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APCEL Report : Malaysia Back to : Index : Environmental Law (ASEAN-10) : Malaysia
Malaysia, comprising Peninsular Malaysia and the Eastern Malaysian states of Sabah and Sarawak on Borneo island, occupies a land area of 328,550 square kilometres, with a coastline 4,675 kilometres in length. A federation of 13 states and 2 federal territories, Malaysia has a population of over 20 million (July 1997 estimate), with the majority of the people residing in the western coast of Peninsular Malaysia. The diversified economy is characterised largely by light and heavy industry, agriculture and services, with the main income earners being electronic equipment, manufactured products, petroleum and natural gas, palm oil, timber, rubber and tourism. The largest cities are the federal capital, Kuala Lumpur (population 2.5 million) and the northern city of Georgetown in Penang state (population 1 million). Malaysia’s per capita gross domestic product (1996 estimate) stands at US$10,750. Rapid industrialisation and economic growth over the past two decades have transformed Malaysia from a predominantly agricultural country to an industrialised one. Arguably, the relatively lower population density and higher income levels have not imposed as severe a strain on the environment as in many developing countries. Considerable tracts of the country remain forested, and the early move towards industrialisation has averted massive land use demands for agriculture and settlement. However, significant environmental problems still exist, caused primarily by industrialisation and the exploitation of the vast natural resource base. Deforestation, depletion of fisheries, air and water pollution and contamination by industrial wastes have in recent years become serious concerns in Malaysia. In the past decade, the country has also attracted international attention in its vocal denunciation of the environmental fervour in Western countries. Malaysia continues to champion the sovereign right of developing countries to pursue development according to their own terms.
The head of state in the Malaysian constitutional monarchy is the Yang Dipertuan Agong (Supreme Head), who is a ceremonial ruler elected by rotation amongst the hereditary ruling houses of nine Malaysian states. The Westminster-styled form of government has the Prime Minister as the leader of the executive branch of government. He is assisted by a Cabinet drawn from the ruling party which holds the majority in the elected Dewan Rakyat (House of Representatives). The supreme legislative power resides in the Parliament, which comprises the Dewan Rakyat and the Dewan Negara (Senate). Each of the 13 states has a state Constitution, a state legislature and a state government headed by the Menteri Besar (Chief Minister). As with typical federal structures, the states retain competence in numerous sectors. However, the federal government can exercise effective control over state matters through ruling party policies and fiscal measures. Environmental management is conducted at the federal level by the Department of Environment (DOE) of the Ministry of Science, Technology and Environment. The DOE is headed by the Director-General of Environmental Quality, who is appointed by the Minister from amongst members of the public service. Within each state, the state governments have corresponding authorities and officials in charge of environmental matters. The Director-General has as one of his major functions, the establishment and maintenance of liaison and cooperation with the state authorities in relation to issues of environmental protection, pollution control and waste management. The DOE principally deals with matters involving air and water quality, industrial wastes, noise levels and environmental impact assessments. Thus, it is concerned largely with industrial pollution and environmental quality in general. Jurisdiction over land use and natural resource management rests primarily with the respective state authorities exercising competence through state legislation. At the federal level, a vast array of Ministries including the Ministries of Primary Industries, Agriculture, Land and Cooperative Development and Transport, exercise supervisory and state liaison roles over the main natural resource sectors. Thus, issues like forestry, wetlands, mining and marine conservation do not fall directly within the DOE’s mandate. It is only through the EIA process that the DOE exercises some measure of central supervision. The following is the division of administrative
competences at the federal level:
The environmental NGO movement in Malaysia has witnessed increasing involvement and exposure in recent years. Several well-publicised environmental incidents like the controversies surrounding the construction of the Bakun dam and the Asian Rare Earth case have thrust NGOs to the forefront of public attention. In these cases, several NGOs led public protest movements and even court litigation to seek remedies against environmental violations. NGOs like Sahabat Alam Malaysia (Friends of the Earth Malaysia), the Consumers’ Association of Penang, the Ratepayers Association of Penang and the Third World Network have been vociferous in their resistance to several developmental projects which threaten environmental quality. The environmental NGOs in Malaysia face many challenges, chief of which is the difficulty in having their standing to sue (locus standi) recognised by courts. In addition, the NGOs are generally viewed with suspicion and distrust over their perceived "anti-development" positions. NGOs also lack financial, manpower and research resources. Arising from the strict approach adopted by Malaysian courts on the question of standing in environmental cases, NGOs have had to exploit other means of highlighting their concerns for the environment. These include raising public awareness and objection, letters and petitions to Members of Parliament, and dialogues and negotiations with government authorities and project proponents.
The hierarchy of legislation in Malaysia is as follows:
The main framework environmental legislation in Malaysia is the 1974 Environmental Quality Act (hereinafter "EQA) and the regulations enacted thereunder. The 1974 EQA has been substantially amended in recent years, principally by the Environmental Quality (Amendment) Act 1996 (Act A953). References to the EQA will be taken to mean the amended EQA. The EQA employs a regulatory framework based upon the issuing of licenses and the prescription of premises to be regulated. The Minister, in consultation with the Environment Quality Council, may prescribe any premises the occupation or use of which by any person to be an offence, unless that person is the holder of a license in respect of those premises. Conditions for the occupation and use of these "prescribed premises" are attached to the license by the Director General, who is the licensing authority. Thus, the Director General has the power to grant, renew, transfer and revoke licenses, as well as to vary the pollution control conditions attached therein. In exercising this power, the Director General is bound to consider factors such as the practicability and efficacy of imposing new and varied conditions, the economic life of existing installations, the cost of complying with conditions and the nature of the industry concerned. Fees are payable for the issuance, transfer and renewal of licenses, and these vary according to the nature of the industry and the magnitude of the pollution caused. Penalties are provided for failure to hold a license for prescribed premises, as well as failure to comply with the conditions in the license. It is also an offence to carry out any building, alteration or erection work which would cause a vehicle, ship or premises to become prescribed conveyances or prescribed premises under the EQA, unless the Director General has approved the plans and specifications for the proposed work and the competent planning authority has similarly approved the plans. The Minister may stipulate specific conditions for the emission, discharge or deposit of environmentally hazardous substances, pollutants or wastes into the environment. The EQA then proceeds to prescribe substantive offences and penalties for pollution of the atmosphere, soil, inland waters, territorial waters as well as noise pollution in contravention of these conditions, unless the person conducting these activities is licensed. There is also a specific provision on the dumping, import and export and transit of "scheduled wastes" (hazardous materials). In addition, the EQA contains several interesting and progressive provisions, several of which are outlined as follows:
Apart from the familiar development-environment tensions and the common budgetary and manpower problems found in most developing countries, Malaysia faces a significant challenge in relation to federal and state government competence. As in all countries with federal structures of governance, there are substantial issues in the division of jurisdiction between the federal and state authorities. The Federal Constitution of Malaysia leaves substantial powers over land use and natural resource management to the respective States. In addition, the Constitution guarantees certain unique rights and privileges to the Eastern Malaysian states of Sabah and Sarawak. The federal Parliament would have jurisdiction to legislate for the states only in those areas which had been explicitly identified by the Constitution. Thus, certain key matters relating to land use and natural resources remain within the exclusive jurisdiction of state legislation, and the DOE would consequently assume only a liaison and cooperative role with respect to the state organs. The problem is further compounded in relation to the implementation of international treaty obligations. Whilst the federal government has the prerogative to accede to international treaties, the implementation of these treaty obligations remain with the states if these impinge on issues over which states have jurisdiction. As a result, considerable difficulties have arisen over environmental protection issues, particularly in relation to forestry, land use, wildlife protection and hydroelectricity generation, issues which reside within exclusive state competence. Hence, if certain states have inadequate legislation governing natural resource sectors, it would not be in the province of the federal government to impose its legislation (if any) on these states. Only the state legislatures would have competence to legislate in these matters, and any federal legislation which may exist would be inapplicable. Therefore, there can be confusion not only with respect to the applicable laws and agencies regulating a particular project but also fundamentally, whether the federal government has competence to regulate the subject-matter in the first place. In view of this situation, the courts have at times been called upon to pronounce on the constitutional implications of Parliament’s legislation on federal-state relations. One such celebrated case arose out of the controversy surrounding the construction of the Bakun dam in Sarawak. The Minister of Science, Technology and Environment had prescribed a number of activities to be subject to the EIA process under the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 (pursuant to section 34A of the parent EQA). One such activity was the construction of dams and hydroelectric power schemes which had either one or both of the following features: (a) dams over 15 metres high and ancillary structures covering a total area in excess of 40 hectares; (b) reservoirs with a surface area in excess of 400 hectares. The Bakun dam fell to be considered as just such a project. At the same time, however, there was in existence a Sarawak State Ordinance called the Natural Resources Ordinance 1949 (the Sarawak Ordinance), which required an EIA to be submitted to the Sarawak Natural Resource Board for review in cases of prescribed activities. In 1994, the Sarawak state government enacted the Natural Resources and Environment (Prescribed Activities) Order 1994, (hereinafter referred to as the "Sarawak Order"), which listed dam projects as prescribed activities. This effectively placed the Bakun dam within the ambit of the Sarawak legislation. One of the procedural requirements of the federal EIA process was public consultation before the EIA could be approved. The relevant Sarawak state legislation, however, did not contain such a requirement. In 1995, the federal Minister issued an order (the 1995 Amendment Order) to the effect that the federal EIA requirements in relation to the construction of dams would no longer apply to the State of Sarawak. This was retrospectively dated to coincide with the passage of the Sarawak Order. In effect, this transferred the applicable law from the federal EQA wholly to the Sarawak Ordinance. A group of Sarawak residents opposed to the construction of the dam then brought a case in court claiming that they had been deprived of their vested rights to obtain a copy of the EIA and to make representations pending the approval of the EIA. The plaintiffs sought to compel the defendant project proponents to comply with the federal EQA requirement of public consultation. The High Court granted this relief, holding inter alia, that the Minister had no power to make retrospective amendments. This decision was however, reversed by the Court of Appeal, which held that the High Court had misdirected itself in finding the applicable law to be the EQA instead of the Sarawak Ordinance. In reaching this decision, the Court of Appeal stated that the 1995 Amendment Order had made it "abundantly clear to all concerned that the 1987 Order was not, for constitutional reasons, meant to apply to Sarawak." Such issues demonstrate the common administrative challenges in federal systems such as Malaysia where the interstices of federal-state competence create uncertainty over the applicable laws. In recent years, there has been criticism that inadequate attention is being given to environmental protection at the state level. Numerous calls have been made to the federal government in Kuala Lumpur to establish an Environment and Sustainable Development Council to promote the integration of federal-state policies and to incorporate environmental concerns into developmental planning. Until such efforts come to fruition, it appears that federal efforts to pursue environmental and natural resource management may continue to face challenges in sectors falling within exclusive (or even concurrent) state jurisdiction. The experiences of other federal systems in Australia, Canada and the United States show that the most effective way to bridge the federal-state gap is to institutionalise some form of partnership arrangements in environmental protection. These partnership arrangements would entail federal and state governments working closely together, with the former providing financial and technical resources and the latter the requisite enforcement mechanism. In pursuing this cooperation, the fine legal distinction between federal and state competence could be downplayed to maximise the environmental protection effort. Quite apart from the federal-state jurisdictional issue, further challenges arise in relation to the competence of the various national agencies over natural resource sectors. The EQA (and its implementing agency, the DOE) remain responsible largely for industrial pollution control only. The vast natural resource sectors like forestry, fisheries, mining and agriculture come under the jurisdiction of other national ministries, with separate sets of regulatory laws. This creates the frequent problem of overlap in prescriptive and enforcement jurisdiction, since environmental concerns often cut across numerous natural resource sectors. Whilst the advisory Environmental Quality Council established by the EQA maintains representation from the various governmental (and non-governmental) interests, it appears that effective coordination in policies can be further improved. The overlap in jurisdiction becomes clear in relation to the prescribed activities under the EIA system. The list of prescribed activities requiring EIA reports embraces issues ranging from industries and infrastructure projects to agriculture, land reclamation, fisheries and forestry issues. The EIA guidelines and regulations issued to date have attempted to formalise a system of inter-ministry consultation and collaboration. These efforts should be further bolstered to ensure that coherent developmental policies are formulated which take environmental concerns into account. In many legal systems including Malaysia’s, judicial recourse is available only to persons who can demonstrate a sufficient connection with or interest in the subject matter in dispute. Recent court cases in Malaysia have consistently denied the locus standi (the right to sue) of environmental NGOs. In the Bakun dam litigation, the plaintiffs argued successfully before the High Court that as residents in the affected area, they were directly and adversely affected by the inundation of the land caused by the construction of the dam. The Court of Appeal, however, disagreed for several reasons. First, the plaintiffs had suffered no injury - even if the word "life" in Article 5(1) of the Federal Constitution were to include the right to a reasonably healthy and pollution free environment, such rights may be extinguished "in accordance with existing law". Second, there was no suggestion that the plaintiffs were championing the cause of the other 10,000 natives whose livelihood and customary rights were equally affected by the project. Any injury suffered by the plaintiffs was not over and above the injury common to all others. Third, the Court of Appeal felt that the High Court judge failed to consider the public and national interests involved, in particular the interests of justice from the defendants’ point of view. Hence, arising from the courts’ strict interpretation of locus standi, environmental NGOs have had to resort to a host of non-legal measures to bring attention to their cause. Even if the plaintiffs were directly injured, the case law on action brought for injuries suffered as a result of exposure to toxic wastes demonstrates that the uncertain nature of these injuries presents several problems - first, the uncertain aetiology of diseases associated with exposure to toxic substances, and second, the long latency period between exposure and manifestation of an injury. A related point is the issue of time limitation - if the victim’s disease manifests years after exposure to the toxic substances beyond the prescribed limitation period, there can be no remedy. Malaysian courts also impose a high burden of proof on plaintiffs to prove causation of damage - this imposes another difficulty in the way of seeking legal remedies. In developing countries like Malaysia, the central problem relating to the upholding of environmental legislation is the frequent tension between development and protection of the environment. The concept of "sustainable development" has not been adequately manifested beyond its value as a theoretical ideal. A concrete and practical application of the concept has yet to be formulated to effectively reconcile the interests of development and the environment. As a practical reality, decision-making in developing countries is often influenced to a considerable extent by the developmental interests of industrialists, corporations and local authorities. In the result, it can be appreciated that effective protection of the environment remains a formidable challenge. While it can be seen that the Malaysian EQA is a fairly responsive framework law, several major challenges remain to be met. First, the reconciliation of federal and state competences needs to be achieved. The experience of other federalist countries demonstrates that a high level of flexibility and cooperation between federal and state authorities is needed without over-emphasising the legal demarcation between federal and state "turfs". Second, greater inter-ministerial coordination is required to address natural resource management issues which straddle the jurisdiction of several agencies. Third, greater public participation is needed to enable NGOs and the general public to have a larger role in decisions which affect their lives - this increased participation will have to be sought in both legal, as well as extra-legal mechanisms. Related to this would be the critical need to redress the prevailing procedural difficulties in vindicating legal rights.
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