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
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
The second is the massive vegetable farming project in the highlands of
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
This clearly delineates powers between two distinct governments: federal and
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
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
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 federal government via the Department of the Environment has the
responsibility to pass or fail the Environmental Impact Assessment (EIA) for the
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
The matter is confused even further when we examine the pygmy elephant
This is because although peninsular Malaysia has its own wildlife protection
law, Sabah and Sarawak have their own individual enactments as determined by the
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
Laws have to be effective and digressions from it will result in sufficiently
Furthermore, there has to be transparency in environmental decision
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
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
This is a principle enshrined by the Rio Declaration in which Malaysia is a
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
What we need are long-term systemic changes which will include good
transparent governance, strong legislation and proper access to the