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STOP the sandiwara behind the “Botak” Relau Hill saga

  • Publication Date | August 6, 2013
  • Document Type | Media Statement
  • Programmes | Development & Planning
  • Issues | Development
  • Tags | Botak Hill, Hill clearing, MPPP, Penang
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Botak Hill, Relau, Penang
Botak Hill, Relau, Penang

On 11 July 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.

Botak Hill
Botak Hill, Relau, Penang

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 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.

S.M. MOHAMED IDRIS

President

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Sahabat Alam Malaysia adalah satu badan bukan kerajaan (NGO) yang telah sekian lama berjuang mempertahan kelestarian alam. Ia juga mendidik masyarakat tentang pentingnya kebersamaan dalam pemikiran dan tindakan agar alam ini dapat kita wariskan kepada generasi hadapan dalam keadaan yang elok dan terpelihara. Dalam pada itu juga SAM giat membantu golongan nelayan pantai dalam memperjuangkan hak-hak mereka sehinggalah tertubuhnya Persatuan Pendidikan dan Kebajikan Nelayan Pantai Malaysia (JARING). Nelayan pantai sepenuh masa ini dididik oleh SAM sehingga mereka mampu memainkan peranan sebagai pemimpin nelayan yang meneruskan kesinambungan memperjuangkan hak-hak nelayan pantai lainnya. Sebagai contoh SAM telah berjaya menyedarkan masyarakat nelayan keperluan menjaga hutan paya bakau untuk kebaikan hasil tangkapan nelayan itu sendiri.
Jamaluddin Mohamad Bualik
Jamaluddin Mohamad BualikPersatuan Pendidikan dan Kebajikan Jaringan Nelayan Pantai Malaysia (JARING)
During the 1980s, I used to read about the Consumers’ Association of Penang (CAP) in the news. After retirement, some time in 2001, while lazing around, I read news about the construction of a carbon in leach plant using sodium cyanide to extract gold in Bukit Koman. My friends and I visited CAP and we were introduced to SAM and her legal team. We discussed the details of filing a case against the gold mining company and the department of environment with Ms Meenakshi Raman and her legal team. That was the beginning of a beautiful friendship between lawyers from SAM and many of us from Bukit Koman. We had many ups and downs in our struggle to shut down the gold mine that was causing a nuisance in our village. But, as a community we never gave up because SAM had our backs.
Hue Fui How
Hue Fui HowSecretary, Bukit Koman Ban Cyanide in Goldmining Action Committee (BCAC)
Sahabat Alam Malaysia adalah sebuah NGO yang memperjuangkan nasib masyarakat luar bandar khasnya. SAM menerima aduan-aduan masyarakat dan menyelesaikan masalah yang dihadapi. SAM telah mewujudkan ramai aktivis-aktivis sosial dan alam sekitar. Pada era 1980 dan 90an SAM sangat dihormati oleh masyarakat dan agensi kerajaan. Apabila media sosial menguasai maklumat maka SAM pun terkesan dan masalah masyarakat terus disalurkan dengan pelbagai cara. SAM perlu mewujudkan aktivis-aktivis pelapis yang muda untuk terus membantu masyarakat. SAM juga perlu membuat perubahan supaya banyak turun kelapangan dan jangan mengharapkan laporan media sahaja. Tingkatkan prestasi sebagaimana pada zaman kegemilangan SAM di era 80-90an.
Che Ani Mt Zain
Che Ani Mt Zain
SAM taught me the importance of social activism and the role it plays in upholding the rights of people and the protection of the environment. In my experience, SAM has never hesitated to speak up in defence of people and their environment, and has gone the extra mile to champion their rights, by helping communities take their battles to the higher ups and even to the courts.
Jessica Binwani
Jessica BinwaniPublic/Private Interest Lawyer
Semenjak kami kenal SAM, banyak pengalaman dan pengetahuan yg kami dapat. Kami telah belajar cara membuat baja asli daripada SAM. Semenjak itu, bermulalah minat kami dalam aktiviti pertanian. Dengan memperolehi kemahiran dalam membuat baja asli dan penanaman lestari, kami juga telah dapat menambahkan pendapatan sampingan kami. Ini lebih baik daripada tanah kami terbiar dan tidak diusahakan. Terima kasih SAM kerana sudi memberi bantuan dan tunjuk ajar kepada Persatuan kami.
Chedo Anak Nyuwen
Chedo Anak NyuwenPersatuan Penduduk Sg Buri, Bakong, Marudi
My journey with SAM started when her community organisers took me to the meet the paddy farmers of Kedah, connecting my growing interest in environmental law with our people who struggle to work the land in the face of pollution, replacement of traditional seeds with commercial hybrids and their accompanying chemical package of fertilisers and weedicides. I then had the honour to work with SAM in the struggle for the rights of the native communities of Sarawak, in defence of their forests from massive logging and destructive mega-projects. In every issue that SAM takes up, she combines rigorous research with the realities and voices of the communities to advocate for policies and laws that care for people and nature. From the courts to the elected legislators to policy makers and implementers and to the United Nations, SAM walks side by side with the communities in Malaysia. How can I not be inspired by the vision and passion of the generations of women and men who coalesce to form SAM?
Chee Yoke Ling
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Sahabat Alam Malaysia (Headquarters)
No. 1, Jalan Joki, 11400 Penang,
Malaysia
Tel: +604 827 6930
Fax: +604 827 6932

Sahabat Alam Malaysia (Marudi Office)
129A, First Floor,
Jalan Tuanku Taha,
P.O.Box 216,
98058 Marudi, Baram, Sarawak,
Malaysia
Tel & Fax: +6085 758 973

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