An inordinate number of clauses in the Solid Waste and Public Cleansing Management Corporation (SWPCMC) Bill 2007 and Solid Waste and Public Cleansing Management (SWPCM) Bill 2007 are open to abuse, said a consumer group.
Federation of Malaysian Consumers Association’s (Fomca) said unless such ‘open-ended’ clauses are clarified and defined, and strong forms of checks and balances are put in place, both bills will fail to create a centralised solid waste management that operates and enforces effectively and will create “irreversible problems”.
The SWPCMC and SWPCM bills were tabled in Parliament last week by the Ministry of Housing and Local Government along with a host of other related bills.
The bills, it was reported, will result in the set-up of a National Solid Waste Management Department as the regulatory body. A Solid Waste Management Corporation will also be created to conduct the operations, taking over from local authorities, of managing solid waste.
A glaring shortcoming of the SWPCMC bill, however, is the absence of an independent body to monitor the nine-member corporation, said (Fomca) programme manager for its environment desk S Piarapakaran.
“Such an absence means the lack of a mechanism to check abuse by figures in the corporation as well as a way to ensure, for example, that an appointment would not be unfairly revoked by the minister of housing and local government,” he added.
Corporation fund
Many of the SWBCMC bill’s clauses, meanwhile, are overly ‘opened-ended’.
Section 13(b) of the proposed act, for example, states only that a corporation member should not have any interest, financial or otherwise, in an undertaking outside of the corporation involving solid waste and public cleansing management.
“Unless it states specifically and clearly that such interests pertain to direct as well as indirect interests, this still leaves room for abuse,” said Piarapakaran.
Similarly, he said, Section 17(1)(g) directs any person carrying out a SWPCM service to properly carry it out, but does not specify that this should be done as “as prescribed in the SWPCM laws, standards, specifications and codes of practices.”
Along the same line, 21(8) of the bill provides for the corporation’s chief executive officer to perform “such further duties as the minister and the corporation may from time to time direct” without specifying that these duties should be “in relation to administration and management of the corporation,” he added.
Commenting on Section 27 of the bill pertaining to ‘donations’ and ‘contributions’ to the corporation ‘fund’ that would finance its operations and enforcement of solid waste management legislation, Fomca recommended that such a clause be dropped.
Piarapakaran said while the fund was welcomed given the financial hurdles faced by local authorities in managing solid waste, allowing for such ‘contributions’ might lead to some companies inducing the corporation to ‘close one eye’ by through its ‘donations’.
“What kind of donations or contributions are they talking about? This clause should be dropped unless it specifies donations or contributions ‘for solid waste management and enforcement.’”
He also said Section 27(2)(d) of the bill referring to ‘money earned from consultancy, advisory, and other services’ puts to question the very nature of the corporation.
“Is this a public body set up by the government that is supposed to provide such services anyway?
“Or is it a private one that is profit-based? A profit-based institution cannot enforce, and an enforcement agency cannot be based on profit,” he added.
Another loophole
He said another loophole in the bill pertains to the corporation’s payment of “expenses, costs or expenditure ... for the purpose of the management of solid waste and public cleansing” .
The Fomca official said this has to be defined in detail to prevent expenditure for questionable activities done in the name of the corporation.
In the same vein, Section 33(1) allowing for “the moneys from the corporation fund ” to be invested “as the (housing and local government) minister and the minister of finance may approve” should specify that such money will be invested in fulfilling solid waste and public cleansing management and duties.
Section 34(1), furthermore, stipulates that the corporation will not enter into any contract exceeding RM10 million except with the approval of the housing and local government minister and the minister of finance.
Fomca, however, believes that to ensure accountability and to prevent abuse, the corporation should not be able to enter into any contract without the ministers’ approval.
“In the case of small amounts, this can be addressed by requiring the production of invoices,” said Piarapakaran.
He also raised the issue of Section 38, which stipulates that offences done under the Act will not be prosecuted “except by or with the consent in writing of the public prosecutor”.
Piarapakaran said all offences should be prosecuted except by or with the consent in writing of the public prosecutor.
“In order to uphold justice and public interest, there should be no immunity blanket,” he added.
Similarly, the Public Authorities Protection Act 1948 should not be allowed - as currently provided for in Section 40 of the bill - to immunise the corporation or any of its agents or employees against a legal action for any act done ‘in good faith’.
“The corporation’s status as a government institution is very doubtful, given the corporation is a profit-based organisation,” said Piarapakaran.
In relation to the SWPCM bill, it lacks clarity and definition as to the powers of the corporation vis-a-vis its director-general contained in Section 6(1).
“Overlapping of job scope will give rise to abuse of power and inefficiency,” said Piarapakaran.
He also said the related section providing for the director-general to have “all such powers as may be necessary for, or in connection with, or incidental to, the performance of his function” should be redefined so as to prevent abuse.
“Roles and responsibilities must be outlined specifically to ensure fair decisions are made,” he said.
Malaysiakini
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