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DEVELOPING ENVIRONMENTAL LAW CHAMPIONS PROGRAM (ADB/UKM/IUCN)
on9th -13th May 2016
atShangrila Hotel Putrajaya Malaysia
Strengthening Capacity for Environmental Law in the Asia-Pacific – Developing Environmental Law Champions
Train the Trainers Program
Topic: The Role of the Judiciary
Guest Speaker: YAA Mr. Justice Tan Sri Richard MalanjumChief Judge, Sabah and Sarawak, Malaysia
The judiciaries u Philippines - Manila Bay case (Metropolitan Manila
Development Authority & Ors. v Concerned Residents of Manila Bay led by a lawyer, Mr. Jaime Agustin R. Oposa -December 18, 2008Ø Acknowledged
üEnvironmental pollution as a cause of climate changeümagnitude of environmental destruction is now on a
scale few ever foresaw and the wound no longer simply heals by itself
Ø Need for bold action – the use of ‘continuing mandamus’Ø the Court may, under extraordinary circumstances, issue
directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference
Ø government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay
The judiciaries uIndia - M.C. Mehta v. Union of India (1998)
the Supreme Court ‘mandated the conversion of all diesel-powered buses in Delhi to Compressed Natural Gas (CNG)-driven ones, to check air pollution. It also imposed hefty fines on diesel bus operators who failed to comply with the ruling
The judiciaries u Malaysia - The Malaysian court mill-stone – locus standi
issue – threshold and substantiveu Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing
Tubek & Ors and Other Appeals [1997] 3 MLJ 23 the Court of Appeal rulingØ adversely affected test appliedØ need to show injury before remedy could be given
u Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 the Federal Court still applied strictly the ‘adversely affected’ test in public law. Rejected 'sufficient interest' test under O 53 r 3(7) of the English Supreme Court Rules 1977
u Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan(1996) 1 MLJ 261 – ‘life’ Art. 5(1) – right to live in a reasonably healthy and pollutioin free environment
Role of the judiciariesu Through PIL the courts can enforce environmental laws
similar to what were done by the Philippines and Indian judiciaries
u The courts could imposed meaningful punishments against offenders convicted of environmental offences thus deterrent to would be offenders
u Courts should adopt a liberal approach when interpreting environmental laws
u Courts should be conscious of ‘David v Goliath’ when to comes to poor villagers and big plantations
u Courts should remember ‘while the majority in the government is the will of the people the court should always maintain its position as the conscience of the society so that the weak are shielded from the force of the majority’
u Agendas of National Working Group on Environment:Ø to set up State/Provincial Working Group on Environment
under the National Working Group on EnvironmentØ to list the national environmental expertise of (i) judges and (ii)
scientific and expert witnessesØ to list and collect (i) landmark environmental cases and (ii)
national environmental legislation, and share each with the Asian Judges’ Network on Environment (AJNE) for inclusion on the website
Ø to identify legal issues arising for the judiciary from cross-border and transnational environmental challenges
Ø to identify issues arising for the judiciary working on national environmental challenges (executive/judge conflict)
Ø to conducting national judicial and/or enforcement needs assessments when agreed with the national judiciary to determine the environmental institutional needs of national judiciaries. ADB will provide assistance
ØSteering Committee/Advisory BoardØSteering Committee/Advisory Board RoleØSecretariatØVision StatementØWebsite and TranslationØBench bookØJudicial Training and Needs Assessments
u Initial activityØ organizing a two days Belum Conference on Environment jointly
with the United States Department of State and the United States Embassy in Malaysia
Ø Held at the Royal Belum Resort PerakØ Speakers were from the United States’ Justice Department and
the United States District Court. Some of our local Judges and representatives from some Non-Governmental Organizations also made their presentations.
Ø participants were Malaysian Judges and Judicial officers, officers from various Government Departments and Agencies involved in environment as well as from several Non-Governmental Organizations
Ø main aims were to create awareness among Judges and Judicial officers on issues related to environment especially on global wild life trafficking and to find ways to work with Government Departments, Agencies and NGOs on environmental protection
Ø outdoor program in which Judges and Judicial officers were invited for a walk into the forest to see nature in its original form. In turn such exposure could assist Judges and Judicial officers in better understanding on the need to protect the environment when disposing of environmental cases
Øconducted Court-led three-phase workshops for Judges and Judicial officers together with officers from Government Departments and Agencies dealing with the enforcement of environmental laws. Representatives from Non-Governmental Organizations involved in the protection of the environment are also invited
ØSabah Group has already conducted two phases of the workshop
Sabah & Sarawak – first phaseufirst phase, the awareness building, participants
were encouraged to be aware and be sensitive on the importance of protecting the environment
uSpeakers with varied experiences in environmental protection were invited to present their papers
uThe impact intended upon the Judges and Judicial officers is to make them realize that the environment is delicate and needing protection by the courts
Suspected fish bombing in Mabul, Sabah, leaves hundreds dead - Daily Express, Oct 2012
Shark fin
Observations on the first phase workshop
umany Judges and Judicial officers did not realize that the environment required protection thus the lenient punishments imposed on convicted offenders on environmental cases
unever realized the pangolins, porcupines and barking deer are crying for help from greedy poachers and so are the fishes and corals
uuseful discussions with Government Departments and Agencies on why environmental cases failed in courts
uImportance of representatives of the NGOs providing critical but constructive comments
Results of the first phase workshopuEncouraging resultsuThe courts understood the problems faced by
the enforcement agencies while the officers from those agencies realized their shortcomings
uThe courts also realized that the past punishments meted out against environmental offenders were too lenient
uThere were marked increases in the sentences passed by the courts after the first phase workshop
uToday the Judges and Judicial officers have been more sensitized on issues related to the protection of the environment
Sabah – second phaseu So far only Sabah has conducted the second phase of
the workshop - capacity building involving the training of Prosecuting officers (POs) and Investigation officers (IOs)
u Moots were conducted to get the POs familiar with the court environment and the procedures
u After attending a week course organized after the second phase the POs were more confident in prosecuting their cases and in fact the success rate went up
u Training for IOs was also held in order to help them in executing their works. The trainers were experienced Investigation officers from the Police and other enforcement agencies. The IOs were made aware of the dos and don’ts in investigation work especially when the handling exhibits and recording of statements
Participants in the 2nd workshop
Participants in the 2nd workshop
IOs Training
IOs Training
POs training
The Trainer
State Working Groups on Environment
Sabah – proposed third phaseu On the needs assessments for environmental protection.
Basically it will involve the examination of existing legislations and policies while highlighting the shortcomings in the protection of the environment
u Issues such as restorative justice and polluters pay principle will be discussed and hopefully legislated
u Consumers and corporate directors liabilities u A memorandum with recommendations would be
formulated and presented to the relevant authorities for their consideration and actions
u It will be during the third phase workshop that comparative studies would also be made with other countries to see where Malaysia stands in the protection of the environment
Preparatory meeting for 3rd phase
Preparatory meeting for 3rd phase
District Working Group on Environmentu Focused at the district level by engaging with the local
authorities and local leaders in environmental protection such as the need to reduce the dependency on plastic bags, Styrofoam and plastics bottles
u Talks to students on environment are also organizedu Encouraging the local NGOs to participate in cleaning
the environment through gotong royong programsu The Interior District Working Group on Environment in
Sabah organized a meeting with the local folks on the need to stop wild life hunting
u Well attended but it also became quite heated up with some local folks questioning the need to prevent them from hunting wild animals since it is their source of income
u Very delicate issue. The higher authorities should look into seriously by providing them alternative sources of earning their incomes
courtsuExpected to expedite the disposal of environmental
casesuEnvironmental Court – Civil jurisdiction - set up on
1.1.2016 pursuant to the Practice Direction No. 7 of 2015Ø Monetary jurisdictions - RM250, 000.00 for Magistrate CourtØ RM250, 000.00 - RM1 Million for Sessions' CourtØ High Court - RM1million and above
uNo physical building as cases do not justify – only special code given and heard by assigned Judges and Judicial officers
u Time line for completion – 9 months from date of registration
Environmental Courts in MalaysiauEnvironmental court – Criminal jurisdiction -
set up pursuant to the Practice Direction No. 3 of 2012ØCases heard by assigned Judicial officersØNo special court buildingØWhether before Sessions judge or
Magistrate it depends on on the nature of the offences and the penalties involved or as may be prescribed by the Environmental Quality Act 1974 or the Subordinate Court Act 1948
ØTimeline – 3 to 6 months from date of registration
Conclusion uMalaysian Judiciary is developing environmental
champions while training the trainersuBut it takes time to change mind-set of Judges and
Judicial officers and the public on the importance of protecting the environment
u The opportunity opened by Tan Tek Seng should be further explored
u The media including the social media must also play their roles in this quest
u Three or four decades ago hardly anyone spoke about the environment. But then there was no menace of plastics, no human greed for exotic animals or their parts. Life was not complicated as today