(MY) A new hope

[Guest guest]

A new hope - The Star 4th March 2008

 

By TAN CHENG LI

 

A new piece of legislation promises to stem illicit trade of

endangered wildlife.

 

THINKING about buying the pretty star tortoise for a pet? Think again.

Under newly passed laws, you face a fine of up to RM100,000 for having

one of those reptiles. Same goes for other exotic pets such as the

Madagascar radiated tortoise, African leopard tortoise, pig-nosed

turtle, Madagascar tomato frog, South American poison arrow frog and

Indonesian yellow-crested cockatoo.

 

Trade in these animals are either barred or regulated by range

countries and the Convention on International Trade in Endangered

Species (Cites, an international treaty to stop illegal and

unsustainable wildlife trade) but they still end up in local pet

stores and zoos – reason being, wildlife authority Perhilitan cannot

act against traders because these species are not protected under

local laws, namely the Protection of Wildlife Act 1972 (PWA).

 

This has now changed with Parliament passing the International Trade

in Endangered Species Bill 2007 last December. The long-awaited Bill

promises to stem unbridled sale of wildlife as it specifies the

wildlife allowed for trade and imposes licensing requirements. It

essentially enables Malaysia to fulfil Cites obligations and enforce

Cites wildlife trade rules.

 

The Cites secretariat had threatened to suspend commerce of all Cites

species in Malaysia if it did not improve its national wildlife laws

to curb illicit and uncontrolled trade in wildlife. Many species of

amphibians, reptiles, fish, birds, insects, invertebrates and plants

suffer a fate similar to that of the star tortoise because they have

been left out of the PWA.

 

 

India, Pakistan and Sri Lanka have banned the export of star

tortoises, so these creatures are smuggled in suitcases into Malaysia.

In the Bill, the list of wildlife runs over 60 pages and covers

terrestrial and marine mammals, birds, lizards, snakes, turtles,

tortoises, crocodiles, iguanas, spiders, butterflies, snails, conches,

clams, mussels, sea cucumbers, corals, freshwater and marine fish,

plants (including orchids, cycads, ferns and pitcher plants) and

timber species. It bodes well for species heavily traded for pets,

medicine, private collections, zoos, theme parks, curios and

ornaments, but which are not shielded by the PWA – species such as the

moon bear, bumphead wrasse, sharks, marine turtles, tortoises,

tarantulas, macaws, parrots and cycads, among others.

 

A strong feature of the Bill is its coverage for " derivatives " of

protected plants or animals – so products ranging from ivory carvings

to snake skin shoes, stuffed animals, dried medicinal roots, eggs,

claws, chemical compounds and potions will need approvals and permits

before they can be traded. The PWA is silent on " derivatives " , thus

hindering Perhilitan from restraining sale of curios, ornaments,

accessories, jewelleries and medicines made from Cites-controlled

wildlife.

 

The Bill not only covers importers and exporters but also retailers

and the general public as it is an offence for anyone to possess,

sell, offer or advertise for sale, or put on display any wildlife and

derivatives that have been imported without a permit. So, pet owners

would be wise to vet their purchases for legality or risk running foul

of the law. It is also an offence to breed wild animals or

artificially propagate plants without approval.

 

High hopes

 

Wildlife conservationists are optimistic that the legislation,

expected to be gazetted and enforced by mid-year, will help curb

wanton exploitation of many endangered species.

 

" The strong part of this Bill is that it's a Cites-specific

legislation which will meet the overall goal of the convention, which

is to ensure that international trade in specimens of wild fauna and

flora does not threaten the survival of the species traded. The Bill

fills huge gaps in the current law, such as on derivatives, " says

Preetha Sankar, policy co-ordinator of World Wide Fund for Nature.

 

Preetha says provisions in the Bill on protection of informers will

help curb illegal trade of wildlife. " When some form of protection and

reward is offered to informers, they would be more willing to step

forward with information. "

 

Since protection of wildlife is now split among several government

bodies, the Bill rightly parcels the job of overseeing wildlife trade

to different management authorities: Perhilitan (terrestrial fauna in

the peninsular), Fisheries Department (fish, marine animals and marine

plants), Malaysian Timber Industry Board (timber), Agriculture

Department (terrestrial and freshwater plants), Sabah Wildlife

Department (animals and plants), Sabah Fisheries Department (fish,

corals and marine plants) and lastly, Sarawak Forest Department and

Sarawak Forestry Corporation (animals and plants).

 

 

This dwarf caiman from South America has no business being in a pet

store in Malaysia. It is a Cites Appendix II species.

" We now have one harmonised law involving different departments.

Previously, the Protection of Wildlife Act involved only Perhilitan

and applied only to Peninsular Malaysia. Furthermore, it excluded many

species such as plants and fish, " says Noorainie Awang Anak, programme

officer of wildlife trade monitoring body, Traffic.

 

The proffered punishment is another boon – a fine of up to RM100,000

for each animal, plant, part or derivative smuggled by an individual,

and up to RM200,000 if a company is involved.

 

" It is great that the penalty is higher for corporate buyers, and

individuals in a company can be held liable too, and that an 'offer

for sale' is considered an infringement of the law, " says Dr Melvin

Gumal, director of Wildlife Conservation Society-Malaysia Programme

(WCS).

 

And by imposing a blanket coverage based on genus (a group of closely

related species) for many animals and plants, the Bill plugs a

loophole that allows wildlife species, if not listed, to escape legal

scrutiny. This ambiguity was exploited in the 2005 discovery of seven

smuggled Sumatran orang utans. Perhilitan had said that it could not

punish operators of the zoo and theme park where the primates were

seized from as the PWA only lists Pongo pygmaeus (Borneon orang utan)

as totally protected and not Pongo abelii (Sumatran orang utan).

 

Doubts

 

Wildlife conservationists, while generally pleased with the Bill, do

have niggling fears. Differences between the new legislation and state

laws is one. For instance, some species are allowed for trade under

Cites, but are totally protected under state laws.

 

" Sarawak does not allow export of any wildlife. But with the Cites

Bill, it appears that one can export, with permits. There is a need to

see if any provisions in the new Bill contradict state laws, " says

Traffic director Azrina Abdullah.

 

There is also a danger of relying too much on the Cites Bill because

in some instances, it is weaker than state laws. For instance, Cites

allows controlled trade of many species of orchids but these floras

are totally protected only in Sabah and Sarawak, not in Peninsular

Malaysia. Thus trade might prove detrimental to the orchids. Likewise,

ramin trees are protected in both eastern states but not in the

peninsula.

 

" Some local species deemed as very rare are not within the Cites law

and yet, gets little protection under national laws. The naked bat,

for example, is protected in Sarawak but not in Peninsular Malaysia, "

says Gumal of WCS.

 

" And how does one deal with the disparity in fines between this

supranational law (new Bill) and the state laws? For example, if one

were to illegally export a proboscis monkey out of Sarawak, the fines

would be substantially lower in Sarawak's Wildlife Protection

Ordinance as opposed to the Cites law. A way out is for the management

authority to check with Sabah and Sarawak. "

 

The new Bill regulates captive breeding for trade but Gumal is

troubled by the silence over what constitutes " captive-bred " . Cites,

like Sarawak, allows trade only of second-generation offspring but

this is not spelt out in the Bill. Gumal fears that traders might

exploit the lack of specifics, especially for animals notoriously

difficult to breed in captivity, by claiming wild-caught animals as

captive-breds. Similarly, it would be difficult to differentiate a

cultivated orchid plant from a wild one.

 

And what of protected animals illegally brought in prior to the Bill?

One possibility is amnesty to register such animals but this has its

ills; traders might claim newly imported plants and animals as old

stocks. Azrina is also wary of Section 36 of the Bill which allows for

the return of seized animals. " What are the criteria for the release?

What if there is abuse? " she queries.

 

And with the Bill being silent on minimum penalties, there is a fear

of the courts meting out light sentences. " In past seizures of highly

prized species, offenders have been fined only RM1,000. The judiciary

must be made aware of the seriousness of wildlife crime and impose the

appropriate fine, " says Azrina.

 

Lam Hoi Chean, general manager of pet store chain Pet Family, agrees

that offenders should be duly punished with the maximum fine:

" Anything below RM10,000 will not be a deterrent. " He believes

restrictions imposed under the Bill will drive the trade underground

and cause price hikes; hence there is a need for stricter policing.

Such checks, he adds, should not overlook trade conducted by

hobbyists.

 

Indeed, several pet store operators claim that while they conduct

their business by the book, such is not the case with hobbyists and

collectors, who buy and sell protected species among themselves and

even to foreigners. The trade, usually done through the Internet, is

hard to detect.

 

WWF's Preetha highlights training needs. She says enforcement staff

must be taught how to identify goods made from protected wildlife,

while agencies tasked with setting quotas for exported species and

advising on the impact of trade must have such capabilities.

 

Meanwhile, the Natural Resources and Environment Ministry should also

start a road show to inform businesses involved in wildlife trade

about the new legal requirements. Most are still ignorant of the Bill.

 

The ministry recently held a workshop for traditional medicine

practitioners. Thong Choong Khat of Tradimedi Enterprise in Segamat,

Johor, insisted that the new Bill was pointless for folk medicine

specialists, and claimed that they no longer use protected wildlife in

their remedies since such products would not be approved or registered

by the Health Ministry.

 

And while the Bill holds much promise in checking international

commerce in wildlife, it does nothing for native wildlife traded

domestically. Stemming the flourishing sale of endangered plants and

animals within the country calls for an overhaul of the PWA, which is

grossly deficient in protecting the country's wildlife.

 

--\

---------------------------Crime

and punishment

 

HERE are provisions in the International Trade in Endangered Species Bill 2007.

 

Offences

 

 

Import, export, re-export, introduce from the sea or have in transit

any scheduled species without a permit.

 

 

Possess, sell, offer or advertise for sale, displays to the public

scheduled species which were not legally imported or exported.

 

 

Captive-breed animal or artificially propagate plant or animal for

trade without registering with management authorities.

 

 

Possess, sell, offer or advertise for sale or displays to the public,

any plant or animal that has been captive-bred or artificially

propagated without registration.

 

Penalty

 

 

Individual: a fine not exceeding RM100,000 for each animal, plant,

part or derivative of the plant or animal but the aggregate shall not

exceed RM1mil, and/or up to seven years' imprisonment.

 

 

Corporate body: a fine not exceeding RM200,000 for each animal, plant,

part or derivative of the plant or animal but the agregate shall not

exceed RM2mil.

 

Other provisions

 

 

A director, manager, secretary or other similar officer of the guilty

company may be held liable too.

 

 

Owner, importer, exporter or a re-exporter of a scheduled species may

be required to brand, label or mark the scheduled species or be liable

to a fine of up to RM50,000 and/or three years' jail.

 

 

Failure to maintain records of stocks and transactions of captive-bred

animal or artificially propagated plant or animal for trade carries a

fine of up to RM100,000 (individuals) or RM200,000 (corporate body).

 

 

Permits, certificates or registrations will be cancelled if the

holders contravene the Act or give false, misleading or inaccurate

information.

 

Enforcement

 

 

Enforcement officers will be given powers similar to the Police. They

can arrest, search and seize with a warrant; search and seize without

warrant; enter and inspect premises; and stop, search and seize

conveyances.