Introduction
The United Nations 2030 Agenda for Sustainable Development and its seventeen SDGs were adopted universally by world leaders via a United Nations Resolution passed on 25 September 2015Footnote 1 at a historic UN Summit. The 2030 Agenda recognised the need the take bold and transformative steps to “shift the world on to a sustainable and resilient path”Footnote 2 through a plan of action “for people, planet, and prosperity”.Footnote 3 This plan of action is a goal, a pledge by nations to focus on the eradication of poverty, the protection of the planet, and the prosperity of all peoples over a fifteen-year period. It calls to action all nations to end poverty, acknowledging that this can only be achieved together with the promotion of economic growth, strategies that address social needs, and protection of the environment.
Malaysia is a signatory to the UN Resolution adopting the 2030 Agenda and has accepted the seventeen SDGs, also known as Global Goals, which came into force on 1 January 2016.Footnote 4 These SDGs include no poverty (Goal 1), sustainable cities and communities (Goal 11), climate action (Goal 13) and peace, justice, and strong institutions (Goal 16). While the SDGs are not legally binding, it is a persuasive document under international lawFootnote 5 and governments present are expected to take ownership of it and to translate these goals into national efforts (Dixon Reference Dixon2007: 47–49). These seventeen goals are interconnected and as such, success requires that efforts be holistic; success must be reached for all seventeen goals without exclusion.
Malaysia has begun her journey to achieving the seventeen goals identified; in fact, she began as early as the 1970s with the government's introduction of the New Economic Policy (NEP). The NEP was introduced primarily for the eradication of poverty.Footnote 6 From the NEP to the present version, the eleventh Malaysia Plan (2016–2020), policies and initiatives has been implemented. Some success has been recorded and much progress has been made towards achieving several of the SDGs; however, for a period of time, attention was accorded unequally favouring economic development. If sustainable development and the SDGs are to be achieved, each interconnected goal must be prioritised without fear or favour, and a holistic national agenda is required. It is this disproportionality and, in particular, the lack of focus on Goal 16,Footnote 7 that the present article addresses.
Goal 16 is titled Peace, Justice, and Strong Institutions. These three elements recognise and affirm that “the rule of law and development have a significant interrelation and are mutually reinforcing, making it essential for sustainable development at the national and international level”.Footnote 8 This is a clear acknowledgement that, in order for sustainable development and the objectives of the 2030 Agenda to succeed, this inter-connected tri-partite relationship must be nurtured. It has been recognised as the goal that “underpins the other sixteen SDGs”.Footnote 9 Following this, twelve targets were identified. Some of these targets are to: end abuse, exploitation, trafficking, and all forms of violence against and torture of children; promote the rule of law at the national and international levels and ensure equal access to justice for all; develop effective, accountable, and transparent institutions at all levels; and ensure responsive, inclusive, participatory, and representative decision-making at all levels.Footnote 10
In response to this, a number of Malaysian policies and plans have been implemented and identified as supporting this goal. Among these areFootnote 11 the eleventh Malaysia Plan's Strategic Trusts 1 and 2,Footnote 12 Chapter 9 on “Transforming Public Service for Productivity”,Footnote 13 the National Policy on Children and its Plan of Action,Footnote 14 the ASEAN Regional Plan of Action on the Elimination of Violence Against Women and Children,Footnote 15 and the Plan of Action on Child Online Protection (PTCOP). These national actions have been identified as supporting and corresponding to targets under Goal 16. While these national policies and plans apply across the board (to all ministries, institutions, and aspects within a national framework—be it economic or social)—this paper will only focus on the effect of Goal 16 on the environmental framework.
From this (environmental) point of view, it can be observed (even at a cursory level) that the national policies and plans identified above as corresponding to the targets set under Goal 16 only contain some indirect positive effect on existing environmental standards.Footnote 16 Most efforts have been targeted at the protection of children, with no direct effect on existing legal environmental challenges. It is from this perspective that the article will proceed.
Malaysia has its share of environmental challenges, challenges that could be minimised or eliminated with the adoption of specific targets under Goal 16. For the purposes of this article, the objectives under Targets 16.3 and 16.10 are discussed. Target 16.3 specifies access to justice for all, while Target 16.10 promotes public access to information. Although Malaysia currently has provisions that generally promote these targets, they are insufficient. Present laws in place do allow for appeals, access to information, and the right to review existing decisions that have environmental impacts. Yet, many draconian laws—those that promote a lack of transparency in decision-making or those that restrict access to the courts—remain, limiting the potential of these laws. As a result, it is proposed that an amendment to the Federal Constitution be implemented to include the express constitutional right to a clean environment; an environmental right can assist Malaysia in achieving these targets.Footnote 17 In several other jurisdictions, the introduction of a constitutional environmental provision has resulted positively in increasing the protection of environmental rights, access to information, and access to justice, the very objectives upheld by Goal 16's Targets 16.3 and 16.10. It is this outcome that the article proposes.
The article will be divided into several parts, the first being the Introduction, which sets out Malaysia's commitment to the 2030 Agenda, the targets under Goal 16, and, in particular, Targets 16.3 and 16.10, while establishing the parameters of the paper. Part II will then set out the existing legal framework and policies that Malaysia has put in place to meet the objectives of Targets 16.3 and 16.10 for the environment. It will also explain briefly the Malaysian framework of environmental law while identifying present key legal challenges. Part III will consider the possibility of a constitutional environmental provision, and the role such a provision has played in the protection of the environment in the Philippines, Nepal, and South Africa. These countries were selected given their disparate legal systems, cultures, histories, and geographical distance. Examples were also drawn from India, Nigeria, and the Netherlands. Although brief, this survey demonstrates how crucial a role that constitutional provisions have played in shaping present environmental frameworks. Part IV will consider the possible advantages such a constitutional provision could have on existing environmental challenges in Malaysia and the effect this could have towards fulfilling its commitment under Goal 16; and finally, Part V will offer conclusions.
The Existing National Legal Environmental Framework
Malaysia has an extensive national legal framework of environmental laws and policies. This network is patterned primarily by intersecting legislations (both at the federal and state levels), case laws, and government plans and policies, and is preceded by the Federal Constitution. As a Federation, Malaysia has both federal and state government systems.Footnote 18 The power to legislate matters is thus divided under Article 74 of the Federal Constitution.Footnote 19 Under Article 74, the federal Parliament will legislate matters enumerated under Schedule Nine, List I (also known as the Federal List) and matters under List III, the Concurrent List. All other matters falling under List II and any matters enumerated under List III are legislated by the state.Footnote 20 This division indicates that while there are certain subject matters each government legislates and has absolute authority over, there are other subject matters that are shared. Environmental matters, often described as natural resource-related subject matters, are itemised under Schedule Nine, including lands, agriculture, turtles, and forests. These examples, all recorded under List II, fall within the legislative powers of the state, whereas subjects such as development of mineral resources, water supply, and controlling agricultural pests and plant diseases fall within federal jurisdiction. Apart from this, the protection of wild animals, wild birds, and national parks fall under Concurrent List III, allowing for both federal and state governments to legislate these issues. While separation of legislative power suggests a neat division, the reality is otherwise. Given the nature of environmental issues and the multi-faceted wide-ranging effects created, this division has had the “most profound effect on environmental law” (Sharom Reference Sharom2002: 859) in Malaysia.
Apart from Article 74, several other articles under the Federal Constitution have had a direct effect on the environment;Footnote 21 one such article is Article 5(1), which recognises the right to life.Footnote 22 It is under Article 5(1) that an implicit right to a clean environment was first recognised;Footnote 23 given that the Federal Constitution does not provide for an express right to a clean environment, this was viewed as a positive step in the right direction (Tan Reference Tan Yen Ling2013: 197–198). Regardless, it has been noted that “case law is contradictory regarding recognition of an implicit constitutional right to a healthy environment”.Footnote 24
Apart from the Federal Constitution, this framework of environmental laws and policies also includes federal statutes, state enactments (or ordinances), and corresponding subsidiary legislations. A number of key environmental legislations include the Environmental Quality Act 1974 (EQA 1971) and its subsidiary legislations and guidelines, the Wildlife Conservation Act 2010, and the Forestry Act 1984 together with its subsidiaries and guidelines. Environmental treaties also have a role within this framework, influencing federal policies and legislation “to jump-start” (Kiss et al. Reference Kiss and Dina2004: 71–72) positive actions that have safeguarded much of Malaysia's natural resources. As an example, the EQA 1974 was created after the Stockholm Conference of 1972, while the Convention on Biological Diversity, signed by Malaysia at the Rio Earth Summit in 1992 and ratified domestically two years later, influenced creation of the National Policy on Biological Diversity in 1998. This was subsequently revised for the latest national policy, introduced in 2016, to guide the nation through 2025.Footnote 25 Other recent international and regional commitments on climate change have also resulted in policy changes and efforts at a national level. Notwithstanding the influence of legislation on the framework of environmental laws, governmental policies add a significant weave in its tapestry. In Malaysia, multiple five-year economic plans have recognised and provided for environmental management, beginning with the Third Malaysia Plan (1976–1980) to the present Eleventh Malaysia Plan. Similarly, the National Policy on the Environment passed in 2002 has guided governmental plans through its eight principles that are intended to “harmonise economic development goals with environmental imperatives”.Footnote 26
This framework of environmental laws, while extensive, suffers from a number of key challenges. One key effect the constitutional division of legislative authority has had on the existing environmental framework of laws is that it has increased uncertainty concerning jurisdiction between the federal and state governments and its agencies, and it has also resulted in the creation of complex structures of decision-making on any singular matter concerning the environment (Tan Reference Tan Yen Ling2011: 63–86). This has resulted in an uncoordinated system of environmental management with environmental legislations that define the parameters of jurisdiction only in accordance with the subject matter, giving scant consideration to other inter-related aspects and resulting in grey areas that are unregulated. It is suggested that this division of legislative power has further given the federal government constitutional power to override and interfere in state laws (Mohammad Agus Yusoff, Reference Yusoff2006: 70) and law making, resulting in potential conflicts and strained relations that can result in poor cooperation, weak working relationships, and, thus, deficient or mediocre levels of environmental management and protection.
This framework of laws and policies (regardless of its multiple challenges) upholds and supports the present environmental management and resources in Malaysia. In so far as environmental legislations are concerned, there are “…no less than thirty-eight statutes and ordinances, as well as a sizable quantity of subsidiary legislation”.Footnote 27 The abundance of legislation suggests a growing awareness of environmental needs and of the co-relation between environmental protection and a myriad of issues - economic, social and political. However, in this context, it is important to ask if these laws promote the ideals under Goal 16, primarily under Targets 16.3 and 16.10.
Goal 16: Peaceful and Inclusive Societies
The overall objective of Goal 16 is to “promote peaceful and inclusive societies for sustainable development; provide access to justice for all; and build effective, accountable, and inclusive institutions at all levels.”Footnote 28 Goal 16 is based on the understanding that “there can be no sustainable development without peace and no peace without sustainable development”,Footnote 29 and has been identified as being critically important, “underpinning overall development and peace-building efforts”Footnote 30 proposed under the 2030 Agenda. This understanding recognises the established link between environmental, social, and economic needs and a peaceful, just, and inclusive society—that a safe environment free of fear and violence requires inclusive and effective public institutions to uphold principles of good governance, transparency, and accountability.Footnote 31 These ideals are embodied within the twelve targets and each acts as part of a whole. They “…are recognised as prerequisites to ensuring and enabling an environment in which people are able to live freely, securely, and prosperously”.Footnote 32 The link between the two has long been recognised in multiple international instruments. The Universal Declaration on Human Rights is a common standard of achievement that respects not only basic rights and freedoms, but urges for “…progressive measures, national and international”Footnote 33 to secure the recognition of these rights and freedoms. Likewise, the Rio Declaration inspires sustainable development while acknowledging the relationship between economic development,Footnote 34 the eradication of poverty,Footnote 35 the protection of basic rights and freedoms,Footnote 36 and environment needs for present and future generations. The Aarhus Convention in 1998 similarly recognised the need to protect, preserve, and improve the state of the environment and to ensure sustainable and environmentally sound development via guarantees for the rights of access to information, public participation in decision-making, and access to justice in environmental matters.Footnote 37 This is equally reiterated in the Guidelines for the Development of National Legislation on Access to Information, Public Participation, and Access to Justice in Environmental Matters, also more commonly known as the Bali Guidelines.Footnote 38 The Phnom Penh Regional Platform for Sustainable Development for Asia and Pacific 2001, also recognises that issues and priorities for sustainable development in the region cut across environmental, economic, and social spheres, and that in order to “address these multifarious issues and priorities will require promoting economic growth and social development, making globalization a positive force for all the world's people, giving particular emphasis on poverty eradication, environmental protection and management, and good governance, as described in paragraph 13 of the Millennium Declaration, public participation and human development”.Footnote 39 The Yangon Resolution on Sustainable Development recognises that ASEAN needs to establish a community that ensures “enduring peace, stability, and shared prosperity”Footnote 40 in the hopes of attaining effective environmental and natural resource management.
These examples demonstrate the importance of the relationship between sustainable development and peace, a link established through principles of good governance and effective public institutions. Without freedom of information, accountability, and transparency, democracy will not thrive;Footnote 41 it will be “bereft of all effectiveness”Footnote 42 and certainly, any peace. Similarly, May suggests that “sustainability and environmental constitutionalism share a past, present, and future”.Footnote 43 In other words, constitutional provisions bridge the gap between international principles and ideals with domestic laws. These ideas will be further explored below.
Under Goal 16, two specific targets are identified for discussion, Targets 16.3 and 16.10. Target 16.10, is one that “reflects the fact that freedom of information is the touchstone of all other human rights and underpins the achievement of all the SDGs. Access to information is crucial…”Footnote 44 The right to information not only impacts the capacity of people to participate in decision-making on environmental issues that affect their community, it also threatens their human dignity.Footnote 45 This right has not only been enshrined in numerous international and regional conventions, it is “now entrenched in three dozen constitutions”.Footnote 46 Yet, it is reported that this right continues to be under threat.Footnote 47 Without free access to information, it would be difficult for affected individuals or communities to obtain access to justice.
As a result, Target 16.3 focuses on “ensuring that countries have effective, fair, and accessible laws and justice systems that ensure security and protection for all people, and enable meaningful avenues for redress for criminal and civil wrongdoings…”Footnote 48 Access to laws and a justice system is arguably one of the most important tools that push policy-makers to make politically unpopular decisions in support of environmental causes. While technology has developed rapidly to counter many pressing environmental issues, research has shown that lawsuits have been the deciding ‘push’ for governments to take concrete action.Footnote 49 Given that many actors well positioned to address environmental concerns may also be primarily responsible for causing them, giving affected individuals access to courts can encourage inaction or actions not compatible with stated rights to be questioned.
A look through the corpus of law demonstrates that there are legislations and policies in Malaysia that do support these goals; the issue is, to what extent?
A. Target 16.10: Laws Promoting Access to Information and the Challenges Surrounding it
Target 16.10 recognises that freedom of information is crucial to the achievement of all 19 SDGs and the multiple targets set under the 2030 Agenda. Given that breaches of this right to information may give rise to a cause of action, requiring access to justice, Target 16.10 will be discussed before Target 16.3. This freedom is a by-product of a general right to information, which has long been recognised as a fundamental human right and an integral part of the right to the freedom of expression. It is a right that is guaranteed under multiple universal, multilateral, and regional agreements. As discussed above, some examples are Article 19 of the Universal Declaration on Human Rights,Footnote 50 Article 19 of the International Covenant on Civil and Political Rights,Footnote 51 UN Resolution 59(I),Footnote 52 Principle 10 of the Rio Declaration,Footnote 53 Article 1 of the Aarhus Convention 1998,Footnote 54 the Bali Guidelines,Footnote 55 the Phnom Penh Regional Platform for Sustainable Development for Asia and Pacific 2001,Footnote 56 and the Yangon Resolution on Sustainable Development 2003.Footnote 57 While Malaysia has affirmed its general support for and commitment to the protection of human rights, especially the rights to freedom of expression and information, the agreements listed above do not create a binding obligation for Malaysia to grant freedom of information or its derivative under international law.Footnote 58
What is binding, however, is Article 10 of the Federal Constitution of Malaysia which states that, subject to the limitations expressed, “every citizen has the right to freedom of speech and expression…”Footnote 59 This fundamental right is regrettably not an absolute one. The limitations expressed under Article 10(2)(a)Footnote 60 are both widely defined and broadly interpreted. This has resulted in legislation such as the Sedition Act of 1948 and the Official Secrets Act in 1972 that are contrary in spirit to the ideals of freedom of speech and expression.
Regardless of these general limitations, a number of federal environmental legislative bills have promoted such a right, directly or indirectly. One example is the EQA of 1974. Under the EQA, the Director General of Environmental Quality is bound to execute his duties as listed under section 3; these include the need to ensure that an annual report on environmental quality is published together with other relevant reports and informationFootnote 61 and the need to provide information and education to the public regarding the protection and enhancement of the environment.Footnote 62 This requirement to make available reports is also found under the National Forestry Act of 1984, among others.Footnote 63 Apart from merely ensuring that general information is disbursed, reports on Environmental Impact Assessments (EIA) must also be made availableFootnote 64 to the public. Under section 34A of the EQA,Footnote 65 for certain prescribed activities (as listed under the 2015 OrderFootnote 66) an EIA must be conducted and a report sent to the Director General before any activity is carried out.Footnote 67 Under EIA Guidelines, public participation is deemed an ‘essential’ step and is part of the assessment process in determining whether proposed projects should be recommended for approval.Footnote 68 Other environmental legislations also contain specific provisions allowing for the public to have access to information in restricted instances, one example of which is found under sections 60 (1) and (2) of the Biosafety Act 2007, whereby certain information relating to the application, approval, granting, or notification of application to import or undertake any activity involving living, modified organisms may be made available to the public. In the Town and Country Planning Act of 1976 (TCPA)Footnote 69 a number of provisions expressly require the state to make available to the public both draft structuresFootnote 70 and local plansFootnote 71 and to allow presentations of these plans be made to the State Director. Further, when an application for planning permission in respect to a development is made under the circumstances listed, the local planning authority is under statutory duty to write to the owners of affected lands and allow them time to state any objections.Footnote 72 These examples demonstrate that within the environmental framework of legislation, there are laws promoting access to information.
While Malaysia does not have federal legislation on the freedom of information, a number of states in Malaysia, in particular SelangorFootnote 73 and Penang,Footnote 74 have in the last few years enacted such legislation, with reports suggesting that more states may soon follow.Footnote 75 Thus, while there are laws promoting access to information, many challenges remain.
Some challenges
There remain many challenges to information being available and accessible to the public. One such challenge is the Official Secrets Act of 1972 (OSA). It is a broadly worded legislation that entrenches all matters relating to public administration in a culture of secrecy. The Preamble itself indicates that it is an Act to revise and consolidate the law relating to the protection of official secrets. What amounts to an official secret is widely drafted under section 2 to mean any document (including photograph, picture, film, tape or sound trackFootnote 76) that is specified in the ScheduleFootnote 77 or any information or document classified as being ‘top secret’ by a Minister, Head of State, or public officer appointed under section 2B to certify such documents.
The provisions under the OSA come with extensive powers of arrest, and section 18 (1) is an excellent example of the width of those powers stating “if any person is found committing an offence under this Act or is reasonably suspected of having committed, or has attempted to commit, or is about to commit, such an offence, he may be arrested without a warrant.” Police have special powers of investigation under section 20, and section 16 substantially reverses the burden of proof. Beyond these onerous terms, anyone who is approached by another to supply or obtain for him/her any official secret is duty bound to report it to a police officer immediately, failure of which could result in a substantial jail term.Footnote 78 The OSA has been used in relation to a number of environmental incidents; the Bakun Dam's EIA report and the API 1997/8 Haze CrisisFootnote 79 are examples of its use. Apart from the OSA, other legislation that restricts the disbursement of information in Malaysia include the Printing Press and Publications Act of 1984 (amended in 2012), the 1998 Communications and Multimedia Act, and the powers granted to the Malaysian Communications and Multimedia Commission that have, to an extent, restricted information made available to the public.Footnote 80
As a result, while there are numerous examples of environmental legislation that promote the ideals set out under Target 16.10, ensuring transparency and empowering the public to engage more effectively in their own development, there are equally as many limitations placed on this freedom.
In order for Malaysia to meet its SDGs, the UNDP has identified several key areas that need to be addressed moving forward.Footnote 81 Among them are highlighted the demands for public participation and social trust.Footnote 82 This acknowledges that public participation is an integral and important aspect of inclusiveness since people and their voices must be present in deciding the forms and nature of development pursued. To achieve this, public participation must be present at all levels of decision-making, and mechanisms promoting it should be made available to harness the public's contributions.
B. Target 16.3: Laws Promoting Access to Justice for All and Existing Challenges
As recently as 2011, one of the many arguments presented to suggest that environmental protection was lacking in Malaysia was the non-existence of a court specialising in environmental matters (Looi Reference Looi and Mottershed2002: 290–291). This point-of-view was rendered moot on 14 January 2012 when the (then) Chief Justice announced the creation of the Environmental Court following the ASEAN Chief Justices’ Roundtable on the Environment in Jakarta in 2011.Footnote 83 The announcement and subsequent establishment were heralded by some as a ‘beacon of hope’ towards the protection of the environmentFootnote 84 and the court began hearing cases in September 2012. In November of the same year, it was reported that the “…judiciary is actively training judges and magistrates in handling cases related to the environment in order to prepare them in terms of proceedings and meting out penalties”.Footnote 85 The environmental courts had six main objectives, and these were to expand and improve access to environmental justice; to provide expeditious disposal of environmentally related cases; to harness expertise relevant to the specialised field; to monitor environmental cases closely and to ensure that such cases are taken seriously; to ensure uniformity of decision-making in environmental cases; and to increase public participation and confidence.Footnote 86 At present, there are 42 designated Sessions courts and 53 Magistrate's courtsFootnote 87 geographically dispersed that make up the ‘green courts’ that hear only selected criminal matters.Footnote 88 Immediately after its inception, statistics on the performance of these courtsFootnote 89 for the years 2012 and 2013 indicate that high percentages (often in the 90%) of environmental cases were disposed of within 6 months.
On 1 January 2016, a Special Environmental Court for civil matters was announced and subsequently established in all 13 states. At present, the drafting of the Environmental Rules of Court, an exercise that is expected to contribute further towards increasing access to justice for environmental cases, is on-going.Footnote 90
A judicial attitude towards environmental protection is also a key point to note in the Chief Justice's speech for the opening of the legal year 2017, when he acknowledged the role of the judiciary in protecting the environment and implementing the environmental rule of law. He said that their “…core duty is to safeguard and uphold our constitutional guarantees, which must include the right to a clean environment both for the present generation and the future of unborn generations, not forgetting our wildlife and other life systems which form part of our eco-system…”Footnote 91 Accepting that while there is no express constitutional right to a clean environment at present, it has been acknowledged through judicial interpretation, ancient wisdom, and cultural expression that this right would be ‘ideal’ for the Federal Constitution to reflect with an amendment.Footnote 92
There is a global trend towards establishing specialised environmental courts or tribunals (Pring and Pring Reference Pring and Pring2009; Rottman Reference Rottman2000) and much has been reported and published on the advantages and positive effects a specialised court may engender for environmental protections (Pring and Pring Reference Pring and Catherine2009, Reference Pring, Catherine and Faure2015; Sharma Reference Sharma2008). While a specialised court makes justice more accessible, Target 16.3 considers not only whether justice systems are accessible to the people, but also that substantive laws that allow for that access are effective and fair.
In the past, one of the primary hurdles to public access to environmental justice was the archaic rule of locus standi—in this instance, the test for threshold locus standi. The 1988 decision of the Government of Malaysia v Lim Kit Siang Footnote 93 (which followed English common law decisions in Boyce v Paddington Footnote 94 and Gouriet v Union of Post Office Workers Footnote 95) recognised that as a general rule a private citizen cannot sue in respect to interference with a public right; however, the citizen is entitled to sue if there is interference with a private right, or if the public right interfered with will inflict special damage on the private citizenFootnote 96. This “severely limited” (Harding Reference Harding2007: 136) the rules of standing, making public interest litigations and the test for standing extremely difficult to establish in subsequent cases.Footnote 97 For environmental litigation, the question becomes, who then is able to stand and demonstrate a special interest in or have suffered peculiar damage over and above others? In situations where environmental damage occurs, for example, the pollution of rivers or degradation of air quality, who would be able to bring about action? This is particularly pertinent given that affected communities are often minority groups with weak economic power and poor support systems or are simply unaware of their rights (Nijhar Reference Nijar2017). Furthermore, public-spirited individuals would also be unable to stand on behalf of these affected communitiesFootnote 98 with locus standi tests being so restrictive.
This position expanded beginning in 2006 with the case of QRS Brands Bhd v Suruhanjaya Sekuriti Footnote 99 when the Court of Appeals decided that –
There is a single test of threshold locus standi for all the remedies that are available under the Order [here reference was made to Order 53 Rules of Court 2012]. It is that the applicant should be ‘adversely affected’. The phrase calls for a flexible approach… [further it went on to say]… public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights, and vindicating public interest. The real purposes of entertaining such an application are the vindication of the rule of law, effective access to justice for the economically weaker class, and meaningful realisation of fundamental rights…
This was subsequently approved of in the Federal Court decision of Malaysian Trade Union Congress Footnote 100 (commonly known as the MTUC case). In MTUC, Justice Hasan Lah ruled that in order for an applicant to satisfy the ‘adversely affected’ test, a real and genuine interest in the subject matter had to be present. There was no need to show an established infringement of a private right or the suffering of special damage.Footnote 101
What this suggests is that the decision of Lim Kit Siang is no longer relevant to the issue of locus standi in public law proceedings, and that no statute or rule can impede an individual from his/her fundamental right of access to justice. It has been suggested that there should be “unrestricted threshold standing”,Footnote 102 especially where a public official or body has committed some wrong. In a recent decision of the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another, Footnote 103 the independence of the judiciary, among others, was affirmed. The result of that decision has wide-ranging effects that could assist a potential litigant when bringing environmental public interest litigation to court. Among these are:
Firstly, ouster clauses in any legislation — which remove the jurisdiction of the courts to review specific matters within the legislation — are now open to fresh challenge, as Parliament cannot completely remove such jurisdiction, if judicial power rests with the Judiciary. Secondly, provisions in the law that bind Judges to the decisions, rulings, or directions of non-judicial bodies could also now be challenged.Footnote 104
These decisions have demonstrated that post-2016, there has been a relaxation of the rules of locus standi and a strengthening of the role of the judiciary in Malaysia. There has also been advancement towards satisfying the two key elements set out under Target 16.3 that consider not only whether justice systems are present, but that they are accessible to the people, and that substantive laws allowing for this access are effective and fair. While the practical effect of these decisions on public interest litigation and, more specifically, on environmentally related litigation is yet to be seen (at the time of writing), in general, there is much positive response.
Existing challenges
Regardless, several key challenges remain that restrict the full effect of Target 16.3, one of which is the issue of limitation. The law of limitation, in essence, defines a time limit in which actions can be brought.Footnote 105 In West Malaysia, the principal statute governing this is the Limitation Act of 1953 and in Sabah and Sarawak, it is the Limitation Ordinance (Cap 49 and 72, respectively). Within each statute, specific time limits apply to specific situations. Environmental offences are often classified as statutory/criminal or civil law offences. In the former, prosecuting a wrong-doer for criminal breach is ordered by the Attorney General or relevant authorities. In the latter, where applicants are seeking compensation under private acts (typically a tort), the limitation period is six years.Footnote 106 This limitation period is calculated from the time or date of the commission of the relevant unlawful act. However, in many environmental matters, the calculation of time is not quite as straightforward.
For torts reliant on proof of actual damage, the computation of time may be uncertain. This is primarily due to the uncertainty surrounding the date when damage was actually suffered.Footnote 107 For environmentally related damage or exposure, such as toxic or radiation-related accidents where effects are often latent, injuries may take years to manifest and prospective plaintiffs may not even be aware that they have suffered loss or injury.Footnote 108 In such cases, determining when damage has occurred is a challenge.
This challenge might be exacerbated if a potential defendant is also a public authority. When an applicant wishes to ask for a judicial review of a public authority's decision, any suit, action, or proceeding is bound by provisions under the Public Authorities Protection Act of 1948. Under section 2(a) of this Act, the limitation period is capped at 36 weeks after an act, neglect, or default is complained of. This period acts as a protection accorded to “…any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty, or authority…”Footnote 109 Unfortunately, these widely drafted words have been open to judicial interpretation and dissentionFootnote 110; difficulty has arisen in issues from determining whether defendants fell within this category and could be accorded protection under this Act,Footnote 111 to whether such protections could be accorded to contractual relationships with a public authority.Footnote 112
As a result, while national progress has been made towards achieving the goals stated under Target 16.3 with the creation of specialised courts and an affirmation of the judiciary's independence, legislation that limits standing, particularly in cases where a public authority is a party to the proceedings, continues to curb access to justice.
A Constitutional Addition and Some Comparative Lessons
It is clear at this point that the ideals enumerated under Targets 16.3 and 16.10 are reflected in the existing environmental framework of laws and policies in Malaysia, though only in part. While Malaysia's Federal Constitution does not contain express terms for the right to a clean environment, would a constitutional amendment contribute to, or accelerate, Malaysia's efforts towards this end? Part III will consider this question.
The idea of constitutionalism lies in the realisation that “in framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself…”Footnote 113 Simplistically, the formula for creating a government of law, not of men, recognises that limitations must be placed upon the powers of government.Footnote 114 The idea of effective restraint contains several features; among these is the principle that a constitution is a source of legal rights and is pre-eminent,Footnote 115 that respect of law or ‘the rule of law’ guides every decision, and that it recognises the needful balance between power and responsibility.Footnote 116 Therefore, at the very root of constitutionalism are the concepts of restraint, respect for law, and responsible government. To achieve constitutionalism and its ideals, a federal constitution and its provisions must remain the “chart and compass, the sail and anchor of the nation's endeavor”.Footnote 117 This tension between power and responsibility is present in every system of government, at present and in the past, and Malaysia is no exception.Footnote 118 It has been observed that “the strongest threat to constitutionalism in Malaysia is the growth of executive power and the decline of the institutions which are central in limiting excesses of that executive power…”Footnote 119 In light of this view and the need to protect the environment, the question of a constitutional environmental provision for Malaysia becomes imperative if she is determined to meet her SDGs.
It has been reported that “…more than 140 countries have amended their constitutions to require environmental protection, including 98 countries that recognise a constitutional right to live in a healthy environment”.Footnote 120 Taking the present number of member states in the United Nations, this demonstrates that approximately 72.5 per cent of member statesFootnote 121 have constitutional environmental protections. This is a clear global trend suggesting that environmental rights have “become a common, but not yet universal, fixture among national constitutions”.Footnote 122 There are multiple reasons that contribute to its popularity, one of which is the idea that a constitutional provision provides a ‘safety net’ for resolving ‘new areas’ of law, or areas not provided for within existing legislationFootnote 123. Given the deficiency and the continually evolving and rapidly increasing body of scientific knowledge that constantly challenges existing mindsets, and the speed of legislation amended or introduced to keep up with new and evolving environmental challenges, this notion of a constitutional safety net is appealing, especially so for countries still developing their own environmental framework.
Second, having an express provision in the national constitution will ensure that environmental issues take priority and are accorded the protection and rights they deserve. In Malaysia, the government has long recognised the need to protect the environment while maintaining its economic growth. This is evidenced from as early as the third Malaysia Plan (1976 -1980) to the present eleventh Malaysia Plan (2016–2020), where multiple five-year economic plans chart national growth towards its 2020 goals.Footnote 124 Yet the idea of unlikely bed fellows, development and the environment, held at balance, both equal in influence, is a questionable perspective.Footnote 125 This uncertainty can be put to rest with a constitutional environmental provision that elevates environmental issues from simply being a case to a fundamental right. The entrenchment of such a right or provision for protection would also make environmental concerns less susceptible to the winds of political change and more likely to endure;Footnote 126 it would also place environmental concerns as a consideration on the agenda of every governmental decision-making policy and practice.Footnote 127
In a number of jurisdictions, a constitutional right or provision ensuring environmental protection has had positive effects for the surrounding environment. It also directly or indirectly strengthened the jurisdictions’ laws and policies for greater public participation in decision-making processes, access to justice, and freedom to information.Footnote 128 Two jurisdictions will be discussed below.
South Africa
In the 1996 Constitution, South Africa introduced 34 articles under Chapter 2: Bill of Rights. Under this Chapter, Section 24 states that “everyone has the right to an environment that is not harmful to their health or wellbeing; and to have the environment protected, for the benefit of present and future generations….”Footnote 129 Chapter 2 also contains a provision affirming every citizen the right to access the courtsFootnote 130 and ensures that anyone may approach “a competent court alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief…”Footnote 131 As a result, persons acting not on their own behalf, but on that of another person aggrieved by an environmental harm or in the public's interest, may bring forth an action to protect their right to a clean environmentFootnote 132. It is noteworthy that prior to these constitutional rights, many of the requirements for standing and the rules of locus standi for public and private law matters were strongly based on strict English common law principles;Footnote 133 it is the partly a result of the “enshrinement of a constitutional right”Footnote 134 that environmental concerns have come to the forefront and judges have accepted that with “…the change in ideological climate must also come a change in our legal and administrative approach to environmental concerns”.Footnote 135
Subsequent to this, much legislation was passed recognising the right to protect the environment. One example is the National Environmental Management Act No. 107 of 1998; its provisions accord legal standing and affirm the constitutional environmental right to allow persons acting in the public's interest to bring an action wherein private prosecution is limited, and in such instances the Attorney General will not interfere.Footnote 136 Other legislative actions expanding on this right include the Promotion to Access to Information Act (Act 2 of 2000) establishing a detailed system allowing for access to information by public and private bodies; a citizens guide to the law was also produced.Footnote 137 The Promotion to Access to Information Act was drafted not only to give effect to the constitutional right of access to information but to ensure that “a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations” in the past would no long occur.Footnote 138
Philippines
In the 1987 Philippine Constitution, under Article II, a provision under Section 16 reads, “The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”. This provision establishes that there is a fundamental right to the protection of the environment. Further, the Philippine Environmental Policy also mandates that it is the “duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment”.Footnote 139 The express right and subsequent declaration provoked a series of statutes that further backed up this right, such as the Philippine Environmental Code that established management policies and quality standards for the protection of the environment from a holistic point of view,Footnote 140 the Pollution Control Law,Footnote 141 and, more recently, the Freedom of Information Order, signed July 2016.Footnote 142
This constitutional top-down authority has also influenced judicial activism and strengthened environmental common laws by encouraging and assisting non-governmental organisations and public spirited individuals when bringing issues to the foreground via public interest litigation and by assisting those who are not able to afford justice.Footnote 143 Judges have expanded their list of remedies to include a writ of continuing mandamusFootnote 144 to ensure that its decisions would not be “put to naught by bureaucratic administrative indifference or inaction”.Footnote 145 In 2010, the Supreme Court adopted special rules of procedure adopting the continuous mandamus as one of the remedies that may be sought by an applicant in an environmental case.Footnote 146
The Courts have also made other momentous decisions that have expanded the principles under Section 16 of Article II of the Constitution. In Oposa v Factoran, Footnote 147 the Supreme Court recognised the principle of intergenerational equity, a responsibility to protect the environment for the present and future generations, recognising future generations as legal persons and their right in future to a healthy environment. More recently, in 2015, in the case of Resident Marine Mammals v Secretary Angelo Reyes, Footnote 148 the Supreme Court once again upheld this principle and allowed the petitioners to represent their interests, as well as the interests of future generations.
From a cursory consideration of the jurisdictions discussed above, it is apparent that there is a direct consequence between a constitutional environmental right and the expansion of laws supporting environmental protection. Regardless of the difference in culture, geography, or legal systems between these jurisdictions, the effect of a constitutional protection for the environment has unanimously resulted in stronger laws and policies that have encouraged public participation in decision-making processes, and opened more access to justice and freedom to information. These are objectives enumerated under Goal 16 and its various targets, in one form or another.
While these are positive indicators, objectively the question asked is, have constitutional influences been universally positive? Constitutions commonly utilise words such as ‘healthy’, ‘healthful’, ‘safe’, or ‘balanced’ to describe the environment or an environment suitable for development.Footnote 149 Countries such as Brazil, Mongolia, and the Philippines make reference to ecological equilibrium or some form of balance, while Spain makes reference to an environment that is “suitable for the development of the person”.Footnote 150 These formulations are not sufficiently comprehensive and their effectiveness subject to interpretation. In South Africa, the question was recently asked if Section 24 has, in fact, promoted environmental justice and improved the lives of its citizens as well as the environment. Kidd concluded that in many cases a “substantial gap between the reality and the ideal” remained, with the concept of sustainable development being an “internal modifier” that limits Section 24's effectiveness.Footnote 151 The principle of sustainable development though embedded within the constitution as well, has been argued to have “little practical effect”.Footnote 152
Alternatively, should environmental rights be constitutionalised? Environmental protection could just as easily be provided for legislatively or via governmental policies and practices. Critics unconvinced that the granting of a constitutional right is beneficial list opposing arguments; that the potential effects of such a right is too uncertain,Footnote 153 that an absolutist right will arise making any “compromise and deliberative discussion”Footnote 154 on environmental issues polarised and difficult, that it undermines democracy transferring powers to the courtFootnote 155 are among the many concerns raised. Yet, Tim Hayward's extensive research on this point contends that the status of these two is what sets them apart—the former being a directly justiciable individual right while the latter is merely a social right interpreted as a manifestation of a political program not necessarily enforceable by the courts.Footnote 156 There are clear differences between the two: weightage, legal protection, and enforceability. Regardless of the struggles associated with an express right, it is acknowledged that the adoption of constitutional rights has been “associated with stronger environmental laws and more environmental litigation”.Footnote 157 Boyd in his research similarly concluded that having such a right is a “…major benefit to environmental legislation in that courts appear more likely to defend environmental laws and regulations…”Footnote 158 Together with this, he observed an increase in environmental justice, public involvement, and accountability in nations with a constitutional environmental provision.Footnote 159
Could similar results be emulated in Malaysia? Should she amend her constitution to provide constitutional protection? Part IV will consider this.
Possible Environmental Effects a Constitutional Provision Could Provide for Malaysia and Existing Challenges
The Federal Constitution under Article 159 provides for constitutional amendments. Constitutional amendments can be made with the support of two-thirds of Parliament, and an amendment Act. It has been suggested by Professor Shad Saleem Faruqi that since its independence in 1957, there have been more than 51 amendment Acts, and of these, about 700 changes or “strokes of the pen”Footnote 160 have been made. History suggests that Malaysia is familiar with and reasonably receptive to constitutional changes. As a result, should Malaysia amend its federal constitution to provide for a clean environment, a number of possible effects could result that would contribute tremendously towards achieving Targets 16.3 (for access to justice) and 16.10 (freedom of information).
A. Possible Effects on Target 16.3
At the end of Part II. A., it was established that, regardless of the existence of a special court in Malaysia, the extension of the principle of legal standing, and the strengthening of judicial independence, access to justice continues to be hampered by the rules of limitation. Prima facie, an express constitutional term for a clean environment, would unlikely affect the substantial laws on limitation directly. Certainly, the possibility of an express term in the Federal Constitution extending the limitation period is possible; however, where this is not explicitly provided for, it is not likely that a new constitutional environmental term would extend the time period for an applicant to bring action. While much has been written on the disadvantages of unlimited periods for environmental claims,Footnote 161 could there be exceptions where a constitutional environmental provision is in place and applications are made to enforce a fundamental right.
In Nigeria, such an exception was found. Under the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 Rules), the rule of court was simplified to remove the time limitation for applicants to appear in court for the purpose of ‘enforcing a fundamental right’ (environmental rights are recognised as being a fundamental constitutional right in Nigeria). What this suggests is that potential litigants can now apply at any time to the court wherein an alleged damage or injury breaches a fundamental right. It was suggested that the 2009 Rules could be regarded as being “…the single most important factor in kick-starting environmental activism within the legal area. Such activism will in turn translate to the fostering of an extensive and innovative jurisprudence on environmental rights as presently being experienced in other developing countries…”Footnote 162
What is noteworthy is that the Nigerian Constitution shares a similar trait with Malaysia's: neither has a fundamental right to a clean environment. What they do have is a provision protecting substantive rights (such as, the Right to Life) that has been judicially interpreted to include environmental rights.Footnote 163 What Nigeria has is a state policy within its Constitution, making it mandatory for the government to ensure that its policies are in line with its environmental objective, and this was sufficient to encourage the passing of the 2009 Rules. Apart from extending limitation periods, constitutional protections also encourage more relaxed limitation periods when it comes to environmental issues,Footnote 164 and states with constitutional environmental provisions continue to demonstrate that there are exceptional circumstances in which the courts have considered expanding limitation periods.Footnote 165
B. Possible Effects on Target 16.10
Part II. B established that while there were numerous examples of environmental legislative acts in Malaysia promoting the ideals set out under Target 16.10 (to enlarge and protect public access to information), there were equally as many limitations placed on this freedom. Limitations came in the form of stringent legislations that limit the disbursement of information and primarily from the lack of a Freedom of Information (FOI) law.
An FOI can have a tremendous effect on the success of Target 16.10 for Malaysia. Lessons from different jurisdictions demonstrate the positive effects a constitutional provision has had on enhancing environmental protection and supporting the right of access to information, effects that could be transplanted to Malaysia.
In the jurisdictions discussed above, South Africa and the Philippines, the introduction of a freedom of information law was a natural extension of a constitutional provision. In India, a similar influence was achieved. While the Indian Constitution did not explicitly provide for an express right to a clean environment, the 42nd amendment (passed in November 1976) included a new directive principle of state policyFootnote 166 and added an additional fundamental duty with the insertion of article 51A (g),Footnote 167 which had a tremendous effect on the environment. These provisions “…played an important role in the emergence of environmental law in India”.Footnote 168 From this point on, the courts adopted a bolder approachFootnote 169 to environmental protection; legislation was passed supporting the protection of the environment, such as the 2005 Right to Information Act and a National Green Tribunal was established in 2010.Footnote 170 While these might seem like disparate acts, the 2014 Goldman Environmental prize winner for Asia, Ramesh Agrawal,Footnote 171 offers an excellent example of a successful convergence of the principles of access to justice and freedom of information, for a village in India and for a community suffering from toxic effluents without which, a similar outcome may not have been possible. The enforcement of environmental rights requires a judicial system that is proactive and independent. India's judicial leadership boasts environmental advocates such as Supreme Court Judges PN Bhagwati and VR Krishna Iyer who were committed to advancing this cause.
In June 2015, in a climate liability suit Urgenda Foundation v the State of Netherlands, Footnote 172 it was reported that the Dutch court determined that states had an obligation towards their citizens, and thus the Dutch government had to reduce its emissions by at least 25 per cent by the end of 2020 (compared to 1990 levels). This meant that the Dutch government would now have to take more effective action towards meeting its climate reduction commitments.Footnote 173 It was described as “the first case in the world in which human rights are used as a legal basis to protect citizens against climate change.”Footnote 174 Such a landmark decision would not have been possible without constitutional provisions recognising the citizens right to a habitable environment:Footnote 175 provisions that secure the right to personal integrity,Footnote 176 the rights to health,Footnote 177 and in particular, the right of its citizens to access information on governmental affairs.Footnote 178 All of the rights listed above are protected within the Constitution of the Netherlands and the advantage is ground-breaking decisions such as this.
In June 2018, it was reported that nine Indonesian and international environmental groups filed an amici curiae brief against the Governor of Bali Province at the Denpasar Administrative Court.Footnote 179 The brief requested that the court review international laws and best practices on the need to include climate change impacts in environmental impact assessments, in particular in the Celukan Bawang Coal Fired Power Plant expansion project. It contended that this expansion does not comply with its lawsFootnote 180 and undermines Indonesia's climate change commitments. Although reports in August 2018 indicated that the court has rejected this application on grounds of locus standi, an appeal is said to be on its way.Footnote 181 The initiation of such legal action demonstrates the availability of access to environmental justice in Indonesia, as one example of the influence of Article 28H of its Constitution, which recognises that “every person shall have the right to live in physical and spiritual prosperity, to have a home, and to enjoy a good and healthy environment.”Footnote 182
Research by Jeffords and Gellers on the origins of constitutional environmental rights and the factors associated with it, have concluded that (among others) countries were influenced to some extent by the actions of their immediate neighbours and their domestic political conditions. In situations where other countries with similar cultural or historical identities have promulgated such rights, or where there exists a desire to right the wrongs perpetuated by a previous regime, these factors could affect the likelihood of a right being instantiated into the constitution.Footnote 183
From 2002–2010, it has been reported that Malaysia has shown a continuous downward trend as a country within ASEAN struggling to expand their freedom of expression and right to information.Footnote 184 In 2017, Malaysia was ranked 144 out of 180 nations globally by Reporters without Borders (RSF),Footnote 185 suggesting that the ability for citizens to express themselves freely and openly without fear and to have access to independent information is diminishing. Yet in the same year, Malaysia reported ‘achievements’ under Goal 16.Footnote 186 While these statistics take a broad brush stroke at laws and policies limiting such freedoms, they do not specifically address such freedoms where environmental information is concerned. They do, however, suggest that obtaining information for the latter is equally as challenging.
In the multiple international agreements that Malaysia has signed, many of them contain the right and obligations to freedom of information; while Malaysia has tacitly endorsed it at the international level, there remains no federal FOI legislation. The right to information and to obtaining public information is “the touchstone of all human rights…is crucial to ensuring transparency…and a means of empowering the public to more effectively engage in their own development”.Footnote 187 Without such rights, empowering the public to effectively engage in their own environmental development would be arduous. At present, non-governmental organisations within Malaysia are working towards changing this lack.Footnote 188 Campaigns are on the way towards spreading awareness on the importance of FOI in clean governance.Footnote 189
May 2018 heralded a ‘new’ Malaysia that seemed to suggest a revival of freedoms and basic liberties. Post-election, it has been reported that the new government will consider “environmental protection very seriously and would do its best to conserve the environment” and is “committed” to protecting and conserving the environment.Footnote 190 The government has since unblocked independent news websitesFootnote 191 and lifted the travel ban on critics of the government,Footnote 192 suggesting a growing acceptance of free speech and expression. The government also recently announced that it is committed to implementing a national Freedom of Information Act and has since repealed the Anti-Fake News Act.Footnote 193 It has also stated its commitment to reviewing draconian laws such as the Official Secrets Act of 1972.Footnote 194 The appointment of the new Chief Justice has been regarded as an “improvement to people's access to justice”Footnote 195 and his involvement in environmental activities and the enhancement of environmental courts has been reported widely.Footnote 196 The growing public narrative on the position of ouster clauses and the need for checks and balance is also a positive sign.
However, in July of the same year, investigations into a lawyerFootnote 197 blogging about the monarchy has suggested that, to the contrary, the right to expression is still an illusion.Footnote 198 Similarly access to information via a free press remains uncertain given the continual limitations within the Printing Presses and Publications Act, 1984 (which should be reviewed and potentially repealed) and the Communications and Multimedia Act, 1998. Other national security laws, such as the Sedition Act of 1948, and the Internal Security Act of 1960 that limit freedoms of the press remain in action.
Conclusion
Rights enshrined in a constitution become an integral part of a country's moral code. A constitution and its provisions are the apex of law in any country and it influences every facet of government, people, and life. For Malaysia, the lack of an express constitutional term providing for a clean environment has slowed down environmental progress the nation could have made towards satisfying Goal 16 and particularly Targets 16.3 and 16.10.
Malaysia has demonstrated its commitment to meeting the objectives under the 2010 Agenda and the SDGs by issuing the Voluntary National Review Report 2017.Footnote 199 Institutional mechanisms for SDG implementations have been established and three phases have been identified for specific focus towards full implementation of all seventeen goalsFootnote 200 in 2030. With such levels of commitment, introducing a constitutional provision for the environment should simply be another consideration, a logical next step towards establishing a legal mechanism for achieving its SDGs. Yet, this clarion call has in recent years been echoed without much success.Footnote 201 The change of government in May 2018 has generated much optimism, though untested at present. Given the state of the global environment and the continued degradation of its own backyard, perhaps it is time for Malaysia to respond to this call.
Acknowledgements
Some of the ideas here were discussed and presented in the Tuanku Jaafar Conference & Workshop 2017, “Governance towards sustainable development goals,” UKM, Malaysia, November 2017.
