Punishing environmental
offenders
11/06/2005
NST-PROP
By Salleh Buang
According to a recent news report, the Federal Government is setting up a
special task force to detect and combat environmental crimes. Admittedly, a
salutary move that deserves public support.
However, the question that immediately comes to mind is whether the existing
law has enough bite to make hardcore environmental criminals discard their
old ways of doing business, and become model corporate citizens.
The “rebranding” of Sungai Segget in Johor Baru -once the filthiest spot in
the southern city - as “Legaran Segget”, together with the adjoining Meldrum
Walk, should teach us one thing: That environmental crimes of yesteryear can
indeed be transformed into striking success stories of today.
What it takes (apart from money), however, is political will and the grit to
see it through to the end.
The adequacy of our Environmental Quality Act (EQA) was sorely tested in the
recent case of Malaysian Vermicelli Manufacturers (Malacca) Sdn Bhd vs
Public Prosecutor ([2001] 3 AMR 3368).
In that case, Malaysian Vermicelli was charged with discharging effluents
into Malacca River, an offence under Regulation 8(1)(b) of the Environmental
Quality (Sewage and Industrial Effluents) Regulations 1979, read together
with section 25(1) of the EQA. The factory is situated at the 4th milestone,
Batu Berendam, Malacca.
Section 25(3) of the EQA states that any person who contravenes section
25(1) “shall be guilty of an offence and shall be liable to a fine not
exceeding RM100,000 or imprisonment for a period not exceeding five years or
both, and to a further fine not exceeding RM1,000 a day for every day that
the offence is continued…”
Finding Malaysian Vermicelli guilty as charged, the trial judge of the
Sessions Court imposed a fine of RM75,000. No prison sentence was imposed on
any company director or officer. Unhappy with the sentence, the company
appealed to the High Court.
At the hearing of the appeal, counsel for Malaysian Vermicelli submitted
that the fine imposed by the Sessions judge was excessive. Judicial
Commissioner Ahmad Maarop rejected the submission, stating that he is
“satisfied” that the sentence passed by the lower court “was not grossly
excessive, improper or unreasonable” considering the nature of the offence
and the circumstances of the case.
Thereupon, Justice Ahmad upheld the sentence as “not harsh, excessive or
unreasonable” and he did not impose a custodial sentence. It should be noted
that section 25(3) of the Act empowers the court to impose “both” a fine and
a prison sentence.
It has been asked whether both the trial court and the appellate court had
failed to consider fully the legislative intent. Are monetary fines adequate
punishment when people wilfully commit crimes against the environment? Not
just for polluting the air, land, rivers, streams, catchment areas and so on
but also for causing long-term damage to the source of life and livelihood
of the future generations?
Should custodial sentences be handed down as well? Should the courts only
fine the factories and let the owners go free, even if they had killed the
nation’s streams and rivers, poisoned the air we breathe, killed all living
vegetation, destroyed crops and deprived farmers and fishermen of their
livelihood?
My research shows that the options available to Malaysian courts for the
punishment of environmental offenders are indeed limited. However - and this
I found to be very serious - there appears to be nothing substantial for the
courts to order environmental offenders to implement proactive measures to
rehabilitate the damaged environment.
Others do it better
In Australia, before the environmental protection law was revamped in July
1999, the options available to the courts when sentencing environmental
offenders (apart from jailing and fining), were ordering the offender:
• to take clean-up actions;
• not to repeat the offence in the future; and
• to compensate those who suffered damage to property as a result of the
offence or who had incurred costs in cleaning up or addressing the harm or
damage caused.
After the amendment, other options were added. Among them:
• Investigation costs order, under which the court can order the offender to
pay costs and expenses incurred by the authorities during the investigation
of the offence;
• Monetary benefits penalty order: Here, the offender can be ordered to pay
a sum up to the amount of monetary benefits that were derived from the
offence;
• Publication order, under which the offender will have to publish details
of his offence and the orders made by the court in a local newspaper and/or
in the offending company’s Annual Report; and
• Environmental service order: By this, the court directs the offender to
carry out a specific project for the restoration or enhancement of the
environment in a public place or for public benefit.
These orders can come in addition to or in lieu of any fine or custodial
sentence. The law in Australia intends to achieve two separate objectives.
The first objective, like the law in Malaysia, is to punish the offender for
his crime.
The second objective, which is singularly missing in Malaysian law, is to
compel the offender to carry out proactive measures to return the
environment - and the people involved or affected by the offence - to status
quo. At the same time, the law aims to discourage and prevent the offender
from repeating the offence.
Australian law is also clearly aimed at preventing the offender from
profiting from the crime. At the same time, the offender has to clean up the
harm or damage caused to the environment and also compensate those who have
cleaned up the mess on his behalf, as well as those who have suffered loss
and damages.
In the United Kingdom, a study was undertaken recently on whether the
present range of sanctions imposed on environmental offenders is adequate.
The “Environmental Crimes and the Court” study published by the House of
Commons on May 12, 2004 made the following conclusions and recommendations:
• The present level of fines provided in the law do not reflect the gravity
of environmental crimes, nor do they deter or punish adequately those who
commit them;
• For many of these environmental crimes, compulsory remedial work on the
harm done by the offender “would be a more appropriate sentence than a
fine”;
• The existing law and the judicial approach to the problem so far shows the
inability of the courts to “pass appropriate sentences for environmental
offences”;
• Given the “current paltry range of sentences” under the law currently
available, there is simply insufficient scope “to properly tailor sentences
to offenders”;
• It appears that the profits made by the offender from his crime form too
little a part in decisions as to the size of fine or sentence to be given.
Courts and prosecutors need to bear in mind that unless the offender pays
substantially more than the profit he makes from his crime, there will be no
real deterrent or punishment value to the sentence imposed on him;
• Both the low level of payment of fines and their indiscriminate
destination are unsatisfactory. When fines were paid, they bring no benefit
to those parties or agencies leading the fight against these offenders. This
is hardly a just situation;
• There is a need to establish some guidelines so that crimes against the
environment merit “an automatic aggravation before the court”. In other
words, one of the factors that the courts must consider when sentencing is
the extent of damage done to the environment or “the threat to local
sustainability”; and
• The current sentencing system is just not flexible and imaginative enough,
nor is it adequate to punish corporate bodies or those in the senior
managerial positions.
The study noted “it is disgraceful that some companies openly boast about
their crimes as though they manifested some sort of commercial talent or
marketing genius. The Government must adopt a much tougher stance with
businesses, regardless of their size and nationality, which flagrantly flout
the law”.
It urged the UK Government to look afresh into the matter so that increased
custodial penalty is imposed wherever appropriate. It also urged the
Government to provide the necessary awareness training to its judicial
officers so that they become more conversant with the impact of development
activities on the environment and the principles of sustainable development.
On our own shores, don’t you think it is time we take a fresh look at our
EQA and reassess its adequacy? Wouldn’t you agree that merely punishing
environmental offenders (even with custodial sentences) is clearly not
enough? Would you agree that more should be demanded of them?
The apparent success story of Legaran Segget and Meldrum Walk in Johor Baru
has rekindled my hopes for a better tomorrow. The celebration in Johor’s
captial was perhaps a fitting sentiment to greet World Environment Day,
which is marked on June 5 every year.
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
