The ‘Evelyn Ang Provision’: Thoughts on amending the law

COMMENT | Today, April 13, 2019, would have been Evelyn Ang’s 46th birthday if not for the tragic incident which took her life last year.

On Dec 10, 2017, Evelyn and two other participants of the Klang City International Marathon were knocked down in a hit-and-run accident. As a result, she sustained severe head injuries and was comatose until she passed away on March 1, 2018.

The driver was eventually charged under Section 41(1) of the Road Traffic Act 1987 for driving recklessly and causing death. 

Those found guilty are liable to be sentenced between two to 10 years imprisonment or fined between RM5,000 to RM20,000 and may also lose their driving licence.

It took a tragedy to expose another. Evelyn’s accident and subsequent death also awoke the sports community to the stark reality that the Sports Development Act 1997 (Act 576) was highly insufficient and in need of revamp.

Section 36 (1) clearly states that “a company shall not involve itself in any sporting activity or in any other activity related to sports, as may be prescribed by the Minister in the regulations, unless it is licensed to do so by the Commissioner.”

In other words, any commercial entity must first get a licence from the Sports Commissioner if it wishes to organise a sports event.

Yet the company which organised the 2017 Klang City International Marathon did not have such a licence. At that time, I was tasked with lodging a police report against the organiser.

It was assumed all these while, that a breach of Section 36(1) will be liable for punishment stipulated under Section 39, “General Offence”:

“Any person guilty of an offence under this Act for which no penalty is expressly provided shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both.”

In the case of Evelyn, the police too, read Section 36(1) and Section 39 together until the Attorney-General’s office clarified that an offence provision must be clear and spelt out under its own provision. In other words, the general offence clause in Act 576 cannot be used in this case.

The lacuna caused a major uproar among the sports community who sought both justice for their friend Evelyn as well as the well-being of participants of future sports events.

The question was, how can sports events be better organised to ensure the safety, security and well-being of participants?

The idea to amend the act was actually mooted years before the Klang marathon tragedy. The Sports Commissioner’s Office were already engaging stakeholders such as the Olympic Council of Malaysia, national sports associations and other related government agencies before I joined the service in 2014. 

When I joined the ministry in December 2014, I was almost immediately asked to produce the first draft of the amendments to the Act.

Yet, it was Evelyn Ang’s case which finally expedited the amendments to be tabled in Parliament.

Among others, the new amendment added subsections 36(4) and (5) as follows:

36(4) “Any company which contravenes subsection (1) shall be guilty of an offence and shall on conviction be liable to a fine of not less than fifty thousand ringgit but not more than five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.”

36(5) “Where an offence under this section has been committed by a company, any person who at the time of the commission of the offence was a director, chief executive officer, chief operating officer, manager, secretary or similar officer of the company or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the company or was assisting in such management -

(a) may be charged severally or jointly in the same proceedings with the company, and

(b) where the company is found guilty of the offence, shall be deemed guilty of that offence unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves -

(i) that the offence was committed without his knowledge, consent or connivance; and

(ii) that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

In the Explanatory Statement to the bill, point no.14 plainly stated that the amendment to Section 36 above was due to the “recent sporting activity in Klang organized by a company without obtaining a licence under subsection 36(1) of Act 576 which had caused death of a participant and injuries to many participants…”

Clear reference to Klang tragedy

The reference to the Klang marathon tragedy was clear. No wonder, some called it the “Evelyn Ang Provision” in honour of their fellow runner who had tragically passed on and to highlight the grave necessity for a law to protect and safeguard the well-being of those who are involved in sporting events.

Parliament passed the new amendments in April 2018. 

It would take roughly another year before the Act became enforceable on March 1, 2019, exactly on the first anniversary of Evelyn’s death.

Between the time the amendments were passed in the Parliament and when the new Act became enforceable, I had also become involved in drafting the accompanying Regulations which allow Section 36 to be enforced. 

By then I was already appointed Special Officer to the Deputy Youth and Sports Minister Steven Sim. Among his first instructions immediately after assuming office in July 2018 was for us to ensure that the amended Act 576 was properly enforced.

On Dec 13, 2018, Sim chaired a meeting at the Sports Commissioner’s office to finalise the Sports Development (Licensing) Regulations 2019 to make sure that the intention and will of Parliament in passing the amended Act 576 were reflected in the procedures stipulated in the Regulations. I remember how we went through the document line-by-line.

I must also note that Sports Commissioner Zaiton Othman has been pivotal in the effort to improve the Act since 2015. In fact, there were many others who had been tirelessly assisting from the moment it was initially drafted until now.

Amended Act

The amended Act together with its accompanying Regulations spell out the conditions and procedures for a sports event to be licensed by the Sports Commissioner.

Several key features are noteworthy:

1) Unlike in the past, under the new section 2 of Act 576, a company shall not be allowed to be registered as a sports body.

2) Companies must obtain licence from the Sports Commissioner before organising a sporting event. Applications for the licence shall be made: (a) for local sporting activity, not less than 30 days before the date of the sporting activity; and (b) for international sporting activity, not less than ninety days before the date of the sporting activities.

3) Failure to comply with the licensing laws under section 36(1) Act 576 is punishable by a fine between RM50,000.00 to RM500,000.00 or imprisonment up to five years, or both.

4) Among others, the licence granted shall only be for the specific sporting activities applied for and in the place or premise stipulated in the approval.

5) The application of licence from the Sports Commissioner must be enclosed with, among others, letter of approval from the Minister of Youth and Sports for international sports events, letter of sanction from the relevant sports body, proof of insurance etc.

6) A fee of RM500.00 for local sporting activity and RM1000.00 for international sporting activity will be imposed for the license.

7) Non-compliant of the licensing conditions will result in the revocation of the license.

8) Under section 34 of the Act, “A sports body shall ensure that all competitions or events...are in accordance with the recognized rules and guidelines of all international governing and regulatory bodies for its sports in all matters, including… the health and safety measures for all participants, officials and spectators thereat.” (emphasis mine)

The last point above is vital in the sense that sports bodies must play a greater role in ensuring that all sports events sanctioned by them, whether organised by a company or other entities, should have the highest standards to ensure the wellbeing of those involved. 

 

It must be noted that in December 2018, a runner and a race marshal were hit by a car and sustained serious injuries during a race in Penang organised by the Penang Amateur Athletic Association (PAAA).

Section 36 does not cover events such as this because PAAA is not a company. Sports bodies, as well as the government, must then ensure that this gap is closed especially via section 34 above. 

Proper Standard Operating Procedure (SOP) must be set up and adhered to. Officials must be at hand to audit the event, before, during and after. Technical persons involved such as race directors must be professionalised in order for them to deliver the highest quality sporting experience to participants besides ensuring the well-being of the everyone involved.

Through the leadership of the former Minister Khairy Jamaluddin and the current Minister Syed Saddiq, the Sports Development Act has finally undergone many much-needed updates to the original legislation, among which the Evelyn Ang Provision remains one of the most important amendments.

As Malaysia aspires to become an active sporting society, and as more and more sporting events are being held all over the country, it is important that organisers of these events safeguard the wellbeing of all those who are involved. 

But, as one who is involved from the beginning until this very moment working on the Act, I believe that in the end, our collective will is needed to ensure the tragedy which struck Evelyn Ang does not repeat. 

Paraphrasing the famous American civil rights lawyer, Clarence Darrow, the law made us safe, but man has not. And, after all, the last analysis is: What has man done? - and not what has the law done.

MUHAMMAD SYAKIR CHE MANSOR is special officer to the Deputy Youth and Sports Minister. 

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.