ENVIRONMENTAL LAW: AN OVERVIEW 1 ADJUNCT PROFESSORIAL LECTURE. by: THE RT. HON. TUN ARIFIN BIN ZAKARIA CHIEF JUSTICE OF MALAYSIA

Transcription

1 ENVIRONMENTAL LAW: AN OVERVIEW 1 ADJUNCT PROFESSORIAL LECTURE by: THE RT. HON. TUN ARIFIN BIN ZAKARIA CHIEF JUSTICE OF MALAYSIA UNIVERSITI TEKNOLOGI MARA (UiTM) 19 DECEMBER 2012 ENVIRONMENTAL LAW: AN OVERVIEW

2 ENVIRONMENTAL LAW: AN OVERVIEW 2 1. YANG BERBAHAGIA ASSOCIATE PROFESSOR DATIN PADUKA SAUDAH SULAIMAN Dean, Faculty of Law 2. YANG BERBAHAGIA DATO SALEHUDDIN SAIDIN Honorary Consultant, Faculty of Law 3. YANG ARIF DATO BENTARA LUAR DATO HASHIM BIN DATO HJ YUSOFF Federal Court Judge 4. YANG ARIF DATO HASAN BIN LAH Federal Court Judge 5. YANG ARIF DATIN PADUKA ZALEHA BINTI ZAHARI Federal Court Judge 6. YANG ARIF DATUK ZAHARAH BINTI IBRAHIM Court of Appeal Judge 7. YANG BERBAHAGIA PROF. EMERITUS DATUK DR SHAD SALEEM FARUQI Legal Advisor of UiTM 8. YANG BERBAHAGIA ADJUNCT PROF. DR. MOHD. NAIM BIN HAJI MOKHTAR Adjunct Professor Syariah Legal Practice Faculty of Law 9. HIGH COURT JUDGES AND JUDICIAL COMMISSIONERS 10. OFFICERS OF THE JUDICIARY 11. PN. ALIZA SULAIMAN Director of CLP 12. DEANS FROM OTHER FACULTIES 13. DEPUTY DEANS 14. HEAD OF PROGRAMMES

3 ENVIRONMENTAL LAW: AN OVERVIEW COORDINATOR 16. PROFESSORS, FELLOW LECTURERS 17. STUDENTS Assalamualaikum Warahmatullahi Wabarakatuh and a very pleasant day. [ 1 ] First and foremost, may I take this opportunity to thank the Universiti Teknologi MARA (UiTM) for inviting me to this prestigious campus and for giving me this honour and privilege to deliver a lecture on this lovely day. I am very delighted to be here today, in the midst of the largest institution of higher learning in our country. [ 2 ] If it is not too late, may I also offer my heartfelt congratulation to UiTM for winning the inaugural Entrepreneurial University Award from the Ministry of Higher Education. This is a recognition of your achievement, which is the fruit of your sacrifices and efforts. 1 and

4 ENVIRONMENTAL LAW: AN OVERVIEW 4 INTRODUCTION [ 3 ] How I get to do this lecture?. I was approached by Associate Professor Datin Paduka Saudah Sulaiman, the Dean of School of Law to deliver a lecture on any topic of my choice. I was told that this is part of my duty as the adjunct professor of this university. I must confess, it is not an easy decision to make, considering the audience that is before me today. I have chosen to address you on environmental awareness from the legal and judicial perspective. What I propose to do is to make a comparative analysis of the environmental laws in this country and a number of the neighbouring countries. It is my sincere hope that at the end of this lecture, you will share the common cause with me, to take the fight to promote environmental preservation, towards a more sustainable environment. [ 4 ] I used to think that environmental issues were only for the executive and the law enforcement agencies to reckon with, and the role of the court is confined to hearing cases brought before it. But this view has completely changed after I attended a roundtable conference for ASEAN Chief Justices on environment in Jakarta in December last year. In that conference, I was literally shocked when I was presented with a newspaper report from Malaysia, that in 2005, a man in Tumpat, Kelantan, was found guilty by the Magistrate s Court

5 ENVIRONMENTAL LAW: AN OVERVIEW 5 for illegal possession of a dead tiger, a protected species, and walked out a free man after he paid the fine of RM7,000. [ 5 ] In contrast, in another case, a man who was convicted for theft of 11 cans of Tiger beer and Guinness Stout worth RM70 in 2010, was sentenced to five years imprisonment. The accused may have previous conviction. Be that as it may, still it was hard to believe such misplaced values and the lack of sensitivity by our judicial officers. Surely our tigers are worth more than the 11 cans of beer. [ 6 ] Malaysia is blessed with bountiful natural resources. More than half of our lands are forested. This is equivalent to about 60% or million hectares of forested land. And these natural resources are very fragile and sensitive in nature. It should be emphasized that environmental damage may be irreparable and in some cases may take thousands of years for rehabilitation. Hence, action needs to be taken now to prevent irreversible loss to the environment. We must take any threat to our environment seriously because it can be a threat to our very existence. [ 7 ] Everyone of us has a role to play no matter how small it may be, to conserve our environment. This had driven me to announce a new policy during the opening of the legal year 2011 in Putrajaya that the court will play its role and pledge its commitment in preserving the environment. We started by formulating our judicial vision and

6 ENVIRONMENTAL LAW: AN OVERVIEW 6 inculcating environmental awareness among the judges and judicial officers. Towards that end, a working committee was set up to study whether there is a need for establishment of environmental court. [ 8 ] I am pleased to say that the Malaysian Judiciary is now a major player in environmental issues. The 2 nd ASEAN Chief Justices Conference had just been concluded in Melaka which brought together a number of CJs and their representatives from the ASEAN countries. The conference provided a common platform for the CJs in this region to exchange views and experiences on environmental matters. [ 9 ] Driven by environmental enthusiasm acquired in those conferences, the judiciary has conducted a number of outreach programmes with the aim to raise awareness among the Judges on the significance of the environment and the threats it faces. Through these programmes, judges are exposed to the environment via numerous environmental-oriented activities. In one programme, Judges were brought for a night walk in the 130 million years old jungle, venture through rapid rivers and walk on a 530 metres long and 40 metres high canopy walkway in the Pahang National Park. A special session with the aborigines was arranged for the judges to orientate themselves to the original inhabitants of the forests. The highlight of it all, was the briefing on the challenges faced by the authority in the enforcement of wildlife and deforestation activities. Similar

7 ENVIRONMENTAL LAW: AN OVERVIEW 7 programmes were conducted in Cameron Highland and at the foothill of Mount Kinabalu, Sabah. [10] Before I embark on the topic of this lecture, permit me to bring to your attention the size of the illegal trade of wildlife in the world today. It is alarming to say the least, that there is an estimation of nearly USD 20 billion worth of the imported wildlife being traded illegally around the world, today. In Malaysia, a tiger is worth RM200, The tiger bone is worth RM1, per kilogramme; an elephant tusk is worth RM2, per kilogramme; a rhinoceros horn is worth RM30, per kilogramme. And a pangolin s meat would fetch RM500 per kilogramme so a pangolin is worth as much as a brand new ipad. These are figures given by the Wildlife Department. Hence, severe punishment is required in order to stop illegal poaching of these protected species. THE LEGAL INFRASTRUCTURE AND FRAMEWORK OF MALAYSIAN ENVIRONMENTAL LAW [11] Parallel to the phenomenal economic growth in the last two decades, Malaysia has undergone a major structural transformation, moving from an agriculture to manufacturing-based economy, with significant social changes. This rapid development has brought about adverse effects to our natural environment. On this note, permit me to share with you the observation made by Professor Jeffrey D. Sachs, an economist and senior United Nations

8 ENVIRONMENTAL LAW: AN OVERVIEW 8 adviser during his public lecture on Macroeconomic Challenges in the US, Europe and China in Kuala Lumpur recently. This is what he said while commenting on the need for sustainable development in Asia Asia s growth is tremendously dirty, polluting, damaging and carbon intensive. Sachs further said that the situation is no different in Malaysia that while on the path of development, it is not developing sustainably. He added that Malaysia has a remarkable bio and cultural diversity, but they are not being adequately protected 2. It should be realized that development cannot confer lasting benefits unless environmental considerations and related ecosystems are protected as integral parts of development planning and decision making 3. [12] What then is sustainable development?. Sustainable development refers to a mode of human development in which resource use aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come. The term 'sustainable development' was used by the Brundtland Commission which coined what has become the most often-quoted definition of sustainable development: "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." 4 2 The Sun, October 24, 2012 Sustainable development alludes Asia United Nations "Report of the World Commission on Environment and Development." General Assembly Resolution 42/187, 11 December Retrieved:

9 ENVIRONMENTAL LAW: AN OVERVIEW 9 [13] While sustainability educator, Michael Thomas Needham 5 referred to sustainable development "as the ability to meet the needs of the present while contributing to the future generations needs." 6 There is an additional focus on the present generations' responsibility to improve the future generations' life by restoring the previous ecosystem damage and resisting to contribute to further ecosystem damage. [14] Realizing the need for a sustainable healthy environment, the Malaysian government is striving to provide the best legal infrastructure for the environmental protection, consisting of three main weaponries that is, the laws, the enforcement agencies and the court. We have 34 pieces of principal legislations enacted for the environmental protection. There are at least 8 government agencies 7 and 2 research institutes 8 under 2 federal ministries 9, not to mention the local government and authorities, which have been assigned for the enforcement and implementation of the environmental related matters and to ensure the objective of each and every of its legislation is achieved. 6 Needham, M. T. (2011). A Psychological Approach to a Thriving Resilient Community. International Journal of Business, Humanities and Technology, vol. 1 no. 3. NY, USA.: CPI 7 Department of Environment; Department of Irrigation and Drainage; Director General, Department of Land and Mineral; Department of Marine Parks; Department of Wildlife and National Parks Peninsular Malaysia; Forestry Department Peninsular Malaysia; Department of Biosafety; and Department of Minerals and Geo-Science. 8 Forest Research Institute of Malaysia and Institute of Hydraulic Research Malaysia. 9 Ministry of Natural Resources and Environment and Ministry of Energy, Green Technology and Water.

10 ENVIRONMENTAL LAW: AN OVERVIEW 10 [15] In 1974, the first legal framework on environment in the form of Environmental Quality Act 1974 ( EQA ) was enacted and came into force in In passing this law, Malaysia embarked on a committed program to control industrial pollution, including wastewater which was not previously regulated, air pollution from factories and solid waste problems. From 1957 when the country gained independence from the British until the enactment of the EQA, Malaysia had no fundamental laws relating to environmental controls and used separate pieces of legislations such as the Forest Enactment, Mining Enactment and Waters Enactment to deal with environmental issues, as and when they arose. As a federal law that applies to the whole of Malaysia, the EQA confers powers to be exercised exclusively by the federal government and is not dependant on state enactments for its effectiveness within the state boundaries. [16] I was told that the Environmental Quality (Amendment) Act which was passed by Parliament recently, will be enforced early next year. This amendment paves the way for a more effective enforcement system. For example, a new section 34AA is inserted that gives power to the Director General of the Department of Environment to arrest or issue a stop work order to persons carrying out activities which may cause environmental damage. 10 Act A1441, gazetted on 16 August 2012, date of Royal Assent on 5 th August 2012, date of enforcement to be appointed by the Minister by notification

11 ENVIRONMENTAL LAW: AN OVERVIEW 11 Any non-compliance to the stop work order will be punished with a fine up to RM500,000 or with imprisonment up to 5 years or both. The power to arrest which was within the purview of the police, will be extended to the officer of the Department of Environment, who will have the power to arrest without warrant, any person who is reasonably believed to commit or attempt to commit any offence under the Act. [17] More importantly, investigation and enforcement which was usually hampered due to lack of information, now have now been addressed by the new section 49B where an informer, whose information or service or assistance led to a detection of any offence under the Act, will be rewarded and his identity will be protected and privileged under the new section 50A. [18] The serious commitments of the Government in fighting against the environment offenders could be seen from its response to the quantitative increase in environmental pollution, by enacting various other related legislations such as the Solid Waste and Public Cleansing Management Act [19] Being a country with a federal system of government, the division of jurisdictions between the federal government and the state government is inevitable. This division of jurisdictions is made clear in the Federal Constitution under the Ninth Schedule. However, it is

12 ENVIRONMENTAL LAW: AN OVERVIEW 12 a dismay to note that environment per se is no where prescribed in either of the jurisdictional list. It is neither found in the federal list, nor in the state list and not even in the concurrent list. Instead, what we only have in our Constitution is several entries or items that related to environment and to add to the situation, those entries are scattered, some are prescribed in the federal list, some in the state list and some in the concurrent list, and some of them are overlapping. [20] For example, under the federal list, we have matters on control of agricultural pests 11 and fisheries (including maritime and estuarine fishing and fisheries but excluding turtles) 12. Meanwhile under the state list, we have matters on land improvement and soil conservation; 13 agriculture and forest 14 ; turtles and riverine fishing 15. At the same time, under the concurrent list, we have matters on protection of wild animals and wild birds, national parks 16 ; animal husbandry 17 ; town and country planning 18 ; drainage and irrigation 19 ; rehabilitation of mining land and lands which suffered oil erosion 20. All these items are environment related but they are subdivided into several different sectors hence can be described as sectoral approach Entry no.20 of the federal list, Ninth Schedule to the Federal Constitution 12 Entry no.9 of the federal list, Ninth Schedule to the Federal Constitution 13 Entry no.2 of the state list, Ninth Schedule to the Federal Constitution 14 Entry no.3 of the state list, Ninth Schedule to the Federal Constitution 15 Entry no.12 of the state list, Ninth Schedule to the Federal Constitution 16 Entry no. 3 of the concurrent list, Ninth Schedule to the Federal Constitution 17 Entry no. 4 of the concurrent list, Ninth Schedule to the Federal Constitution 18 Entry no. 5 of the concurrent list, Ninth Schedule to the Federal Constitution 19 Entry no. 8 of the concurrent list, Ninth Schedule to the Federal Constitution 20 Entry no. 9 of the concurrent list, Ninth Schedule to the Federal Constitution 21 Ainul Jaria Maidin, Challenges In Implementing And Enforcing Environmental Protection Measures in Malaysia.

13 ENVIRONMENTAL LAW: AN OVERVIEW 13 [21] The sectoral approach in the legislative jurisdictional division between the federal and the state government has been identified as one of the main hurdles in the effective implementation of the whole legal framework of environmental law. It creates problems as I have highlighted to you, some matters are overlapping and some are even left unprescribed. This approach has led to inevitable confusion especially when it comes to enforcement and implementation. Members of the public will find difficulties as to which enforcement agencies to be referred to, and worst still even the enforcement agencies can be confused too as to who should take the action and hence leaving the matters left unchecked. [22] This sectoral approach had also caused confusion on the competency of the federal or the state government in legislating and regulating certain matter on environment 22. One example on this point is the Bakun Hydroelectric Dam ( Bakun Dam ) in Sarawak, which gave rise to controversy during the submission of the construction proposal for the project. The controversy was whether the Bakun Dam was to be considered under the Environment Quality Act 1974, a federal legislation or under the Sarawak Natural Resources Ordinance 1949, a state legislation. [23] In comparison, the Sarawak legislation is more relaxed and lenient than the federal legislation when it comes to the procedural requirements on Environmental Impact Assessment ( EIA ), in 22 Ainul Jaria Maidin, Challenges In Implementing And Enforcing Environmental Protection Measures in Malaysia.

14 ENVIRONMENTAL LAW: AN OVERVIEW 14 which the developer is required to make public consultation and include it in its EIA report before it can be submitted for approval. [24] This sectoral approach has also resulted in a number of environmental legislations being enacted by both the federal and the state legislature, but each has its own provisions relating to enforcement. These legislations will not achieve its objective if there is no close coordination between various organisations and agencies involved in environmental protection. The Department of Environment ( DOE ), which implements the EQA 1974, is largely responsible for industrial pollution control. The vast natural resource sectors like fisheries, forestry, mining and agriculture come under different federal ministries, and/or state agencies with different regulations and bylaws. [25] Coordination is the essential key for an effective enforcement as it is only through coordination that a uniform application of the law and uniformed environmental management standards can evolve. 23 Since some of the environmental related matters come under the concurrent list, it is viewed by certain quarters that the federal government must be given more powers in dealing with 23 Ainul Jaria Maidin, Challenges In Implementing And Enforcing Environmental Protection Measures in Malaysia

15 ENVIRONMENTAL LAW: AN OVERVIEW 15 environmental matters rather than leaving it to the discretion of the states in view of its rich resources and capability 24. [26] The need for having a comprehensive legislation to deal with environmental issues has also been emphasised by other ASEAN countries like Thailand, Philippines, Indonesia, Vietnam and Laos, where, formulated legal frameworks were introduced as a measure for the management, protection and control of the environment. It is interesting to note that the developments of environmental laws in ASEAN countries are uneven and varies from country to country. As I understand, Brunei is yet to establish a comprehensive legislation governing environmental issues but adopting the international standards as a reference, such as from the World Health Organization and other ASEAN member countries 25. Whilst in Myanmar, the present environmental laws are those enacted when the country was under the British administration. 26 [27] It has always been our hope that countries where such legal framework concerning environmental protection have not yet been 24 ibid 25 brunei%20darussalam.htm 26

16 ENVIRONMENTAL LAW: AN OVERVIEW 16 in place, will adopt them sooner or later. The challenge is however not whether the laws can be adopted but whether they can be appropriately enforced to achieve the objectives they set out to do. It is rather easy to draft laws but to achieve the objectives within them is more challenging and demanding. Establishment of Malaysian Environmental Court [28] In some countries, environmental cases are referred to a tribunal or specialized court independent from the civil court in the main stream. For example in India, there is the National Green Tribunal established in 2010 with a broader jurisdiction in civil environmental cases, where parties are required to refer their disputes to the tribunal first before going to the court. Meanwhile in Bangladesh, the specialized environmental courts are established by virtue of Environmental Courts Act 2000, which is independent from its civil court and has its own appellate court (Environment Appeal Court). It is also interesting to note that in Australia, all the main matters on environment are codified under one centralised federal legislation known as the Australian Environment Protection and Biodiversity Conservation Act [29] Inspired by the benefit of having a specialized environmental court in the neighbouring countries, the Malaysian judiciary has stepped up its endeavour in the field of environmental justice with the issuing of the Practice Direction No. 3 of 2012 in September this year, that

17 ENVIRONMENTAL LAW: AN OVERVIEW 17 paved the way for the establishment of Environmental Court under the courts hierarchy, specializing in environmental criminal cases. The establishment of the environmental court is aimed at improving the administration of criminal justice in cases relating to environmental laws at both the Sessions and Magistrate s Courts. With these specialized courts, environmental cases can be monitored and resolved in a more efficient manner. [30] Under our laws, all environmental offences are almost entirely within the purview of our subordinate courts. However, the subordinate courts have limited territorial jurisdiction to offences committed within the state boundaries. [31] In relation to appeals, there is a right of appeal against all decisions of the subordinate courts to the High Court and finally to the Court of Appeal. Appeals are made to the local High Court situated within the State. In the case of offences under the Merchant Shipping (Oil Pollution) Act 1994, which are the only environmental offences to be tried by the High Court, there is a right of appeal to the Court of Appeal and from there to the Federal Court. PROCEDURAL ISSUES ON ENVIRONMENTAL CASES Locus Standi

18 ENVIRONMENTAL LAW: AN OVERVIEW 18 [32] As a common law country, access to civil litigation in Malaysian court in environmental cases is still tied to the common law principle of locus standi, in which only persons who can demonstrate sufficient connection with or interest in the subject matter in dispute can seek a judicial remedy. Accordingly, this connection or interest, acts as a pre-condition to a person achieving standing in civil courts 27. Hence, in one way or another, environmental litigation has been severely restricted by the application of this traditional common law rule of standing, to civil environmental cases seeking to redress any alleged environmental violation. [33] In the case of Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors & Other appeals 28 the Court of Appeal had taken the strict traditional approach and held as follows: In any event, the respondents lacked substantive locus standi, and the relief sought should have been denied because: (i) the respondents were, in substance, attempting to enforce a penal sanction. This is a matter entirely reserved by the Federal Constitution to the Attorney General of Malaysia in whom resides the unquestionable discretion whether or not to institute criminal proceedings; 27 See, e.g, Kajing Tubek v. Ekran Berhad (1996) 2 M.L.J. 388; Ketua Pengarah Jabatan Alam Sekitar & Anor. v. Kajing Tubek (1997) 3 M.L.J [1997] 3 MLJ 23.The Federal Court has since upheld the decision of the Court of Appeal but is yet to present its written judgment.

19 ENVIRONMENTAL LAW: AN OVERVIEW 19 (ii) the complaints advanced by the respondents amount to deprivation of their life under art 5(1) of the Federal Constitution. Since such deprivation is in accordance with law, the respondents have, on the totality of the evidence, suffered no injury. There is therefore no necessity for a remedy; (iii) there were persons, apart from the respondents, who were adversely affected by the project. There was no special injury suffered by the respondents over and above the injury common to all others. The action commenced by the respondents was not representative in character and the other affected persons were not before the court; and (iv) the judge did not take into account relevant considerations when deciding whether to grant or to refuse declaratory relief. In particular, he did not have sufficient regard to public interest. Additionally, he did not consider the interests of justice from the point of view of both the appellants and the respondents. [34] In contrast, in India, it is interesting to note the creative approach taken by the Indian Supreme Court in overcoming the locus standi hurdle. In the case of SP Gupta & Ors v. President of India

20 ENVIRONMENTAL LAW: AN OVERVIEW 20 &Ors, 29 the Supreme Court held that in public interest litigation cases, the court has to innovate new methods for the purpose of providing access to justice to large masses of people who are denied of their basic human rights and to whom freedom and liberty has no meaning. This approach is common in India, this may be attributable to judicial activism prevailing in the Indian courts and hence must be treated with some degree of caution. [35] Similarly, the Philippines courts are more pro-active in handling public interest litigation in which recognition of standing was given not only on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, but also on behalf of generations yet unborn. By giving such recognition, the strict approach to standing to sue has been relaxed. Public participations in environment enforcement are allowed. 30 [36] The Philippines courts are the first court worldwide to do so 31. For example, section 41 of the Clean Air Act and section 52 of the Ecological Solid Waste Management Act which empower a citizen to file an appropriate civil, criminal or administrative action against any person who violates the provisions therein. 32 Section 4 and 29 AIR 1982 SC Rules of Procedure for Environmental Cases, 2010, Republic of Philippines, Supreme Court Manila 31 Oposa v. Factoran, G.R. No. L (Oct. 27, 1983); Laguna Lake Development Authority v. Court of Appeals, G.R. No (March 16, 1994). 32 Supra

21 ENVIRONMENTAL LAW: AN OVERVIEW 21 section 5 of the Rules of Procedure for Environmental Cases specify who may file a civil action in environmental cases. 33 [37] The landmark case of Oposa v. Factoran Jr. 34 recognized the principles of inter-generational equity where the court widened the scope of locus standi when it allows an action to stop the logging of forests to be brought on behalf of the present and the future generations of Philippines children. Comparison of constitutional positions [38] However, it must be noted that the Constitution of the Philippines refers to protecting peoples rights to a balanced and healthful ecology in accord with the rhythm and harmony of nature 35, which is not in our constitution. [39] And If I may also add, the Indian Constitution is perhaps one of the rare Constitution of the world which reflects the Human Rights approach to environmental protection through various constitutional mandates. In India, the concern for environmental protection has not only been raised to the status of fundamental law of the land, but it is also wedded into the human right of every individual to live in pollution free environment with full human dignity Supra 34 G.R. No , 224 SCRA Constitution of the Philippines 1987, Art 11 s A paper by Deepika Chouhan and Prabhash Dalei on Right to live in Healthy Environment - In framework of Indian Constitution, presented at International Conference on Humanities, Economics and Geography (ICHEG'2012) March 17-18, 2012 Bangkok

22 ENVIRONMENTAL LAW: AN OVERVIEW 22 [40] In view of the various constitutional provisions and other statutory provisions contained in various laws relating to environment protection, the Indian Supreme Court has held that the essential feature of sustainable development such as the Precautionary Principle and the Polluter Pays Principle are part of Environmental law of the Country. 37 Environmental protection and improvement were explicitly incorporated into the Constitution by the Constitution (Forty- Second Amendment) Act of Article 48A was added to the Directive Principles of State Policy. It declares The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51A (g) in a new chapter entitled Fundamental Duties, imposes a similar responsibility on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creature. Together, the provisions highlight the national consensus on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection. 38 [41] By contrast, individual right to a clean and healthy environment is not one of the fundamental rights enshrined in our Constitution. The 37 Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 at (This case is popularly known as T.N.Tanneries Case). 38 Shyam Divan, Armin Rosen, Environmental Law and Policy in India, Second Edition, Oxford University Press, New Delhi, Pg. 45.

23 ENVIRONMENTAL LAW: AN OVERVIEW 23 nearest we have is Article 5 which provides that no person shall be deprived of his life and personal liberty save in accordance with law. The Malaysian Courts in numerous cases had attempted to expand the interpretation of this provision to include the right to a healthy environment. In the case of Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, Gopal Sri Ram JCA (later FCJ) extended the interpretation of the word life in Article 5 of the Constitution as not only to mean a mere existence, but incorporates all those facets that are integral part of life itself and those matters which go to form the quality of life, and includes the right to live in reasonably healthy and pollution free environment. [42] The above interpretation gained support from the Federal Court in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145. In defining the word life in Article 5, the Federal Court referred to Tan Tek Seng and agreed that life in Article 5 should be given a wider meaning. [43] However, in a later case of Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 3 MLJ 72, the Federal Court had departed from its earlier decision in R Rama Chandran. Instead, the Federal Court had expressed its disagreement to Tan Tek Seng and R Rama Chandran and adopted the view stated by a panel of 5 judges of the Federal Court in the case of Loh Wai Kong v. Government of Malaysia [1979] 2 MLJ 33, where in delivering the judgment of the Court, Sufian LP held that the words personal liberty in Article 5 should be interpreted exclusively within the ambit of Article 5 and hence freedom for

24 ENVIRONMENTAL LAW: AN OVERVIEW 24 personal liberty under that provision, only relates to body or person and freedom from being detained. It, therefore, cannot include all facets that are an integral part of life and those matters which go to form the quality of life. The Federal Court went further to criticise the Court of Appeal in Tan Tek Seng and the earlier Federal Court case of R Rama Chandran for the approach taken and their failure to refer to the earlier decision in Loh Wai Kong case. [44] I pause here, to say that the the Federal Court s decision in Pihak Berkuasa Negeri Sabah was on the interpretation of the word personal liberty, while the decisions in Tan Tek Seng and R Rama Chandran turn on the interpretation of the word life. Therefore, it has been suggested that the interpretation of the word life in Tan Tek Seng and R. Rama Chandra is still good law. [45] That proposition found support in Bato Bagi & Ors v. Kerajaan Negeri Sarawak and another appeal [2011] 6 MLJ 297 where the Federal Court adopted the wider interpretation of the word life in Article 5. Richard Malanjum (CJSS) in delivering judgment of the Court had this to say: Meanwhile it may be helpful to bear in mind that 'the expression 'life' appearing in art 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be

25 ENVIRONMENTAL LAW: AN OVERVIEW 25 engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment' (see Tan Tek Seng). And perhaps it is opportune here to be reminded that 'the courts should keep in tandem with the national ethos when interpreting provisions of a living document like the Federal Constitution, lest they be left behind while the winds of modern and progressive change pass them by. Judges must not be blind to the realities of life. Neither should they wear blinkers when approaching a question of constitutional interpretation. They should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression 'life' in art 5(1) is given a broad and liberal meaning' (see Tan Tek Seng). Other Reliefs [46] The Philippines commitments in preserving environment is astonishing, something that we can learn from. The courts in the Philippines also recognized the remedy of continuing mandamus

26 ENVIRONMENTAL LAW: AN OVERVIEW 26 in respect of environmental cases by directing any agency or instrumentality of the government to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied 39. On top of that, in April 2010, the Philippines introduced the Rules of Procedure for Environmental Cases which, inter alia, enable the courts to monitor and exact compliance with orders and judgments in environmental cases. It also provides for a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties. [47] In June this year we saw the filing of a petition in the Philippine s court to stop the construction of a $1.3 billion coal-fire power plant in the Subic Bay, with the petitioners which include environmentalists alleging that the plant will negatively impact the environment with acid rain, warming and acidification of Subic Bay s seawater. [48] At about the same time, an application for an injunction was also filed in the Malaysian High Court by Gebeng residents and environmentalist groups in trying to stop an Australian company, Lynas from operating its rare earth plant 40 the second largest outside China. 41 The petitioners were concerned with the negative impact on the environment and on health and safety grounds to nearby residents of Gebeng. As of today, there are a few law suits 39 See Metro. Manila Dev. Auth. V. Concerned Residents of Manila Bay, G.R. No (S.C. Dec. 18, 2008)(Phil.). 40 Used in products ranging from smart phones to hybrid cars. 41 On , the High Court set aside the temporary suspension order. There are however two judicial review applications pending in the courts, to challenge the government s decision to grant the license to Lynas.

27 ENVIRONMENTAL LAW: AN OVERVIEW 27 and applications that are still pending in the courts including at the Court of Appeal, filed by both sides. As the issue is pending before the court, I will refrain from making any further comment. Standard of Proof [49] In Malaysia, as our legislations on environment provide for both criminal and civil jurisdiction, hence the standard of proof applicable varies according to the nature of the violation. The standard of beyond reasonable doubt is applicable in criminal environmental cases and the balance of probabilities will apply in civil environmental cases. The general principle of criminal law is that mens rea is an essential ingredient of every offence, unless expressly or by necessary implications, the mental element is displaced by the words or subject matter of the statute creating the offence. Statutory offences may be classified generally as follows: a. First; those in which mens rea applies in full; b. Second; those that create strict liability which means that the prosecution does not have to establish the offender s state of mind in order to prove the crime; and c. Finally; those that create absolute liability, for which there is no defence that can be pleaded. [50] The absolute liability principle was applied in civil action by the Indian Supreme Court in the case of M. C. Mehta v. Union of

28 ENVIRONMENTAL LAW: AN OVERVIEW 28 India. 42 The court held that an enterprise which is engaged in an inherently dangerous and hazardous activity and consequently proves so to be a potential threat to the health and safety of the persons working in the factory or the surrounding inhabitants, owes an absolute and non-delegable duty to the community. So, it should ensure that its activities are conducted with the highest standard of safety and if harm results on account of such hazardous or inherently dangerous activity, the enterprise must be held absolutely liable to compensate the harm. [51] In Indian Council for Enviro-Legal Action v. Union Of India &Ors. 43 The Indian Supreme Court advanced that "The Polluter Pays Principle which means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also to the cost of restoring the damage to the environment. SENTENCING & COMPENSATION IN ENVIRONMENTAL CASES [52] Now, permit me to touch on the remedial aspects of the environmental cases. The remedies available are damages in the civil cases and monetary fine or custodial sentence when it comes to criminal environmental cases. This remedial aspect is the most 42 (1987) 1 SCC 395. See Environmental Jurisprudence in India: A look at the Initiative of the Supreme Court of India and their Success at Meeting the needs of Enviro-Social Justice by Debadyuti Banerjee 43 AIR 1996 SC 1446

29 ENVIRONMENTAL LAW: AN OVERVIEW 29 difficult task faced by the court, as the court needs to give appropriate measure in the interest of the nation and at the same time proportionate to the degree of the damage caused to the environment. As I have highlighted earlier on, the lack of adequate sentencing by the court in the past went against the creation of an effective legal framework in preserving our environment. In dealing with environmental cases, it must be recognized by everyone concerned that the court is also the custodian of the environment. [53] The courts have been criticised for imposing lenient sentences in environmental cases which failed to reflect the moral repugnance of the crime. The legislatures have sought to address these concerns by the implementation of a two-pronged approach: first, by increasing the maximum penalties and second, by expanding the range of sentencing sanctions that may be imposed by the courts. The recent example is the passing of the Environmental Quality (Amendment) Act 2012 which will be implemented next year, in which the maximum fine has been increased to a whopping half a million ringgit. This amendment must be welcomed by everyone and given effect by the courts at all levels. Alternative sentencing and compensation

30 ENVIRONMENTAL LAW: AN OVERVIEW 30 [54] Generally, the penalties imposed by the Australian Courts in environmental cases have increased over the last decades. But in many cases, notwithstanding increases in the quantum of monetary penalties as well as damages, the monetary remedy is seemed inadequate to rectify or compensate the loss caused to the environment and failed to serve as a deterrence especially to the business industries. This is because the environmental offenders especially those among the corporate enterprises, have the capacity to financially absorb the monetary penalties or damages as their business costs. 44 Further, the fine or damages literally cannot rectify the damaged caused to the environment, which needs very long period of time for recovery and rehabilitation and some are totally irreversible. By and large, the fine cannot meet the clean-up and restoration costs. 45 [55] It is interesting to note that the Australia have adopted significant degree of flexibility in sentencing environmental offenders by enacting provisions that allow for the court to make alternative sentencing orders 46 for example: - Orders for restoration or rehabilitation 44 New South Wales Law Reform Commission, Sentencing Question Paper 11: Special categories of offenders (July 2012), p Samantha Bricknell, Environmental crime in Australia: AIC Report 109 (Australian Government, Australian Institute of Criminology, 2010), p See s 67AC of the Environment Protection Act 1970 (Vic) (introduced in 2000), s 250 of the Protection of the Environment Operations Act 1997 (NSW) (introduced in 2005), s 502 of the Environment Protection Act 1994 (Qld) (in Queensland, apart from rehabilitation and restoration orders, alternative sentencing orders were introduced in 2010 by the Environmental Protection and Other Legislation Amendment Bill 2010), and s 133 of the Environment Protection Act 1993 (SA) (introduced in 2006).

31 ENVIRONMENTAL LAW: AN OVERVIEW 31 - Orders to carry out a specific project for restoration or rehabilitation - Publication or notification orders - Orders for the payment of costs, expenses and compensation - Environmental audit orders - Orders to establish or undertake a training course - Orders for the payment of money into an environmental trust; and - Orders for the payment of money to an environmental organization for a particular environmental project. [56] Whilst custodial sentence will definitely serve as deterrence to the world at large, and the imposition of fines is useful for the government s budget in restoring the damaged environment, it is viewed that these two remedies are not an effective set of tools to keep our environment healthy. We need a mechanism which can stop and prevent any damage caused to the environment, but when the damage has been caused, the offender must be definitely punished and at the same time, ordered to fully rectify the damage he caused. In other words, the mechanism must not only be able to stop and prevent the damage, but at the same time, to repair the damage. TRANSBOUNDARY ENVIRONMENTAL CRIMES

32 ENVIRONMENTAL LAW: AN OVERVIEW 32 [57] It has been repeatedly said that environmental crimes by their very nature are transboundary, involving cross-border impacts and activities. Unlike other crimes, environmental crimes however are often viewed as victimless crimes and appeared on the lowest priority list, hence failed to prompt required response from the enforcement agencies. In reality, the impacts of environmental crimes affect everyone and every country, because it is the same environment that we live in, that was being polluted. [58] For example, illegal logging and forest burning lead to deforestation which in turn causes ecological problems like haze and flooding. The forest burning might happen in a country but the haze caused therefrom will go cross-borders endangering other countries and to the extreme, it will contribute to the green house gas emission and worsen the global climate change. Another example is the wrongful usage of ozone depleting substances ( ODS ) which may contribute to the thinning of ozone layer. The 1997 haze that hit Malaysia, Indonesia, Singapore and Thailand had caused losses amounting to $4.5 billion in terms of health costs and decline in the tourism industry. In response, the ASEAN members formulated the Regional Haze Action Plan to monitor and combat the air pollution caused by forest burning and later in 2002, majority of the ASEAN countries signed the ASEAN Agreement on Transboundary Haze Pollution.

33 ENVIRONMENTAL LAW: AN OVERVIEW 33 [59] Therefore, there must be a consensus and awareness that there is a need for harmonization of enforcement for environmental violations among all the international communities especially when it involves transboundary and cross-border crimes. EDUCATION [60] Permit me to touch on the role of education in inculcating environmental awareness. As we are moving into an era where environmental problems are changing from being a matter of domestic concern, to that of a global crisis, the negative impacts of environment deterioration have become mainstream issues. In order to provide a holistic view and understanding of the environment, environmental studies should be incorporated into our education system. At the tertiary level, I was made to understand that most of the local universities have offered environmental law as an elective subject as part of undergraduate courses. I believe that this is a positive step towards increasing environmental awareness amongst graduates. CONCLUSION [61] In conclusion, I would say that in Malaysia there exit legislations and legal framework on the environment. However, their implementation and enforcement are two major challenges which

34 ENVIRONMENTAL LAW: AN OVERVIEW 34 need to be addressed. For this framework to be successful, it must comprise of comprehensive legislations coupled with an effective enforcement. In this regard, I must say that we are much behind countries like the Philippines, India, Bangladesh, Australia and our close neighbours namely Thailand and Indonesia. India, Thailand, Indonesia and Bangladesh have established dedicated tribunal or court to cater for environmental cases with less stringent requirement on locus standi. We certainly can look to these countries to learn from their experience. [62] The next question to ask is: Have we done enough to save our environment?. It is the responsibility of every individual and the civil society in this country to come up with the answer. Hence, I would like to call upon each of you, from all ranks of the society, regardless of whether you hold a position in the environmental authority, to listen to the call from our environment that cries out for protection and preservation. Let us go back from this lecture with the questions that I have posed and start taking positive actions, no matter how small, to care and preserve our environment. As I have said earlier, this environment is the very essence of our very existence. Its survival is our survival. As observed by Ghandi, What we are doing to the forests of the world is but a mirror reflection of what we are doing to ourselves and to one another. Thank you.

35 TUN ARIFIN BIN ZAKARIA CHIEF JUSTICE OF MALAYSIA 19 DECEMBER 2012 ENVIRONMENTAL LAW: AN OVERVIEW 35