
or marketing genius.”
It went on to recommend “a much tougher stance” towards such offenders,
regardless of their size and nationality, and urged the Government to
provide the necessary “awareness training” for its judicial officers to
become more conversant in matters concerning the impact of development
activities on the environment and the need to respect and abide by the
principles of “sustainable development”.
The issue of sustainable development came up strongly, and repeatedly, in
Prime Minister Datuk Seri Abdullah Ahmad Badawi’s speech when he tabled the
Ninth Malaysia Plan in Parliament.
Extremely encouraging to note is that the plan has allocated RM510 million
to cleaning up the nation’s rivers and improving the ecosystem, besides
another RM350 million for coastal management.
Personally, I feel that this is a waste of money. If not for the wretched
state of our rivers, the money could be put to better use – in areas such as
education, housing and medical care.
However, even better news for me was a recent announcement by Datuk S.
Sothinathan, Deputy Minister of the Natural Resources and Environment, that
the law will soon provide for the jailing of environmental offenders.
Local news reports quoted Sothinathan as saying that the Environmental
Quality Act 1974 would soon be amended to provide for a mandatory jail
sentence for industrial polluters. The amendment is expected to be tabled in
Parliament in next month.
He said Malaysia currently has “about 1,000 enforcement officers”. While the
number is insufficient, these officers also have difficulty in carrying out
their work because “they are not allowed to remand suspects”.
The new amendment will, hopefully, give them greater clout to deal with
those that dump their wastes into or close to rivers.
“With harsher sentences, we hope to send a clear message to industrial
polluters that what they are doing is unacceptable,” Sothinathan said.
But even with a mandatory jail term for environmental offenders, is there
any guarantee that the situation will change - substantially and
permanently?
I have my doubts. I think we need to see beyond the prison term. We have to
make the culprits truly accountable – to really pay for their crimes – in
many other ways.
Footnote: The law’s also going to be tougher on those who pollute the
drainage or water supply system. This was proposed in the Water Services
Industry Bill, which Communications, Water and Energy Minister Datuk Seri Dr
Lim Keng Yaik tabled in Parliament last Monday.
The Bill calls for the death penalty, or jail for up to 20 years and rotan,
for a person found guilty of contaminating water sources with the intention
of causing death. The Bill also proposes a jail term of up to 10 years, or a
fine of RM500,000 or rotan or all three, for contaminating water sources
with radioactive or toxic pollutants.
Salleh Buang is senior advisor of a company specialising in competitive
intelligence. He is also active in training and public speaking and can be
reached at sallehbuang@hotmail.com
