Chief Justice moots making clean environment a stated right


Source: The Malay Mail Online

Chief Justice Federal Court of Malaysia Tun Arifin Zakaria speaks to reporters at the International Malaysia Law Conference 2016 in Kuala Lumpur, September 21, 2016. ― Picture by Yusof Mat Isa

Chief Justice Federal Court of Malaysia Tun Arifin Zakaria speaking to reporters at the International Malaysia Law Conference 2016 in Kuala Lumpur, September 21, 2016. ― Picture by Yusof Mat Isa

PUTRAJAYA, Jan 13 ― The right to a clean environment should ideally be added to the liberties that Malaysians are expressly guaranteed by the Federal Constitution, said the Chief Justice of Malaysia said today.

Tun Arifin Zakaria said the judiciary’s duty is to safeguard and uphold constitutional guarantees, which he said must include the “right to a clean environment” for the present and future generations.

“While our Federal Constitution does not specifically provide for such a right, it is implicit in Article 5, which guarantees the right to life,” he said in his speech at the opening of the 2017 legal year.

To back his view that there is an inferred right to clean environment  in the Federal Constitution, Arifin cited the broad and liberal interpretation given to the word “life” by then Court of Appeal judge Datuk Seri Gopal Sri Ram in a 1996 case.

Gopal had in Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan and Anor defined “life” in Article 5(1)’s right to life as covering all integral aspects of life, including “the right to live in a reasonably healthy and pollution free environment”.

“Notwithstanding this generous and accurate analysis of the definition to be accorded to the word ‘life’, it would be ideal if our Federal Constitution is amended to expressly include a right to a clean and healthy environment as is found in numerous other modern constitutions,” Arifin added.

As for environmental laws, Malaysia has 38 federal and state laws, 17 regulations, laws and orders, with the country’s international environmental obligations also being an important source of such laws, he said.

Later, Arifin told reporters that what was most important for cases related to environmental offences is the impact on the public.

“What is most important is I want to create realisation, awareness of the public on environment and the courts through our judgments, through our cases will attract public attention,” he said.

He noted that enforcement has improved over time, while those who commit environmental offences now face higher penalties than before.

“(In a case in) Sabah also, five years’ imprisonment for killing animals. So it’s no longer like in the old days, where traders of wild animals can think ‘I pay so much, I pay fine, I get profit’.

“The calculation now is not only profit and loss, we make sure they go into prison, that will serve as a deterrent and it has, I think,” he said.

Earlier in his speech, Arifin recalled how he had, during his first speech five years ago at an opening of the legal year ceremony, brought attention to the lack of recognition of the significance of environmental protection.

Back in 2012, he had highlighted the disparity in the courts’ sentencing for two separate criminal cases, where one Kelantan man was only fined RM7,000 in 2005 for the illegal possession of a dead tiger — which is a protected species.

On the other hand, the courts sentenced a man to five years’ jail in 2010 for stealing 11 cans of “Tiger Beer” and “Guinness Stout” worth RM70, he said.

“It illustrates just how misplaced our value system was then, as well as how little exposure and awareness there was amongst our magistrates and judges,” he said today, adding that such attitudes have hopefully changed after the introduction of environmental courts, training programmes and national strategy workgroups.

Arifin, who will retire in a few months’ time and today placed heavy emphasis in his speech on environmental protection, had in 2012 introduced courts dedicated to handling environmental cases.

A total of 42 Sessions Courts and 53 Magistrates’ Courts were initially designated as environmental courts handling criminal matters, but the judiciary has since expanded this initiative last January 1 through the setting up of Special Environmental Courts nationwide to deal with civil environmental cases.