Saturday, June 13, 2009

An analysis on Malaysian Environmental Laws

My focus will be to scan through a few key environmental laws that I think are important and try to find the weaknesses in them to understand why pollution and environmental degradation still happens despite Malaysia having many laws on Environment.

I will start with Environment Quality Act 1974, its no brainer right !!

Environment Quality Act 1974 (EQA 1974)

The "key" law is the Environment Quality Act 1974. Its purpose are the prevention, abatement, control of pollution and enhancement of the environment, and for purposes connected therewith.

Among others, this Act calls for the establishment of a Environmental Quality Council (established in 1977) to advise the Minister of Environment*. The council consists of representatives from various ministries* (1 representative each from Environment, International Trade, Domestic Trade & Consumer Affairs, Agricultural, Human Resources, Transport, Health) , 1 representatives from Sabah, Sarawak, representatives from various industries (1 representative each from petroleum, oil palm, rubber, manufacturing), 1 academician and 2 representatives from registered societies knowledgeable and having interests on environment.

Since each each of them have equal voting rights, the number stakeholders should be in balance too. The council settings seems to be concentrated with reps from industries, who, many will agree, are the culprit for most of the environment degradation and destruction in Malaysia. The council should have more places allocated for registered bodies/NGOs which has interests on protecting and preserving the environment. Guess what ?? Only in 1986 were 2 NGOs appointed into the council (The Sun). What about consumer groups ? We should have them in the council too. In short, we need a good check and balance mechanism in important councils like this Environmental Quality Council.

This Act also calls for the establishment of a Environmental Fund. The money will be used to cover the costs of cleaning up a pollution, prevention from further pollution, encourage conservation as well as for research purposes. It is expected that those producing, transporting or storing oil, environmentally hazardous or waste products to contribute to this fund. A good idea but definitely not sufficient with the rate of pollution we are encountering now.

I guess a portion of our income tax should also be channeled to this fund. In fact, the government should impose environment tax on all industries and this tax money should be channeled to this Environment Fund. This should be on top of the regular business tax that they are paying.

There were a total of 5 amendments to this act. However, most of them are centered around wordings and summon/fine value increments over the years. Nothing substantial.

There are many related regulations of this Act that has been enacted but first let's go back in time to touch on Waters Act 1920.


Waters Act 1920 (Act 418)

Perhaps one of the oldest environmental law of modern Malaysia. Its purpose is to provide control of rivers and streams. Interestingly it only covers 6 states and 1 federal territory. How about other states ?? And there are differences between each state. Is this why we have a new Act [Water Services Industry Act 2006].

Since land and water comes under the purview of individual states, all powers resides on the state authority (State Secretary).

True to its purpose, this Act does not attempt to prevent pollution, rather just to control it. This is not good enough!!. There seems to be loop holes in this Act, whereby licensed pollution can still happen.

It is very unfortunate that we fail to see that rivers and streams are important if not critical water source for farming, animals and poor people. We fail to see that rivers and streams must be prevented from being polluted at any cost. Rivers and streams and its contents (living and not living) are important part of us and they should be protected.

We need stronger legislation that not only protects the environment but encourages everybody to work towards sustaining it.

Water Services Industry Act 2006

The purpose of this Act is to provide for and regulate water supply services and sewerage services.

Under this law, contaminating water is a serious issue. You will be punished with death or imprisonment up to 20 years with whipping if found guilty of contaminating the water supply system and causing death. Unfortunately the same seriousness is not shown in the Waters Act, whereby rivers polluters are only fined RM1000.00. Potential polluters can even buy license to pollute.

This Act calls for the establishment of a Water Industry Fund whereby the money is to be used basically to ensure sustainability and qualitative improvement of water supply.


Now, back to the Environment Quality Act regulations. Two of the regulations that I scanned through are:-
Again (as noticed in the Waters Act 1920), the punishment for offense for air polluters is only a maximum of RM10,000 or 2 years imprisonment. I doubt this type of punishment will or can deter business especially big business from polluting our air. And you know what ?? All these offenses are compoundable, meaning that the culprit can just settle the case by paying the compound and don't have to go to court. It may be even cheaper for culprits to pay the compound then take efforts to reduce their pollution !!!

The legislators should actually make all these offences not compoundable !! Ever wondered why we have haze these days?? It is unheard of those days !! There is even a Wikipedia article on the haze situation in Malaysia. The problem is we are blaming Indonesian for it when we ourselves are not adequately protecting our environment.

The sources of pollution is well known according to DOE but the questions are what are they (DOE) doing about it and are they doing enough to stop the pollutions ?? Enacting laws is just the first step. Educating the polluters and working closely with them to reduce and eventually totally stop pollution is as important to have a holistic approach of protecting and nurturing our environment. I guess Malaysian authorities (federal & state governments) are still stuck with "ownership" issues as pointed in this report ..


" The state governments have authority over matters relating to land use planning,
agriculture, forestry, fishery, water resources, but the federal government has authority
in regard to environmental affairs. While the collection, treatment and disposal of
municipal waste also come under local government administration (Global
Environmental Forum, 2000).

This division of powers and roles among the various layers of government in relation to
environmental protection and management makes the implementation of integrated
planning a real challenge. Often, this institutional weakness is cited as a hindrance to
adopting an integrated approach to environmental management and enforcement of
laws related to the environment (Ramakrishna, 2002). "

excerpt from Sustainability in Penangite Accent


What stroke me is this part of the regulation, see below

Regulation 7. Application for special management of scheduled wastes
(1) A waste generator may apply to the Director General in writing to have the scheduled wastes generated from their particular facility or process excluded from being treated, disposed of or recovered in premises or facilities other than at the prescribed premises or on-site treatment or recovery facilities.
(2) An application under subregulation (1) shall be submitted to the Director General in accordance with the guidelines for special management of scheduled wastes as prescribed by the Director General and shall be accompanied by fee of three hundred ringgit and shall not be refunded.
(3) If the Director General is satisfied with the application made under subregulation (1), the Director General may grant a written approval either with or without conditions.

What does it tell us ? A potential polluter (waste generator) can even apply (under what circumstances is not specified) to dispose his/her dangerous and harmful waste without being treated. The risk is merely RM300.00 in the form of application fee. Another loophole !! Making the offence compundable also does not help to relay any concrete and serious message to offenders not to even think about polluting the environment.

National Forestry Policy 1978 (Revised 1993)

Now let's look at forest protection in Malaysia. Guess what? We have a very loose forest protection laws. Why? Economic development is of higher priority than environmental well being.

Forests in Malaysia is seen by the Federal and various state governments as one major source of income. So the law talks about how to sustainably manage the forest and not really on how to strictly protect it. May be not a bad idea.

In fact, few assessments done and reported by a UN body shows that there are continuous improvement on sustainable forest management in few states of Malaysia. However, a PhD research done by Kanta Kumari casts reasonable doubts on this.

I guess we must not take the forest for granted. Instead, we should start reducing our dependence on timber activities and eventually reduce destruction of the forests. There are also problems of illegal logging, reported here and here. These illegal must be addressed by the government with utmost urgency. I guess it must be lucrative enough for culprits to continue with these illegal activities. So the legislators must enact a much tougher law & improve enforcement while at the same educate and encourage the public to report these activities to the authorities.

Conclusion & recommendation

  1. There must be strong will by the government of the day to phase out and close down all industries that are producing harmful wastes. We should start to think long term benefits health and environment and eventually economic benefit out of it of not having these industries and not short term economic benefit of having these industries
  2. All the environmental laws and regulations must be scrutinized again and revised to eliminate its' loop holes. The Environment Ministries Key Performance Indicators (KPIs) should include the "improvement" made to environmental laws.
  3. The enactment of environmental laws seems to exclude important stakeholders namely the public. The public must be consulted extensively by legislators.
  4. Exceptions must be minimized. The absolute power given to Director-General to give exceptions must be revoked and given to a council instead. In the instance of exception being considered, locals and other dependents such as those farming along the river should be consulted.
  5. In addition to point # 4 above, the membership of various councils should include representatives of the public including consumers associations and environmental interest groups.
  6. Punishment (fines and jail terms) should commensurate the seriousness of the offense. Environment pollution must be seen as a serious offense because it affects not only present generation but many generations to come. We as humans must also realize that we are sharing this earth with others, flora & fauna. Environmental offenses should be made NOT compoundable.
  7. All producers of waste must be made fully responsible to treat their waste sufficient in order not to harm the environment. There should be no exception given to anybody in whatsoever situation.
  8. In addition along with point # 7 above, the government should be more proactive to help the small players to treat the wastes before being thrown out to sea, river or even land-fill.

* I intentionally did not use the exact names of the ministries as it have changed and can still change in future.

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