Flawed wildlife law

Tan Cheng Li, The Star 20 May 08;

Our wildlife law calls for saving wildlife but it has limited powers to do so.

TRAP a tiger and you will be arrested. Sell wine or plaster made from ground tiger bone and you can escape punishment, reason being, the Protection of Wildlife Act 1972 (PWA) is silent on “derivatives” of protected species.

That is just one of many flaws prevalent in the PWA. Here’s another: contrary to popular belief, the elephant is not totally protected but listed as a “big game animal” in the Act – which means it can be hunted if one obtains a hunting permit from the Wildlife and National Parks Department (Perhilitan).

And another: not a single plant, fish or amphibian is protected by the Act. There’s more: some highly endangered species are getting scant protection, legal hurdles abound when prosecuting offenders, penalties are ridiculously low ... the list goes on – no wonder our wildlife is depleting.

Many species owe their survival to the PWA but this legislation has not kept up with the times in some instances. Today, with wildlife being pushed to the brink by habitat loss, poaching and flourishing commercial trade, the Act is in sore need of an overhaul.

“In dealing with sophisticated wildlife criminals and their syndicates, this 35-year-old law appears to be failing to achieve what it set out to do in the 1970s. It is outdated and there are many loopholes which unscrupulous criminals take advantage of, and at the expense of wildlife. We need the Act to be comprehensively reviewed, passed and implemented urgently,” says Malaysian Nature Society (MNS) executive director Dr Loh Chi Leong.

A review of the PWA dates back some 10 years and Natural Resources and Environment Ministry officials have said that a new Wildlife Protection and Conservation Bill is in the works. However, this document remains tightly under wraps. Wildlife protection groups, despite their vast knowledge and experience in wildlife management, are not privy to the Bill. Nevertheless, MNS, Worldwide Fund for Nature, Wildlife Conservation Society and Traffic South-East Asia have come together to highlight crucial elements missing in the PWA. They first submitted their recommendations to the Ministry three years ago and again, last month.

Punishment and derivatives

Low penalties – under the PWA and meted out by the courts – is a worry for the non-governmental organisations (NGOs). Remember the case of the butchered tiger in Tumpat, Kelantan? The offender got off with only a RM7,000 fine in 2005 although the PWA allows a maximum of RM15,000. That same year in Bentong, Pahang, a man caught with five bear paws, 32kg of bear meat and bones, one trophy barking deer head, four skinned civets, part of a hornbill beak, three skinned doves and nine live blue-crowned hanging parrots, was fined only RM5,500. Also in 2005, a man caught with four leopard cats in Gombak, Kuala Lumpur, and another with 294 pangolins in Perlis, were each fined RM3,000.

Traffic regional director Azrina Abdullah says light sentences will not deter poachers. ”The impact of illegal trade on the survival of species underscores the need for strong penalties which reflect the harm caused,” she says.

The NGOs want penalties to be raised, to have a minimum, be based on the number of seized animals or wildlife products, and to include mandatory prison sentences for offences related to totally protected animals.

Another fault in the PWA is its silence over “derivatives”. It only states that “parts (readily recognisable)” of totally protected species cannot be traded. This oversight has hindered Perhilitan from stopping the sale of folk medicine containing by-products of animals such as the tiger and Sumatran rhinoceros. And even when the product label states that parts or derivatives of a totally protected species form the ingredients, the burden of proof lies with the prosecution to show that the product does contain that stuff.

To close these loopholes, Azrina says the word “derivatives” should go into the PWA, together with a “claims to contain clause” as seen in Sabah and Sarawak legislations and the newly passed International Trade in Endangered Species Act 2007. There must also be legal provision to shift the burden of proof to the offender.

Listing of species

The PWA may have extensive lists of “totally protected” and “protected” species but these cover only terrestrial and marine mammals, birds and 40 species of butterflies. Glaringly absent are plants, amphibians, insects, spiders, freshwater turtles and tortoises, and fish. The result is oddities such as this: the polar bear is protected whereas the highly traded arowana fish is not.

The omission of plants from the PWA (because they are not considered “wildlife”) means that all our flora have no protection unless they grow in protected areas such as wildlife reserves and parks. The lists of protected species need a review as some species in trouble are still not totally protected, for instance the Asian elephant, Irrawaddy dolphin and pilot whale. Freshwater turtles and tortoises are also getting a raw deal as they are under state control but not all states protect them.

Wildlife groups want all plants and amphibians added to the PWA, and the Asian elephant and sambar deer moved to the “totally protected” schedule. They say species listed under the Convention on International Trade in Endangered Species should be added to the PWA.

Except for marine mammals like whales and dolphins, marine species are ignored in the PWA. There was a debate over who should be in charge of marine species, Perhilitan or the Fisheries Department, with the latter eventually staking claim despite concerns that its priority is to improve fish hauls rather than conserving them. The Fisheries Act 1985 had nothing on biodiversity protection until it was amended in 1999 and only then to include a handful of imperilled species such as the whale shark, giant clam and some marine turtles. Corals, other marine invertebrates, sharks and threatened reef fish such as the Napoleon wrasse and groupers remain unprotected.

The bigger picture

Listing animals for protection, however, serves little good if wild lands continue to shrink. Entire ecosystems and habitats, from lowland forests to wetlands, are now just as scarce as the wildlife they harbour and yet, the PWA does not oversee habitat protection and cannot stop conversion of wildlife refuges into plantations or settlements.

What is needed, says WWF policy co-ordinator Preetha Sankar, is legislation that is holistic in nature. To steer the PWA towards this direction, she says we need provisions that protect critical wildlife habitats, restore degraded habitats and provide for species recovery plans.

The public also deserves a bigger role in wildlife conservation. In Australia, the law allows the public to nominate species for protection. The PWA offers no such public involvement. To create an informed public which can help defend threatened wildlife, the NGOs propose an information register on these: all Perhilitan wildlife sanctuaries and their boundaries; regulations enacted under the PWA; issued licences and special permits and the quotas; prosecution cases; sites for licensed hunting and collection; and methods used to set hunting quotas and bag limits.

There is no denying that the PWA has helped safeguard Malaysian wildlife but in some areas, it is no longer current. One is hard-pressed to name a species that has rebounded thanks to the PWA.

It is time to fix the flaws with a new Bill that has bite, and soon, before more species tip over the edge.

# NGOs have collected over 6,000 signatures calling for urgent and thorough review of the PWA. To sign the petition, go to www.mns.org.my.

Tortured displays
The Star 20 May 08;

MINI zoos, bird parks, reptile farms, butterfly farms, snake farms and theme parks with wildlife displays are proliferating and here again, the Protection of Wildlife Act 1972 (PWA) has failed to keep up.

When complaints over poorly run parks and animal cruelty surface, Perhilitan’s oft-cited excuse is that it has little clout over these places because the PWA is silent on them and so, does not license them or dictate how animals should be displayed.

A Perhilitan official has previously said that guidelines on management of facilities with animal, insect and bird displays exist but the document is not legally binding. It cannot be gazetted into an Order or Regulation – which would give it legal bite – because the PWA lacks provisions on zoos. The official also said that proving cruelty to wildlife – which carries a penalty of RM5,000 or five years’ imprisonment under the PWA – is difficult as the Act does not spell out what constitutes “cruelty”.

Such legal defects have led to the sad state of affairs in mini zoos and animal farms, where many have poor animal husbandry, keep animals in deplorable conditions and make them perform silly acts. Wildlife is also unsuitably displayed in shopping malls and public places.

Critics also protest the “special permits” allowed by the PWA, which sanctions the holders to kill, take, trade, keep or breed totally protected species. The mushrooming of animal farms has led to many applications for special permits to keep highly endangered wildlife such as the orang utan, tapir, slow loris, white-handed gibbon and serow.

Critics say the special permits make a mockery of the law and further fuels wildlife trade. Also, there appears to be little scrutiny over how the animals were sourced, used or kept. Abuses of the special permits surfaced in 2005 after two parks, A’Formosa and Johor Zoo, which both have valid special permits for orang utans, were found to have smuggled in the primates.

On the hunt
The Star 20 May 08;

WITH its many clauses allowing hunting, keeping and dealing with wildlife, and taxidermy, the Protection of Wildlife Act 1972 (PWA) appears skewed towards exploiting, rather than protecting, wildlife. This is probably rooted in the history of the Wildlife and National Parks Department (Perhilitan), which started out as the Game Department.

Animals classed as game species are: the elephant; sambar and barking deer; large and lesser mousedeer; wild and bearded pigs; common and Malay palm civets; banded, dusky and silvered leaf monkeys; Malayan and brush-tailed porcupines; and the Malayan and island flying foxes. Hunting is allowed only for one to three months for some species but year-long for others.

Astonishingly enough, Perhilitan is issuing more licenses to hunt, keep, deal, stuff, trade and trap protected species each year: 23,342 in 2003, 31,120 in 2005 and 33,733 in 2006. Thus, the numbers of animals bagged also grew (see Table.)

While hunting is a way to cull some species, wildlife scientists fear its effect on forest ecology. They also question how quotas for hunting licences and bag limits are set. In fact, bearded pigs have been hunted out of existence in Peninsular Malaysia.

Wildlife biologist Dr Kae Kawanashi says hunting game reduces food in the forest for larger mammals. She believes wild tiger populations have plunged due to dwindling prey which have been overhunted.

“Sambar deer are no longer abundant. The hunting permit allows the holder to bag just one deer but we don’t know if they really just kill one. We can better protect all large mammals if we can ban commercial hunting of prey such as deer.”

Dr Melvin Gumal, director of Wildlife Conservation Society (Malaysia programme), says rampant hunting of flying foxes will affect the health of forests as these mammals are important seed dispersers and pollinators.

He says as flying foxes breed very slowly and have only one young every one or two years, hunting has caused their populations to plunge.

“Their numbers are really down. Hunting of these mammals needs to be reconsidered.”

Putting an end to licensed hunting and keeping of wildlife, however, would be a tough call since licensing fees are a major source of revenue for Perhilitan, earning the department RM2.88mil in 2006.