I REFER to the report that two factory workers have been held over river pollution. 

According to the report, two factory workers are held in accordance with section 430 of the Penal Code over allegedly committing mischief by causing a diminution in the supply of water for agricultural purposes, or for food or drink for human beings or for animals.

The section provides for a jail term of between five and 30 years or a fine, or both, upon conviction.

On September 5, four factory managers – all brothers aged between 50 and 60 – were also remanded for six days over the same issue.

It is disconcerting that the police should resort to the Penal Code to arrest the suspects.

The Penal Code is the general law on crimes in Malaysia. It is based on the Indian Penal Code (enacted October 6, 1860) which, in turn, was based on 19th century English criminal law.

In simple words, the Penal Code is a 160-year-old law come October 6.

It is not surprising then that some of its provisions have been called antiquated or archaic, for example, the provisions on sexual offences.

The offence under section 430 is a serious one which explains why the offender may be arrested without warrant and remanded for investigation under the Criminal Procedure Code.

But surely the water pollution of Sg Gong is more than an act of mischief. It is called water pollution for obvious reasons. Does not the law provide for the offence of water pollution?

The short is “Yes”.

A person who contaminates or causes to be contaminated any watercourse or the water supply system or any part of the watercourse or water supply system with any substance:

(a) with the intention to cause death;
(b) with the knowledge that he is likely to cause death; or
(c) which would likely endanger the life of any person,

commits an offence under section 121(1) of the Water Services Industry Act 20026 (Act 655).

Upon conviction, the offender faces a death sentence or imprisonment of 20 years and whipping if not sentenced to death where death is the result of the offence.

If the offence does not result in death but the contaminant is a radioactive or toxic substance, the offender faces a mandatory jail sentence of up to 10 years or to a fine not exceeding RM500,000 or to whipping or to all three.

In any other case, the offence is punishable with a fine not exceeding RM100,000 or with imprisonment for a term not exceeding one year or with both.

Clearly, water pollution or contamination is a more serious offence. Indeed, it carries a death penalty. Yet Act 655 does not provide for the power to arrest to aid investigation of offences under the act.

And that’s perplexing, to say the least.

Even the Malaysian Anti-Corruption Commission (MACC) Act 2009 provides for the power to arrest in the MACC. Corruption are serious offences and, therefore, seizable offences under section 49 of the act.

This means the MACC investigation officers may arrest a suspect without warrant. 

The power to arrest is an important aid to investigation of offences. But since arrest is also a deprivation of personal liberty, it has to be in accordance with the law.

Which is why it has to be provided for in Act 655, as well as in the main law on environmental protection, namely the Environmental Quality Act 1974 (Act 127).

By comparison, Singapore’s Environmental Protection and Management Act, which is the primary legislation relating to environmental pollution control for the protection and management of the environment and resource conservation, provides for powers of arrest in the director-general, an authorised person or a police officer for offences under the act.

Interestingly, the Lembaga Urus Air Selangor (LUAS) Enactment 1999, which is a state law, makes provisions for the powers of arrest.

Section 109 of the enactment empowers any officer authorised in writing by LUAS, including a police officer not below the rank of inspector to arrest, without warrant, any person found to be committing an offence under the enactment.

The enactment has been much referred to in the water pollution of Sg Gong. Yet one wonders if the police are aware of the power to arrest under the enactment.

In short, the law relating to environmental protection in the country is in urgent need of review. – September 11, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.