Mariam’s unhappiness with the Selayang Municipal Council is understandable. But, perhaps outraged and angered at the pollution of Sungai Gong, we may have overlooked the fact that the primary piece of legislation giving executive authority for the management and protection of public water supply is a federal law called the Water Services Industry Act 2006 (Act 655).
Passed in 2006 pursuant to Article 74(1) and Article 80(2) of the Federal Constitution, Act 655 specifically vests executive authority in the federal government on matters relating to water supply services and systems.
This means that Suruhanjaya Perkhidmatan Air Negara (SPAN), which was established under the SPAN Act 2006 (Act 654), which was passed together with Act 655, is the executive authority relating to water supply systems and water supply services throughout Peninsular Malaysia and the Federal Territories of Putrajaya and Labuan.
Act 655 also provides the highest penalty of any legislation for the serious pollution or contamination of water supply.
This covers 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.
The person will then be committing an offence under section 121(1) of 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.
Thus, the federal government cannot shirk responsibility for the protection of water sources as, under section 3(1) of Act 655, it is the executive authority.
Now, Act 655 gives substantial powers to SPAN to investigate, search and enter premises to carry out its functions in relation to the Act.
But, significantly, it 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 to the MACC.
Corruption is a serious offence and therefore corruption offences are seizable offences under section 49 of the MACC Act.
This means the MACC investigating officers may arrest a suspect without warrant. But no offence under the MACC Act carries a death penalty, unlike under Act 655.
The power to arrest is an important aid to investigation of offences, the purpose of which is to inquire into suspected offences with a view to identifying the perpetrators and of obtaining sufficient evidence admissible in a court of law.
This is why investigation agencies such as the police and the MACC are adequately empowered to arrest suspects for investigation.
But since arrest is also a deprivation of personal liberty, it has to be in accordance with the law. There is inevitably the conflict between preserving the liberty of the individual and promoting the public interest in the detection of crime and in bringing to justice those who commit it.
Which is why the power to arrest 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), which does not also provide the power to arrest.
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, empowers any officer authorised in writing by LUAS, including a police officer not below the rank of inspector, to arrest without a warrant any person found to be committing an offence under the enactment (section 109).
This enactment has been much referred to in the pollution of Sungai Gong. Yet, one wonders if the authorities are aware of the power to arrest under the enactment.
Mariam may not have agreed with Environment and Water Minister Tuan Ibrahim Tuan Man on the proposed formation of an Environmental Crime Unit to address pollution issues.
In her opinion, the minister just “needs to allow the enforcement officers to enforce strictly, without fear or favour, and ensure there is no political interference”.
But others may consider it long overdue given the numerous cases of river pollution that have adversely affected huge segments of the population of late. What is also long overdue is the power to arrest by enforcement officers.
Be that as it may, with or without an environmental crime unit, we all agree that vigorous and stricter enforcement of the law is urgently required.
We should add that it must be with the power to arrest.
Hafiz Hassan is an FMT reader.
The views expressed are those of the author and do not necessarily reflect those of FMT.