Across the globe, climate change and environmental issues remain grave concerns for many, considering the dire consequences it entails. These concerns havinge already begun manifesting decades ago. While Malaysia has a legal framework in place, showing its commitment in preserving the environment, critics and experts alike have said that these laws, some of which were enacted as early as 1974, are no longer relevant in light of the nation’s growing economic and social needs. This a call for the need to review and implement legislation which is more comprehensive and fitting to current demands.
The first dedicated environmental legislation created in Malaysia was the Environmental Quality Act 1974 (‘the Act’) which came into force in 1975. It was aimed to prevent and control pollution and to create a system which that punishes those who cause harm to the environment. Within its provisions also exist licensing and environmental impact assessment protocols, including definitions of pollution across substances and environments. Section 16(2) of the Act provides that any licensee who fails to comply with the terms specified shall be liable to a fine not exceeding twenty-five thousand ringgit or imprisonment for a period not exceeding two years or both, and to a further fine of one thousand ringgit for every day that the offence is continued after a notice by the Director General requiring him to comply with the terms has been served.
Even so, many advocates for environmental justice have argued that the fines imposed by courts are insufficient to deter offenders and major corporations that have been linked to cases of pollution or other forms of environmental issues. Multinational corporations which make millions annually, will be unfazed by these fines that indeed appear insignificant. An example being the water cuts that affected 1.2 million accounts and 5 million consumers in Klang Valley last year after treatment plants had to be shut down due to contamination caused by illegal chemical dumping. Following the incident, two company directors were charged under Section 25(3) of the Act at Selayang Sessions court for connections to the pollution of Sungai Gong; they are liable to a fine not exceeding one hundred thousand ringgit or imprisonment of not more than 5 years or both. They may be subjected to a further fine not exceeding one thousand ringgit a day for every day that the offence is continued after a notice has been served. In another instance, Anson Wong, a wildlife smuggler who tried to smuggle 100 live snakes from Penang to Indonesia in 2010 was initially sentenced to a fine of RM 190,000 and six months imprisonment. His final appeal to the Court of Appeal reduced his sentence to a jail term of 17 months.
Besides that, environmental protection efforts are difficult to achieve as well when cases involve court procedures. This is because access to civil litigation for environmental cases in Malaysia is only limited to those who have sufficient connection or interest in the subject matter in dispute in seeking for aseeking a judicial remedy. In comparison, courts in the Philippines are more welcoming to public interest litigation cases pertaining to the environment. The landmark decision of the Supreme Court in the Philippines in Oposa v Factoran recognised the doctrine of intergenerational responsibility and showcased that locus standi can be established, not only on behalf of persons whose constitutional right to live in a healthy and pollution free environment are threatened, but also on behalf of generations yet to be born.
Furthermore, the jurisdiction delineation between the federal and state authorities also hampers the enforcement of environmental legislation. According to Article 74 of the Federal Constitution, the State Authority has powers over, inter alia, matters relating to land, rivers, forests and local government. The Federal Government on the other hand has the power to make laws in all matters listed in the Federal List and Concurrent list. This would inevitably lead to confusion not only with regard to the application of laws or the power of agencies to enforce them, but whether the Federal Government can regulate the subject matter in the first place. Numerous government agencies with overlapping jurisdiction further complicate the situation. One instance on the problem of jurisdiction can be seen during the construction of the Bakun Hydroelectric Dam in Sarawak, where the dispute concerned whether it should be considered under the Act which was a federal legislation or the Natural Resources Ordinance 1949, a state legislation.
Inevitably, environmental crises continue threatening livelihoods and eroding conservation efforts despite existing legislation. The 2019 Sungai Kim Kim incident in Pasir Gudang, Johor caused by illegal dumping which released toxic chemicals saw 6,000 people affected while 2,775 individuals were hospitalised. Just recently, an oil recycling company’s license was suspended and fined RM 642,000 by the Department of Environment (DoE) after it was found to have channelled oil residue into public drains. The factory had failed to fulfill the conditions of the license as specified under Section 16 of the Act.
To conclude, environmental protection is a continuous and arduous journey which is needed to promote sustainable growth besides elevating the rakyat’s quality of life. Arguably, this burden is not one to be borne by authorities alone as everyone has an individual role to play. However, it is undeniable that there is a need to create a broader-ranging code in combating environmental issues as it is evident that the current framework must undergo reforms to better serve current interests.
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