Rethinking Punishment for Environmental Offences

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Rethinking Punishment for Environmental Offences

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On 1 April 2024, the Star headline read, Heftier penalties not enough. It ran a feature about what needed to be done to improve the investigation and enforcement of environmental offences. The interest groups featured acknowledged increasing the penalties for offences was not enough to deter offenders. In the feature, the increased penalties were in relation to the fine imposed or imprisonment term for company directors.

Johor state exco member Ling Thain Soon was reported to have said, ‘The Johor government welcomes the move to amend the Act [i.e., Environmental Quality Act 1974] to increase penalties for those involved in environmental crimes, especially as the state has seen first-hand the impact of pollution. With the amendments, we hope to see those committing such irresponsible acts get heavier penalties, including a (mandatory) prison sentence.’

It seems that the discussion about punishment for environmental offences only revolved around the imposition of a fine or imprisonment, its increase, and what that appropriate increase should be. Despite that, Ding Hong Sing, the Malaysian SME Association president, recognised that ‘Imposing a jail term and a RM10 mil fine will not solve the problem.’

I agree. The question here is, what is the ‘problem’? How we answer this question reveals how we think about it.

The punishment of an offender is meant to serve five purposes: denunciation, deterrence, punishment, rehabilitation, and protection. A consideration of our environmental law punishments appears focused primarily on denunciation, punishment, and deterrence. There are no rehabilitation and protection elements in the prescribed punishment for pollution.

Finding a company or imprisoning its directors holds them to account for breaking the law, but they do nothing to repair or mitigate the pollution caused to the river, soil, and environment. Offenders are not imposed with a duty or responsibility to make up for the pollution they cause. There is no element of rehabilitation of the offenders’ attitude and outlook towards the environment or rehabilitation of the environment itself.

People are punished, but the environment remains polluted.

It is not as if the money from the fines is immediately applied to rehabilitate the polluted area or rivers. The money is not channelled towards advocacy or awareness efforts. The imprisoned director sits in his cell languishing instead of being put to work to rehabilitate polluted areas. All the offences under the Environmental Quality Act 1974 only specify fines and imprisonment as punishments, which are completely unrelated to the protection, rehabilitation, restitution and improvement of the environment.

There needs to be a reconsideration of the punishments imposed for environmental pollution. We cannot punish environmental offences like we would punish someone who causes harm to another. The punishments for environmental and pollution offences should include greater elements of restitution, rehabilitation, and protection for our environment. It should be oriented towards creating and sustaining a society that cares, protects and celebrates its natural environment.

The wrongdoers should not only be punished but they should also be compelled to make up for their transgressions in a way that restores the part of the environment they polluted as closely as possible to its natural state.

For example, before the fine is determined, the cleanup cost of the pollution should be estimated. The fine should account for the cost of the study and estimation, the cleanup cost, and a further sum as a penalty. The fines should be immediately channelled to environmental cleanup activities. The fine may also be used to purchase appropriate equipment to fight environmental pollution. I don’t understand the court’s basis for determining the fines to be paid. Instead of an empirical approach, a sentiment-based approach is taken.

The imprisoned officers’ labour and expertise should be put to work on environmental rehabilitation initiatives. Their efforts should be applied to improving, maintaining, and protecting our environment and such initiatives. They should also be used for advocacy and education initiatives. Perhaps if they did it long enough, it would foster awareness, or they may eventually learn the error of their ways.

One thing is clear: We need to think differently about how we approach punishment for pollution and damage to our natural environment and its resources. Punishing people does not result in a better environment. There is still much to be done.

1 thought on “Rethinking Punishment for Environmental Offences”

  1. Love this article. Not just because it relates to an area I am myself passionate about, but is a great deconstruction of the drivers and ultimate impacts & desired results. Brilliant!!

    Reply

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