KUALA LUMPUR: Those aggrieved by the water cut can file a class action suit against the factory owner or parties responsible for the incident that disrupted water supply to more than a million accounts in Selangor and Kuala Lumpur.
Lawyer Mohamed Haniff Khatri Abdulla said this was provided under common law, adding that individuals, residents associations, consumer groups or other community stakeholders could sue for justice on their own or band together to send the message across.
"It is similar to the Sivagangga case, but (this time) it is even more direct. It is not about angry residents, but a large population of Selangor and KL who have been deprived of water, the most basic and essential utility."
A RM1.5 million civil suit has been filed by the Consumers Association of Kedah against the Indian national said to be the index case of the Sivagangga Covid-19 cluster, which led to the implementation of the Targeted Enhanced Movement Control Order in several districts in Kedah.
Haniff said the water cut case was more straightforward as the guilty party or parties would be named in the suit based on what the authorities had found or concluded in their earlier criminal investigation or court case.
"This is where a court will summon the authorities and they will testify as to whether they investigated the incident (earlier), who the culprits are and how they were sure that those booked were responsible."
Asked whether a similar suit could be taken against the state government or its agencies for negligence, Haniff said it would be hard to get charges to stick in such a case.
"There must be ironclad evidence of their involvement. The plaintiff has to establish that this has happened on many other occasions and that there had been no action or strong action on the part of the authorities to prevent a repeat offence."
He said this was because public authorities could not be squarely blamed for the behaviour of repeat offenders as they were not part of the "direct nexus" in the incident.
"This suit should be pursued only if there is negligence and corruption on the part of the public officers.
"And even then, the plaintiff must be able to prove this in a court of law.
"This is as good as someone being charged with murder and the sentence is reduced to man-slaughter. However, once he is released after his prison sentence, he repeats the offence.
"One cannot take action against the police or the authorities because in spite of his actions, they have done their job, which led to the prosecution of the person in the first case."
Earlier, Selangor Environment, Green Technology and Consumer Affairs Committee chairman Hee Loy Sian said the source of the pollution was a heavy vehicle workshop in Rawang.
The New Straits Times reported that the same factory had been compounded RM60,000 for the same offence.
Local government expert Derek Fernandez said the local authorities and Selangor Water Management Authority should be sued if elements of abuse of power or a wilful failure to act against the culprits could be established. This was more so if the incident had taken place before.
He said it was "inadequate, improper and even irregular for paltry compounds to be levied against the wrongdoers".
Among laws that could be prescribed are Section 121 of the Water Services Act 2006, which provides penalties for the contamination of water supply, namely a fine of RM500,000 or 10 years' jail or whipping, or all three.
This section, read together with provisions under the Penal Code and Criminal Procedure Code, would allow the immediate arrest of the individuals involved.
Fernandez said Section 277 of the Penal Code makes it a criminal offence for a person to corrupt or foul a water source or render that source unfit for use, and provides a jail term of three months or RM1,000 fine, or both.
The Local Government Act 1976 also allows the local authority to take action over the pollution of streams or rivers, including demanding that offenders clean up the pollution at their own cost.
Should offenders fail to do so, they will be liable to pay the full costs of rectifying the problem.
This can include the total cost incurred by water and local authorities to rectify the situation. Offenders are also liable to pay a fine of RM2,000 or imprisonment of up to one year, or both.
Section 70 of the same act allows for a fine of RM5,000 and up to two years' jail, or both.
"The same act and various by-laws also allow the local authorities to not only seal the building, but seize all items in the building that were part of the production to produce the pollutant and caused a public nuisance by contaminating the river," Fernandez said.
The local authorities can also close down the business permanently by refusing to issue a licence to the company because of the risk of future water pollution caused by the business and the individuals concerned.
"In fact, the act gives the local authorities the power to demolish the building in the event the nuisance, in this case river pollution, cannot be abated and the factory remains a threat to public health," Fernandez said.
Assets seized from the factory could be auctioned to rectify the problem, he said.
"Where the laws include a penalty of a jail term and/or a fine, the government must request a jail term and custodial sentence for repeat offenders because of the serious damage caused to the public."
He said the authorities should disclose the names of individuals and the companies or businesses involved in causing pollution.