In general, pollution is governed under the Environmental Quality Act 1974 (“EQA”) which applies to the whole of Malaysia. This is supported by Public Prosecutor v Ta Hsin Enterprise Sdn Bhd whereby it was held that the EQA applies to the entirety of Malaysia. However, reference has to be made to subsidiary legislations which supplement the Environmental Quality Act 1974, namely the environmental orders, rules and regulations, which contain detailed provisions that regulate specific areas of the environment encompassing air, noise, waste, water, etc.
Prior to discussing the examples of types of pollution and the laws governing them, a few definitions as per s2 EQA must first be understood:
a) Pollutant: any substance which directly or indirectly alters the quality of any segment or element of the receiving environment so as to affect any beneficial use adversely; or is hazardous or potentially hazardous to health.
This includes objectionable odours, radio-activity, noise, temperature change or physical, chemical or biological change to any segment or element of the environment.
b) Pollution: any alteration of the physical, thermal, chemical, biological, or radioactive properties of any part of the environment by releasing wastes so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety, or welfare, or to any living being or to cause a contravention to which a licence under this Act is subject.
c) Premises: includes messuages, buildings, lands, and hereditaments of every tenure and any machinery or plant.
d) Waste: any matter prescribed to be waste and any matter which is released in the environment in such volume, composition or manner as to cause an alteration of the environment.
Examples of types of pollution and the laws governing them are as follows:
Firstly, s29A(3) EQA defines “open burning” as any fire, combustion or smouldering which occurs in open air and is not directed there through a chimney or stack whereas “premises” includes any land.
S29A(1) EQA clarifies that people are not allowed to cause or permit open burning on any premises. Those who contravene that Section shall be convicted under s29A(2) whereby the perpetrator will be liable to a fine not exceeding RM500,000, jailed for no more than 5 years or both. However, those who face charges for open burning may rely on the defence provided under s29C EQA if the open burning occurred outside his control or without his knowledge or connivance or consent; or they have taken all reasonable precautions; or (ii) exercised all due diligence, to prevent the open burning.
S61(1) of the Water Services Industry Act states that anyone who allows effluent or noxious matter into public sewer shall be liable to a fine not exceeding RM100,000.00, imprisonment for a term not exceeding one year or both.
Besides, s34B(4) EQA provides that any person found to have been polluting waters shall be liable to a fine not exceeding RM500,000 or to imprisonment for a period not exceeding five years or to both. On the other hand, s430 of the Penal Code provides for a much severe punishment whereby an accused, if found guilty, will be liable to imprisonment for a term between 5 to 30 years or a fine or both.
S23(1) EQA states that nobody is allowed to emit, cause or permit the emission of any noise that contravenes the acceptable conditions specified. S23(2) EQA states that those guilty of an offence shall be liable to a fine not more than RM 100,000, imprisonment not more than five years or both and to a further fine not more than RM500 a day for every day the offence is continued after a notice by the Director General requiring him to cease the act has been served.
As per the case of Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors, the landowner created a high degree of noise by operating an open-air stage and discotheque which was an annoyance. An injunction was applied by the sufferer. It was granted. The court referred to Kennaway v Thompson which held that noise above a certain level constitutes a nuisance.
In the case of Tan Teik Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor, the right to live in a pollution free environment is part of our right to life as enshrined under Art 5(1) of the Federal Constitution. As such, polluters should think twice before they decided to carry out their irresponsible actions.