A new hope

Tuesday March 4, 2008

A new hope

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.

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).

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.