Abstract
This presentation discusses the challenges posed in implementing and enforcing environmental protection measures in Malaysia. The discussion begins with general background information regarding the problems faced by the Malaysian government in overcoming environmental problems arising from poorly planned development activities. Policies providing the basis for passing laws and regulations to promote environmental protection have been formulated to manage the post independence environmental problems. However, the post independence economic policies formulated by the government are often blamed as the principal reason for the present persisting environmental problems. Introduction of various legal and non-legal environmental protection measures has not been able to prevent further environmental degradation.
This presentation discusses the challenges posed in implementing and enforcing environmental protection measures in Malaysia. The discussion begins with general background information regarding the problems faced by the Malaysian government in overcoming environmental problems arising from poorly planned development activities. Policies providing the basis for passing laws and regulations to promote environmental protection have been formulated to manage the post independence environmental problems. However, the post independence economic policies formulated by the government are often blamed as the principal reason for the present persisting environmental problems. Introduction of various legal and non-legal environmental protection measures has not been able to prevent further environmental degradation.
Despite commitments to the objective of preserving and enhancing environmental quality and passing of laws and regulations to achieve the means, Malaysia is still faced with the problem of the competing demands of greater urban development and conserving the environment. The commitment to integrate environment and economic policies at present is slightly hesitant owing to a misunderstood concept that preservation of environment means limited development. It is often pointed out that the actual problem lies in implementing and enforcing the law. The effectiveness of the legal mechanism adopted by the country is dampened by the constraints that exist within the legal and institutional framework. This presentation will examine these factors as well as suggest measures to improve the implementation and enforcement of the environmental protection measures so as to achieve sustainable development.
Introduction
The Declaration of the United Nations Conference on Human Environment in Stockholm in 1972 recognised the need to adopt measures for the protection of the environment[1] and made an appeal to all countries in this respect. In response to this, the governments of all countries began incorporating environmental aspects into their administrative and legislative framework. Malaysia too signed various other international conventions and incorporated the guidelines outlined in the conventions into the government policies regarding environment.
The environmental predicament in Malaysia cannot be overstated. The indifferent attitude of the Malaysian policy makers towards a long-term development in preference to short-term fast economic gains has contributed immensely to the environmental woes of the country. They failed to learn from history that has clearly shown that one of the main reasons for societies’ collapse is conscious destruction of their natural resources. A society seeking rapid development could achieve its aspirations without necessarily having to compromise its environment. As such it is essential for any society to ensure that it develops without necessarily compromising its environmental needs so as not to undermine the present achievements.
Burdened with the task of balancing economic development and environmental protection, the Malaysian government introduced various legal and non-legal strategies to manage the persisting environmental predicaments. Legal measures involved passing of related legislation. Non-legal measures include formulating guidelines, disseminating environmental education, research, and organising of development planning system. All these measures are based on the policies formulated by the government.
Policy Framework
Formulating land development policies and legislative measures in modern Malaysia has been influenced to a great extent by its political history and continued colonial legacy. The effects of the multi ethnic, religious and diverse cultural structure of Malaysian society should not be disregarded.[2] Malaysia’s environmental management policy was apparent in the Third Malaysia Plan,[3] where it declared its aims to balance the goals of socio-economic development and maintain sound environmental conditions.[4] These policies guided the formulation of environmental protection measures to promote sustainable development in order to meet the changing needs of rapid development in the society. The policies are being continued in the five-yearly National Development Plans.[5] Three principal policies, i.e. the National Development Policy,[6] Vision 2020[7] the Five-yearly Development Plans[8] and the National Environmental Policy,[9] have become the corner stone for national development planning and implementation of environmental protection policies.[10] These policies guide the Government in embarking on land planning and environmental management programs.[11] The general objectives of the environmental policies embodied in the National Development Plans are complemented and re-enforced further by bilateral or multilateral commitments through agreements, resolutions, declarations and international conventions.[12] Malaysia signed various other international conventions such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the 1992 Convention on Climate Change and Biodiversity, the Brundtland Report in 1987, the United Nations General Assembly Resolution 44/228 and the Earth Summit.[13] The guidelines outlined in these documents have been embodied in the government policies regarding environment. A National Policy on Environment was formulated in 2002 to provide a policy framework to promote a coordinated environmental management strategy.[14]
However, the implementation of these policies has always been fraught with other sensitive political issues at both the Federal and State levels, as it is a highly politicised area. This is not unique to Malaysian situation, but a universally acclaimed factor. It has been suggested that there is always an impending political conflict between various interests underlying any major environmental policy decision, as environmental issues tend to encompass multiple governmental activities such as transport, land planning, agriculture, industries, housing development and various others.[15] These separate policy areas centring on a particular government department tend to provide a great deal of influence for development-oriented interests.[16]
An environmental policy to be truly sustainable requires the integration of all related aspects such as water and air so as to ensure that the problems are not dealt with in a fragmented manner as the situation arises.[17] It is useless talking of eliminating pollution, without taking into account its adverse effects on the general development strategies. The following discussion will examine the development of environmental law, taking into account the socio-political and economic dimensions in the country. Despite the shortcomings of the development policies in addressing environmental problems, the same policies, however, seem to provide the basis for making environmental protection laws.
Legal Framework
The early formal response to environmental problems arising from development particularly those relating to the depletion of natural resources was the Straits Settlement Ordinance No.3 of 1894. The main concern of the enactment was aimed at the protection of several species of wild birds.[18] That was followed by a number of laws relating to various environmental problems before independence. For example, the Waters Enactment 1920 (Act 418) was designed to control and prohibit disruption of river, so as not to interfere with the smooth flow of water. The law also provided for the restriction of discharges of specific substances into the river, which might be detrimental to the beneficial use of the river waters throughout Peninsular Malaya.[19] The Merchant Shipping Ordinance governs marine pollution by vessels, the Poisons Ordinance 1952 regulates the use of toxic substances, the Animals Ordinance 1953 controls the spread of animal disease and prevent cruelty to animals. The Mining Act controls discharges from mining activities into watercourses,[20] and the Forest Enactment 1934 Cap 153[21] provides for the establishment of forest reserves and control in logging activities.[22] Most of the legislation passed to address problems in various sectors such as fisheries, agriculture, forestry, plant disease control, public health, water quality, and air pollution before independence was also preserved.[23]
Post independence legislation such as the Factories and Machinery Act 1967 provides for care in the working environment by stipulating the requirement to provide a safe working place.[24] The Land Conservation Act 1960 was aimed at conserving hill land and the protection of soil from erosion and the inroads of silt. It generally prohibits planting of short-term crops on any hill land. However, the Act permits the Land Administrator to issue an annual permit to plant specified short-term crops to any person who satisfies him that such cultivation will not cause appreciable soil erosion.[25]
Although by the end of 1970s, the number of environmental protection legislation had grown enormously, nevertheless it was unable to curb soaring environmental problems due to modern industries and technological advancement. The reason was probably because much of the legislation was not originally designed to address core environmental problems but was passed to address specific instances as they arose from specific activity or forms of development.[26] Thus, it is not surprising to observe that all legislation enacted prior to 1974 was largely sectoral in nature focussing on specific areas of activity. These legislation failed to adopt any integrated approach and unable to cope with the ever increasing and complex environmental problems of the modernising nation.
The government’s decision to enact comprehensive environmental conservation legislation culminated in the passing of the Environmental Quality Act 1974 (“EQA 1974”). The Department of Environment (“DOE”) is the principal agency entrusted to administer the Act. The Minister of Science, Technology and Environment, pursuant to the powers conferred on him by the EQA 1974, enacted the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 (“EIA Order 1987”) that came into effect in 1988. The EIA Order 1987 was introduced to ensure the activities prescribed in the schedule to the EIA Order 1987 conduct an environmental impact assessment (“EIA”) process for prescribed activities.[27] The EIA process will enable the decision makers to assess the impact of a proposed development project on the environment and the mitigating measures to reduce the risk and impact of such process on the environment. The EIA process is intended to influence the decision maker in deciding whether or not a land development project should be permitted based on the information supplied by the project proponent seeking to obtain planning permission for a development project. The EIA process also provides avenues for public participation in the decision making process. In recent years, the EIA process has been acknowledged as having a role in ‘implementing’ the principle of sustainable development by assisting decision makers to take into account the quality of development, the effect upon the conservation of natural resources as well as its location and quantity.
Modern environmental law in Malaysia, similar to other Southeast Asian region had little to build on what could be described as a design for promoting holistic environmental protection. Most of the legal framework in force was at best environmentally neutral or obstructed environmental purposes to the extent that it elevated the prerogatives of ownership.[28] Despite an impressive legal and administrative structure, the desired protection for the environment has yet to be achieved. This is due to the fact that environmental protection is often politicised.[29] Furthermore, post independence development policies often accord priority to economic development rather than promoting environmental protection. Thus, there is no stimulus for reappraisal of the archaic colonial laws or the establishment of a systematic regime for environmental protection as a whole.
Despite the significant numbers of breaches of environmental law, the proportion of prosecutions or other enforcement action is extremely low. To date there are only five reported cases under the heading of environmental law in the law reports in Malaysia.[30] The local authorities and other government agencies prosecute environmental offenders using laws other than the environmental law, principally tort law (i.e. nuisance, trespass, negligence). The DOE, as the principal agency entrusted to implement and enforce the environmental protection legislation has limited powers to deal with the land planning system. This is because power to regulate land development is solely within the discretion of the State Planning Committee at the state government level and the local planning authorities at the local government level. Though administrative enforcements of environmental disputes are proportionately higher, nonetheless there are a significant number of offences that are actually unpunished.
Environmental law essentially consists of federal and state legislation in the form of statutes, local authority by-laws, ordinances, regulations as well as court rulings. The area of these laws and regulations is so wide to encompass public health as well as conservation, pollution control, and land use control. Generally the Malaysian pollution control law in the form of statutes and regulations takes the “command and control” approach. It creates agencies assuming jurisdiction over various types of environmental problems identified by the legislature. These legislation prescribes issuance of permits to engage in polluting activities or restricted land uses, authorise the agencies to promulgate regulations to clarify the vague statutory provisions, authorise administrative and court enforcement actions and impose penalties for breach.
It is undeniable that the introduction of a system of comprehensive environmental regulation in Malaysia is aimed at protecting the environment in the interest of the public. Law in practice is usually affected by the values and culture of the legislature and judiciary. The same may be true not only about those who set the standards by which those rules operate, but also with regards to those who implement and enforce rules and standards. The environmental regulatory system, which is made up of stratified set of laws, rules, and administrative guidelines and the establishment of various statutory agencies to administer the rules does not make the enforcement process any simpler. Any list of factors which influence enforcement could never be comprehensive as each individual case is unique and will have peculiar circumstances which shape the exercise of an enforcement agency’s discretion. Many observers both from within and outside Malaysia have often remarked that while Malaysia has one of the best sets of environmental legislation; yet the effective implementation of this legislation has never been impressive.[31] However, there are factors, which could be identified as generally capable of influencing the enforcement mechanisms of environmental laws.
The major problem within the legal framework is in its sectoral approach in managing the environment. This approach appears to create problems such as leaving certain grey areas unregulated due to the overlap between existing government agencies entrusted to manage environmental issues. The sectoral approach has resulted in passing of a big number of environment related legislation each with its own provisions relating to enforcement. This framework is void of any provision for coordination between various organisations and individuals involved in the various aspects of environmental protection. The need for coordination is essential as it is only with coordination that can cause the evolution of uniform application of the law and creating uniformed environmental management standards.
The nature of the legal framework especially it’s fragmented and disjointed character is because the state often addresses environmental problem on an ad-hoc basis rather than basing it on a sound policy framework. Furthermore, the influence of colonial resource management system and laws that were primarily concerned with resource allocation ad exploitation, dictated by the policy of maximising natural resource exploitation is still not fully eradicated. Thus, the reason for the enactment of separate laws concerned with the use of these resources rather than with sound management for sustainability.
Another impediment within the legal framework relates to the strict rules of standing. Locus standi means ‘place of standing’, that is a place to stand in court or a right to appear in a court of justice on a given question.[32] In short, this “barrier erected by the judge”[33] appears to be the biggest impediment to the institution of environmental litigation actions. Locus standi has always been aiding environmental offenders as the courts often defeat initiatives aimed by public-spirited litigants seeking to enforce the environmental protection law. There is no statutory definition of standing as such leaving it to the discretion of the courts. The Malaysian courts appear to have been rather inconsistent in their view on the interpretation of standing as they have accorded a rather liberal approach towards the issue of standing in some cases and restrictive in others. This could be attributed to the fact that court judgment may also depend on the cogency or arguments as well as the quality and the judicial temperament. Therefore, the developments of relaxed rule of standing will well depend on the creativity, commitment and persistence of litigations.
Federal and State Jurisdictional Issues
As with other countries with federal structures of government, there are always some problematic issues particularly those relating to the jurisdiction between the federal and state authorities. The Federal Constitution of Malaysia, 1957 (“Federal Constitution”) gives substantial powers over land use and natural resource management to the respective States. In the context of a Federation like Malaysia where there exists a complicated relationship between the federal government and state authority, the legislative framework for environmental management is very complex. According to article 74 of the Federal Constitution, matters relating to land, rivers, forests, local government, and town and country planning are within the jurisdiction of the respective State Authority.[34] The State Legislative Assembly has powers to make laws on matters relating to the items listed in the State List in the Federal Constitution. State laws on matters relating to soil, water, or forestry often lack uniformity.[35] This causes weakness in several areas of environmental legislation. The states usually have little incentive and rarely relinquish control over issues relating to land, mines and forests to the Federal government, or to acquiesce in the application of the federal legislation.[36]
The Federal Government has the power to make laws in respect of all matters listed in the Federal List and the Concurrent List.[37] However, the Federal Government can introduce laws on state matters at the request of the state legislative assembly or for purposes of ensuring and promoting uniformity between the laws of two or more states.[38] Subject to the inhibitions imposed by the Federal Constitution on the powers to legislate on matters relating to State jurisdiction, the post independence federal environmental legislation was fragmented and related only to enactments such as forestry management,[39] wildlife protection,[40] and offshore hydrocarbon development.[41]
Hence, if a certain state had inadequate legislation concerning certain natural resources, it was not in the province of the federal government to impose its own legislation on these states. That meant that it was only the state legislature who was endowed with competence to legislate in matters relating to natural resources. Confusion would therefore, be inevitable not only with regard to the application of laws or the accompanying agencies empowered to execute a particular project, but also as to whether the Federal Government had competence to regulate the subject matter in the first place. The courts have at times been called upon to pronounce on the constitutionality of Parliament’s legislation on federal state relations. An important case in point relating to the controversy surrounding the competing powers of Federal and State agencies arose during the submission of the proposal for construction of the Bakun Hydroelectric Dam (“Bakun Dam”) in Sarawak.[42] The dispute was whether the Bakun Dam was to be considered under the EQA 1974, which is a federal environmental legislation, or be governed by the Sarawak State law, that is the Natural Resources Ordinance 1949 (“Sarawak Ordinance”).
The Minister of Science, Technology and Environment (“MOSTE”) by virtue of an amendment order made in 1995, (“1995 Amendment Order”)[43] excluded the application of the Federal EIA requirements in relation to the construction of dams in the State of Sarawak. In effect, this transferred the applicable law from the EQA 1974 wholly to the Sarawak Ordinance. The Sarawak State legislation did not contain the procedural requirements similar to the federal EIA process where the project developer is required to make the EIA report public consultation before the approval of the EIA report is necessary. Thus, it simplified the approval of the EIA report for the Bakun Dam without any form of public participation. The 1995 amendment was criticised for excluding the implementation of the Federal EQA 1974 to the state of Sarawak.
The federal structure inhibits concerted environmental policy developments at both the federal and state levels. This division of powers between the federal and state government makes overall planning for environmental management a cumbersome exercise. According to Safruddin,[44] it is the interaction between design and process and consequently between the competing interests that defines centre-state relations in Malaysia. It is in the nature of such political competition that centre-state tensions and strains frequently emerge. The centre-state relationship is strong in states where the central government candidate is able to form the state government and implement the central government policies. However, in states where the federal government is unable to establish its stronghold, especially in the opposition controlled states[45] the Federal government is often unable to implement the planning and environmental protection policies and law.
Overlapping Functions between Environmental and Planning Agencies
Challenges arise in relation to the competence of the various national agencies responsible for the natural resource sectors. The Department of Environment (“DOE”), which implements the EQA 1974, is largely responsible for industrial pollution control. The vast natural resource sectors like forestry, fisheries, mining and agriculture come under the jurisdiction of other national ministries, with separate sets of regulatory laws. The policy stance where ministries are charged with promoting development within their own respective sectors, without necessary coordination with other government agencies endowed with similar task appears to be detrimental to the environment. That is so for or at least these ministries become sensitively over protective of their powers.
There are problems of overlap in prescriptive and enforcement jurisdiction, since environmental concerns often cut across numerous natural resource sectors and environmental regulation is organised. The overlap in the jurisdiction is evident in relation to implementing the regulation for the prescribed activities under the EIA Order 1987. The list of the prescribed activities requiring an EIA report embraces issues ranging from industry and other infrastructure projects to agriculture, land reclamation, fisheries and forestry. The DOE assess the EIA report for a land development project and makes recommendations as to whether the development is to be permitted or refused. A planning authority can consult any authority, department, person or body before determining an application for planning permission.[46] However, they are not required to strictly follow the opinions of other authorities.[47] The planning authority may choose to ignore the recommendations of the DOE and other government agencies. The Town and Country Planning Act 1976 (Act 172) provides that in determining planning applications, the planning authorities are required to take into consideration all aspects necessary for proper planning,[48] including the directions given by the State Planning Committee.[49] The State Planning Committee can request for the approval of an application for planning permission to be considered for purposes of economic development even if such projects may contradict with the policies in the development plans.
Securing co-operation and co-ordination among ministries or even within one ministry is a common difficulty throughout the world. In Malaysia, where the bureaucracy is relatively new to the needs of environmental management, compared to Western counterparts, this can pose all sorts of management problems. Mechanisms for obtaining co-operation among ministries are relatively undeveloped, basically owing to the strong influence of the cultural characteristics of Malaysian society.
Characteristics of State Bureaucracy and Administrative Values
In practice, Malaysia’s bureaucracy has never been sharply separated from politics[50] as such it is not surprising that Malaysian society is strongly hierarchical. Particularly in the early years of independence, most political leaders who came from bureaucratic background were inclined to fall back on the bureaucratic personnel for advice and support.[51] Malaysians reflect a strong cultural affinity to strong leadership and in furtherance of individual interests. Civil servants and other government officials are often loyal to their superiors in return for job security, financial income and promotions or alternatively employment chances in the private sector in the event of retirement from civil service.[52] The role of the superior officer in return, is to exploit his influence to strengthen the powers of the department and in order to secure his clients in the office by distributing more benefits and protection to the junior staffs.[53]
To maintain client-patron relationship, communication and dissemination of orders and information tend to be vertical whereupon horizontal communication and exchange of information between departments or ministries are either kept to its minimum or discouraged. This state of affairs has undoubtedly proved detrimental to the development of a healthy environmental management, which requires horizontal linkages between the various government institutions concerned with the task of enhancing environment.[54] Obviously the reason is that emphasis on the horizontal linkages may reduce the power and delimit any free access to funds for the individual agencies.[55]
It appears that privatisation, has become another means for political patronage where privatised projects being sold or given to favoured groups and individuals.[56] Of course there have been various debates and arguments about all these objectives; particularly whether privatisation will necessarily be able to achieve them.[57] Often these patron-client linkages extend beyond ethnic boundaries and involve multiethnic co-operation to protect and advance shared interests.[58] The influence of political ideology within development planning regime can be seen as a hindrance to implementing conservation or environmental protection policies. Furthermore, it will be difficult to provide a fair and rational decision either in processing planning applications or appeals against such decisions.
Characteristics of the Civil Society
The cultural characteristic of the Malaysian people is another factor that cannot be ignored as it assumes a crucial role in the way environmental rules and regulations are being enforced. Malaysians are known to suppress their inner feelings in order to avoid criticism, conflict, disagreement and controversy in conducting all interpersonal relations in a smooth and unthreatening manner. The Southeast Asian style of dealing with unpleasant or dangerous situations is avoidance and silence, repressing emotions with the hope that the problem will disappear if matters are smoothed over.[59] Malaysians failed to realise that environmental protection is not a matter exclusively to be dealt with by the government, but a matter that requires full social participation to ensure successful results.
It is important for the public who are the beneficiaries of any ill effects of poorly planned development to be given an opportunity to participate in the decision making process. However, in many situations the interested members of the public are often not allowed to participate owing to the strict rule of standing. The Bakun Dam[60] and Abdul Razak Bin Ahmad’s case[61] are glaring example of the position assumed by the Malaysian courts in dealing with issue of standing. Non-governmental organisations such as the Consumers Association of Penang (“CAP”), Sahabat Alam Malaysia (“SAM”), Malaysian Nature Society (“MNS”) and many more are actively involved in highlighting environmental degradation issues. However, these organisations are often not given the right to participate for lack of standing or sufficient interest to challenge an environmental breach. This will greatly dampen the evolution of environmental advocacy groups that would effectively mobilise public opinion and resources for the protection of the environment.
Providing access to information for the public is also important as it is not possible to comment on any proposed development activity without relevant information. This is tied closely to the issue of transparency and accountability on the part of the administrative bodies empowered to implement the environmental protection measures.
Lack of Resources
Enforcement of environmental law heavily relies on the allocation of resources in terms of personnel and funding necessary to carry out the enforcement functions. For instance there is little point in employing a deterrence style of enforcement if there are insufficient personnel to investigate and prosecute offenders. Shortage of skilled and experienced professionals in both the public and private sectors is a common phenomenon in Malaysia as in most other developing countries. The planning and environmental department officials trained in the physical, biological and social sciences, needed to implement the environmental protection techniques, are not available. Most officials from environment related departments including the Town and Country Planning Department and the DOE often lack sufficient expertise to vet the Development Proposals and the EIA reports submitted by the applicants seeking for grant of planning permission. Despite the realisation of the importance of monitoring compliance of the EIA process, it is lacking due to lack of personnel and increasing numbers of newly approved development projects.
The officers entrusted to make environmental protection policies and regulations also lack legal qualifications as they are trained in the planning, engineering, survey or architectural areas and not law. This largely reduces the effectiveness of the legal provisions. Another important factor is that tenure of employment of planners is often held on a contractual basis.[62] This means there is no incentive to hold the planners from leaving for private sector upon expiry of the contractual period. The vacant office would normally be replaced by another group of relatively inexperienced planners who have to rely heavily on theoretical aspects of planning rather than on technical aspects that are equally important. What is more, they may not even have the opportunity to utilise their acquired skills since they will be shouldering administrative duties. Furthermore, lack of funding to employ sufficient workers causes the existing officials to be burdened with heavier workload imposed upon them. That would inevitably affect the quality of their performance.
Suggestions to Improve Implementation and Enforcement of Environmental Protection Measures
In suggesting solutions on overcoming the issues discussed above, various questions need to be addressed. How to solve the challenges that are being posed to us?; how to consolidate economic and social development?; how to increase production in order to increase economic growth but without compromising the need to reduce social inequalities?; how to develop sustainably without affecting natural resources as source of development without compromising the ability of the future generations to develop? These questions must not be asked not only out of academic or intellectual interests but are to be discussed during policy formulation process as well.
Until recently, economic growth had failed to give sufficient attention to social and environmental effects thus resulting in increased poverty and environmental degradation. The challenges faced by most states irrespective of whether it is a developed or developing nation is to accelerate a fair increase of income and promote access to financial resources and cleaner technologies, to join economic growth with improvement of the environment and social well-being. At the same time, it should not be forgotten that not all natural resources are renewable as such it could be finite if not utilised properly. The challenge gets tougher when we take into account the rate of population growth and the need to resolve social inequalities, inherited from colonialisation. Rational economic growth and social justice must be the objectives of planning and implementation of different stages in the process of sustainable development.
Policies and strategies for the improvement of the environment require continuous strengthening of an institutional and legal framework with official environmental standards besides subscribing to numerous international treaties. Nevertheless efforts in terms of enacting codes of regulations, as a basis to define secondary standards to facilitate updating and improving the regulations as well as it enforcement must be continuous and not carried out on an ad-hoc merely to address an immediate need only. The environmental protection legislation must focus on conservation of natural resources rather than merely focusing on corrective measures. This law must include prevention of environmental damage by development activities, for planning environmental policies. It must include amongst others, the development planning process to focus on features of land and natural resources, environmental impact assessment to prevent negative impacts of production activities and construction works, and the management plans for protected areas.
The government must be prepared to promote active public participation to assure successful implementation of environmental policies and legislation. Most countries realize the importance of public participation in development planning since this will instill a sense of belonging and ensure adherence by the general public. The law can only be effective if there is concurrence at all the strategic levels of the government i.e. the local , state and federal government in prevention of pollution and restoration of the environment. The Federal government must be given more powers in dealing with environmental problems rather than leaving it to the discretion of the states in order not to encroach the powers of the powers in dealing with land and natural resources as enshrined in the Federal Constitution.
The aspect related to overlapping of powers between the environmental protection agencies can be resolved by establishing one-stop center at the Federal government level to implement environmental protection measures as well as enforcing of regulations. There must be a clearly defined environmental policy that is enforced not only by legal mechanisms, but also through adoption of different mechanisms, that operate as part of the economic performance of the nation as well as part of a code for social responsibility.
Concluding Remarks
This article has examined a number of issues affecting the implementation of environmental laws and the problems faced by the decision makers. The root causes of ineffectiveness of the decision making process that hinders the successful implementation of environmental protection measures as mentioned above compromises factors such as:
a. Adoption of policies which gives preference to economic development rather than a sustainable approach to balanced economic development and environmental protection;
b. Lack of coordination between various government agencies endowed with decision making in planning and economic development;
c. Characteristics of the civil society
d. Lack of resources such as manpower and expert professional and finance.
The legal and non-legal environmental protection measures will be able to manage environmental predicaments if it is implemented without fear or favouring any particular development policies or persons.
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* Assistant Professor, Public Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University, Malaysia LL.B (Hons.) (IIUM); Master in Comparative Laws (IIUM); Ph.D (UWA, UK); Advocate and Solicitor, High Court of Malaya.
[1] The word ‘environment’ in the context of this presentation includes the totality of nature and natural resources, including the cultural heritage and the man-made infrastructure to facilitate the development of socio-economic activities.
[2] The West Peninsular Malaysia is dominated by three major ethnic groups namely Malays, Chinese and Indians, whereas the tribal people of Sabah and Sarawak make up most of the population of East Malaysia. See Government of Malaysia, Information Malaysia 1995 Yearbook, (Kuala Lumpur, Government Printers, 1996) at pp.51-52.
[3] Government of Malaysia, Third Malaysia Plan 1976-1980, (Kuala Lumpur, Government Printers, 1975).
[4] Abu Bakar Jaafar, “Malaysia Country Report,” in Environmental and Urban Management in SEA, Azman Awang, Mahboob Salim, Halldance, J.F., (eds.) (Malaysia, Sultan Iskandar Institute of Urban Habitat and High-Rise, 1994) pp. 87-109.
[5] Until the year 2002, there was no National Policy on the Environment. The policy was issued by the Ministry of Science, Technology and Environment in 2002 despite the statement on formulating a national policy made by the Government of Malaysia to the United States Commission on Sustainable Development Fifth Session on the 7-25th April 1997 in New York during the review of the progress of the member countries. This manifests the lack of political will to formulate the policy.
[6] The National Development Policy (“the NDP”) aims to create a more just and united society, besides maintaining social stability and effective economic management. This policy is aimed at providing an environment conducive for growth, with equitable distribution of resources. The NDP places emphasis on eradication of poverty and restructuring of society in order to rectify any social and economic imbalance among the races. NDP seeks to mould the society with positive social and spiritual values and a sense of pride and belonging to the country, to simplify the achievement of its embodied task. The NDP replaced the NEP since 1990.
[7] ‘Vision 2020’ was specially formulated to guide the nation towards a developed status by the year 2020. The progress intended is not limited to economic advancement of the nation only, but covers all aspects of life including social justice, quality of life and political stability, with emphasis being given to positive social and spiritual values.
[8] National Five-Yearly Development Plans was formulated after, achieving independence. The First Malaysia Plan was formulated in 1965 for the duration of the period 1966–1970; the Second Malaysia Plan, for the period 1971–1975; the Third Malaysia Plan, for the period 1976–1980; the Fourth Malaysia Plan, for the period 1981–1985; the Fifth Malaysia Plan, for the period 1986–1990; the Sixth Malaysia Plan, for the period 1991–1995; the Seventh Malaysia Plan, for the period 1996–2000; and Eighth Malaysia Plan, for the period 2001¬–2005). The Ninth Malaysia Plan for the period 2006-2010 will be implemented soon.
[9] The National Environmental Policy was only formulated in 2002.
[10] Although the Government’s development policies are mere guidelines, they nevertheless have assumed an important role in the country’s development process. See article 91(5) of the Federal Constitution of Malaysia 1957, which provides that the National Land Council has a duty to formulate a national policy for the promotion and control of the utilisation of land throughout the Federation for mining, agriculture, forestry, or any other purpose, and for the administration of any laws relating thereto. Such policy is to be formulated from time to time in consultation with the Federal Government, the State Governments and the National Finance Council. It is mandatory for the Federal and State Governments to follow the policy so formulated; Article 91(6) provides that the Federal Government or the Government of any State may consult the National Land Council in respect of any other matter relating to the utilisation of land or in respect of any proposed legislation dealing with land or of the administration of any such law.
[11] Abu Bakar Jaafar, “Malaysia, Policy, Laws and Responses to Environmental Issues”, (Unpublished, Department of Environment, 1995); Amado S. Tolentino Jr. “Environmental Planning and Management”- Regional Symposium on Environmental and Natural Resources Planning, held in Manila on the 19-21 February 1986, Asian Development Bank, at p.77.
[12] Rose, G., “Regional Environmental Law in South East Asia”, (1995) Review of European Community and International Environmental Law, Vol. 4(1) pp.40-48 at p.42. The resolutions and declarations are The Manila Declaration, 1981; The Bangkok Declaration, 1981; The Jakarta Resolution, 1987; The Manila Summit Declaration, 1987; The Langkawi Declaration, 1989; The Kuala Lumpur Accord on Environment and Development, 1990.
[13] Sham Sani, Environmental Quality Act 1974 - Then and Now, (Bangi, Institute for Environment and Development, 1997) at pp.16-17.
[14] The objectives of the National Policy on the Environment are aimed at achieving (i) a clean, safe, healthy and productive environment for present and future generations; (ii) conservation of the country’s unique and diverse cultural and natural heritage with effective participation by all sectors of society; (iii) Sustainable lifestyles and patterns of consumption and production.
[15] Garner, R., Environmental Politics, (UK, Harvester Wheatsheaf, 1996) at p.12.
[16] Ibid
[17] Dryzek, J., Rational Ecology, (Oxford, Blackwell, 1987) pp.10-13.
[18] Sham Sani, op cit., note 13at p.14.
[19] Preamble to the Waters Enactment 1920
[20] Preamble to the Federated Malay States Mining Enactment No.19 of 1928, Cap 147
[21] National Forestry Act 1984 replaced the Forest Enactment Federated Malay States Cap 153
[22] Sabah and Sarawak have inherited their own environmental ordinances, separate from those used in the Peninsular Malaysian States
[23] Sham Sani, op.cit note 13 at pp.16-17
[24] Preamble to the Factories and Machinery Act 1967
[25] Land Conservation Act, 1960 s.5.
[26] Sham Sani, op. cit., note 13 at pp.14 - 15.
[27]S.34A(2) of the Environmental Quality Act 1976, provides that, “Any person intending to carry out any of the prescribed activity shall, before any approval for the carrying out of such activity is granted by the relevant approving authority, submit a report to the Director General. The report shall contain an assessment of the impact of such activity will have or is likely to have on the environment and the proposed measures that shall be undertaken to prevent, reduce or control the adverse impact on the environment.”
[28] For discussion on development trends of Environmental Law in Southeast Asia see Johnston, DM. “Environmental Law as “Sacred Text:” Western Values and Southeast Asian Prospects,” in Johnston, DM. & Ferguson, G.(eds.) Asia-Pacific Legal Development, (Vancouver, UBC Press, 1998) pp.425-426; See Rose G., “Regional Environmental Law in South East Asia,” (1995) Review of European Community and International Environmental Law, Vol. 4(1) at pp.40-48.
[29] Bankoff, G. & Elston, K., Environmental Regulation in Malaysia and Singapore, (Western Australia, Asia Research Centre on Social, Political and Economic Change Murdoch University, Western Australia, 1994) pp.11-16 generally; See Ariffin, S., “Implementation of the Environmental Quality Act in Malaysia,” Water Quality Bulletin, (Vol.8: 1983); Ariffin, S., "Environmental Control by Legislation-Malaysia as A Case Study,"paper presented at the Asian American Conference on Environmental Protection 80, 29th. September -1st October 1980, Jakarta, Indonesia.
[30] Kajing Tubek & Ors. v Ekran Bhd & Ors.[1996] 2 MLJ 388 and on appeal to Court of Appeal Ketua Pengarah Jabatan Alam Sekitar & Anor. v Kajing Tubek & Ors.[1997] 3 MLJ 23; Abdul Razak Ahmad v Kerajaan Negeri Johor & Anor. [1995] 2 MLJ 287;Public Prosecutor v Ta Hsin Enterprise Sdn Bhd. [1998] 6 MLJ 748; Eng Thye Plantations Bhd v Lim Heng Hock & Ors.[2001] 4 MLJ 26; Public Prosecutor v Manager, MBF Building Services Sdn Bhd. [1998] 1 MLJ 690; Collector of Land Revenue, Federal Territory v Garden City Development Bhd.[1979] 1 MLJ 223.
[31] Sham Sani, op. cit. note 15 at p.56; See also Bankoff, G & Elston, K., Environmental Regulation in Malaysia and Singapore,(Western Australia, Asia Research Centre on Social, Political and Economic Change Murdoch University, Western Australia, 1994).
[32] District Council Central Province Wellesley v Yegappan [1966] 2 MLJ 177; Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors.[1992] 2 MLJ 393 at p.401; Freddie Lee @ Lee Long Kooi & 2 Ors v Majlis Perbandaran Petaling Jaya & Anor.[1994] 3 MLJ 640; Abdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar [1994] 2 CLJ 363; For a study on locus standi see Thio, S.M., Locus Standi and Judicial Review, (Singapore, Singapore University Press, 1971) at p.1.
[33]Seah SCJ in Government of Malaysia v Lim Kit Siang[1988] 2 MLJ 12 at p. 33: “The Latin phrase "locus standi" as used by the courts in England, or "standing in courts" as the term is commonly understood by the lawyers in the United States of America, seems to indicate that a person is allowed by the judges to appear and be heard in a legal proceeding. It is a procedural barrier erected by the judges to prevent the court's time and public money from being wasted by multiplicity of frivolous and vexatious litigations brought by busybodies whose actions are bound to fail in limine and also to prevent abuse of the legal process.”
[34] Pursuant to the provision of articles 83 and 92 of the Federal Constitution of Malaysia, 1957, the Federal Government is empowered to acquire state land for federal purposes and as such it is assumed that federal legislation is applicable in the acquired areas.
[35] The reason is often attributed to the fact that these laws have diverse origins i.e. some based on Federated Malay States enactments, some on Straits Settlements ordinances and some on an amalgam of both.
[36] Federal law or legislation means an Act of Parliament, and any other law in force in Malaysia or any part thereof which relates to a matter with respect to which the Federal Parliament has power to make laws, see s 3 of the Interpretation Acts 1948 and 1967.
[37] Article 74 of the Federal Constitution of Malaysia 1957 provides that, the Federal Parliament may make laws with respect only to subjects on the Federal and Concurrent Lists, and the States may only introduce laws with respect to subjects enumerated in the State and Concurrent Lists.
[38] For example the Land Conservation Act 1960 was introduced in an attempt to standardize the pre-existing state legislation. Federal Legislation is introduced for purposes of uniformity are not automatically operative in a state, and it is applicable in a state only with the adoption of the same by the State Authority of the respective states. Such laws can be amended or repealed at a later time without the any reference to the Federal Government; Article 94 of the Federal Constitution of Malaysia 1957, requires amongst others that, state agricultural and forestry officers must accept professional advice from their federal counterparts. In addition the Article makes provision for the Federal Government to establish departments or ministries with respect to the state subjects i.e. soil conservation, local government, and town and country planning.
[39] Post independence Malaysian government introduced forestry laws, since the British did not attempt to introduce forestry laws. The British were interested in mining, but not timber, possibly because “logs from African colonies were of better quality, cheaper, and easier to transport to Great Britain”, see Nik Abdul Rashid, “The Environmental Law in Malaysia,” in I. Kato et. al. eds., Environmental Law and Policy in the Pacific Basin Area (Tokyo, University of Tokyo Press, 1981) p.13. Initially forest management in the Federation of Malaysia was perceived to be local regulatory issue that should be assigned to State List see Thanarajasingam, S., “Malaysia”, in IUCN, Legislation for Implementation of the ASEAN Agreement on Conservation of Nature and Natural Resources, Country Reports (Bonn, IUCN Environmental Law Program, 1994) at pp.69-70.
[40] Under the Wildlife Act 1976 differential species are protected in accordance with the degree to which they are threatened or endangered.
[41] Continental Shelf Act 1966 and Petroleum Mining Act 1966 provides for offshore conservation.
[42] Kajing Tubek & Ors v Ekran Bhd & Ors [1996] 2 MLJ 388 (HC)
[43] Environmental Quality (Prescribed Activities)(Environmental Impact Assessment) Order 1995.
[44] Safruddin, B.H., “Malaysian Center-State Relations by Design and Process”, in Shafruddin, B.H. & Fadzli, I.,(eds.) Between Centre and State: Federalism in Perspective,(Malaysia, ISIS Malaysia, 1988) at p.22.
[45] At present, PAS which is the strong opposition party has managed to control the East Coast state of Kelantan.
[46] Rule 9 of the Town and Country Planning Act 1976 (Planning Control General) Rules 1990.
[47] Chong Co. Sdn. Bhd. v Majlis Perbandaran Pulau Pinang [2000] 5 MLJ 130; In Bencon Development Sdn. Bhd. v Majlis Perbandaran Pulau Pinang [1999] 2 MLJ 385.
[48] S 22(2) of the Town and Country Planning Act 1976.
[49] S 22(2)(aa) of the Town and Country Planning Act 1976; In respect of the Federal Territory s 22 of the Federal Territory (Planning) Act 1982, provides the term ‘other material considerations’ that offers the authorities discretionary powers and the flexibility to consider planning applications made by the Bumiputera developers even if such applications may not be able to fulfill the necessary environmental requirements.
[50] Funston, J., “Malaysia -Developmental State Challenged”, op.cit. note 39, at p.175.
[51] Ibid.
[52] Boyle, J., “Cultural Influences On Implementing Environmental Impact Assessment: Insights from the Thailand, Indonesia and Malaysia,” in EIA Review, Vol.18, No.2 March 1998, pp.95-116 at p.98.
[53] Asrul Zamani, The Malay Ideals, (Malaysia, Golden Books Centre Sdn. Bhd., 2002) Chapter V.
[54] Gomez, E.T., “Ownership Patterns, Patronage and the NEP,” in Muhammad Ikmal Said and Zahid Emby (eds.) Malaysia: Critical Perspectives - Essays in Honour of Syed Husin Ali, (Malaysia, Malaysian Social Science Association, 1996) pp.132-154 at p.137.
[55] Ibid..
[56] See Francis Loh, K.W., & Khoo, B.T., (eds), Democracy in Malaysia - Discourses and Practices, (Surrey, Curzon Press, 2002) pp.186-87.
[57] See Asher, M.G. & Strazzulo, A., “Privatisation - Contents, Processes and Impact with special reference to Southeast Asia”, in. Quah, E. & Neilson, W. (eds), Law and Economic Developments - Cases and Materials from Southeast Asia, (Singapore, Longmans Singapore Pte. Ltd., 1993) pp.151-68.
[58] Ibid.
[59] Pye, Asian Power and Politics: The Cultural Dimensions of Authority, (Cambridge, Belknap Press, Harvard University, 1985) p.325.
[60] Kajing Tubek & Ors. v Ekran Bhd & Ors.[1996] 2 MLJ 388 and on appeal to Court of Appeal Ketua Pengarah Jabatan Alam Sekitar & Anor. v Kajing Tubek & Ors.[1997] 3 MLJ 23;
[61] Abdul Razak Ahmad v Kerajaan Negeri Johor & Anor. [1995] 2 MLJ 287.
[62] Ahmad Atory Hussain, Penghantar Pentadbiran Awam - Pradigma Baru (Malaysia, Utusan Publications & Distributors Sdn. Bhd., 2002) Chapter 14 generally; Phang, S.N., Sistem Kerajaan Tempatan di Malaysia”(Kuala Lumpur, Dewan Bahasa dan Pustaka, 1997) Chapter 5 generally.
*This paper was delivered at the 13th Malaysian Law Conference.
The Declaration of the United Nations Conference on Human Environment in Stockholm in 1972 recognised the need to adopt measures for the protection of the environment[1] and made an appeal to all countries in this respect. In response to this, the governments of all countries began incorporating environmental aspects into their administrative and legislative framework. Malaysia too signed various other international conventions and incorporated the guidelines outlined in the conventions into the government policies regarding environment.
The environmental predicament in Malaysia cannot be overstated. The indifferent attitude of the Malaysian policy makers towards a long-term development in preference to short-term fast economic gains has contributed immensely to the environmental woes of the country. They failed to learn from history that has clearly shown that one of the main reasons for societies’ collapse is conscious destruction of their natural resources. A society seeking rapid development could achieve its aspirations without necessarily having to compromise its environment. As such it is essential for any society to ensure that it develops without necessarily compromising its environmental needs so as not to undermine the present achievements.
Burdened with the task of balancing economic development and environmental protection, the Malaysian government introduced various legal and non-legal strategies to manage the persisting environmental predicaments. Legal measures involved passing of related legislation. Non-legal measures include formulating guidelines, disseminating environmental education, research, and organising of development planning system. All these measures are based on the policies formulated by the government.
Policy Framework
Formulating land development policies and legislative measures in modern Malaysia has been influenced to a great extent by its political history and continued colonial legacy. The effects of the multi ethnic, religious and diverse cultural structure of Malaysian society should not be disregarded.[2] Malaysia’s environmental management policy was apparent in the Third Malaysia Plan,[3] where it declared its aims to balance the goals of socio-economic development and maintain sound environmental conditions.[4] These policies guided the formulation of environmental protection measures to promote sustainable development in order to meet the changing needs of rapid development in the society. The policies are being continued in the five-yearly National Development Plans.[5] Three principal policies, i.e. the National Development Policy,[6] Vision 2020[7] the Five-yearly Development Plans[8] and the National Environmental Policy,[9] have become the corner stone for national development planning and implementation of environmental protection policies.[10] These policies guide the Government in embarking on land planning and environmental management programs.[11] The general objectives of the environmental policies embodied in the National Development Plans are complemented and re-enforced further by bilateral or multilateral commitments through agreements, resolutions, declarations and international conventions.[12] Malaysia signed various other international conventions such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the 1992 Convention on Climate Change and Biodiversity, the Brundtland Report in 1987, the United Nations General Assembly Resolution 44/228 and the Earth Summit.[13] The guidelines outlined in these documents have been embodied in the government policies regarding environment. A National Policy on Environment was formulated in 2002 to provide a policy framework to promote a coordinated environmental management strategy.[14]
However, the implementation of these policies has always been fraught with other sensitive political issues at both the Federal and State levels, as it is a highly politicised area. This is not unique to Malaysian situation, but a universally acclaimed factor. It has been suggested that there is always an impending political conflict between various interests underlying any major environmental policy decision, as environmental issues tend to encompass multiple governmental activities such as transport, land planning, agriculture, industries, housing development and various others.[15] These separate policy areas centring on a particular government department tend to provide a great deal of influence for development-oriented interests.[16]
An environmental policy to be truly sustainable requires the integration of all related aspects such as water and air so as to ensure that the problems are not dealt with in a fragmented manner as the situation arises.[17] It is useless talking of eliminating pollution, without taking into account its adverse effects on the general development strategies. The following discussion will examine the development of environmental law, taking into account the socio-political and economic dimensions in the country. Despite the shortcomings of the development policies in addressing environmental problems, the same policies, however, seem to provide the basis for making environmental protection laws.
Legal Framework
The early formal response to environmental problems arising from development particularly those relating to the depletion of natural resources was the Straits Settlement Ordinance No.3 of 1894. The main concern of the enactment was aimed at the protection of several species of wild birds.[18] That was followed by a number of laws relating to various environmental problems before independence. For example, the Waters Enactment 1920 (Act 418) was designed to control and prohibit disruption of river, so as not to interfere with the smooth flow of water. The law also provided for the restriction of discharges of specific substances into the river, which might be detrimental to the beneficial use of the river waters throughout Peninsular Malaya.[19] The Merchant Shipping Ordinance governs marine pollution by vessels, the Poisons Ordinance 1952 regulates the use of toxic substances, the Animals Ordinance 1953 controls the spread of animal disease and prevent cruelty to animals. The Mining Act controls discharges from mining activities into watercourses,[20] and the Forest Enactment 1934 Cap 153[21] provides for the establishment of forest reserves and control in logging activities.[22] Most of the legislation passed to address problems in various sectors such as fisheries, agriculture, forestry, plant disease control, public health, water quality, and air pollution before independence was also preserved.[23]
Post independence legislation such as the Factories and Machinery Act 1967 provides for care in the working environment by stipulating the requirement to provide a safe working place.[24] The Land Conservation Act 1960 was aimed at conserving hill land and the protection of soil from erosion and the inroads of silt. It generally prohibits planting of short-term crops on any hill land. However, the Act permits the Land Administrator to issue an annual permit to plant specified short-term crops to any person who satisfies him that such cultivation will not cause appreciable soil erosion.[25]
Although by the end of 1970s, the number of environmental protection legislation had grown enormously, nevertheless it was unable to curb soaring environmental problems due to modern industries and technological advancement. The reason was probably because much of the legislation was not originally designed to address core environmental problems but was passed to address specific instances as they arose from specific activity or forms of development.[26] Thus, it is not surprising to observe that all legislation enacted prior to 1974 was largely sectoral in nature focussing on specific areas of activity. These legislation failed to adopt any integrated approach and unable to cope with the ever increasing and complex environmental problems of the modernising nation.
The government’s decision to enact comprehensive environmental conservation legislation culminated in the passing of the Environmental Quality Act 1974 (“EQA 1974”). The Department of Environment (“DOE”) is the principal agency entrusted to administer the Act. The Minister of Science, Technology and Environment, pursuant to the powers conferred on him by the EQA 1974, enacted the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 (“EIA Order 1987”) that came into effect in 1988. The EIA Order 1987 was introduced to ensure the activities prescribed in the schedule to the EIA Order 1987 conduct an environmental impact assessment (“EIA”) process for prescribed activities.[27] The EIA process will enable the decision makers to assess the impact of a proposed development project on the environment and the mitigating measures to reduce the risk and impact of such process on the environment. The EIA process is intended to influence the decision maker in deciding whether or not a land development project should be permitted based on the information supplied by the project proponent seeking to obtain planning permission for a development project. The EIA process also provides avenues for public participation in the decision making process. In recent years, the EIA process has been acknowledged as having a role in ‘implementing’ the principle of sustainable development by assisting decision makers to take into account the quality of development, the effect upon the conservation of natural resources as well as its location and quantity.
Modern environmental law in Malaysia, similar to other Southeast Asian region had little to build on what could be described as a design for promoting holistic environmental protection. Most of the legal framework in force was at best environmentally neutral or obstructed environmental purposes to the extent that it elevated the prerogatives of ownership.[28] Despite an impressive legal and administrative structure, the desired protection for the environment has yet to be achieved. This is due to the fact that environmental protection is often politicised.[29] Furthermore, post independence development policies often accord priority to economic development rather than promoting environmental protection. Thus, there is no stimulus for reappraisal of the archaic colonial laws or the establishment of a systematic regime for environmental protection as a whole.
Despite the significant numbers of breaches of environmental law, the proportion of prosecutions or other enforcement action is extremely low. To date there are only five reported cases under the heading of environmental law in the law reports in Malaysia.[30] The local authorities and other government agencies prosecute environmental offenders using laws other than the environmental law, principally tort law (i.e. nuisance, trespass, negligence). The DOE, as the principal agency entrusted to implement and enforce the environmental protection legislation has limited powers to deal with the land planning system. This is because power to regulate land development is solely within the discretion of the State Planning Committee at the state government level and the local planning authorities at the local government level. Though administrative enforcements of environmental disputes are proportionately higher, nonetheless there are a significant number of offences that are actually unpunished.
Environmental law essentially consists of federal and state legislation in the form of statutes, local authority by-laws, ordinances, regulations as well as court rulings. The area of these laws and regulations is so wide to encompass public health as well as conservation, pollution control, and land use control. Generally the Malaysian pollution control law in the form of statutes and regulations takes the “command and control” approach. It creates agencies assuming jurisdiction over various types of environmental problems identified by the legislature. These legislation prescribes issuance of permits to engage in polluting activities or restricted land uses, authorise the agencies to promulgate regulations to clarify the vague statutory provisions, authorise administrative and court enforcement actions and impose penalties for breach.
It is undeniable that the introduction of a system of comprehensive environmental regulation in Malaysia is aimed at protecting the environment in the interest of the public. Law in practice is usually affected by the values and culture of the legislature and judiciary. The same may be true not only about those who set the standards by which those rules operate, but also with regards to those who implement and enforce rules and standards. The environmental regulatory system, which is made up of stratified set of laws, rules, and administrative guidelines and the establishment of various statutory agencies to administer the rules does not make the enforcement process any simpler. Any list of factors which influence enforcement could never be comprehensive as each individual case is unique and will have peculiar circumstances which shape the exercise of an enforcement agency’s discretion. Many observers both from within and outside Malaysia have often remarked that while Malaysia has one of the best sets of environmental legislation; yet the effective implementation of this legislation has never been impressive.[31] However, there are factors, which could be identified as generally capable of influencing the enforcement mechanisms of environmental laws.
The major problem within the legal framework is in its sectoral approach in managing the environment. This approach appears to create problems such as leaving certain grey areas unregulated due to the overlap between existing government agencies entrusted to manage environmental issues. The sectoral approach has resulted in passing of a big number of environment related legislation each with its own provisions relating to enforcement. This framework is void of any provision for coordination between various organisations and individuals involved in the various aspects of environmental protection. The need for coordination is essential as it is only with coordination that can cause the evolution of uniform application of the law and creating uniformed environmental management standards.
The nature of the legal framework especially it’s fragmented and disjointed character is because the state often addresses environmental problem on an ad-hoc basis rather than basing it on a sound policy framework. Furthermore, the influence of colonial resource management system and laws that were primarily concerned with resource allocation ad exploitation, dictated by the policy of maximising natural resource exploitation is still not fully eradicated. Thus, the reason for the enactment of separate laws concerned with the use of these resources rather than with sound management for sustainability.
Another impediment within the legal framework relates to the strict rules of standing. Locus standi means ‘place of standing’, that is a place to stand in court or a right to appear in a court of justice on a given question.[32] In short, this “barrier erected by the judge”[33] appears to be the biggest impediment to the institution of environmental litigation actions. Locus standi has always been aiding environmental offenders as the courts often defeat initiatives aimed by public-spirited litigants seeking to enforce the environmental protection law. There is no statutory definition of standing as such leaving it to the discretion of the courts. The Malaysian courts appear to have been rather inconsistent in their view on the interpretation of standing as they have accorded a rather liberal approach towards the issue of standing in some cases and restrictive in others. This could be attributed to the fact that court judgment may also depend on the cogency or arguments as well as the quality and the judicial temperament. Therefore, the developments of relaxed rule of standing will well depend on the creativity, commitment and persistence of litigations.
Federal and State Jurisdictional Issues
As with other countries with federal structures of government, there are always some problematic issues particularly those relating to the jurisdiction between the federal and state authorities. The Federal Constitution of Malaysia, 1957 (“Federal Constitution”) gives substantial powers over land use and natural resource management to the respective States. In the context of a Federation like Malaysia where there exists a complicated relationship between the federal government and state authority, the legislative framework for environmental management is very complex. According to article 74 of the Federal Constitution, matters relating to land, rivers, forests, local government, and town and country planning are within the jurisdiction of the respective State Authority.[34] The State Legislative Assembly has powers to make laws on matters relating to the items listed in the State List in the Federal Constitution. State laws on matters relating to soil, water, or forestry often lack uniformity.[35] This causes weakness in several areas of environmental legislation. The states usually have little incentive and rarely relinquish control over issues relating to land, mines and forests to the Federal government, or to acquiesce in the application of the federal legislation.[36]
The Federal Government has the power to make laws in respect of all matters listed in the Federal List and the Concurrent List.[37] However, the Federal Government can introduce laws on state matters at the request of the state legislative assembly or for purposes of ensuring and promoting uniformity between the laws of two or more states.[38] Subject to the inhibitions imposed by the Federal Constitution on the powers to legislate on matters relating to State jurisdiction, the post independence federal environmental legislation was fragmented and related only to enactments such as forestry management,[39] wildlife protection,[40] and offshore hydrocarbon development.[41]
Hence, if a certain state had inadequate legislation concerning certain natural resources, it was not in the province of the federal government to impose its own legislation on these states. That meant that it was only the state legislature who was endowed with competence to legislate in matters relating to natural resources. Confusion would therefore, be inevitable not only with regard to the application of laws or the accompanying agencies empowered to execute a particular project, but also as to whether the Federal Government had competence to regulate the subject matter in the first place. The courts have at times been called upon to pronounce on the constitutionality of Parliament’s legislation on federal state relations. An important case in point relating to the controversy surrounding the competing powers of Federal and State agencies arose during the submission of the proposal for construction of the Bakun Hydroelectric Dam (“Bakun Dam”) in Sarawak.[42] The dispute was whether the Bakun Dam was to be considered under the EQA 1974, which is a federal environmental legislation, or be governed by the Sarawak State law, that is the Natural Resources Ordinance 1949 (“Sarawak Ordinance”).
The Minister of Science, Technology and Environment (“MOSTE”) by virtue of an amendment order made in 1995, (“1995 Amendment Order”)[43] excluded the application of the Federal EIA requirements in relation to the construction of dams in the State of Sarawak. In effect, this transferred the applicable law from the EQA 1974 wholly to the Sarawak Ordinance. The Sarawak State legislation did not contain the procedural requirements similar to the federal EIA process where the project developer is required to make the EIA report public consultation before the approval of the EIA report is necessary. Thus, it simplified the approval of the EIA report for the Bakun Dam without any form of public participation. The 1995 amendment was criticised for excluding the implementation of the Federal EQA 1974 to the state of Sarawak.
The federal structure inhibits concerted environmental policy developments at both the federal and state levels. This division of powers between the federal and state government makes overall planning for environmental management a cumbersome exercise. According to Safruddin,[44] it is the interaction between design and process and consequently between the competing interests that defines centre-state relations in Malaysia. It is in the nature of such political competition that centre-state tensions and strains frequently emerge. The centre-state relationship is strong in states where the central government candidate is able to form the state government and implement the central government policies. However, in states where the federal government is unable to establish its stronghold, especially in the opposition controlled states[45] the Federal government is often unable to implement the planning and environmental protection policies and law.
Overlapping Functions between Environmental and Planning Agencies
Challenges arise in relation to the competence of the various national agencies responsible for the natural resource sectors. The Department of Environment (“DOE”), which implements the EQA 1974, is largely responsible for industrial pollution control. The vast natural resource sectors like forestry, fisheries, mining and agriculture come under the jurisdiction of other national ministries, with separate sets of regulatory laws. The policy stance where ministries are charged with promoting development within their own respective sectors, without necessary coordination with other government agencies endowed with similar task appears to be detrimental to the environment. That is so for or at least these ministries become sensitively over protective of their powers.
There are problems of overlap in prescriptive and enforcement jurisdiction, since environmental concerns often cut across numerous natural resource sectors and environmental regulation is organised. The overlap in the jurisdiction is evident in relation to implementing the regulation for the prescribed activities under the EIA Order 1987. The list of the prescribed activities requiring an EIA report embraces issues ranging from industry and other infrastructure projects to agriculture, land reclamation, fisheries and forestry. The DOE assess the EIA report for a land development project and makes recommendations as to whether the development is to be permitted or refused. A planning authority can consult any authority, department, person or body before determining an application for planning permission.[46] However, they are not required to strictly follow the opinions of other authorities.[47] The planning authority may choose to ignore the recommendations of the DOE and other government agencies. The Town and Country Planning Act 1976 (Act 172) provides that in determining planning applications, the planning authorities are required to take into consideration all aspects necessary for proper planning,[48] including the directions given by the State Planning Committee.[49] The State Planning Committee can request for the approval of an application for planning permission to be considered for purposes of economic development even if such projects may contradict with the policies in the development plans.
Securing co-operation and co-ordination among ministries or even within one ministry is a common difficulty throughout the world. In Malaysia, where the bureaucracy is relatively new to the needs of environmental management, compared to Western counterparts, this can pose all sorts of management problems. Mechanisms for obtaining co-operation among ministries are relatively undeveloped, basically owing to the strong influence of the cultural characteristics of Malaysian society.
Characteristics of State Bureaucracy and Administrative Values
In practice, Malaysia’s bureaucracy has never been sharply separated from politics[50] as such it is not surprising that Malaysian society is strongly hierarchical. Particularly in the early years of independence, most political leaders who came from bureaucratic background were inclined to fall back on the bureaucratic personnel for advice and support.[51] Malaysians reflect a strong cultural affinity to strong leadership and in furtherance of individual interests. Civil servants and other government officials are often loyal to their superiors in return for job security, financial income and promotions or alternatively employment chances in the private sector in the event of retirement from civil service.[52] The role of the superior officer in return, is to exploit his influence to strengthen the powers of the department and in order to secure his clients in the office by distributing more benefits and protection to the junior staffs.[53]
To maintain client-patron relationship, communication and dissemination of orders and information tend to be vertical whereupon horizontal communication and exchange of information between departments or ministries are either kept to its minimum or discouraged. This state of affairs has undoubtedly proved detrimental to the development of a healthy environmental management, which requires horizontal linkages between the various government institutions concerned with the task of enhancing environment.[54] Obviously the reason is that emphasis on the horizontal linkages may reduce the power and delimit any free access to funds for the individual agencies.[55]
It appears that privatisation, has become another means for political patronage where privatised projects being sold or given to favoured groups and individuals.[56] Of course there have been various debates and arguments about all these objectives; particularly whether privatisation will necessarily be able to achieve them.[57] Often these patron-client linkages extend beyond ethnic boundaries and involve multiethnic co-operation to protect and advance shared interests.[58] The influence of political ideology within development planning regime can be seen as a hindrance to implementing conservation or environmental protection policies. Furthermore, it will be difficult to provide a fair and rational decision either in processing planning applications or appeals against such decisions.
Characteristics of the Civil Society
The cultural characteristic of the Malaysian people is another factor that cannot be ignored as it assumes a crucial role in the way environmental rules and regulations are being enforced. Malaysians are known to suppress their inner feelings in order to avoid criticism, conflict, disagreement and controversy in conducting all interpersonal relations in a smooth and unthreatening manner. The Southeast Asian style of dealing with unpleasant or dangerous situations is avoidance and silence, repressing emotions with the hope that the problem will disappear if matters are smoothed over.[59] Malaysians failed to realise that environmental protection is not a matter exclusively to be dealt with by the government, but a matter that requires full social participation to ensure successful results.
It is important for the public who are the beneficiaries of any ill effects of poorly planned development to be given an opportunity to participate in the decision making process. However, in many situations the interested members of the public are often not allowed to participate owing to the strict rule of standing. The Bakun Dam[60] and Abdul Razak Bin Ahmad’s case[61] are glaring example of the position assumed by the Malaysian courts in dealing with issue of standing. Non-governmental organisations such as the Consumers Association of Penang (“CAP”), Sahabat Alam Malaysia (“SAM”), Malaysian Nature Society (“MNS”) and many more are actively involved in highlighting environmental degradation issues. However, these organisations are often not given the right to participate for lack of standing or sufficient interest to challenge an environmental breach. This will greatly dampen the evolution of environmental advocacy groups that would effectively mobilise public opinion and resources for the protection of the environment.
Providing access to information for the public is also important as it is not possible to comment on any proposed development activity without relevant information. This is tied closely to the issue of transparency and accountability on the part of the administrative bodies empowered to implement the environmental protection measures.
Lack of Resources
Enforcement of environmental law heavily relies on the allocation of resources in terms of personnel and funding necessary to carry out the enforcement functions. For instance there is little point in employing a deterrence style of enforcement if there are insufficient personnel to investigate and prosecute offenders. Shortage of skilled and experienced professionals in both the public and private sectors is a common phenomenon in Malaysia as in most other developing countries. The planning and environmental department officials trained in the physical, biological and social sciences, needed to implement the environmental protection techniques, are not available. Most officials from environment related departments including the Town and Country Planning Department and the DOE often lack sufficient expertise to vet the Development Proposals and the EIA reports submitted by the applicants seeking for grant of planning permission. Despite the realisation of the importance of monitoring compliance of the EIA process, it is lacking due to lack of personnel and increasing numbers of newly approved development projects.
The officers entrusted to make environmental protection policies and regulations also lack legal qualifications as they are trained in the planning, engineering, survey or architectural areas and not law. This largely reduces the effectiveness of the legal provisions. Another important factor is that tenure of employment of planners is often held on a contractual basis.[62] This means there is no incentive to hold the planners from leaving for private sector upon expiry of the contractual period. The vacant office would normally be replaced by another group of relatively inexperienced planners who have to rely heavily on theoretical aspects of planning rather than on technical aspects that are equally important. What is more, they may not even have the opportunity to utilise their acquired skills since they will be shouldering administrative duties. Furthermore, lack of funding to employ sufficient workers causes the existing officials to be burdened with heavier workload imposed upon them. That would inevitably affect the quality of their performance.
Suggestions to Improve Implementation and Enforcement of Environmental Protection Measures
In suggesting solutions on overcoming the issues discussed above, various questions need to be addressed. How to solve the challenges that are being posed to us?; how to consolidate economic and social development?; how to increase production in order to increase economic growth but without compromising the need to reduce social inequalities?; how to develop sustainably without affecting natural resources as source of development without compromising the ability of the future generations to develop? These questions must not be asked not only out of academic or intellectual interests but are to be discussed during policy formulation process as well.
Until recently, economic growth had failed to give sufficient attention to social and environmental effects thus resulting in increased poverty and environmental degradation. The challenges faced by most states irrespective of whether it is a developed or developing nation is to accelerate a fair increase of income and promote access to financial resources and cleaner technologies, to join economic growth with improvement of the environment and social well-being. At the same time, it should not be forgotten that not all natural resources are renewable as such it could be finite if not utilised properly. The challenge gets tougher when we take into account the rate of population growth and the need to resolve social inequalities, inherited from colonialisation. Rational economic growth and social justice must be the objectives of planning and implementation of different stages in the process of sustainable development.
Policies and strategies for the improvement of the environment require continuous strengthening of an institutional and legal framework with official environmental standards besides subscribing to numerous international treaties. Nevertheless efforts in terms of enacting codes of regulations, as a basis to define secondary standards to facilitate updating and improving the regulations as well as it enforcement must be continuous and not carried out on an ad-hoc merely to address an immediate need only. The environmental protection legislation must focus on conservation of natural resources rather than merely focusing on corrective measures. This law must include prevention of environmental damage by development activities, for planning environmental policies. It must include amongst others, the development planning process to focus on features of land and natural resources, environmental impact assessment to prevent negative impacts of production activities and construction works, and the management plans for protected areas.
The government must be prepared to promote active public participation to assure successful implementation of environmental policies and legislation. Most countries realize the importance of public participation in development planning since this will instill a sense of belonging and ensure adherence by the general public. The law can only be effective if there is concurrence at all the strategic levels of the government i.e. the local , state and federal government in prevention of pollution and restoration of the environment. The Federal government must be given more powers in dealing with environmental problems rather than leaving it to the discretion of the states in order not to encroach the powers of the powers in dealing with land and natural resources as enshrined in the Federal Constitution.
The aspect related to overlapping of powers between the environmental protection agencies can be resolved by establishing one-stop center at the Federal government level to implement environmental protection measures as well as enforcing of regulations. There must be a clearly defined environmental policy that is enforced not only by legal mechanisms, but also through adoption of different mechanisms, that operate as part of the economic performance of the nation as well as part of a code for social responsibility.
Concluding Remarks
This article has examined a number of issues affecting the implementation of environmental laws and the problems faced by the decision makers. The root causes of ineffectiveness of the decision making process that hinders the successful implementation of environmental protection measures as mentioned above compromises factors such as:
a. Adoption of policies which gives preference to economic development rather than a sustainable approach to balanced economic development and environmental protection;
b. Lack of coordination between various government agencies endowed with decision making in planning and economic development;
c. Characteristics of the civil society
d. Lack of resources such as manpower and expert professional and finance.
The legal and non-legal environmental protection measures will be able to manage environmental predicaments if it is implemented without fear or favouring any particular development policies or persons.
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* Assistant Professor, Public Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University, Malaysia LL.B (Hons.) (IIUM); Master in Comparative Laws (IIUM); Ph.D (UWA, UK); Advocate and Solicitor, High Court of Malaya.
[1] The word ‘environment’ in the context of this presentation includes the totality of nature and natural resources, including the cultural heritage and the man-made infrastructure to facilitate the development of socio-economic activities.
[2] The West Peninsular Malaysia is dominated by three major ethnic groups namely Malays, Chinese and Indians, whereas the tribal people of Sabah and Sarawak make up most of the population of East Malaysia. See Government of Malaysia, Information Malaysia 1995 Yearbook, (Kuala Lumpur, Government Printers, 1996) at pp.51-52.
[3] Government of Malaysia, Third Malaysia Plan 1976-1980, (Kuala Lumpur, Government Printers, 1975).
[4] Abu Bakar Jaafar, “Malaysia Country Report,” in Environmental and Urban Management in SEA, Azman Awang, Mahboob Salim, Halldance, J.F., (eds.) (Malaysia, Sultan Iskandar Institute of Urban Habitat and High-Rise, 1994) pp. 87-109.
[5] Until the year 2002, there was no National Policy on the Environment. The policy was issued by the Ministry of Science, Technology and Environment in 2002 despite the statement on formulating a national policy made by the Government of Malaysia to the United States Commission on Sustainable Development Fifth Session on the 7-25th April 1997 in New York during the review of the progress of the member countries. This manifests the lack of political will to formulate the policy.
[6] The National Development Policy (“the NDP”) aims to create a more just and united society, besides maintaining social stability and effective economic management. This policy is aimed at providing an environment conducive for growth, with equitable distribution of resources. The NDP places emphasis on eradication of poverty and restructuring of society in order to rectify any social and economic imbalance among the races. NDP seeks to mould the society with positive social and spiritual values and a sense of pride and belonging to the country, to simplify the achievement of its embodied task. The NDP replaced the NEP since 1990.
[7] ‘Vision 2020’ was specially formulated to guide the nation towards a developed status by the year 2020. The progress intended is not limited to economic advancement of the nation only, but covers all aspects of life including social justice, quality of life and political stability, with emphasis being given to positive social and spiritual values.
[8] National Five-Yearly Development Plans was formulated after, achieving independence. The First Malaysia Plan was formulated in 1965 for the duration of the period 1966–1970; the Second Malaysia Plan, for the period 1971–1975; the Third Malaysia Plan, for the period 1976–1980; the Fourth Malaysia Plan, for the period 1981–1985; the Fifth Malaysia Plan, for the period 1986–1990; the Sixth Malaysia Plan, for the period 1991–1995; the Seventh Malaysia Plan, for the period 1996–2000; and Eighth Malaysia Plan, for the period 2001¬–2005). The Ninth Malaysia Plan for the period 2006-2010 will be implemented soon.
[9] The National Environmental Policy was only formulated in 2002.
[10] Although the Government’s development policies are mere guidelines, they nevertheless have assumed an important role in the country’s development process. See article 91(5) of the Federal Constitution of Malaysia 1957, which provides that the National Land Council has a duty to formulate a national policy for the promotion and control of the utilisation of land throughout the Federation for mining, agriculture, forestry, or any other purpose, and for the administration of any laws relating thereto. Such policy is to be formulated from time to time in consultation with the Federal Government, the State Governments and the National Finance Council. It is mandatory for the Federal and State Governments to follow the policy so formulated; Article 91(6) provides that the Federal Government or the Government of any State may consult the National Land Council in respect of any other matter relating to the utilisation of land or in respect of any proposed legislation dealing with land or of the administration of any such law.
[11] Abu Bakar Jaafar, “Malaysia, Policy, Laws and Responses to Environmental Issues”, (Unpublished, Department of Environment, 1995); Amado S. Tolentino Jr. “Environmental Planning and Management”- Regional Symposium on Environmental and Natural Resources Planning, held in Manila on the 19-21 February 1986, Asian Development Bank, at p.77.
[12] Rose, G., “Regional Environmental Law in South East Asia”, (1995) Review of European Community and International Environmental Law, Vol. 4(1) pp.40-48 at p.42. The resolutions and declarations are The Manila Declaration, 1981; The Bangkok Declaration, 1981; The Jakarta Resolution, 1987; The Manila Summit Declaration, 1987; The Langkawi Declaration, 1989; The Kuala Lumpur Accord on Environment and Development, 1990.
[13] Sham Sani, Environmental Quality Act 1974 - Then and Now, (Bangi, Institute for Environment and Development, 1997) at pp.16-17.
[14] The objectives of the National Policy on the Environment are aimed at achieving (i) a clean, safe, healthy and productive environment for present and future generations; (ii) conservation of the country’s unique and diverse cultural and natural heritage with effective participation by all sectors of society; (iii) Sustainable lifestyles and patterns of consumption and production.
[15] Garner, R., Environmental Politics, (UK, Harvester Wheatsheaf, 1996) at p.12.
[16] Ibid
[17] Dryzek, J., Rational Ecology, (Oxford, Blackwell, 1987) pp.10-13.
[18] Sham Sani, op cit., note 13at p.14.
[19] Preamble to the Waters Enactment 1920
[20] Preamble to the Federated Malay States Mining Enactment No.19 of 1928, Cap 147
[21] National Forestry Act 1984 replaced the Forest Enactment Federated Malay States Cap 153
[22] Sabah and Sarawak have inherited their own environmental ordinances, separate from those used in the Peninsular Malaysian States
[23] Sham Sani, op.cit note 13 at pp.16-17
[24] Preamble to the Factories and Machinery Act 1967
[25] Land Conservation Act, 1960 s.5.
[26] Sham Sani, op. cit., note 13 at pp.14 - 15.
[27]S.34A(2) of the Environmental Quality Act 1976, provides that, “Any person intending to carry out any of the prescribed activity shall, before any approval for the carrying out of such activity is granted by the relevant approving authority, submit a report to the Director General. The report shall contain an assessment of the impact of such activity will have or is likely to have on the environment and the proposed measures that shall be undertaken to prevent, reduce or control the adverse impact on the environment.”
[28] For discussion on development trends of Environmental Law in Southeast Asia see Johnston, DM. “Environmental Law as “Sacred Text:” Western Values and Southeast Asian Prospects,” in Johnston, DM. & Ferguson, G.(eds.) Asia-Pacific Legal Development, (Vancouver, UBC Press, 1998) pp.425-426; See Rose G., “Regional Environmental Law in South East Asia,” (1995) Review of European Community and International Environmental Law, Vol. 4(1) at pp.40-48.
[29] Bankoff, G. & Elston, K., Environmental Regulation in Malaysia and Singapore, (Western Australia, Asia Research Centre on Social, Political and Economic Change Murdoch University, Western Australia, 1994) pp.11-16 generally; See Ariffin, S., “Implementation of the Environmental Quality Act in Malaysia,” Water Quality Bulletin, (Vol.8: 1983); Ariffin, S., "Environmental Control by Legislation-Malaysia as A Case Study,"paper presented at the Asian American Conference on Environmental Protection 80, 29th. September -1st October 1980, Jakarta, Indonesia.
[30] Kajing Tubek & Ors. v Ekran Bhd & Ors.[1996] 2 MLJ 388 and on appeal to Court of Appeal Ketua Pengarah Jabatan Alam Sekitar & Anor. v Kajing Tubek & Ors.[1997] 3 MLJ 23; Abdul Razak Ahmad v Kerajaan Negeri Johor & Anor. [1995] 2 MLJ 287;Public Prosecutor v Ta Hsin Enterprise Sdn Bhd. [1998] 6 MLJ 748; Eng Thye Plantations Bhd v Lim Heng Hock & Ors.[2001] 4 MLJ 26; Public Prosecutor v Manager, MBF Building Services Sdn Bhd. [1998] 1 MLJ 690; Collector of Land Revenue, Federal Territory v Garden City Development Bhd.[1979] 1 MLJ 223.
[31] Sham Sani, op. cit. note 15 at p.56; See also Bankoff, G & Elston, K., Environmental Regulation in Malaysia and Singapore,(Western Australia, Asia Research Centre on Social, Political and Economic Change Murdoch University, Western Australia, 1994).
[32] District Council Central Province Wellesley v Yegappan [1966] 2 MLJ 177; Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors.[1992] 2 MLJ 393 at p.401; Freddie Lee @ Lee Long Kooi & 2 Ors v Majlis Perbandaran Petaling Jaya & Anor.[1994] 3 MLJ 640; Abdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar [1994] 2 CLJ 363; For a study on locus standi see Thio, S.M., Locus Standi and Judicial Review, (Singapore, Singapore University Press, 1971) at p.1.
[33]Seah SCJ in Government of Malaysia v Lim Kit Siang[1988] 2 MLJ 12 at p. 33: “The Latin phrase "locus standi" as used by the courts in England, or "standing in courts" as the term is commonly understood by the lawyers in the United States of America, seems to indicate that a person is allowed by the judges to appear and be heard in a legal proceeding. It is a procedural barrier erected by the judges to prevent the court's time and public money from being wasted by multiplicity of frivolous and vexatious litigations brought by busybodies whose actions are bound to fail in limine and also to prevent abuse of the legal process.”
[34] Pursuant to the provision of articles 83 and 92 of the Federal Constitution of Malaysia, 1957, the Federal Government is empowered to acquire state land for federal purposes and as such it is assumed that federal legislation is applicable in the acquired areas.
[35] The reason is often attributed to the fact that these laws have diverse origins i.e. some based on Federated Malay States enactments, some on Straits Settlements ordinances and some on an amalgam of both.
[36] Federal law or legislation means an Act of Parliament, and any other law in force in Malaysia or any part thereof which relates to a matter with respect to which the Federal Parliament has power to make laws, see s 3 of the Interpretation Acts 1948 and 1967.
[37] Article 74 of the Federal Constitution of Malaysia 1957 provides that, the Federal Parliament may make laws with respect only to subjects on the Federal and Concurrent Lists, and the States may only introduce laws with respect to subjects enumerated in the State and Concurrent Lists.
[38] For example the Land Conservation Act 1960 was introduced in an attempt to standardize the pre-existing state legislation. Federal Legislation is introduced for purposes of uniformity are not automatically operative in a state, and it is applicable in a state only with the adoption of the same by the State Authority of the respective states. Such laws can be amended or repealed at a later time without the any reference to the Federal Government; Article 94 of the Federal Constitution of Malaysia 1957, requires amongst others that, state agricultural and forestry officers must accept professional advice from their federal counterparts. In addition the Article makes provision for the Federal Government to establish departments or ministries with respect to the state subjects i.e. soil conservation, local government, and town and country planning.
[39] Post independence Malaysian government introduced forestry laws, since the British did not attempt to introduce forestry laws. The British were interested in mining, but not timber, possibly because “logs from African colonies were of better quality, cheaper, and easier to transport to Great Britain”, see Nik Abdul Rashid, “The Environmental Law in Malaysia,” in I. Kato et. al. eds., Environmental Law and Policy in the Pacific Basin Area (Tokyo, University of Tokyo Press, 1981) p.13. Initially forest management in the Federation of Malaysia was perceived to be local regulatory issue that should be assigned to State List see Thanarajasingam, S., “Malaysia”, in IUCN, Legislation for Implementation of the ASEAN Agreement on Conservation of Nature and Natural Resources, Country Reports (Bonn, IUCN Environmental Law Program, 1994) at pp.69-70.
[40] Under the Wildlife Act 1976 differential species are protected in accordance with the degree to which they are threatened or endangered.
[41] Continental Shelf Act 1966 and Petroleum Mining Act 1966 provides for offshore conservation.
[42] Kajing Tubek & Ors v Ekran Bhd & Ors [1996] 2 MLJ 388 (HC)
[43] Environmental Quality (Prescribed Activities)(Environmental Impact Assessment) Order 1995.
[44] Safruddin, B.H., “Malaysian Center-State Relations by Design and Process”, in Shafruddin, B.H. & Fadzli, I.,(eds.) Between Centre and State: Federalism in Perspective,(Malaysia, ISIS Malaysia, 1988) at p.22.
[45] At present, PAS which is the strong opposition party has managed to control the East Coast state of Kelantan.
[46] Rule 9 of the Town and Country Planning Act 1976 (Planning Control General) Rules 1990.
[47] Chong Co. Sdn. Bhd. v Majlis Perbandaran Pulau Pinang [2000] 5 MLJ 130; In Bencon Development Sdn. Bhd. v Majlis Perbandaran Pulau Pinang [1999] 2 MLJ 385.
[48] S 22(2) of the Town and Country Planning Act 1976.
[49] S 22(2)(aa) of the Town and Country Planning Act 1976; In respect of the Federal Territory s 22 of the Federal Territory (Planning) Act 1982, provides the term ‘other material considerations’ that offers the authorities discretionary powers and the flexibility to consider planning applications made by the Bumiputera developers even if such applications may not be able to fulfill the necessary environmental requirements.
[50] Funston, J., “Malaysia -Developmental State Challenged”, op.cit. note 39, at p.175.
[51] Ibid.
[52] Boyle, J., “Cultural Influences On Implementing Environmental Impact Assessment: Insights from the Thailand, Indonesia and Malaysia,” in EIA Review, Vol.18, No.2 March 1998, pp.95-116 at p.98.
[53] Asrul Zamani, The Malay Ideals, (Malaysia, Golden Books Centre Sdn. Bhd., 2002) Chapter V.
[54] Gomez, E.T., “Ownership Patterns, Patronage and the NEP,” in Muhammad Ikmal Said and Zahid Emby (eds.) Malaysia: Critical Perspectives - Essays in Honour of Syed Husin Ali, (Malaysia, Malaysian Social Science Association, 1996) pp.132-154 at p.137.
[55] Ibid..
[56] See Francis Loh, K.W., & Khoo, B.T., (eds), Democracy in Malaysia - Discourses and Practices, (Surrey, Curzon Press, 2002) pp.186-87.
[57] See Asher, M.G. & Strazzulo, A., “Privatisation - Contents, Processes and Impact with special reference to Southeast Asia”, in. Quah, E. & Neilson, W. (eds), Law and Economic Developments - Cases and Materials from Southeast Asia, (Singapore, Longmans Singapore Pte. Ltd., 1993) pp.151-68.
[58] Ibid.
[59] Pye, Asian Power and Politics: The Cultural Dimensions of Authority, (Cambridge, Belknap Press, Harvard University, 1985) p.325.
[60] Kajing Tubek & Ors. v Ekran Bhd & Ors.[1996] 2 MLJ 388 and on appeal to Court of Appeal Ketua Pengarah Jabatan Alam Sekitar & Anor. v Kajing Tubek & Ors.[1997] 3 MLJ 23;
[61] Abdul Razak Ahmad v Kerajaan Negeri Johor & Anor. [1995] 2 MLJ 287.
[62] Ahmad Atory Hussain, Penghantar Pentadbiran Awam - Pradigma Baru (Malaysia, Utusan Publications & Distributors Sdn. Bhd., 2002) Chapter 14 generally; Phang, S.N., Sistem Kerajaan Tempatan di Malaysia”(Kuala Lumpur, Dewan Bahasa dan Pustaka, 1997) Chapter 5 generally.
*This paper was delivered at the 13th Malaysian Law Conference.