WHEN farmer Zulkifly Kassim first settled down in Kampung Bukit Pulau near Pasing Gudang, Johor 15 years ago, the waters of a nearby river, Sungai Kim Kim, were crystal clear and teeming with marine life. It was the beneficial source of living for the village people.
Sadly, when factories sprouted in the vicinity over the years, the discharge of pollutants from these premises damaged the water quality, ultimately leading to its death. In the latest incident, the discharge of toxic chemical waste into Sungai Kim Kim caused an environmental disaster affecting scores of villagers and students of nearby schools. (based on recent reports in the New Straits Times).
To date, the number of victims requiring emergency treatment for “inhaling poisonous gas” emitted from the toxic waste dumped into Sungai Kim Kim had increased to over 500.
Dr Sahruddin Jamal, the state executive councillor of health, environment and agriculture, had said the disaster committee which he chaired had assessed the situation and recommended remedial action. He also said the case was being investigated under section 34B of the Environmental Quality Act 1974 (Act 127), which carries a fine of not more than RM500,000, or up to five years’ jail, upon conviction.
It is a miracle that no one had died in this environmental disaster. The Sungai Kim Kim incident is not an isolated case. There have been others. There are also many “dead rivers” in the country. The Environmental Quality Report 2015 stated that seven per cent or 33 rivers of the total 477 rivers nationwide were categorised as polluted, or dead.
A case in point is the 36km waterway in Kedah, stretching from Alor Star southwards towards Gurun known as the Wan Mat Saman canal (Terusan Wan Mat Saman), which was built more than 130 years ago. It was once a magnificent living body of water. It is now a sorry spectacle of its past glory.
The question that is begging to be asked, should not the offenders of environmental crimes be given a mandatory prison sentence? Many of my former colleagues and members of the legal profession felt that our courts are too lenient and reluctant to impose a prison sentence after convicting these environmental offenders. Under Act 127, imposing a custodial sentence is still left to the court’s discretion.
In other jurisdictions, apart from fines and a custodial sentence, their environmental legislation contains provisions empowering the courts to order the offenders to carry out works to “restore or repair” the damaged environment, especially when the circumstances of a particular case warranted such serious punishment. Take for example the New South Wales Protection of the Environment Operations Act 1997 (POEO Act), in force since 1999 — environmental offences are graded into three tiers.
Tier 1 are for serious offences such as the disposal of waste causing harm to the environment for which the maximum penalties are a A$5 million (RM14.43 million) fine and seven years’ jail.
Tier 2, for pollution of water, air and land, the maximum fine is A$2 million. Tier 3 offences are dealt by penalty notices (on the spot fines or penalty infringement notices).
What is remarkable about the POEO Act is that under section 250, the Land and Environment Court (LEC) is empowered to order a convicted offender to do any of the following: A specified project for the restoration or enhancement of the environment; An environmental audit of activities by the offender; and, pay a specified amount to the Environmental Trust for a specified project for the restoration or enhancement of the environment.
The sentencing options available to the LEC includes the power “to make orders for restoration and prevention, to order payment of costs, expenses and compensation to a public authority or person suffering loss, and to order payment of the costs of investigation incurred by a regulatory authority and payment of an amount equal to monetary benefits acquired by the offender”.
When you compare that to our laws, the penalties seem paltry. The maximum is a RM500,000 fine, or up to five years’ jail upon conviction, but custodial sentencing is left to the court’s discretion. The NSW’s environmental law is more in line with the environmental law principle of “polluter pays” — the accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.
Should not our environmental law be moving in that direction, considering the many environmental crimes that have been committed of late? Shouldn’t the offender be made more responsible and accountable for his crimes with a more deterrent penalty?
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia