Teaching environmental law in Malaysia

Transcription

1 Teaching environmental law in Malaysia

2 Government involvements in our life are undoubtedly great i.e. from cradle to grave. Starting from birth, education, hospitalization, getting license for business or buying house or services etc all needs to proceed on government endorsement. That includes their shortcomings in handling environmental wrongdoings.

3 Thus this paper seek to focus on studying the case laws to see how the court addresses the environmental problem in Malaysia, Australia and UK. There is a difference in how Malaysian court and those in UK and Australia handled environmental delinquencies. Findings shows that unless the court practice judicial activism it is difficult to solve the environmental problem.

4 In legal perspective, to overcome the problem of bad administration the court plays an important role in controlling environmental delinquencies. It is normally done via judicial review towards abuse of powers which covers failure to apply natural justice, error of law, unauthorized purpose, taking account of irrelevant consideration and inflexible application of policy.

5 This information will provides some background to the student of the administrative wrongdoings that might happen. The paper will show how environmental offences were handled by the govt agencies. The students will be exposed on how to make government accountable in environmental matters.

6 The remedies given are normally certiorari (quashing the decision), injunctions, prohibition and declaration. Courts will normally remind that powers conferred on the authorities are not unlimited, it is limited to the extent of which are defined by the Constitution itself. It is not for the authorities to define the extent of this power but for the court to decide this on the true construction of the relevant constitutional provisions in any particular case.

7 This case concerned the effect of level radioactive waste on the health of the population.

8 Local villages in Papan and Bukit Merah near Ipoh in the state of Perak became aware of the dumping of radioactive waste within a short distance of their villages by the Asian Rare Earth Company (ARE). Asian Rare Company was a Japanese/Malaysian joint venture which was prevented from operating in Japan because of strict environmental laws. Their factory processed monazite which is obtained from the tin tailings for rare earth chlorides and carbonates which are of considerable use in the manufacture of electronic products.

9 As a by products of this process a radioactive element, thorium hydroxide is produced which is highly dangerous to human beings and can lower white blood cells count and resistance to infection. It also damages the DNA and these results in the production of defective cells, deformities and descendants

10 In this case the remedies of injunction and declaration were awarded by the High Court but were later reversed on appeal. Action was brought by eight plaintiffs who were residents of Bukit Merah. The plaintiff succeeded in obtaining interlocutory injunction restraining ARE from operating the factory save in a safe manner but this was circumvented by the imposition of certain safety requirements by the government. ARE maintained that having implemented these requirements by the government they had complied with the injunctions.

11 After lengthy trial in late 1989 and early 1990 the High Court Judge Peh See Chin granted the injunction and declaration to restrain ARE from producing, storing and keeping radioactive waste on their land.

12 For the issue of injunction, plaintiff must proof by some practical certainty that there is substantial and imminent damage including irreparable damages of great magnitude. Given the proximity of Bukit Merah to ARE a large number of people would be effected and the damage to human cells would be irreparable. The high level of leads also justify the granting of injunction On the issue of nuisance the escape of noxious gas constituted a very substantial interference with the comfort of the plaintiffs in the enjoyment of the land.

13 As for the issue of license to ARE, the court did not blame the authorities but ARE, as private body, no license issued could amount to license to commit negligence or tortious liability. The judge gave plaintiffs the following remedies, declaration that ARE was not entitled to operate the factory and keep radioactive waste on its land and prohibitory injunction restraining the defendant from doing so.

14 However defendant/are appeal to Supreme Court and Supreme Court upheld ARE s appeal. The reason was since ARE had been operating under license granted by the Ministry of International Trade and under the AELA, the license would not have been granted unless ARE had duly complied with the statutory requirements.

15 The court seems to hold that the private party or residents of Bukit Merah can claim remedies via personal claim not public law action. It is argued that the Defendants i.e. ARE acted well within the rule as their activities are supervised by the public agency under the statute law. Instead of looking at the values underlying the challenges the court go on the technical ground to avert plaintiff s rights.

16 Razak was denied standing and was called a troubleshooter for trying to protect the environment. In this case, Abdul Razak file an application against defendants which has approved the Floating City Project to Johor Coastal Development Sdn Bhd (JCD) alleging that the contract was illegal as it contravened the Town and Country Planning Act 1976.

17 The court held that the agreement between the Johor State and the JCD was not a public document within the meaning of sec 74(a)(i) of Evidence Act and as such plaintiff was not entitled to examine the agreement. The court further held that plaintiff was a complete stranger to JCD, he was not a shareholder nor had any interest whether directly or not to JCD.

18 That s why public interest litigation plays an important role in uplifting good governance. As Initiated by citizens who may not be directly affected by the administrative acts, such public interest litigants are often regarded as meddlesome busybodies. Public interest litigation therefore promotes good governance in public administration. It does not hinder. It can be a cure for administrative ills in public administration, a role which can no longer be underestimated or overlooked in this age and time.

19 Lets compare it with the Australian case. North Coast Environment Council v Minister of Resources. The court held that the council has standing as a person aggrieved to request statement of decision under s.13 of ADJR Act in respect of a decision by the minister to grant a license to a company (Sawmills) to export woodchips. In arriving to that conclusion, the court had to look into the status of The Council. In the opinion of the court it is not merely an intellectual organization but recognized both by Commonwealth and the states as being a responsible environmental organization, deserving not only financial support but involvement in government decision making process.

20 The states recognize the council as a body which is concern with management of forest, state as well as private land. These facts were important because reasons that were sought after refer to woodchips sourced from the state forest. North Coast Council has done research and examined the forestry issues.

21 Moreover, North Coast standing will be threaten by the existence of Sawmill as Sawmill focus on economics activities not the values related to environmental issue. Thus it objected to the granting of license to the Sawmill. Due to this the court decides that the North Coast is not mere busybody and had sufficient interest to require the reason of decision from the Minister.

22 a company, BNFL, which reprocessed spent nuclear fuel, was granted by the respondent government departments variations of authorization to discharge radioactive waste from the company s premises so as to enable the company to test its new thermal oxide processing plant.

23 Greenpeace, a well known Environmental protection organization with 2,500 supporters in the area where the plant was situated, sought judicial review by way of a certiorari to quash the decision of the respondents in granting an application of the company. BNFL on the other hand, contended that the applicant had no Locus Standi to make the application.

24 In granting the applicant Locus Standi (standing), Justice Otton highlighted the pertinent role of NGOs in Public Interest Litigation.

25 Greenpeace, who, with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology (not to mention the law), is able to mount a carefully selected, focused, relevant and well argued challenge.

26 This responsible approach undoubtedly had the advantage of sparing scarce court resources, ensuring an expedited substantive hearing and an early result (which it transpires is helpful to the respondents and to BNFL)... It follows that I reject the argument that Greenpeace is a mere or meddlesome busybody. I regard the applicant as eminently respectable and responsible and its genuine interest in the issues raised is sufficient for it to be granted locus standi.

27 It is from the above cases that students study the facts, analyze, argue and come with solutions to unravel the problem. Thus case studies require students to analyze problem situations and reach their own conclusions concerning the outcome. Case studies in this paper are based on legal cases based on written opinions of courts, involving some conflict or dilemma.

28 For example, a case study involving dumping and waste in environmental matters might involve the following issues: Legal: Is dumping and waste legal? If so, under what circumstances? Public Policy: Should dumping and waste be legal? Why or why not? Values in Conflict: Which value is more important, a human s right to healthy environment or right of the corporation to make profit at the detriment of others? Why? This will help develop the students skill into being persuasive and value oriented in their pursuit to maintain healthy and safe environment.

29 The case law analysis provide insights on students and society in general to look at the environment problem in correct perspective. Even though three are laws to curb the bad practices but there are always ways and means to avoid compliance with such rules. Observing environmental law limits are not without difficulties. Obedience may be negligible as the case in Abdul Razak case and others.

30 The impact is that it can accelerate the destruction of the earth. The above cases are not exhaustive but sufficient to project how certain country confronted the issue of environmental wrongdoings. The appropriate ways to deal with these issues and the need for involvement of all citizens who may not be directly affected by the administrative acts yet play crucial role in protecting the environment.

31 The judicial activism pivotal in supporting the stand of protecting and preserving the environment. The law designed to guard the environment and its effective deliveries. All blended together appropriately will help nurture a save environment for this generation and the next to come. By teaching and educating environmental law we are already half way towards that goal.

32 Thank you.