Punish individuals, too, for hill degradation in Penang
On July 11, 2013, General Accomplishment Sdn Bhd, the company that was charged with illegal hill clearing and earthworks in Bukit Relau, Penang was fined RM30,000.
The judge gave an impassioned speech about the need to send a strong message against illegal hill clearing and destruction of the environment but the fine imposed by him does not send such a message.
The company was charged under Section 70A(1) of the Street, Drainage and Building Act (SBDA) 1974 (Act 133). But the sentence meted did not even come close to the maximum penalty allowed under Section 70A(9) of the law which is a fine of RM50,000 and/or five years imprisonment.
Who should take responsibility over the degradation of Penang's hills? In the first place, anyone in the higher floors of Komtar, where offices of the state administration and Municipal Council of Penang Island (MPPP) are located, should have seen the destruction taking place.
Then what about the council's site inspectors and geological engineers who should be on the ground to monitor and inspect what is happening to the environment?
Do they need the public to alert them to these destructions and violations before they take notice or are prodded to act?
We can witness the ugly patches of clearing in Batu Maung, Balik Pulau, Tanjung Bungah, Bukit Gambier, Tanjung Tokong, Paya Terubong, Teluk Bahang, Sungai Ara.
Are these all done according to legal requirements and conditions? Has any legal action been taken against the violators other than stop work orders?
When asked who was responsible for the illegal act, the council was slow to respond. It was a diligent reporter who provided the identity of the culprit before MPPP did. Once the cat was out of the bag, the council had little choice but to take legal action.
The public was given the impression that the council was serious about taking strong action against the company. But the recent court decision revealed that we were led down the rosy path only to end at a thorny bush.
The council through the deputy public prosecutor (DPP) charged the company for the offence. But why only the company and not the officials, be they the managers or the directors, charged for the offence if the prosecutor is serious about applying the full force of the law that includes imprisonment?
By charging the company and not the officials, it is clear that the only punishment is a monetary fine. A company cannot be imprisoned; only individuals can.
A company cannot make decisions; only individuals can. So why mislead the public into believing the authorities will take stern measures by taking the legal route, but then go after the company alone?
The state government, after the court decision, has asked the council and recommended to the DPP to appeal for a heavier sentence.
Are we to understand it is asking for the appeal on the same grounds and to raise the fine to RM50,000 instead of the present RM30,000?
The maximum amount of fine is less than a slap on the wrist. In fact it is a clear message to developers that it pays to flout the laws as the penalty is a tiny fraction of their profits that can be regarded as a small cost of doing business.
The company should have been charged under Section 19 of the Town and Country Planning Act 1976 (Act 172) if the company had been found to carry out development without planning permission where maximum fine is RM500,000 or two years imprisonment or both as stipulated under Section 26(1) of the TCPA.
Further, under Section 52A of the TCPA, the director, manager, secretary or other similar officer of the body corporate, as well as the company, can be held accountable for acts done in the name of the company.
Under the SDBA, there seems to be no provision for the director to be held responsible for acts of the company in violation of the law.
In view of the serious nature of the acts done, the prosecution should have preferred charges under the TCPA against the company and its principal director.
Unless the authorities go after the human agency that is the directors for their violation of the planning laws, the whole legal process could be a mere "sandiwara".
In addition, in view of the conduct of the landowner, the state should re-declare the land as "hill land" under the Land Conservation Act 1960. This will serve as a good precedent to deter other landowners from flouting the law.
SM MOHAMED IDRIS is president of the Consumers Association of Penang.