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10/2/2017 UMLR Searching for Eden The Right to a Clean Environment in Malaysia - UMLR | University of Malaya Law Review
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Lex: in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the
University of Malaya, as well as guest writers.
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I. Introduction
Categories
In the critically acclaimed book The World Without Us[1] (https://88973184-
All (/lex-in-
948403228166079417.preview.editmysite.com/editor/main.php#_ftn1), readers were
breve/category/all)
asked to envision our Earth, if all humans were to disappear tomorrow. In breathtakingly
Comments (/lex-in-
detailed paragraphs, the author explained how our massive infrastructures would
breve/category/comment
collapse, the ozone layer would replenish, ultraviolet levels subside and ora and fauna
s)
would reclaim the earth a paradise. In his closing, author Alan Weisman writes;
Criminal Law (/lex-in-
Without us, Earth will abide and endure; without her, however, we could not even be.
breve/category/criminal-
law)
To Malaysias credit, issues regarding the environment have, in the past years, been an
Environmental Law (/lex-
agenda close to the heart of our judiciary, especially of our Chief Justice, Tun Ari n
in-
Zakaria. Since his appointment as Chief Justice of Malaysia in 2011, he has been active in
breve/category/environm
furthering the environmental cause both nationally and regionally.
ental-law)
Law And Society (/lex-in-
Under his leadership, Malaysias judiciary has seen heartening initiatives[2]
breve/category/law-and-
(https://88973184-
society)
948403228166079417.preview.editmysite.com/editor/main.php#_ftn2) such as the
UMLR (/lex-in-
establishment of two environmental courts, active participation in regional judicial
breve/category/umlr)
http://www.umlawreview.com/lex-in-breve/searching-for-eden-the-right-to-a-clean-environment-in-malaysia 1/13
commitments such as the Jakarta Common Vision and increased training and education
for the members of our Judiciary to implement such commitments.
In his speech at the Opening of the Legal Year 2017[3] (https://88973184-

948403228166079417.preview.editmysite.com/editor/main.php#_ftn3), he brought his
activism one step further when he recommended that the Federal Constitution be
amended to include a right to a clean and healthy environment. The Chief Justice praised
as generous and accurate the landmark Court of Appeal judgment of Datuk Seri Gopal
Sri Ram in the 1996 case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan[4]
(https://88973184-
948403228166079417.preview.editmysite.com/editor/main.php#_ftn4) which stated that
the right to live in a reasonably healthy and pollution free environment is implicit inArticle
5 of the Federal Constitution[5] (https://88973184-
948403228166079417.preview.editmysite.com/editor/main.php#_ftn5), which guarantees
the right to life.
This article aims to look at the status quo of Environmental Law in Malaysia, access our
progress in the area according to established yardsticks such as the Environmental
Democracy Index[6] (https://88973184-
948403228166079417.preview.editmysite.com/editor/main.php#_ftn6) and identify areas
for improvement with suitable recommendations.
II. Status Quo in Malaysia & Problems Attached Herein
Malaysia has a wealth of environmental legislation, spanning over 38 statutes and

ordinances, chief among which are the Environmental Quality Act 1974[7], Wildlife
Conservation Act 2010[8] and the National Forestry Act 1984[9] as well as a sizeable
quantity of subsidiary legislation, regulations and Orders.
However, the state of environmental law in a country is seldom determined by the

quantity of legislation alone. In 2015, it was revealed that Malaysia ranked 69th out of 70
countries surveyed in terms of environmental democratic rights, scoring an overall 0.58
out of three points on the Environmental Democracy Index. The global average score is
1.42.[10]
Conducted by the US-based World Resources Institute, the index tracks the extent to
which countries promotes transparency, accountability and public engagement in its
national laws and measures three components;
(i) the right to freely access information on environmental quality and problems
(ii) the right to participate meaningfully in decision-making
(iii) the right to seek enforcement of environmental laws or compensation for harm.
Malaysia was given very poor marks in transparency and public engagement, with only a
fair score where justice was concerned.
A.Access to Information
International law prescribes clear standards on the right to access environmental

information. This right is recognised in Principle 10 of the 1992 Rio Declaration on
Environment and Development[11], to which Malaysia is a party.
Despite this, Malaysia still has not adopted right to know legislation or even legislation
with strong disclosure provisions relating to environmental information. Instead, the harsh
Of cial Secrets Act 1972[12], combined with excessive restrictions on publication, is
regularly used to keep crucial information away from the public.
A famous and often quoted example would be during the 1999 haze crisis[13] when the
Malaysian Cabinet used the Of cial Secrets Act to withhold the dissemination of daily Air
Pollution Index (API) updates to the public to avoid adverse media publicity that would
drive away tourists, this hampered the ability of citizens to take precaution against the
haze, putting health of citizens at risk. Despite this, the API remained a state secret until
the haze crisis of 2005.
Even systems which have strong inbuilt mechanisms for release of information, such as
the Environmental Impact Assessments (EIA)[14], which is provided for under the
Environmental Quality Act 1974 (EQA 1974) have failed to live up to standards.
The EIA process is intended to aid the decision maker in deciding whether a land
development project should be approved based on the information supplied by EIA
consultants, whose role is to assess the impact and the possible mitigating measures on
the environment. Although the EIA rules also provided mechanisms for the public to
access information provided by the report[15], in practice, however, this was a
requirement that was loosely enforced and often taken lightly.
Firstly, the information provided has a high risk of being tainted as there is a con ict of
interest in regards to the appointment of EIA consultants.[16] Under the Act, these are
private companies hired by the developer. Although the Department of Environment
(DoE) has an approved list of consultants, a developer is free to choose. Given this
discretion, a consultant is highly unlikely going to prepare an unfavourable report when
their livelihood depends on the continued patronage of developers.
Secondly, even where EIAs are conducted, they are often not made widely accessible
and in many cases, only provided after the project have been approved and awarded. A
prime example would be during the controversial Bakun Dam project in Sarawak[17],
where at rst instance, the EIA report was written in English, provided six months after
the contract has been approved and awarded, and priced at RM 150/per copy at the
department while the people who were affected, the native indigenous people, were
mostly poor and uneducated. This severely limited their ability to access such
information.
In conclusion, it is not hard to see why Malaysia scored low scores on the environmental
transparency component given the opaque nature of how our environmental decisions
are taken, the possible con ict of interests in the consultation process and the low
accessibility of environmental information.
B. Participation
In its report, the World Resources Institute found that, in regards to participation, State
government agencies were not required to account for public comments in decision-
making and the right of the public to participate in environmental decision-making is
limited.
Although the EIA process provides avenues for public participation in the decision-
making process, this right is often considered to be not meaningful. The main limitations
are that availability of documents is limited, requirements that comments have to relate
directly to the EIA, and that no response is required on comments made, rendering a right
to be heard just that a mere literal right to be heard.
(i) Availability of documents for public comment
The EIA process has two stages, a preliminary assessment and, for selected projects for
which a preliminary EIA has been completed, a detailed assessment (DEIA). Both stages
provide for the reports being made available to the public at DoE of ces, additional time
for public comments and provisions where local communities can request a public forum
by written request to the DoE.[18]
By themselves, the Guidelines usually provides for high standards for public participation.
For example, the Guidelines for dams and reservoirs[19] recommended that public
participation should begin even before the report is drafted and that consultation should
be done with various authorities and public interest groups. However, the Guidelines are
not uniformly followed.
Firstly, the manner in which the EIA consultation process is publicised is inconsistent.[20]
Although according to the Guidelines, the public must be noti ed that a consultation is
being undertaken, there is no legal obligation to follow speci c procedures. For example,
although the initial EIA for the Broga incinerator was publicised widely in the mass media,
after it attracted protest from the affected communities, the second EIA, for a smaller
incinerator, was only publicised in English and Malay, and not in Chinese-language papers
when the affected community is largely Chinese-speaking.
Secondly, there are also problems with access to the report itself. The EIA is often
published in English, with only the Executive Summary being translated into Malay. The
reports are rarely translated into other languages which may be spoken in affected
communities. Furthermore, the cost of obtaining a copy of the EIA is also restrictive. For
example, as stated earlier, the EIA related to the Bakun Dam was only initially made
available in Sarawak at the cost of RM 150, beyond the means of natives who live in the
area. [21]
Thirdly, the amount of time that the report is open for feedback, which is usually only one
month, makes it dif cult for the communities affected to seek expert advice and opinions.
This barrier is compounded when locals often need to overcome the language barrier,
seek consultants to decipher technical jargons and the consultants often work on a
voluntary basis.[22]
(ii) Limited ambit of comments accepted
Furthermore, the department has restricted the comments that it will accept to those
relating directly to the EIA, rather than broad issues or concerns relating to the project
being commented on.
This is erroneous as it allows the EIAs consultant to de ne the major issues surrounding
the project. An example as to when this approach has limited participation was when the
DoE ignored over 100 letters against the Sungai Selangor dam, on the grounds that none
of them made direct references to the EIA.[23]
(iii) No duty to give reasoned decision
Although there is a right to be heard, once comments are submitted, there is no

institutionalised feedback process. This is because there are no provisions that the
public's voice must be taken into account in the nal decision making, and the authorities
are under no obligation to explain their reasons to the public.
For example, in the case of the Kelau dam in Selangor, although those who had submitted
comments were invited to a consultation process, the NGOs who were invited to these
felt that they were invited solely to legitimise the project, rather than to secure valuable
feedback and consultation. [24]
During the rst meeting, each of the NGOs being consulted was invited to separate
meetings, and each NGO was only limited to one representative, who had to face around
40 government and proponent representatives alone. The consultation period was also
limited, the time for discussion being restricted to about 30 minutes. Furthermore, crucial
supporting documents, such as studies on water supply and demand were not made
available as they were reportedly withheld under the Of cial Secrets Act 1972.
Following the process of public feedback/consultation, the EIA is submitted to a review

panel. Although they cannot substantially in uence the decision of the DoE, they usually,
have some input on the conditions attached to EIA approval. However, erroneously, The
review panel itself is not kept informed of the progress of their comments and input.
For example, there was a case where a member of the EIA review panel for a waste
treatment facility in Negeri Sembilan, Mr Gurmit Singh[25], stated after the EIA review
process was completed, he was not shown the conditions given to the project
proponents when the project was approved. He only discovered later, on his own
capacity, that the conditions attached to approval fell dangerously below the standards
that were recommended by the review panel.
Without the right to a reasoned decision and an institutionalised feedback mechanism

where participants are updated as to the status of their comments, a right to be heard is
toothless and is only used as a mockery of the system, with symbolic consultation'
sessions held merely to legitimise a project.
C. Enforcement
In regards to enforcement of Malaysian environmental law, the World Resources Institute

found that Malaysias judiciary system has failed to provide for timely enforcement of
criminal, civil and administrative decisions on the environment and that the public is not
granted broad standing to le environmental claims in court.
Although the process of timely enforcement has been aided by initiatives taken by our
judiciary in setting up specialised environmental courts, the ability of the public to bring
cases before the court has been plagued with the narrow interpretation of locus standi
given by our courts, although recent case laws have suggested positive trends.
(i) Existence of Environmental Courts
In his inaugural speech at the Opening of the Legal Year ceremony in 2012[26], Chief
Justice Tun Arif n Zakaria bemoaned the lack of cognisance of the signi cance of
environment protection among our courts at that time.
This prompted him to establish the environmental court for our jurisdiction in 2012[27],
where initially some 42 Sessions Courts and 53 Magistrates' Courts were assigned as
environmental courts nationwide to deal with criminal cases regarding the environment.
Subsequently, on 1st of January 2016[28], Special Environmental Courts for civil matters
were established throughout Malaysia. The High Courts, Sessions Courts and Magistrates'
Courts in all 13 states have been assigned to hear civil, environmental cases.
The response so far has been positive, in a press conference given in late 2015[29], Chief
Justice Tun Ari n Zakaria stated that the establishment of the Environmental Court has
contributed to almost 96 per cent of cases recorded from September 2012 to September
2015 being settled.
The Chief Justice said the higher disposal rates at both courts was due to the priority
given to environmental cases and also the setting of a timeline for disposal which was
xed to be between 6 to 12 months from the date of registration.
(ii) Locus Standi
For decades, environmental activism in Malaysia has been crippled by the strict
interpretation of locus standi given by our courts. Locus standi means place of standing,
which means an individuals right to appear in a court of justice on a given question.
An often quoted example was the landmark 1996 Court of Appeal case of Ketua
Pengarah Jabatan Alam Sekitar v. Kajing Tubek[30], often referred to as the Bakun Dam
case where Gopal Sri Ram controversially held that although he found that the three
respondents will suffer deprivation of their livelihood and cultural heritage by reason of
the project being implemented, they did not have locus standi to bring an action before
the court.
He held that in order to have substantive locus standi to bring action before the court, the
respondents either had to prove that the three of them suffered special injuries over and
above the 10,000 other natives whose livelihood and customary rights were equally
affected or bring a representative action before the court representing the 10,000 other
natives.
This case was particularly detrimental towards environmental litigation as the

monumental task of organising, funding and coordinating a class action suit is often
beyond the ability of most ordinary citizens, especially those who are underprivileged.
Furthermore, this interpretation of locus standi excludes any possibility of Public Interest
Litigation, which is normally done by environmental based NGOs and public-minded
individuals.
Although the interpretation of locus standi in the Bakun Dam case prevailed for a great
many years and was the subject of heavy criticism from numerous environmental
scholars and lawyers, in recent years, case laws have gradually shifted towards a more
liberal interpretation of locus standi.
This can be seen in the 2014 case of Malaysian Trade Union Congress & 13 Ors v Menteri
Tenaga, Air dan Komunikasi & Anor[31] where the Malaysian Trade Union Congress
("MTUC") applied to the Minister for documents justifying a 15% increase of tariffs
permitted by the State to the company in charge of water distribution in Selangor. The
court held that public interest litigation in Malaysia is permissible provided the
requirements of locus standi is satis ed, and the test to establish locus standi, according
to the Federal Court, is the "adversely affected" test where an applicant has to at least
show that he has a real and genuine interest in the subject matter. The Court added that it
is not necessary for the applicant to establish infringement of a private right or the
suffering of special damage.
The Federal Court found that MTUC possessed the necessary locus standi to bring the
action on the basis that the government is under a responsibility to provide safe and
affordable treated water; water being an inalienable and basic right to human existence
and living, there should not be unreasonable pro teering by private companies; and that
they have a legitimate expectation that the government shall at all times ensure that its
people have affordable access to treated water.
Although not yet at the level of often unrestricted locus standi to bring forth public
interest litigation as seen in countries like India, this is a heartening step towards the right
direction by our Federal Court, and it is hoped that this liberal interpretation would
accommodate more environmental issues to be brought before the court.
D.Constitutional tension
Besides the three parameters used to calculate the index, the World Resources Institute
also made an intriguing nding. Their report added that Malaysia's score might not re ect
the full extent of access rights given to citizens in a federal country, as Malaysia had state
laws that could affect rights covered by federal law.
This is due to the jurisdictional issues between the federal and state authorities. According
to Article 74 of the Federal Constitution[32], matters relating to land, rivers, forests, local
government, and town and country planning are within the jurisdiction of the respective
State Authority.
Although Federal Government can introduce laws on state matters for purposes of
ensuring and promoting uniformity between the laws of two or more states under Article
76[33], Federal Legislation introduced for purposes of uniformity are not automatically
operative in a state, and it is applicable in a state only with the adoption by the respective
State Authorities.
This conundrum has not been aided by the courts, which have at times used the state
autonomy provision to exclude the application of federal statutes which provides for
greater protection for the environment. An important case in point arose in the
aforementioned Court of Appeal case of Ketua Pengarah Jabatan Alam Sekitar v. Kajing
Tubek[34] where one of the issues was whether the Bakun Dam was to be considered
under EQA 1974, which is a federal environmental legislation or be governed by the
Sarawak State law, that is the Natural Resources Ordinance 1949.[35]
This is important as the Sarawak State legislation provided for a simpli ed approval
process for the EIA report without any form of public participation as it did not contain
the procedural requirements similar to the federal EIA process where the project
developer is required to allow public consultation on the EIA report before it can be
approved.
The Court of Appeal held that,in the context of State and Federal relations, Parliament is
presumed not to encroach upon matters that are within the constitutional authority of a
State and since the "environment" in question, matters of land and water, lies within the
constitutional province of the State of Sarawak, the State should have exclusive authority
over the Bakun Dam and the relevant statute to be applied would be the Ordinance and
not the Act.
The federal structure is problematic as it inhibits concerted environmental policy

developments in the country. The federal government is often unable to effectively
implement the planning of environmental protection policies and law throughout the
country and states with their own designs are able to use the cloak of the constitution to
out accepted national environmental standards.
IV.Recommendations
The issue attached to environmental law in Malaysia is multifaceted and complex, and
there are no easy answers, especially in regards to contentious issues such as State
Autonomy. However, I would like to humbly offer a few points of recommendation based
on research and observation;
A.Provision of information
The most direct way of solving this issue would be to adopt a speci c law requiring the
government to disclose information regarding the environment, such as Emergency
Planning and Community Right to Know Act 1986[36] adopted in the United States,
where businesses must report certain environmental information to federal, state and
local authorities, which is then made publicly available.
Should that prove to be too drastic a step, existing systems with inbuilt mechanisms such
as the EIA process provided for under the EQA 1974 has to be strengthened and potential
loopholes and con ict of interests be closed.
This means taking steps such as rstly, the DoE assigning independent consultants or
having consultants on the governments payroll to conduct EIA on proposed projects. This
is to eliminate the leverage that project proponents have as a client to those consultants
and take pressure off the consultants to prepare a favourable report on the project.
Secondly, the requirement that EIAs be conducted before projects have been awarded
must be strictly adhered to, in order to avoid inertia of sunken costs which would make
revocation of permission much harder to achieve.[37]
Third, information in regards to the EIA report also has to be made widely accessible to
Malaysians from all walks of life. This means taking steps such as publishing information
in all major platforms of mass media, preparing reports in the multiple languages spoken
in Malaysia and provided the reports at printing cost to the public and making the report
comprehensible to the layman by providing a non-technical summary.
B.Participation
The ability of the public to participate in environmental decisions have to be enhanced

and made to be meaningful. This can be done with a few initiatives.
Firstly, clear, speci c procedures for notifying the public or affected communities of their
right to participate and the timeline for their participation has to be provided for in
regards to reports such as the EIA. The amount of time that the report is open for
feedback should also be extended, ideally, up to three months as to allow affected
communities to consult experts, work on understanding technical concepts used in the
report and to formulate their response after conducting their own veri cation and
research.
Secondly, the ambit of comments accepted by the DoE should not be limited to direct
references to the EIA only. Rather, all comments regarding broad issues or concerns
relating to the project being commented on should be accepted and taken seriously. This
not only allows people who are not familiar with the technical jargon used in the EIA to
contribute to the process but also widens the scope of consideration into issues that
might not have been considered in the EIA.
Thirdly, a duty to give reasoned decision must be provided for in the act or guidelines to
respond adequately to concerns voiced by the public in order to promote accountability
and instil public con dence in governance. A duty to give reasoned decisions also allow
the grounds of a decision to be scrutinised by members of the public which will lessen
the chances of wrong or excessively detrimental decisions from being made.
C.Enforcement
In regards to enforcement of Malaysian environmental law, locus standi of the public to

bring actions in regards to environmental matters should be further broadened to
encourage public interest litigation. Although the progressive decision in the 2014 Federal
Court case of Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan
Komunikasi & Anor[38] is laudable, the courts should consider doing away with
requirements of the adversely affected test altogether and adopt wider interpretations of
locus standi as held in the Indian Supreme Court case of Malik Brothers v. Narendra
Dadhich AIR[39] and in the words of the Supreme Court, allow Public interest litigation
when it is "for the purpose of redressing public injury, enforcing public duty, protecting
social rights and vindicating public interest in order to vindicate the rule of law, ensure
effective access to justice to the economically weaker class and meaningful realisation of
the fundamental rights."
Furthermore, the suggestion of our Chief Justice Tun Ari n Zakaria to include the rights to
a clean environment into our constitution[40] would no doubt vastly expand the scope of
locus standi, as environment polluters would be effectively breaching constitutional right
of citizens should they take actions detrimental to the environment. This would, in an
unambiguous way, solve the long-standing debate on the locus standi to bring
environmental actions before the court.
D.Constitutional delegation of powers
Being from the East Malaysian state of Sarawak, I am aware that the Federal-State
relationship and State autonomy is a very complex and sensitive issue to many
Malaysians. However, it is important to note that the current conundrum in regards to the
delegation of powers to regulate environmental practices stems from the lack of clear
reference to the environment in the Federal Constitution. As such, interpretation as to
what constitutes environment is largely left up to case law and the discretion of judges.
In the controversial case of Kajing Tubek[41], Gopal Sri Ram, held that the term
"environment" is a multi-faceted and multi-dimensional concept, and for the purposes of
the case chose to interpret environment as the place where the power is to be
generated by the dam, which is land and water.
Using this interpretation, the court held thatsince the "environment" in question, land and
water, falls within the state list in our constitution and as such, lies wholly within the
legislative and constitutional province of the State of Sarawak, the State should have
exclusive authority to regulate, by legislation in a manner as it deems t.
With all due respect, in my humble opinion, the issue of environment protection should
not be con ated with the power of states to legislate and deal with its natural resources
in the form of alienation, disposal or development, as the two are distinctly different
matters. States should have the autonomy and discretion to dispose of their natural
resources, but it must be done according to accepted national minimum standards
established by Federal Law.
In my opinion, the jurisdiction to legislate for environmental protection should be clearly

stated out and be placed within the Federal Governments jurisdiction in our Federal
Constitution. This way, it would clearly separate the ability for Federal Governments to
legislate and impose minimum standards of environmental protection from the state list
without compromising individual States wider ability to dispose and legislate in regards
to their natural resources provided for in the ninth list.
In addition to this recommendation, as environmental protection should be at the

forefront of every countrys agenda, any Constitutional Amendment to such effect should
include provisions that allow environmental laws enacted by the state to prevail if and
only if, they provide more favourable conditions and afford greater protection for the
environment than was provided for under the act. This would allow States who wish to
take more proactive measures to protect their environment the ability to do so and
ensure that the only trajectory for environmental law in Malaysia is towards greater
management, protection and preservation.
V.Conclusion
This article was written in the midst of dark tidings for the environment. The Earth
reached its highest temperature on record in 2016; it marked the rst time in the modern
era of global warming data that temperatures have blown past the previous record three
years in a row. Since modern recordkeeping began in 1880, of the 17 hottest years on
record, 16 have now occurred since 2000.[42]
In 2015, India suffered its hottest heatwave on record, claiming at least 2,300 lives. More
than 20,000 people have died of heat-related causes in India since 1990.[43] Indian
scientists have linked the increased frequency of heat waves to global warming.[44]
Prime Minister Najib Razak has acknowledged the existence and effects of climate
change in a post on his personal blog in 2015[45], saying that; Its effects are real and
Malaysians are not spared from feeling the effects of it. Our drought seasons are
prolonged, as our rainy seasons too. We suffer from water supply crises in some states as
well as one of the worst oods the country has seen in decades,". In the same post, he
pledged to address this issue head on.
Climate change poses a real danger not only to our immediate surroundings but also our
future. Malaysia must do every bit we can to protect the environment, and for that it is
important to re ect on our existing laws, regulations and even the constitution to make
the protection of the environment a priority and the provisions enacted to do so as
watertight as possible.
When Al Gore gave his 2007 Nobel Lecture in Norway[46], he quoted a Norwegian
playwright, Henrik Ibsen, when he said the next generation will ask us one of two
questions. Either they will ask: "What were you thinking; why didn't you act?" Or they will
ask instead: "How did you nd the moral courage to rise and successfully resolve a crisis
that so many said was impossible to solve?"
Do we have that moral courage?
_______________________________________________________________________________
This article was written by Leeroy Ting Kah Sing
_______________________________________________________________________________
Footnotes:
[1] Weisman, A. (2007). The world without us. New York: Thomas Dunne Books/St. Martin's Press.
[2] Koshy, S. (2017, January 17). Make clean environment a clear right in the Constitution, says CJ. The Star. Retrieved from:
http://www.thestar.com.my/news/nation/2017/01/13/make-clean-environment-a-clear-right-in-the-constitution/
[4] Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771
[5]The Federal Constitution of Malaysia, Article 5
[6] Environmental Democracy Index. World Resources Institute. Retrieved from:

http://www.environmentaldemocracyindex.org/
[7] Environmental Quality Act 1974, Act 127 (2006)
[8] Wildlife Conservation Act 2010, Act 716 (2010)
[9] National Forestry Act 1984, Act 313 (2006)
[10] Lee, P. (2015, May 20) Malaysia ranked near bottom of the class by environmental democracy watchdog. The Star.
Retrieved from: http://www.thestar.com.my/news/nation/2015/05/20/malaysia-low-environmental-
ranking/#Dsd252jRURTshbUW.99
[11] Rio Declaration on Environment and Development (1993)
[12] Of cial Secrets Act 1972, Act 88 (2006)
[13] (1999, August 6) World: Asia-Paci c Row over Malaysian haze. BBC News. Retrieved from:
http://news.bbc.co.uk/2/hi/asia-paci c/413864.stm
[14] (1990, October 21) Environmental Impact Assessment (EIA) Procedures and Requirements in Malaysia. Department of
Environment. Retrieved from: http://www.doe.gov.my/eia/wp-content/uploads/2013/06/EIA-Procedure-and-
Requirements-in-Malaysia.pdf
[15] Euro-Circuit Technology Sdn Bhd (company). Environmental Impact Assesment (EIA). Euro-Circuit.net. Retrieved from:
http://www.euro-circuit.net/environmental-impact-assessment-eia.html
[16] (2005) Sharom, A. Environmental Laws in Malaysia: Time to Walk the Walk. Selected Issues in the Development of
Malaysian Law. Retrieved from: http://eprints.um.edu.my/13465/1/environmental_laws_in_malaysia.pdf
[17] Gomez, E, T. (1999) Malaysia's Political Economy: Politics, Patronage and Pro ts. Pg 111. Retrieved from:
http://tinyurl.com/zmvsj8p
[18] (2010) Environmental Requirements: A Guide For Investors. Department of Environment. Retrieved from:
http://www.doe.gov.my/eia/wp-content/uploads/2012/03/A-Guide-For-Investors1.pdf
[19] (1995) Environmental Impact Assessment Guidelines for Dams and/or reservoirs projects, p. 8-2, Department of
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[20] Article 19 (Organization), & Centre for Independent Journalism. (2007). A haze of secrecy: Access to environmental
information in Malaysia. London: Kuala Lumpur: Article 19. pg 55, Retrieved from:
https://www.article19.org/data/ les/pdfs/publications/malaysia-a-haze-of-secrecy.pdf
[21] Gomez, E, T. (1999) Malaysia's Political Economy: Politics, Patronage and Pro ts. Pg 111. Retrieved from:
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[26] (2012) Speech by Tan Sri Ari n bin Zakaria, Chief Justice of Malaysia, at the Opening of the Legal Year 2012, The
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[29] Bernama. (2015, October 16) 96 pct of environmental cases disposed- CJ. The Malaysian Times. Retrieved from:
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[30] Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors [1997] 4 CLJ 253
[31] Government State of Penang & Anor v. Government of Malaysia & Anor [2014] 7 CLJ 861
[32] The Federal Constitution of Malaysia, Article 74
[33] The Federal Constitution of Malaysia, Article 76
[35] Natural Resources Ordinance 1949 (Sarawak Cap 84)
[36] Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986, Title 42, Chapter 116 (2011)
[38] Malaysian Trade Union Congress v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525
[39] Malik Brothers v. Narendra Dadhich AIR [1999] SC 3211
[42] Gillis, J. (2017, January 18) Earth Sets a Temperature Record for the Third Straight Year. New York Times. Retrieved from:
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[43] Whiteman, H. (2015, June 2) India heat wave kills 2,330 people as millions wait for rain. CNN. Retrieved from:
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[44] Nandil, J. (2016, May 21) Severity of heat waves up in last 15 years, says IMD. The Times of India. Retrieved from:
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IMD/articleshow/52369213.cms
[45] Razak, N. (2015, December 2) Our Fight Against Climate Change. NajibRazak.com. Retrieved from:
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[46] Gore, A. (2007, December 10) Nobel Lecture. NobelPrize.org. Retrieved from:
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In his speech at the Opening of the Legal Year 2017[3] (https://88973184-

Malaysia has a wealth of environmental legislation, spanning over 38 statutes and

However, the state of environmental law in a country is seldom determined by the

International law prescribes clear standards on the right to access environmental

(i) Availability of documents for public comment

(ii) Limited ambit of comments accepted

(iii) No duty to give reasoned decision

Although there is a right to be heard, once comments are submitted, there is no

Following the process of public feedback/consultation, the EIA is submitted to a review

Without the right to a reasoned decision and an institutionalised feedback mechanism

In regards to enforcement of Malaysian environmental law, the World Resources Institute

(i) Existence of Environmental Courts

(ii) Locus Standi

This case was particularly detrimental towards environmental litigation as the

The federal structure is problematic as it inhibits concerted environmental policy

The ability of the public to participate in environmental decisions have to be enhanced

In regards to enforcement of Malaysian environmental law, locus standi of the public to

D.Constitutional delegation of powers

In my opinion, the jurisdiction to legislate for environmental protection should be clearly

In addition to this recommendation, as environmental protection should be at the

Do we have that moral courage?

[5]The Federal Constitution of Malaysia, Article 5

[6] Environmental Democracy Index. World Resources Institute. Retrieved from:

[7] Environmental Quality Act 1974, Act 127 (2006)

[8] Wildlife Conservation Act 2010, Act 716 (2010)

[9] National Forestry Act 1984, Act 313 (2006)

[11] Rio Declaration on Environment and Development (1993)

[12] Of cial Secrets Act 1972, Act 88 (2006)

[32] The Federal Constitution of Malaysia, Article 74

[33] The Federal Constitution of Malaysia, Article 76

[35] Natural Resources Ordinance 1949 (Sarawak Cap 84)

[39] Malik Brothers v. Narendra Dadhich AIR [1999] SC 3211

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