Thursday, 7 February 2013

Non-partisan care for environment

Brave New World (The Star)
6 February 2013

Long-term systemic changes which include good transparent governance, strong legislation and proper access to the judiciary are key to protecting the environment.


IF there is one field of public concern that requires a non-partisan approach, it would be the protection and preservation of the environment.

Two recent news stories go some way in driving this point home.

The first is about the mystery of the dead herd of pygmy elephants in Sabah.

The second is the massive vegetable farming project in the highlands of Kelantan.

The reason why I say this is due to our Government’s system in which the federal system is employed.

The way our Government is structured is determined by the Federal Constitution.

This clearly delineates powers between two distinct governments: federal and state.

Once local government is added to the mix, what we have are three separate centres of responsibility.

The problem is that the environment does not recognise the Constitutional division of power.

In the mid-50s when the Con­stitution was drafted, environmental issues were not on the radar of the drafters, nor was it a priority for the power elite.

So, the term “environment” will not be found anywhere in the Cons­titution.

On the other hand, what we do have is each power base takes responsibility over different aspects of the environment.

For example, pollution control is under the jurisdiction of both federal and local governments.

Land and forests are under the jurisdiction of the state government.

Of course, there will be a lot of overlap.

For instance, what if forestry activities cause river pollution?

So when we look at the Kelantan issue, all three forms of government must take responsibility for the situation.

The state government is the one that determines the status of the land and whether it can be used for agricultural purposes or not.

The local government is the one that gives permission for the specific use of the land.

The federal government via the Department of the Environment has the responsibility to pass or fail the Environmental Impact Assessment (EIA) for the project.

For the sake of accuracy, I must say here that I do not have the details of the project but generally speaking, projects of such a large scale would require an EIA.

The matter is confused even further when we examine the pygmy elephant deaths.

This is because although penin­sular Malaysia has its own wildlife protection law, Sabah and Sarawak have their own individual enactments as determined by the Consti­tution.

With the political situation in the country being what it is, it is likely that it will be common in the years to come that the state governments and the federal government are ruled by different political parties.

If we have the reintroduction of local government elections in the future, it is perfectly foreseeable that you may even have three political parties bearing responsibility over one area.

Therefore, it is impossible to de­pend on any one party to do the right thing with regard to the environment.

In a situation like this, what we need is the institutionalisation of environmental concern.

Laws have to be effective and digressions from it will result in sufficiently deterring sanctions.

Furthermore, there has to be transparency in environmental decision making.

This is to ensure that poor decisions can be made known and action taken. This then leads to the question of “what action”?

Clearly in situations where the decision-making body is an elected government, public displeasure can be made via the ballot box.

However, there is also a need to ensure the courts are open for grievances to be aired.

Where the courts are concerned we need to ensure that the locus standi or the right to appear in court is broadened to allow an interested party to bring the case forward.

As it stands, our judiciary has limited locus standi to narrow situations where a person has to show he or she is directly and uniquely affected by a poor environmental decision before they have a right to their day in court.

This must change to allow for public interest litigation, that is to say cases where a person or an organisation can bring a case to court purely on the grounds that it is in the public interest to do so.

Even before it comes to that, the decision making processes regarding the environment should include meaningful public participation as far as possible.

This is a principle enshrined by the Rio Declaration in which Malay­sia is a signatory too.

If a situation involves indigenous people, the United Nations Dec­laration on the Rights of Indigenous Peoples, another document we are a signatory too, demands that any action which affects indigenous land requires the affected community’s free, prior and informed consent before it can be taken.

Protecting the environment is something that cannot simply be solved by political machinations.

What we need are long-term systemic changes which will include good transparent governance, strong legislation and proper access to the judiciary.

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