ACCESS TO ENVIRONMENTAL JUSTICE IN MALAYSIA (KUALA LUMPUR)



[This piece is Chapter 5 of AJ Harding (ed), Access to Environmental Justice: A Comparative Survey (The Hague, Kluwer, 2007)]


ACCESS TO ENVIRONMENTAL JUSTICE IN MALAYSIA (KUALA LUMPUR)

by Andrew Harding and Azmi Sharom[1]



I  INTRODUCTION


            Malaysia experienced unprecedented economic growth from about 1980, averaging 8.4% average annual GDP growth up to 1997-8, when economic crisis hit all of South East Asia. This growth, premised on virtually uncontrolled development, exacerbated many environmental problems.[2] Under recent economic plans development has been undertaken at a rate that makes the express policy of sustainable development[3] itself difficult to sustain. The dramatic effect of Malaysia's economic and political strategy during this period has been to create a dynamic economy in which the benefits have been deliberately skewed towards the economically still backward but politically dominant ‘bumiputera’ community (Malays and natives of Sabah and Sarawak),[4] while not hampering the ability of the minority communities (principally Chinese and Indian) to benefit from - and also to be engines of - economic growth. This situation is expressed in terms of a social contract, set out clearly in the Constitution,[5] under which the non-bumiputera communities have citizenship rights in return, historically speaking, for special privileges being granted to the bumiputera communities.[6] It will be readily seen that this policy has potentially discriminatory environmental effects on the poorer sections of the non-bumiputera communities, principally the urban Chinese, who are concentrated in major cities and towns, notably the federal capital, Kuala Lumpur (KL). The deleterious environmental effects of development, however, have been clearly seen in this study to affect all of the city's residents.
            KL is a socially as well as economically dynamic city in which the definition of poverty is changing rapidly. The number of squatters in the Federal Territory was estimated in 1990 at 180,000.[7] The number of cars is estimated to be around 1,400,000. KL is also one of the heaviest polluted cities in Asia: for example, it has the 12th highest level of suspended particulate matter (SPM) in Asia, and the highest of the Asian cities studied in the A2EJ project.[8] At the same time, from some points of view the authorities have been comparatively successful in reducing pollution, and there may be lessons to be drawn for other cities. SPM levels, though two to three times higher than New York and Tokyo, have in fact declined in the last few years, in spite of the huge increase in the numbers of vehicles.[9] A further point to made about KL is that it exhibits the phenomenon known as ‘urban heat island effect’, with temperatures exceeding those in surrounding rural areas sometimes by as much as 5 degrees celsius. The geography of the Kelang Valley is such that the lie of the land and the incidence of land and sea breezes creates great differentials in pollution levels in different areas.[10] A review of local newspapers carried on during four weeks June-July 1995 revealed an extraordinary array of environmental problems in KL, but also a corresponding awareness and concern. The main ones[11] appeared to be inadequate housing; lack of recreational facilities and "green lungs"; air pollution from mobile and industrial sources; haze caused by forest fires in Indonesia, becoming very serious from time to time; water pollution from industrial sources; blocked drains causing flooding and insanitary conditions; illegal dumping of household and toxic waste. Traffic, construction work, industry and squatter clearance appeared to cause the worst problems.



II  ENVIRONMENTAL LAW IN HISTORICAL PERSPECTIVE


            Malaysia is a common-law jurisdiction with a judiciary and legislature based closely on the English or Westminster model. One fundamental difference however is that it has a written constitution.[12] The Malaysian Parliament is divided into three: the Dewan Rakyat (lower house), with elected members; the Dewan Negara (upper house), with appointed members; and the Yang di-Pertuan Agong (King).[13] The elected State Legislatures are similar to Parliament in structure and methods. The ruling Barisan Nasional coalition has continually enjoyed more than a two-thirds majority in Parliament, so that any legislation proposed by the Government, even significant constitutional amendments, passes through the legislative process with ease.
            As in most countries, environmental law as such has not been recognised until quite recently. Nonetheless, even before independence in 1957 and the rapid expansion of Malaysia's economy from the early 1970s, there were laws of an environmental nature.[14] The existence of no less than 13 states, each with its own colonial and post-colonial legislative history,[15] makes a recitation of relevant statute law problematical.[16] However, in general environmental problems were relatively few by prevailing standards until Malaysia began its rapid economic rise in the 1970s.
            In 1974 the Environmental Quality Act (EQA)[17] was passed, under which the Department of Environment (DOE) was established within the Ministry of Science, Technology and Environment. Federal environmental functions are discharged through the DOE, set up in 1976 with its own Director-General of Environmental Quality (DG), and advised by an Environmental Quality Council (EQC). So far as the urban environment is concerned, most relevant matters are dealt with by the EQA, the Local Government Act 1976 (LGA), the Town and Country Planning Act 1976 (TCPA), and its FT equivalent, the Federal Territory (Planning) Act 1983 (FTPA).[18]



III  STRUCTURE OF ENVIRONMENTAL DECISION-MAKING


            The fact that Malaysia is a federation is of considerable interest and concern from an environmental point of view. The constitutional division of state and federal powers over environmental matters is complex. For example, land, forestry and mining are state matters, albeit dealt with by common-form legislation, but regulation of industry, water supply and energy are federal matters. Planning is a concurrent power but is carried out by local authorities under state government supervision. Nuisances and licensing also fall within local government control. The word "environment" does not appear in the Constitution. However, in the FT all matters are federal, although the Dewan Bandaraya Kuala Lumpur (City Council) exercises local-government functions. The remainder of the conurbation falls under the state jurisdiction of Selangor, and both Petaling Jaya and Shah Alam have a Majlis Perbandaran or Town Council. The EQA proclaims itself a federal law even though it deals with some matters that appear to be within state jurisdiction. The EQA goes far in enforcing the federal will in environmental matters. The constitutionality of one section (s.34A), which concerns environmental impact assessment (EIA), was challenged in the case of Kajing Tubek & Ors v Ekran Bhd & Ors.[19] However, the High Court refused to make any judgment on the matter, stating that the Federal Court is the proper venue for such constitutional debates. Partly because of such doubts, it is important to establish a clearer division of environmental powers, and a clear vesting of the power of overall policy initiative in the Federal Government is desirable.[20] The designation of ‘environment’ as a concurrent power would enable the degree of flexibility needed to effect such a division of powers.[21]
            State Governments have guaranteed fiscal resources under the Constitution,[22] even though they have no powers of taxation, but these are in general insufficient to mount major projects or initiatives without federal assistance. This creates an urgent need for income generation regardless of environmental costs, as well as a lack of sufficient funds to initiate and maintain environmental projects.[23] There is consequently a lack of resources faced by local authorities, restricting their ability fully to utilise their environmental enforcement powers.[24] Thus there have been differences between states and the Federal Government in environmental matters. An example of this is the Endau-Rompin affair, in which the Governments of Johor and Pahang attempted to exploit a natural-forest reserve by granting logging licences despite strong federal protestations.[25]

(a) Local Government
            Since many urban environmental concerns (particularly public nuisance and planning issues, but also the provision of environmental services) are under the control of local government, the States’ attitude towards local government becomes an important factor. The absence of electoral accountability and the general fiscal weakness of local government indicate that the state governments regard local authorities as minor instruments of policy rather than as dynamic and autonomous entities.[26] It should also be noted that since 1965 local authorities in Malaysia have been appointed by the State Government, rather than elected.[27]
            The powers of local authorities derive principally from the LGA[28] and the TCPA/ FTPA. The State Government is empowered to declare any area a local authority area, under either a Municipal Council or a District Council, comprising the Mayor or President, no less than eight and no more than 20 councillors.[29] With the abolition of local-government elections, KL citizens were thus left with local authorities that are essentially unaccountable. Even though the meetings of the local authority are open to public scrutiny, they have the option to make the minutes secret. Committee meetings are even more inaccessible because there is a presumption of secrecy.[30] Without either elections or access to information regarding local authority decision-making, it is extremely difficult for members of the public to determine whether local authorities are doing all in their power to protect the environment. With regard to DBKL, the Datuk Bandar (Mayor) is not elected but appointed by the Federal Government for a period of five years, and the DBKL is placed under the Prime Minister's own Department.[31]

(b) Planning and Development Control
            Town planning is a particularly important aspect of environmental law in Malaysia.[32] As is explained above, Malaysia's economy is developing with great rapidity, and therefore many controversial issues arise in the context of development proposals, which are governed by the TCPA and the FTPA. Since this legislation is of importance in a number of the relevant areas, the relevant provisions are now sketched.
            The State Government is responsible for general policy in respect of planning and land use and may give to the State Planning Committee or any local planning authority (LPA) directions of a general character not inconsistent with the provisions of the Act.[33] State Planning Committees (SPCs) consist of a Chairman, the Menteri Besar (Chief Minister) of the State, and other official and unofficial members.[34] SPCs may also give local planning authorities directions.[35] And they can cause a local inquiry or hearing to be held in or for the purpose of exercising any of their functions.[36] The whole of KL falls within a local-authority area.[37]
            LPAs are given specifically environmental functions by the TCPA. They have duties under s.7 to survey their area, examining matters affecting planning and development and to keep the survey under review.[38] Structure and local plans are crucial to planning policy. LPAs are required[39] to prepare structure plans, reflecting the policy and general proposals of the LPA in respect of the development and land use, including measures for the improvement of the physical environment, the improvement of communications and the management of traffic.[40] In formulating the policy and general proposals, the LPA must have regard to current policies, both state and national, in respect of environmental protection, but also the resources likely to be available for carrying out the proposals of the structure plan.[41]
            One of the duties of LPAs under the TCPA is to prepare a draft structure plan.[42] This structure plan forms the policy basis for development in the local authority’s area. The local authority may also prepare a more detailed plan for its area (or parts of its area) called a local plan. Naturally, environmental concerns must be incorporated into these plans. It is not however solely in the power of the local authority to decide the content of the plans, for there are provisions allowing for public participa­tion during the drafting stage.[43]
            However, the practice of this requirement, as illustrated by the experience of the Petaling Jaya (PJ) Residents’ Associations during the PJ draft structure plan public participation process, leaves much to be desired. The first short­coming is the lack of efficient publicity to the public. Advertisements are placed in newspapers, but these are small and easily missed.[44] There is also a shortage of time given to the public to prepare their objections and queries. In the PJ example, there were only 30 days to prepare.[45] Furthermore, there was very little useful information about the plan that was provided for public scrutiny before a public meeting with the State Government and the MPPJ. Thus it was difficult to protest constructively and in an informed manner.
            Although the TCPA requires public consultation, it says nothing about the extent to which the views of the public should be considered. It would appear that, although there is a right to object to a plan, there is no guarantee that input from the public will be absorbed into the final plan.
            Apart from the plans another method of maintaining environmental standards through the TCPA lies in the process of applications for planning permission. No development can take place without planning permission,[46] and in considering applications the LPA must take into account structure and local plans as well as any objections raised by owners of adjoining land.[47] There is scope therefore for the LPA to reject an application on environmental grounds.
            The conditions that may be placed on the planning permission could also be used for environ­mental objectives. Further­more, the local authority may regulate the manner with which the development is to be carried out, limiting any adverse environ­mental impact of the construction works.[48] Local authorities also have extensive powers under the LGA with respect to trees, recreational land, parks, and the amenity of public places generally.[49]
            The LPA also has powers to revoke or modify permission that has been granted, if it is felt that it is in the public interest to do so and if the State Planning Committee approves.[50] The term public interest’ may be interpreted to include environmental concerns.
            Another avenue of participating in official decisions is the right of adjoining neighbours to voice their complaints over projects that affect them. The practice with regard to this right is unsatisfactory in two ways. In KL the procedure at one time was to inform affected households by post regarding proposed development. However, with an amendment to the FTPA this require­ment was ‘simplified’, so now DBKL needs only advertise its intentions in the press. The problem with this is that there is a tendency not to print the addresses of homes affected but merely the lot number and the district where the house is placed. This is most unsatisfactory since a majority of homeowners are not instantly able to recognise either.[51]
            In fact the FTPA, which superseded earlier planning laws,[52] had done away completely with the need for consultation with neighbouring owners. This was fortunately not recognised by the courts in the case of Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur and others,[53] and the duty to inform remained. The case is authority for the view that the "material considerations" which the Datuk Bandar must take into account under s.22 include objections to the proposed development. Nonetheless according to the Federal Capital Act 1960[54] the Datuk Bandar's decisions regarding planning in KL are entirely discretionary. There have not been as yet any cases of judicial review of the limits of this discretion.
            The concept of ‘neighbour’ is very limited, meaning ultimately that very few individuals or groups have standing to attend the hearing. In the FT this term would include:
            (a) registered owners[55] of lands adjoining the land to which the application relates;
            (b) the registered owners of land which would be adjoining but for being separated by any road, lane, drain, or reserve land not wider than twenty meters; and
            (c) registered owners of land inside a cul-de-sac, within 200 metres from a proposed development within the same cul-de-sac and sharing the same access road.

These limited rights of standing make it difficult for people to protest against projects which have environmental repercussions wider than the immediate neighbourhood.
            NGOs’ experiences with local authorities have been varied. When dealing with relatively "safe" issues, like the design of a recreational area, the response has been good. However in more contentious matters there have been some serious complaints. Complaints about the procedure include very short notice for meetings and bias in favour of the developers. This is obvious in the way complainants are treated compared to the way developers are treated by DBKL officials. This at the very least meant that confidence in the system was seriously undermined.
            On the surface there seems to be some effort by local authorities to ensure fair play. For example, the public is allowed to scrutinise any new development plans and there are public exhibitions whenever changes are to be made. However these complex plans can only be viewed and not copied, making careful scrutiny extremely difficult. And there have been reports that the public exhibitions are ineffective because there is little cooperation by the officials there, who tend to be reticent in answering questions. There have also been cases where residents were not informed at all about new developments. The residents of Damansara Jaya for example only found out about a massive road-building project which would change the nature of their area when they saw surveyors working by the roadside.
            It is submitted that the potential for using planning and planning-related laws in environmental protection is enormous and should be exploited to the full. It is unfortunate therefore that there have been many planning decisions of an environmentally unfriendly nature.



IV  THE JUDICIARY


            Public participation and access to environmental justice pursuant to statute is confined to general planning issues: otherwise the regime is one of extra-legal protest. Administrative law in Malaysia is markedly statist in its orientation. Even judicial review of administrative acts and decisions has been asserted in the teeth of statutory restrictions and executive interference. It is because of the lack of statutory provision for other means of opening up administrative decision-making for scrutiny that judicial review has proved of such importance in Malaysia.[56]
            The judiciary comprises the Subordinate Courts, the High Court, the Court of Appeal and the Federal Court.[57] The principal relevant environmental functions of the judiciary are enforcement of the criminal law, the correction of civil wrongs, and judicial review of administrative actions. The judiciary, historically enjoying a reputation for independence and competence unrivalled in South East Asia, has in recent years been under pressure from the executive,[58] and during our research was the subject of repeated allegations of corruption as well as executive interference. The judiciary has also been criticised for being ultra-conservative in its approach to environmental matters. There is a tendency for them to be reluctant to question the substantive validity of environmental decisions, preferring instead to concentrate on questions of procedural irregularity. There is also a reluctance to accept new concepts (both substantive and procedural), which have arisen in other jurisdictions.[59]
            In almost all the interviews conducted there was cynicism as to the usefulness of the courts. There was a belief that the courts are the last opportunity for justice, but this belief was minimal at best. An optimistic view held that litigation is useful as a form of publicity, a delaying tactic and as a method of challenging government and polluters as far as the system would allow, with the chance that, hopefully, a favourable precedent could be set, and at least arguments would not fall by default. A more pessimistic (albeit minority) view was that it is useless and could be counter-productive: first, the principle of sub judice can hinder the lobbying process outside the courts; and secondly, there is the possibility of establishing a bad precedent which will give legal justification for future damaging actions. Furthermore, confidence in judicial impartiality is at a low level.[60] For these and other reasons appearing below judicial review is somewhat marginal in its impact on environmental decision-making. Several specific shortcomings have been identified in interviews and the literature.

(a) Archaic rules of locus standi (standing)
            Since Government of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang,[61] standing has been severely limited. In this case the plaintiff relied on his position as a road user, taxpayer, MP, and Leader of the Opposition, to establish standing to challenge the legality of a government contract for construction of a highway. The Supreme Court[62] denied him standing on the grounds that he could not establish any distinction between himself and other road users and had no intimate links with the contractor, for example through the holding of shares. This decision makes public-interest litigation extremely difficult:[63] NGOs are unable to represent in court communities or groups of people. This means that affected communities and individuals must litigate themselves, albeit assisted by NGOs in various respects.[64]
            Some more recent cases involving planning matters illustrate the difficulties in establishing standing. An objector to a ‘floating city’ project in Johor Baru first of all obtained a declaration that the Ministry of Science, Technology and Environment was obliged to produce to him the EIA report on the project.[65] However, he failed to establish standing to compel the State Government to produce their agreement with the developers because the State Government was not obliged to consult taxpayers before entering into the agreement and because he had suffered no special damage over and above that suffered by other taxpayers and residents.[66] A similar result occurred when he attempted to establish the illegality of the planning permission itself. It was held that no legal right or interest of his had been affected, he had not suffered any special damage, and was not an adjoining owner.[67] Commenting that ‘[t]o give locus standi to a rate-payer like the plaintiff would open the floodgate [sic] and this would in turn stifle development in the country’ the Judge described the plaintiff as a ‘troubleshooter [sic], a maverick of a sort out to stir trouble.’[68]

(b) Procedural barriers
            Procedural barriers include a six-week time limit, measured from the time an administrative decision is made, not from the time it was known, for anyone wishing to apply for certiorari to quash the decision.[69] Malaysia does not have the advantage of reforms of administrative law procedure and remedies introduced in England in 1977-81, which created a single procedure of ‘application for judicial review’. This means that Malaysian law has all the disadvantages of the pre-1977 English procedure, i.e. restrictive and inconsistent standing rules, and different substantive and procedural rules for different remedies. Furthermore, seeking an interlocutory injunction, for example against a developer for breach of planning laws, is often not a realistic option because the litigant must give an undertaking for damages. This means that the litigant must agree to pay damages resulting from delay and inconvenience if a final injunction is not granted. This is too much of a risk, and discourages even wealthy litigants.[70]

(c) Lack of development of planning law[71]
            This results principally from the lack of case law, which is a function of the above problems. It reflects a number of other factors. Compared with most countries, developers receive fewer decisions against them, and when they are faced with an adverse decision, two other options are generally preferable to judicial review. One is to apply political pressure for a favourable decision; another is simply to find another project, which is not difficult in KL's boom-town economy. The fact that planning applications are generally handled by architects rather than lawyers may also be a contributory factor. Although planning law has been slow to develop, it is thought by practitioners that about 1% of planning applications in KL lead to objections taken to judicial review. A typical example would be a residential area where a 10-storey condominium is built, changing the character of the area and creating great pressure on roads and infrastructure. Planning law, although struggling to survive and grow, is essentially a middle-class gateway.

(d) Tort Actions

            Malaysian tort law is very similar to English tort law. According to s.3 of the Civil Law Act 1956[72] the English common law as at 7 April 1956 is received in Malaysia, and any cases decided after this date also have authoritative influence. Therefore many principles in use today are the direct result of English principles: legal remedies based on negligence, the rule in Rylands v Fletcher,[73] and nuisance are theoretically applicable in environmental cases, although there are, again, barriers to effective access to justice. A remarkable example is the Asian Rare Earth (ARE) case, which occurred near Ipoh in Perak.
            ARE began operations in 1982, producing a rare-earth known as yttrium from tin tailings. The company was a Malaysian-Japanese joint venture with Mitsubishi Chemicals as the Japanese partner. In the process of its operations, the company generated radioactive material known as thorium, which has a half-life of 14 billion years. The factory was located very close to a Chinese New Village with an original population of over 10,000. The villagers became alerted to the factory's operations in 1983 and organised into a group known as the Perak Anti-Radioactive Committee (PARC). They made representations to the Federal Government to stop the factory's activities but to no avail. Finally they commenced a civil action in the Ipoh High Court.[74] It was a representative action and they claimed in nuisance, negligence and the rule in Rylands v Fletcher, in particular that the factory was producing radioactive dusts and gas that resulted in the high incidence of leukaemia among children, abnormal miscarriage rates among women, birth defects and a variety of other injuries. To back their claims PARC had health surveys done with experts from Japan and Canada brought in to testify as to the radiation levels around the factory's vicinity and to the effects of low level radiation. After a protracted legal battle, the villagers won on the ground of nuisance: it was held that the factory's operations constituted a substantial interference with the enjoyment of the plaintiffs’ land. The High Court granted an interim injunction, and the factory was closed. Later, the factory was reopened as a result of circumvention of the injunction, but at the trial a permanent injunction was granted on the basis of evidence of a substantial risk of serious inter-generational effects.[75] This injunction was lifted by the Supreme Court, and an appeal by the defendants succeeded on grounds that have been criticised.[76]
            Another instance is the Highlands Towers case.[77] This arose from the collapse of an apartment block at Highlands Towers at Ampang, KL, in 1993, when 48 people were killed. The case is a matter of environmental concern, because the collapse is alleged to have resulted from environmental degradation. The case is not yet set down for trial because of the need to obtain expert witnesses. It is a test case involving four sample plaintiffs. The other claims will be settled on the basis of this claim, if successful. The defendants are the builder, contractor, architect and engineer, and adjoining owners. The case is brought in negligence, nuisance, Rylands v Fletcher, and breach of statutory duty (some 12 statutes are alleged to have been broken). The litigation is still pending three years after the accident. The essential difficulty for the plaintiffs is that the sensitivity of the case makes it difficult to secure expert engineering evidence given against a major developer. This case also illustrates the importance in the Malaysian context of environmental safety. There is considerable public concern about the impact of environmental factors on the safety of buildings and roads. During the research there were several dangerous or fatal landslips, one of which, on the road from KL to Genting Highlands resort, killed 20 people.
            These cases bring to the fore several serious problems with tort actions.

(i) Causation
            Despite the submission of an overwhelming amount of medical evidence and health studies in the ARE case, the High Court held that causation of the damage had not been proved. The problem of proving causation can be overcome by reversing the burden of proof in certain defined circumstances, as has been achieved in case law in the USA[78] and by legislation in Germany.[79] On this theory, all that a plaintiff has to prove is that his injuries are consistent with those known to result generally from the activity complained of. There is also a growing demand, given the many difficulties in mounting a toxic-tort case, for criminalisation of corporate decisions resulting in the loss of life or injury.[80]

(ii) Limitation
            Related to the issue of burden of proof is that of limitation. According to Limitation Act 1953,[81] s.6 (1)(a), any action founded in tort cannot be brought after the expiration of six years from the date on which the action accrued. Taking into account the nature of certain injuries, particularly the effects of radiation that might take years to manifest, this is indeed a major stumbling block.

(iii) Expert evidence
            Tort actions in environmental cases also invariably require scientific expertise. This is a major problem raised by interviewees who have been involved in such cases. The main complaint was that local scientists and other experts are reluctant to provide their services, especially for the plaintiff. This is due to the fear that their involvement can be interpreted to be anti-establishment, which could in turn lead to loss of future business from both public and private sectors. This creates a need to obtain experts from other countries, leading to higher litigation costs. This problem was overcome in the ARE case, but not in the Highlands case.

(iv) Costs and representation
            The high cost of legal proceedings in Malaysia is reflected in the fact that generally only the relatively affluent are able to use the judicial system, as reflected by the generality of plaintiffs in planning cases. One interviewee[82] lamented the difficulty in getting lawyers even to take on squatter cases, let alone take them on pro bono. Unfortunately the official legal aid system in Malaysia does not provide any satisfactory answers to this problem, as it rules out virtually any form of environmental litigation. The Bar Council legal aid scheme is totally dependent on private practitioners offering their services. This element of voluntariness entails a limited number of lawyers willing to take on such a difficult and potentially costly task. Planning cases against developers could lead to a loss of income from the lucrative conveyancing branch of practice. Admittedly there are a few law firms which consistently take on public interest cases, for example the Consumers' Association of Penang’s Legal Centre.[83] However, their number is small and this may add to the generally low rate of environmental cases being brought to court. Some practitioners are prepared to take on planning cases despite the problems indicated; sometimes the potential loss of business is offset by new business obtained as a result of acting for a particular community.



V  HUMAN RIGHTS

           
            Environmental justice is increasingly being linked to human rights. On a philosophical level, a clean environment as a human right is a notion gaining increasing acceptance.[84] More conventional or traditional notions of human rights are still, however, of great importance. In a by-product of this project, Andrew Harding has studied the relevance of human rights to the environment in Malaysia. His conclusions, based on a survey of the fundamental-rights provisions in the Constitution, the activities of NGOs, and two case studies (the ARE case and the Penang Hill affair) indicate that overt linkage of the two issues is neither possible nor desirable, but that in the Malaysian context the exercise of the constitutional right of freedom of expression, especially by NGOs, limited as it is, and the absorption of environmental concerns by the legal system, may offer a way forward.[85]
            In Malaysia there are many examples of laws that suppress fundamental human rights.[86] This in turn makes it difficult for environmental activists to obtain justice. The most frequent complaint that has been voiced over the series of interviews is the lack of information or a Freedom of Information Act.This would not really be such a major problem if it were not for the existence of draconian laws limiting even further the public's access to information. The most obvious example of this is the Official Secrets Act 1972.[87] This act gives very wide powers to the (federal) minister, the (state) Chief Minister, or any person appointed by them, to declare any document of a ‘public body’ as an official secret. The mere possession of an official secret is an offence and mens rea is not a relevant factor.[88] Therefore it is extremely easy for the Government to keep decision-making away from public scrutiny and securing conviction is easy in the event that any such secret document, regardless of its nature, is leaked. Interviewees complained that during meetings with government officials there have been promises made to release information but these promises were not kept. Even during the process of statutory public consultation, for example regarding the Petaling Jaya draft structure plan, so little information was actually released that it was difficult to produce strong and constructive criticisms. It would appear that information is a closely guarded commodity. The lack of a substantive right to demand information and the existence of laws that limit access to information means that this is one fundamental human right that is not sufficiently respected. This in turn has a severely constrictive effect on environmental justice.
            The freedom to express opinions is also severely curtailed. Although, like freedom of assembly and association, it is guaranteed by Article 10 of the Federal Constitution, this article is hedged by provisos that allow almost all legislative restrictions.[89] Such laws include the Printing Presses and Publications Act 1984 (PPPA)[90], the Internal Security Act 1960 (ISA),[91] the Societies Act 1966, and the Police Act 1967. In the interviews the general opinion was that there are limits to the ability of the mainstream press to espouse environmental causes. There is a tendency not to cover politically sensitive matters, or cover them in a one-sided manner. However, where there are no political undertones, there has been support for environmental concerns. Coverage in 1996 of the Bakun Dam affair, which is politically sensitive, indicated an unusually critical or at least even-handed stance, attributable to a more relaxed political atmosphere. These repressive laws have led to a citizenry unwilling to take part in environmental activism for the worry, be it real or imagined, of adverse official reaction. This has led some NGOs to complain of a poor public response to certain issues. This is not surprising because even the seemingly innocuous act of signing a petition has led to public threats by government officials. In the case of the Petaling Jaya Draft Structure Plan, the Councillor for Kelang had promised to look into the ‘backgrounds’ of the 30,000 or so individuals who had put their names to paper in protest against the plan.[92]



VI  WATER POLLUTION


            The EQA, with its relevant regulations, and the LGA are two main sources of legislation limiting water pollution. The EQA restricts any person from emitting, discharging or depositing any environmentally hazardous substances, pollutants or wastes into any inland waters unless specifically allowed to do so by the terms of a licence granted under the EQA. Conditions for the discharge may be set down by the minister.[93] Waste is given a broad definition,[94] and any action either directly or indirectly, and either purposely or negligently, polluting an inland waterway is an offence.[95] The maximum fine for this offence is RM100,000 (about  £14,000), the maximum term of imprisonment five years.[96] The EQA also empowers the DG to stop licensed bodies from emitting polluting elements, even if they are licensed to do so.[97] This power is to be used in the event that the collective discharges of a group of bodies all together add up to an unacceptable pollution level.
            Part IV of the LGA concerns the pollution of streams and s.69 provides a very broad definition of the offence of polluting a stream. Any act of nuisance or the deposit of filth in the waterway, or even upon the banks of a waterway, is an offence which is punishable with a maximum fine of RM2,000 (about £280), with a continuous fine of RM500 (about £70) for every day the nuisance continues, and an offender may instead face a maximum prison term of one year.
            This provision is about offences within local-authority areas, but under s.70 the power of the local authority with regard to the pollution of waterways also extends to areas that are not under its jurisdiction. This section is more specific, listing offences that include; emission of waste from manufacturing processes that either pollutes or obstructs the flow of a waterway; the deposit of liquid or solid sewage into a waterway; and pollution which is the result of laundry businesses. Any of these polluting activities which occur within or without the limits of local-authority areas could result in a maximum fine of RM5,000 (about £700) or a prison term not exceeding two years, or both. There is also a continuous fine of RM500 for every day that the offence persists. In the event that the local authority has to clean up the nuisance caused by the offender, it has the power to charge the expense to the offender.[98]



VII  AIR POLLUTION


            EQA s.22(1) states that ‘no person shall, unless licensed, emit or discharge any wastes into the atmosphere...’, in contravention of acceptable conditions to be determined by the minister. The discharge of waste includes leaving any matter in a place where it may be released into the atmosphere; the discharge of obnoxious or offensive odours; the burning of industrial, trade or process wastes; and the burning of fuel with improper equipment.[99] Contravention results in a maximum fine of RM100,000 and a maximum term of imprisonment not exceeding five years. The EQA is to be read with the Environmental Quality (Clean Air) Regulations 1978 (CAR). The CAR subscribe to the polluter-pays principle, laying down in detail the offences of burning of wastes;[100] the emission of dark smoke,[101] air impurities in general,[102] and miscellaneous provisions which deal with a variety of polluting activities such as construction work.[103] The CAR also lay down the scientific levels of discharge that would be considered polluting. There are provisions however for occupiers to obtain a licence permitting them to pollute beyond the prescribed level. Apart from the fine and prison term provided for, the DOE is also empowered to compound offences.[104]
            Local authorities too have the power to take action against air-polluting offenders if their action causes any nuisance within the local-authority area. The LGA lists 11 specific nuisances upon which the local authority may act summarily. For example, s.81(j) provides that ‘any dust or effluvia caused by any trade, business manufacture or process which is prejudicial to health or offensive to the neighbourhood’ is a nuisance. The local authority also has power to declare any other matter a nuisance.[105] The LGA empowers the local authority to treat all such offences affecting its area, even those offences originating outside its jurisdiction, as though they happened within their area.[106]
            A major source of air pollution is motor-vehicle emission. Two main pieces of legislation which seek to meet this problem are the Motor Vehicles (Control of Smoke and Gas Emission) Rules 1977, made under the Road Traffic Ordinance 1958, and the Environmental Quality (Control of Lead Concentration in Motor Gasoline) Regulations 1985. The former specifies the acceptable level of smoke that motor vehicles may emit. The standard corresponds to a certain level of smoke density that may be measured by a smoke-detecting device. The Rules further require that any vehicle that was registered after the passing of the Rules be equipped with a device that would prevent smoke from escaping via the crankcase. The latter restricts from the importation and manufacturing of motor gasoline containing lead in excess of 0.15 grammes per litre.



VIII  SQUATTER COMMUNITIES[107]


            Due to KL’s rapid growth there has been over the years a large influx of people moving into the city to find work. Many illegal settlements are formed on the periphery of the city, but as the city expands, these villages, which were once on worthless tracts of land, suddenly become prime property, raising acutely the issue of land tenure.
            Many squatter settlements have a relatively good infrastructure, with running water, waste-disposal facilities, electricity and telephones lines. They obtain these amenities by applying directly to the relevant bodies, be it the local authority, the water department, electricity company or telephone company. In fact, DBKL[108] actually helps squatter communities in obtaining these amenities. There are application forms that the DBKL provides and these are forwarded to the relevant bodies. The DBKL even goes so far as to help with the procedure by supporting the applications. Naturally, the stronger the political clout of the community, the greater their influence, but it is generally safe to say that squatter communities do have the conveniences of modern life, even though their right to enjoy these is not secure.
            Squatters constitute one of the poorest sections of the community, but the description ‘squatter’ conceals differences of wealth, race and status. Some displaced squatters are able to buy lower-middle-class housing, albeit at subsidised rates, and own luxury goods such as video recorders and cars. Some squatter communities have been there for decades, some since even before the age of development, and some are also quite developed in terms of infrastructure, sanitation, and services. Others are genuinely deprived and marginalised, such as Kampung Gandhi, an Indian settlement, and Kampung Malindo,[109] both featured in the media during the research. The latter was an illegal settlement of Indonesian migrant workers, which was summarily bulldozed by DBKL in March 1996. The media coverage stressed not only the illegality of the settlement, but also the fact (actually hotly disputed) that its inhabitants were illegal immigrants.[110]
            Government supporters are given rehousing. This was proved by a letter from a government MP to branches of the ruling party saying that the KL Land Committee could alienate land to Malay occupants. When this was sought to be produced in a court case, the Court of Appeal held that it was subject to the Official Secrets Act, even though it was a party rather than a Government document.[111]
            Malay squatters tend to vote for the BN on a pragmatic basis: they are unlikely to receive help from the opposition, whereas there is at least a chance of something from the government. There is a tendency for BN supporters to obtain rehousing more easily. This indicates that an important participation endowment is one's vote, even though a change of Government has not yet occurred in Malaysia at the federal level.


(a) Land Rights

            In Malaysia there is no right to obtain the possession of land as such for housing or other purposes. On the other hand, the Constitution protects property rights once obtained: Article 13 provides that no person shall be deprived of property save in accordance with law, and that no law shall provide for acquisition of property without adequate compensation. The prevailing policy is gradually to replace squatter communities with low-cost public housing.[112] To that end special powers are given to the DBKL to bulldoze squatter communities.
            In the context of the FT these powers are contained in the Kuala Lumpur Federal Capital (Clearance of Squatters) By-Laws 1963, which allow the Datuk Bandar to demolish squatter dwellings of less than one year's occupation on seven days' notice to the landowner. The Municipal Act 1963, s.342A, gives power to the Datuk Bandar to declare any area within the city a clearance area, provided he is satisfied that the buildings thereon are in a state of disrepair, or unfit for human habitation or built in contravention of the Act, or such area is dangerous to the health of the inhabitants, or the area is required for new streets or services. Under this provision alternative sites must be provided for displaced persons. And under the National Land Code (NLC), s.425, the Datuk Bandar has power to demolish all squatter or unauthorised buildings on state land, reserve land or mining land, irrespective of age. Finally, under the Emergency (Essential Powers) Clearance of Squatters Regulations 1969, the Datuk Bandar may clear any area required for development purposes by the Government, its agencies or private landowners, again irrespective of age.[113] State land can be alienated secretly to a private developer by the state government without any notice to the squatters, who have no legal rights. Alternative accommodation is provided where the government requires the land. Where it is required by the landowner, the latter must pay a rehousing subsidy or grant.
            Many of these villages, being outside the FT, are built on state land, and according to the NLC, which is based on the Torrens system, land titles and the rights that come with it, can only be granted by the state government. Those with no title are squatters and according to the NLC squatters are criminals.[114] The principle of adverse possession is not recognized in Malaysia;[115] therefore these villagers, having no legal rights, however long they have occupied the land, become vulnerable. There is, for example, no consultation with squatters when the title of the land is offered to a developer.
            Apart from a lack of legal rights other difficulties faced by urban settlers are: bullying tactics by the police as well as hired thugs; and corruption, for example in the granting of licences to private developers and their connection with local politicians who stand to gain from development. Furthermore, sometimes no notice is given before eviction,[116] even though this is a legal requirement.[117]
            The long-term goal of NGOs such as the Urban Pioneer Support Committee (UPSC) is to change the legal position of squatters, but the short-term and more urgent emphasis is naturally on acquiring compensation and alternative housing. In this objective some success has been achieved. Extra-legal methods such as political lobbying seem to be the preferred approach.
            On the point of evictions, there are informal avenues of appeal to the relevant authorities, usually the local authority, but these meetings are generally limited to delaying demolition. Squatters are also advised by NGOs to use defensive extra-legal measures such as the actual physical defence of their land, and defining the boundaries. Litigation raises problems of cost. There have been some successes, however, for example in the case of Bohari bin Taib and others v Pengarah Tanah Galian Selangor,[118] relating to the following case-study.

(b) Case-study: Kampung Merbau Berdarah

            This Kampung is a community of long-term settlers. In 1980 the state government promised them title to the land they occupied. However they were only provided with Temporary Occupation Licences (TOLs), but with the promise that titles would be granted. The TOLs expired in 1984, so that the villagers became technically squatters, but instead of granting title to the villagers, it was given to the Federal Land Consolidation and Rehabilitation Authority (FELCRA). Heavy-handed tactics were used against the villagers in addition to legal proceedings.
            For squatters, the legal position is that a summary possession order can be obtained by the landowner.[119] Previously a strategy was adopted of claiming title to the land on the basis of an equitable licence or estoppel, using injunctive relief to prevent the developer from proceeding. However, this proved awkward as the position in equity is directly contradicted by the NLC, which as stated above, does not recognise the concept of adverse possession.[120] Therefore the strategy adopted is often that of defending the developer's application for possession. If the squatters are able to argue that there is a triable issue, a summary possession order is not available, and they have generally been able to succeed in delaying the developer's action sufficiently to make it more efficacious for the developer to settle the case by giving compensation rather than going to trial.[121] The result in such cases is that the developer has to begin again by ordinary writ proceedings, and the squatters can then drag the case out. There is a danger of incurring large legal costs if the case is lost, but it is difficult for the developers to collect these against so many indigent defendants. Even if they do go to judgment they generally do so to avoid a precedent being established and do not in the event pursue a claim for costs.
            Thus the issue facing the Supreme Court in relation to Kampung Merbau Berdarah was the appropriateness of the possession order in the light of the situation of the villagers and the promises made to them. It was held that there was a triable issue and thus a summary possession order was inappropriate. This was clearly a policy decision: there were many promises broken and the villagers had obtained a form of consent to their continued occupation in view of the TOLs and assurances as to title. It should be noted, however, that this approach merely put off the inevitable. In the final analysis the villagers still had no legal rights. Fortunately, due to the extreme political pressure applied by the villagers (not the court decision per se) they have finally obtained titles.
            Litigation is a useful tool as a delaying tactic, a morale-booster and as a method of raising public consciousness of the urban settlers' plight, but according to UPSC the strength of their approach lies in using the political force of the community in trying to get as many concessions as possible. Here the ‘gateway’ has become in effect a ‘drawbridge’.




IX  LICENSING


            Licensing is an integral part of environmental protection and it has many implications. The licensing powers available to local authorities and the DOE will be discussed separately.
            The LGA provides (and this applies to any licence granted by a local authority): ‘Every licence or permit granted shall be subject to such conditions and restrictions as the local authority may think fit and shall be revocable by the local authority at any time without assigning any reason therefor’.[122] The most obvious possibility here is the imposition of environ­mental conditions on factories and similar activities.[123] Examples are the inclusion of an obligation to treat waste in a safe manner before it can be disposed of, and setting an acceptable level of smoke. In the event that such conditions are not met, the offender's licence can be withdrawn at any time with no duty to give reasons. With the threat of revocation or non-renewal of a licence, it is therefore in theory easier for local authorities to enforce the conditions and terms imposed.[124]
            In fact the Licensing of Trade and Industries (Petaling Jaya Municipal Council) By-Laws 1987[125] go further: several sections are dedicated specifically to environ­mental measures. For example s.23 states: ‘The licensee shall not cause, suffer, allow or permit dust, fume, vapour, gas, heat, radiation, odour, smell, vibra­tion, smoke, or soot emission of such quantity from his licensed place or premises which in the opinion of the Council is a nuisance or which pollutes the atmosphere’. These powers are in addition to those conferred by the LGA itself.
            The EQA empowers the DOE to issue licences for prescribed activities. These licences may have conditions attached to them, either at the application, renewal or transfer stages. Furthermore, the Director-General is also empowered to revoke a licence or to change its conditions any time during its currency.[126] The types of conditions specified in the EQA include: the improvement of existing equipment; the addition of new equipment; improvement of existing control equipment; monitoring (at the expense of the licence-holder) a programme designed to monitor pollution levels; carrying out of requirements imposed under the these provisions within a specified time.[127] Any breach of these conditions could result in a maximum fine of RM250,000 (about £35,000) and a maximum term of imprisonment of two years.[128]
            The minister may impose a fee in respect of the licence and the factors to be considered include: the class and the location of the premises; the quantity of wastes discharged; the pollutants or class of pollutants discharged; and the existing levels of pollution. If the level or the class of pollutants discharged is higher than the level considered during the calculations of the fees, then the licence-holder may be charged the difference in amount, had the fee been calculated at the actual level for that class of pollutants.[129]




X  ENVIRONMENTAL IMPACT ASSESSMENT[130]

            Apart from those sections and regulations that are directly concerned with water, air and land pollution, other provisions found in the EQA also affect pollution control. The most notable of these is the requirement for environmental impact assessment (EIA).[131] This section, with the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, details the types of activities that will require an EIA report before development can be commenced.
            For prescribed activities, the developer has to submit an EIA Report to the DOE. The Director-General may make recommendations for changes to minimise the environmental effects of the project,[132] or he may disapprove the report if it does not meet the required standards.[133] His decision is then forwarded to the relevant approving body. However the final decision to approve the project or not lies in the discretion of the approving body, usually the local authority.
            Using the EIA requirement, the DOE is authorised to impose upon the developer certain conditions to minimise the effect of the project on the environment and in this way control pollution before it is given the opportunity to become a major problem. Amongst the areas of concern would be the pollution of watercourses during the developmental and operational stages.
            EIA is another area where public opinion is sought. However, it must be noted that there are two types of EIA, preliminary EIA and detailed EIA. The former requires no public participation and in the latter case public participation is only conducted at the discretion of the Director-General. In view of the informal, administrative nature of EIA consultation, the High Court decision noted above which required production of an EIA report is remarkable.[134] This decision is exampe of a very useful precedent on public participation which is now being usefully exploited by NGOs.
            The DOE is generally quite keen on public participation but only those who are invited to sit on the EIA review board have any real influence on decision-making. Only during the Save-Penang-Hill campaign did public opinion and NGO activism have any real impact.#[135]
            A recent development in the law that might have disastrous consequences on the conduct of EIA is the ‘Bakun Dam case’, referred to above.[136] The facts are that the EIA for the proposed Bakun Dam in Sarawak was conducted without public participation. When the residents of the affected area protested, the reaction of the Minister of Science, Technology and Environment was to delegate retrospectively, the power of conducting EIA from the DOE to the State Government of Sarawak.[137]
            The State Government EIA requirements are much less stringent than the DOE's and require no public participation. The issue is whether the project is unlawful for failing to follow procedure and whether the transfer of power to the State Government was ultra vires. It was held in the High Court[138] that the delegation was invalid, and the EQA's EIA requirements would have to be followed. Unfortunately the High Court's order has been suspended by the Court of Appeal and the substantive appeal is, at the time of writing, pending.



XI  GENERIC PROBLEMS


            What is clear from the legislation, apart from certain sections of the TCPA and the EIA requirements of the EQA,[139] is that there is precious little room for the public to take part in any decision-making. They are therefore left with post-decision-making mechanisms. These can take two forms: to litigate or to object.
            The former option has many problems, which have been discussed above. One further general difficulty is that with government bodies or agencies, the only real option is to obtain a judgment based on the remedy of mandamus, by which the court compels the relevant body to fulfil its statutory duties. This however is an unlikely option: although local authorities and the DOE have very broad powers, most powers granted by statute are discretionary in nature. It is therefore very unlikely that a litigant would obtain a judgment progressive enough to force a government body to exercise its discretion in a particular fashion. Even where the duty is clearly mandatory, the law of mandamus has proved singularly ineffective due to its doctrinal restrictions.[140] In Malaysia, moreover, standing to apply for mandamus is narrowly defined.[141]
            Objecting also has its shortcomings. The MPPJ for example has an Environmental Unit. It is admittedly very small, with two full-time officers, and therefore not as effective as it could be. However, one of its duties is to receive and act upon complaints from the public. Complaints are channelled to the Unit through the MPPJ Complaints Department. In theory, public complaints could empower the MPPJ to take further action. However, this is a discretionary power, not a duty. Furthermore, Residents’ Associations have complained about the inefficiency of the Complaints Department, even for relatively small issues like garbage disposal.
            It is submitted that these problems are the result of a lack of accountability and democracy. The local government system in Malaysia is rife with undemocratic practices and conventions. With paucity of funding but without effective public scrutiny local authorities have too little fiscal power but too much freedom in the discharge of the legal powers they have. It is of vital importance that greater public participation is injected into the system. This is to ensure that there is an effective check on local authorities' conception of the public interest. It is also important that funding of local authorities is increased to a level that will enable them to act effectively.
            The courts have a role to play in this process although it requires an assertiveness for which the Malaysian judiciary is not noted. In all fairness to the judiciary there have been several cases where the decision has swung in favour of the public, even though it required a certain degree of judicial adventurousness.[142] But these have been decisions based on principles of procedural fairness. There must be a willingness to examine substantive, not merely procedural, issues. This is to ensure that the spirit, and not just the letter, of the legisla­tion is followed.


XII  CONCLUSIONS

           
            Malaysia has most of the necessary basic formal requirements of a democratic society: a long-lasting, albeit undermined, Constitution; elected federal and state governments; an established and competent judiciary, legal system, and legal profession; a defined system of local govern­ment; a relatively well-developed and sometimes independent press; and some procedural gateways for complaints and opinion-forming.
            It seems that, although there are many problems peculiar to access to environmental justice in KL, the fundamental problem that lies at the root of the apparent inability to gain effective access is the prevailing perception of democracy and the rule of law in Malaysia. We are not confident that more than small improvements can be achieved without a major paradigm shift. These improvements are worth achieving in their own right, and may contribute to the kind of shift envisaged. We have been impressed by the clarity of our findings and the virtual unanimity of view among those seeking access. We do not accept that litigation is a useless distraction from other gateways. Litigation is in our view fundamental to the retention or development of a rule-of-law state, and we find it difficult to imagine how access to environmental justice would appear in Malaysia without the line of public-interest environmental cases and the kind of constant doctrinal pressure which lawyers and NGOs have kept up since the early 1980s.
            It is nonetheless true that it is largely the middle classes (except in squatter cases) who are aware of the relevant gateways, and able to use them so far as they are useful. This is most evident in pre-decision-making gateways. The reason for this is in our view the way participatory gateways are structured and controlled: only those with a fairly high level of education can exploit them to the full or even have the capacity to participate. Where post-decision-making gateways are concerned, the inhibiting cost of litigation and other obstacles mentioned above are also influential factors.
            During the course of the study, it has become clear that both pre-decision-making and post-decision-making processes need improvement. We would identify the following areas of improvement as most likely to improve access to environmental justice.
            (a) Reduction or control of wide discretionary powers of LPAs. This can be achieved by more effective public participation mechanisms, such as statutory objection and public hearings or inquiries, by the development of a jurisprudence of planning and environmental law, and by the development of a more democratic culture of transparency, consultation, and accountability. There is some evidence that these things are slowly developing. Naturally this involves changes such as reformulating the rules on standing, for example along the lines of the ‘citizen-action model’,[143] and enhancement of administrative-law control mechanisms would also be welcome. However, arguably a more pressing problem is to restore public faith in a fair and impartial judiciary.
            (b) Clarification of environmental responsibility as between federal, state and local governments is widely acknowledged even in official circles to be urgently needed. Malaysia is legally and administratively extraordinarily complex for a country of 20 million people; KL even more so than the rest of the country. This is partly a legacy of constitutional development. In our view environmental problems require both firm central policy and rational apportionment of power. Responsibility for EIA is a major and pressing example. Public consultation on EIAs at both preliminary and detailed stages should in our view be mandatory, and inconsistencies between federal and state treatment of EIAs should be ironed out. Close linkage of EIA and the planning-approval and monitoring process is required, so that an EIA report is effective and binding.[144]
            (c) More than this, we are impressed with the disparity between the statutory environmental powers and duties of local authorities and the paucity of funding to fulfil this potentially wide remit. Clarification would not in itself be effective if it resulted in the removal of powers and resources away from local authorities to the two higher levels of the executive. What is needed is a revitalisation of local government, which means greater accountability, particularly through restoration of the electoral process.
            (d) Any efforts to make use of existing legal gateways, be they pre- or post-decision-making, would only be truly effective if there is a corresponding, extra-legal effort. This may include civil protest, through the form of lobbying, demonstration, formation of single-issue co-ordinating committees, and other similar means short of direct or illegal action, which in Malaysia is likely to encounter a strong backlash, and is therefore counter-productive.[145]
            (e) There is also a need for more legal and environmental literacy programmes and empowering exercises to provide the skills that groups and communities would require in order to mobilise for action. This includes measures to educate the legal profession and law students in the principles and techniques of environmental law.
            (f) Substantive rights for squatters should be set out in the NLC. Most important is transparency and access to information about proposals. Squatters should have a right not to be evicted unless and until certain conditions are fulfilled and fairly implemented, i.e., rehousing and satisfactory compensation.



[1] This study originates in the SOAS project on Access to Environmental Justice in Asia and Africa (SOAS/ A2EJ), in which the authors conducted research in the Kuala Lumpur (KL) conurbation in 1996, which was then updated for the present volume. Professor Andrew Harding, Department of Law, SOAS, was Team Leader of SOAS/ A2EJ; Dr Azmi Sharom, Associate Professor, Faculty of Law, University of Malaya, was a resource person. In this study KL is broadly defined to include the Federal Territory of Kuala Lumpur (FT), which has its own City Council (Dewan Bandaraya Kuala Lumpur: DBKL); and its suburbs, technically within the state jurisdiction of Selangor, including, principally, Petaling Jaya. The conurbation has an estimated population of two million and contains a large concentration of industry as well as residential areas.
[2] MacAndrews, C., and Chia, L.S., Developing Economies and the Environment: the South East Asian Experience (Singapore, McGraw-Hill, 1979). For literature on environmental problems generally in Malaysia, see Lee, D., The Sinking Ark: Environmental Problems in Malaysia and South East Asia (Kuala Lumpur, Heinemann, 1980); Aiken, S.R., et al., Development and Environment in Peninsular Malaysia (Singapore, McGraw-Hill, 1982); Allen, J., Asia/ Pacific and the Environment (Hong Kong, Business International Asia/Pacific, 1992); Seda, M., (ed.), Environmental Management in ASEAN: Perspectives on Critical Regional Issues (Singapore, ISEAS, 1993); Sham Sani, Environment and Development in Malaysia: Changing Concerns and Approaches (Kuala Lumpur, Centre for Environmental Studies, ISIS, 1993); Sham Sani, ‘The State of the Malaysian Environment and its Outlook for the 1990s’, 38 Akademika 87 (1991).
[3] Most recently expressed in the Seventh Malaysia Plan (1997-2002). See also Mohamed Nordin Haji Hasan, ‘Environmental Management as a Strategy for Sustainable Development’, ch.10 of Teh Hoe Yoke and Goh Kim Leng (ed), Malaysia's Economic Vision: Issues and Challenges (Petaling Jaya, Pelanduk, 1992).
[4] See Federal Constitution of Malaysia, Art.160(2).
[5] Federal Constitution at e.g., Art.153. See, further, Harding, A.J., Law, Government and the Constitution in Malaysia (Kuala Lumpur, Malayan Law Journal, 1996), at 39, 45, 269 and ch.14.
[6] See, generally, Harding, above n.5.
[7] Malay 33%, Chinese 52%, Indian 15%.
[8] Malaysia: Managing the Costs of Urban Pollution, Country Economic Report, World Bank Report No 11764-MA, 15 November 1993, Table 1.2.
[9] Environmental Quality Report 1994, Department of Environment, Ministry of Science, Technology and Environment (Kuala Lumpur, 1995), figs. 3.1,3.2, pp.12-13.
[10] Sham Sani, ‘Post-Merdeka Development and Air Quality Degradation in Malaysia’, 36 Akademika 33 (1990). Thus Chinese squatter communities along the low-lying and traffic-benighted Jalan Kelang Lama are subject to far greater pollution than the wealthy hillside suburb of Damansara Heights.
[11] This is borne out by the World Bank study: above n.8.
[12] The Federal Constitution 1957.
[13] Federal Constitution, Art.44. For discussion of legislative and executive powers, see Harding, above n.5, chs.4,6,7.
[14] Notable examples are the Waters Act 1920 (FMS, Act 418), which controlled pollution of inland waterways; the Irrigation Areas Act 1953, which controlled irrigation canals; the Land Conservation Act 1960; and many other statutes controlling other activities such as forestry, tin-mining, and nuisances. Development control began in 1923 with the Town Planning Enactment (FMS).
[15] The states comprising Malaysia are 13 in number. Historically legislation was promulgated by each, but also by four federations (Federation of Malay States 1895-1946, Malayan Union 1946-8, Federation of Malaya 1948-63, and Malaysia 1963-date), not to mention the Straits Settlements colony, two parts of which, Penang and Malacca, are now States of Malaysia. One problem of environmental legislation is that much state legislation was conceived before the division of state and federal powers was effected by the Federal Constitution in 1957.
[16] For an overview of Malaysian environmental legislation, see Bankoff, G., and Elston, K., Environmental Regulation in Malaysia and Singapore, Asia Paper No 2, Asia Research Centre, University of Western Australia (Nedlands, Western Australia, 1994), 1-44.
[17] Act 127.
[18] See, further, Harding, A.J., ‘’
[19] [1996] 2 MLJ 388. The case is presently before the Court of Appeal.
[20] The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993) recommended the creation of a single federal administrative authority as "the ultimate solution to the present woes of duplication".
[21] Federal Constitution, Sch.9.
[22] Art.109, Sch.10.
[23] The States derive much of their income from royalties on exploitation of natural resources, eg timber, minerals, oil.
[24] Above n13, para. 5.37 ff. For legal difficulties involved in enforcing environmental laws, particularly the requirement of observing natural justice, see Eu Liang Heng v President, Municipal Council, Petaling Jaya [1992] 1 MLJ 691; Subramaniam v Yang di-Pertua, Majlis Perbandaran Petaling Jaya, Criminal Appeal No.41-161-93, [1994] Mallal's Digest 748.
[25] Shafruddin Hashim, `An Episode of Centre-State Relations in Peninsular Malaysia: the Endau-Rompin Case' (1985) JCCP 140.
[26] See, further, Lim Hong Hai, `Urban Service Provision in a Plural Society: Approaches in Malaysia', Ch.6 of Rondinelli, D.A., and Shabbir Cheema, G., Urban Services in Developing Countries (Basingstoke, 1988); `Viability of Urban Finance: Country Paper on Malaysia', in Urban Management in Asia: Issues and Opportunities, UNHCS, EDI (World Bank), and National Institute of Urban Affairs, New Delhi (1989), pp.3-14.
[27] Elections were suspended by the Emergency (Suspension of Local Government Elections) Regulations 1965. The Local Government (Temporary Provisions) Act 1974, Act No A262, abolished all elected local authorities, and gave the power to appoint local authorities to the State Governments: See Harding, above n6, at 177.
[28] Act 171. This Act came into force in Selangor (Sl P.U. 9/77) and the FT (P.U.(B) 592/76) on 1 January 1977.
[29] LGA, ss.3,13.
[30] LGA, ss.23,27.
[31] Federal Capital Act 1960, rev. 1970, Act 190.
[32] For further discussion of the evolution of planning laws in Malaysia, see Lee Lik Meng, `Town Planning Law in Malaysia: Politics, Rights and Jealousies', (1991) 15 Habitat International, 105-14.
[33] s.3.
[34] s.4.
[35] s.4(5).
[36] s.4(7).
[37] For the FT two Committees scrutinise planning applications: the Town Planning Committee and the Planning Technical Sub-Committee. The most common avenue of objection in the FT is the objection hearing. There are on average about 100-150 such hearings per annum. There is no code of practice, but objectors are allowed to be represented by counsel or other spokesman. The environmental objections most often referred to are increased traffic and the construction itself.
[38] s.7(3).
[39] s.8.
[40] s.8(3)(a).
[41] s.8(4).
[42] The final acceptance of the Draft Structure Plan is in the hands of the State Planning Committee: TCPA, s.10.
[43] s.9(1)(b). The public-participation requirements of local plans and structure plans are almost identical; therefore there will be no separate examination.
[44] TCPA, s.9(2)(a), requires the LPA to advertise in three issues of two national daily newspapers, of which one must be in the national language, Malay.
[45] s.9(3)(a).
[46] TCPA, s.20.
[47] s.21(6). See above for discussion of standing to object.
[48] s.22(5)(b)(ii). See Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16.
[49] ss.72,101.
[50] s.25(1)(2).
[51] Emergency (Essential Powers) Ordinance No. 46, 1970, Planning (Development) Rules, 1970.
[52] Emergency (Essential Powers) Ordinance No. 46, Planning (Development) Rules 1970, and City of Kuala Lumpur (Planning) Act 1973.
[53] [1992] 2 MLJ 393.
[54] Act 190, Rev. 1977.
[55] This requirement for objectors to be registered owners, was once used as an argument to prevent residents with no title (eg occupants of apartments who have yet to receive their strata titles), from using this right. Fortunately this argument was rejected by the court in Datin Azizah, above, n171.
[56] See, further, Harding, above n6, Ch.15.
[57] Appeals to the Privy Council were finally abolished in 1985. For the judiciary generally, see Harding, above n6, Ch.8.
[58] Harding, above n6, Ch.8.
[59] For further discussion of judicial philosophy, see Harding, A.J., `The 1988 Constitutional Crisis in Malaysia', (1990) 39 ICLQ 57. An exception is the approach taken to indigenous land rights: see …
[60] Ever since the sacking of Tun Salleh Abbas, the Lord President (the head of the Judiciary) in 1988, the independence of the judiciary has come under serious question. For further reading on this event, see Lee, H.P. Constitutional Conflicts in Contemporary Malaysia (Kuala Lumpur, 1995), Ch3; Harding, above n6, Ch.8.
[61] [1988] 1 MLJ 50, [1988] 2 MLJ 12.
[62] Predecessor to the Federal Court.
[63] cf. the Chapters on Bangalore and Karachi; Harding, above n6, pp.260ff, and also `Public Interest Groups, Public Interest Law and Development in Malaysia' (1992) TWLS 231.
[64] there have been exceptions. See the ARE case and the Bakun Dam case, below; and Jau Jok Evong and others v Marabong Lumber Sdn Bhd and others [1990] 2 CLJ 625. NGO activity and support is evident in virtually all the cases examined in this research.
[65] Abdul Razak Ahmad v Ketua Pengarah, Kementerian Sains, Teknologi dan Alam Sekitar, Civil Suit No.830/1993, High Court of Malaya, Johor Baru, Feb.1994. The decision is of great practical importance for access to environmental justice and is remarkable considering that there is no statutory obligation to publish EIA reports.
[66] Abdul Razak Ahmad v Kerajaan Negeri Johor [1994] 2 MLJ 297.
[67] Abdul Razak Ahmad v Majlis Bandaraya Johor Baru [1995] 2 AMR 1174; see also Lee Freddie v Majlis Perbandaran Petaling Jaya [1994] 3 MLJ 640, and the discussion of planning law below.
[68] Ibid., at 1186.
[69] Rules of the High Court 1980, Order 53, rule 1A; see also Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54. The courts frown upon applications for extension of time: Epco Marine Sdn Bhd v President, Town Council of Penang & Anor [1993] Mallal's Digest 442.
[70] One interview mentioned a case in which a tenant being evicted obtained an injunction to compel restoration of his water supply pending eviction, but this is exceptional.
[71] See, further, Harding, A.J., Planning, Environment and Development: a Comparison of Planning Law in Malaysia and England (London, SOAS Law Department Working Paper, forthcoming, 1997).
[72] Act 67.
[73] [1861-73] All ER 1.
[74] Woon Tan Kan (Deceased) & 7 others v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299.
[75] Unfortunately, the High Court decision was overturned in December 1993 by the Supreme Court (Judgment of the Supreme Court of Malaysia Civil Suit no. 02-313-92) in a decision which raised many serious criticisms. For a critique of this decision see Ichihara, M. and Harding, A.J., `Human Rights, the Environment and Radioactive Waste: A Study of the Asian Rare Earth Case in Malaysia', [1995] 4 RECIEL 1. Also Consumers' Association of Penang, Wasted Lives: Radioactive Poisoning in Bukit Merah (Penang, 1993).
[76] Ichihara and Harding, above n82.
[77] Phang Ah Heng and others v Highland Properties Sdn Bhd and others, High Court of Malaya, Civil Suit No.52-23-77-1994. See also Dr Benjamin George and others v Majlis Perbandaran Ampang Jaya [1995] 3 MLJ 665.
[78] See Allen v The United States [1984] 588 F Supp 247.
[79] Environmental Liability Act 1993.
[80] See the draft for legislation on `Crimes Against The Environment' by The International Centre for Criminal Law Reform and Criminal Justice Policy, University of British Columbia and UN Interregional Crime and Justice Research Institute (UNICRI).
[81] Act 254.
[82] From the Jawatankuasa Sokongan Peneroka Bandar (Urban Pioneers Support Committee).
[83] For which, see below.
[84] Anderson, M.R. and Boyle, A.E (eds), Human Rights Approaches to Environmental Protection (Oxford, OUP, 1996). The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993), Jadual 1.1, recommended the adoption of such a right in the Malaysian Constitution.
[85] Harding, A.J., `Practical Human Rights, NGOs and the Environment in Malaysia', Ch.11 of Anderson, M.R. and Boyle, A.E., above n70.
[86] See, further, Harding, above n6, Chs.11,13.
[87] Act 88, Rev. 1988.
[88] See Public Prosecutor v Lim Kit Siang [1979] 2 MLJ 37.
[89] Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566.
[90] Act 301.
[91] Act 82, Rev. 1989.
[92] Interview with the Petaling Jaya Residents' Association.
[93] EQA, ss.21,25. The Act was extensively amended by the Environmental Quality (Amendment) Act 1996, which amendments are reflected in the following text.
[94] Under s.2, ""waste" includes any matter prescribed to be scheduled waste or any matter, whether in a solid, semi solid or liquid form, or in the form of gas or vapour which is emitted discharged or deposited in the environment in such volume, composition or manner as to cause pollution". Pollution is defined as "... any direct or indirect alteration of the physical, thermal, chemical, or biological and any part of the environment by discharging, emitting, or depositing wastes so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants or to cause a contravention of any condition, limitation, or restriction to which a licence under this Act is subject".
[95] s.25(2)(a)(b).
[96] s.25(3).
[97] s.33. The EQA is to be read alongside the Environmental Quality (Sewage and Industrial Effluent) Regulations 1979, which provides further powers and greater detail with regard to the type of activities and pollution to be regulated.
[98] s.71(1)(2).
[99] s.22(2)(a)(b)(c)(d).
[100] CAR, Part III.
[101] CAR, Part IV.
[102] CAR, Part V.
[103] CAR, Part VI.
[104] CAR, Part VIII.
[105] s.81(k).
[106] s.84.
[107] See Cummings, H., `A Comparison of Migrant Adjustment in Squatter Communities of Bandung, Kuala Lumpur, and Manila', Ch.15 of Krausse, G.H. (ed), Urban Society in South East Asia: vol i, Social and Economic Issues (Hong Kong, Asian Research Service, 1985).
[108] Through their Squatter Control and Placement Department.
[109] The name is derived from "Malaysia-Indonesia".
[110] One newspaper reported the event under the headline "Alien Town".
[111] Information based on interview; their is no written judgment.
[112] Sen, M.K., `Rehousing and Rehabilitation of Squatters and Slum Dwellers with Special Reference to Kuala Lumpur', Ch.9 of Tan Soo Hai and Hamsah Sendut (eds), Public and Private Housing in Malaysia (Kuala Lumpur, 1979).
[113] The age of squatter communities is important in the local context: some squatter communities are actually older than KL itself, and take on an aspect of national heritage.
[114] s.425.
[115] "No title to state land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever": NLC s.48.
[116] See Murphy, D., and Pimple, M., Eviction Watch Asia: Forced Evictions and Housing Right Abuse in Asia (Asian Coalition for Housing Rights, 1985) 56.
[117] See below, n146.
[118] [1991] 1 MLJ 343.
[119] Rules of the High Court, Order 89. Following Trustees of Leong San Tong Khoo Kongsi (Penang) Registered v Poh Swee Siang [1987] 2 MLJ 611, in which the Supreme Court rejected any requirement for a possession order to be obtained against squatters before eviction, the Specific Relief Act 1950, Act 137, was amended to create such a requirement: Specific Relief (Amendment) Act 1992, Act A811, s.2.
[120] 10 years' possession is normally recognised in equity as creating a good title.
[121] This position rests on a decision of Harun Hashim SCJ in Cabra Holdings (1989-90), reported MLJ and followed in Bohari 1991 MLJ) which involved 600 families in Kampong Pasar Baru, who had been promised land by two successive Menteri Besar (Chief Ministers), one of whom was recorded on videotape!
[122] s.107(2).
[123] See LGA, ss.72-3,101.
[124] Other powers which can be used to enforce licensing rules include the power to enter premises for the purposes of inspection and to arrest without warrant if the suspected offender is reluctant to give his address or if the officer does not believe that the address given is genuine: LGA, s.110.
[125] Sel.P.U. 32.
[126] s.11(3)(a)(b).
[127] s.12(1)(a).
[128] s.16(2).
[129] s.17.
[130] See Leonen, M.F.V. and Santiago, J.S.S., `Disparities in the EIA Systems of Indonesia, Malaysia, the Philippines and Thailand: Implications of the ASEAN Free Trade Area' (1993) 10 ASEAN Economic Bulletin 166.
[131] EQA, s.34A.
[132] s.34A(3).
[133] s.34A(4).
[134] Abdul Razak Ahmad v Ketua Pengarah, Kementerian Sains, Teknologi dan Alam Sekitar, Civil Suit No.830/1993, High Court of Malaya, Johor Baru, Feb.1994.
[135] See Harding, above nxx. The Environmental Quality Report 1995 (KL, 1996), however, refers to public participation only in terms of recruitment of the public behind environmental awareness programmes.
[137] Ministerial Order PU(A) 117.
[138] Kajing Tubek and others v Ekran Bhd and others [1996] 2 MLJ 388.
[139] See below.
[140] See, further, Harding, A.J., Public Duties and Public Law (Oxford, 1989).
[141] Specific Relief Act 1950, s.5.
[142] See Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur and others [1992] 2 MLJ 393, applied in President Hotel Sdn Bhd v Datuk Bandar Kuala Lumpur and another [1995] 3 AMR 2350; Lee Freddie and others v Majlis Perbanda­ran Petaling Jaya and another [1994] 3 MLJ 640. The latter case, remarkably, establishes a legitimate expectation of a hearing in respect of a planning application based on administrative practice as opposed to a statutory right of objection.
[143] See Hilson, C. & Cram, I., ‘Judicial Review and Environmental Law - is there a Coherent View of Standing?’ (1996) 16 Legal Studies 1.
[144] The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993) stresses the importance of bindingness in its many recommendations. The outcome of the Report is the Environmental Quality (Amendment) Act 1996, which provides many improvements in environmental law, but both the Report and the Act studiously avoid any mention of public participation.
[145] A study by the Institute of International and Strategic Studies for the Japanese Government, Local Dimension of Environmental Management: Analyses of Malaysian Institutions and Cases (Kuala Lumpur, 1993) which examined seven environmental cases, found that in only one (the ARE case) was litigation resorted to; however, all of the cases featured civil protest as the most effective method of raising environmental concerns. Using the usual bureaucratic channels was also found to be ineffective.

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