Rajesh Nagarajan said proper enforcement and custodial sentences against the higher management of errant companies would “naturally result in a dramatic decrease in accidents”.
He said there had been cases where “shortcuts” were taken by the upper management at the expense of health and safety standards.
“Laws in this country must be amended to allow custodial sentences for serious cases of negligence resulting in fatal accidents,” he told FMT.
Rajesh said this when asked about a tweet by human rights lawyer Eric Paulsen who wondered if there would be a reduction in accidents if such matters were treated as serious criminal negligence cases, leading to imprisonment.
Paulsen had said this when commenting on the death of three workers after a launcher crane at the Sungai Besi-Ulu Kelang Elevated Expressway (SUKE) highway construction site in Kuala Lumpur toppled over on Monday. The crane crushed a car, seriously injuring its driver.
Lawyer Andrew Khoo said the authorities should investigate whether or not there had been material non-compliance with the company’s internal safety guidelines and protocols.
He said the authorities must also probe if requirements set by the Department of Occupational Safety and Health were adhered to.
Under Section 52 of the Occupational Safety and Health Act 1994, he said, the board of directors and management could be charged for failure to comply with the requirements
Section 57 allowed the authorities to charge them for aiding and abetting the company in its failures, and if found guilty, they could be fined and/or sent to jail.
In cases of recklessness or gross negligence, Section 58 states that they can also be personally sued.
“Basically, the directors and managers can be held liable,” Khoo said.
R Kengadharan said he would welcome any move to jail directors as it would enhance compliance with safety guidelines.
He said slapping corporate bodies with fines was not the best deterrent as the sum was “pittance which they could afford”.
However, Kengadharan said it was just as important to find out if the relevant agencies tasked with monitoring them had carried out their responsibility.
He said these government agencies could be held jointly liable. “It takes two to tango. In an industry of this nature and job of this scale, various parties are involved, including the ministries.”
He said that in most cases, such mishaps occurred when the developer or firm in charge of the project was rushing to meet a deadline to avoid paying late delivery fees.
“And that’s when safety measures are seriously neglected and we can expect fatalities.”
Senior criminal lawyer Salim Bashir said the Construction Industry Development Board and the Malaysian Highway Authority must investigate whether the Occupational Safety and Health Act 1994 had been breached.
He said any negligence could be prosecuted under Section 304A of the Penal Code for death caused by negligence.
“It has to be said though that penal sanctions alone may not be sufficient to reduce hazards at worksites.
“The management should take greater responsibility. They should learn about the stringent measures and abide by the rules in ensuring safety for the public and workers throughout the construction.”