Bringing poachers and illegal wildlife traders to court is complex and needs serious attention, says conservationist Nor Arlina Amirah Ahmad Ghani.
MANY Malaysians want to see people behind bars for committing wildlife crimes. But very rarely do they pay attention to the ornate pathway after the arrest and what it takes to convict offenders.
We celebrate arrests and seizures made by our enforcement officers, but the news often ends there, whereas an arrest is almost always only the first step towards reclaiming justice for wildlife in Malaysia.
(Photo: Prosecution and sentencing need to be strengthened when offenders reach the court, such as this Environmental Court in the Temerloh High, Session, and Magistrate Court | Pic by Nor Arlina Amirah for Justice for Wildlife Malaysia)
There is immense work put into ensuring the law serves its purpose in addressing wildlife crime, which often happens in court.
But the connection between wildlife-related legislation and the work on the ground is weak.
We celebrate the law and addition of provisions that punish wildlife criminals, but we rarely ask if the authorities could effectively enforce these laws as intended.
Some provisions are underutilised due to the complexity of prosecuting offences under such provisions.
Updated laws critical
Mind you, improvements to laws are imperative. The recent amendment to the Wildlife Conservation Act 2010 (Act 716) in Peninsular Malaysia, introduces several new provisions and beefed-up penalties for wildlife criminals.
This is a welcomed revision from the outdated 2010 legislation.
The other law governing wildlife trade in Peninsular Malaysia is the CITES Act, which deals with the import and export of species listed in Appendices 1 and 2 of the CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) convention.
More laws do not necessarily mean more criminals go to jail.
In fact, heftier penalties could mean:
* A possible increase in criminals getting better at concealing their illicit activities to reduce detection. This includes a heftier offer for any possibly corrupt officers for a safe passage of wildlife contraband;
* Fewer criminals pleading guilty to attempt a chance at avoiding harsh sentencing. This means criminals will hire lawyers to help defend them in court.
Law enforcement officers, particularly PERHILITAN officers, shoulder the huge responsibility of enforcing these Acts. On top of this, they have other duties such as managing protected areas, addressing human-wildlife conflict, and research.
Moreover, wildlife crime cases can involve organised criminal groups and white-collar crimes such as money laundering and tax evasion.
Multi-agency intricacies must be ironed out before offenders are even prosecuted. The involvement of politically-exposed persons and inter-agency interference adds another stumbling block to the already overworked enforcement officers.
Zoologists, not lawyers
Another critical point is that these PERHILITAN officers are usually trained in natural sciences. As such, they are experts in research and management of protected areas – they are not legal officers.
What is required to prosecute a wildlife crime?
Prosecution officers prosecute wildlife crime cases in Peninsular Malaysia, Sabah, and Sarawak under the supervision of the Deputy Public Prosecutor (DPP), seconded to the department by the Attorney-General’s Chambers (AGC).
Being a wildlife crime prosecution officer and advocating for justice for wildlife in a courtroom is a daunting task. The litigation process is complicated and has many procedures.
Most of the time, a case is not straightforward due to the unique nature of wildlife crime in terms of the geographical landscape of the crime scene and the involvement of live or dead animals.
Take a poaching case happening in the forest, for example.
The careful execution of an arrest and evidence handling has to be carried out to comply with the provisions in the Criminal Procedure Code (Act 593).
This includes bringing an arrested person within 24 hours of arrest, to the nearest police station for a formal report.
To do this is impossible given our rugged terrain and the journey it takes to get to the crime scene to arrest, process the poacher’s camp, and bring the poacher and the exhibits back to the police station.
Now, imagine the exhibit being a live animal, say, a tiger cub. This live animal is now a part of the exhibits and must be produced before the court.
Making up the bulk of the work is the investigation that follows the arrest of a wildlife criminal.
Investigation officers handle exhibits, consolidate interrogations, and comply with the numerous case management steps to ensure offenders can be brought in front of a judge.
For example, the amended Wildlife Conservation Act has a new provision on the promotion of wildlife thus:
Promotion of wildlife
88b. (1) No person shall promote any wildlife or any part or derivative of any wildlife for a business of dealing unless he is a licensed dealer or a holder of a special permit to carry out the business of dealing.
Enforcing this involves the surveillance and monitoring of any promotion of wildlife, an offence that is highly likely committed online. The authorities, therefore, would require resources for online monitoring.
Upon detection, the next step is to track and arrest the offender. Tracking would usually involve advanced investigative procedures to preserve the enforcement officers’ safety and gain access to the offender with the least amount of risk.
After arrest, several elements need to be proven to prosecute someone accused of promoting wildlife without a permit. This involves legal technicalities.
First off, what constitutes “promoting wildlife”? The very meaning of wildlife promotion needs to be clearly defined.
There is also the issue of proving that an offence took place online based on digital evidence. While seemingly straightforward, proving the accused’s lack of permit can be difficult to address.
In the courtroom, the prosecuting officer must also be able to communicate facts effectively to people who might not know very much about wildlife or wildlife crime.
Simplifying the language of science and wildlife conservation work could come at the cost of omitting certain information. In some cases, even seasoned DPPs can fumble before a judge.
Post-arrest work therefore, would greatly benefit from the specialised involvement of the public and specific groups.
Raising public awareness is important in reducing demand for illegal wildlife, and turning the public into the authorities’ eyes and ears.
Lawyers could assist in specialised wildlife legal research and volunteer in engagements and targeted outreach with prosecutors and judges.
Economists and financial experts can greatly contribute to analysing issues such as money laundering and financial crime in illegal wildlife trade.
Social scientists can play a role in understanding the drivers of wildlife demands and how to best address them.
Journalists could further enquire beyond what is reported by the authorities to encourage transparency and foster freedom of information, such as outcomes of court cases.
An arrest of a poacher or wildlife trader aims to ensure these criminals are given appropriate sentences, in line with laws that deter criminals from emptying our forests and stealing our wildlife.
To navigate through a labyrinth of systems in the country is not a small task, but these very systems greatly shape wildlife conservation.
We need to plug the gaps in streamlining efforts on the ground right up to ensuring that enforcement and the law go hand-in-hand.
Nor Arlina Amirah Ahmad Ghani is the co-founder and Director of Justice for Wildlife Malaysia, which focuses on bridging the law and wildlife conservation.
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