developing environmental law champions program …

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

Date and Time: 11th May 2016 – 9am to 9.40 © Developing Environmental Law Champions, Train-the-Trainers (TTT) Program 2016.

All rights reserved by ADB and IUCNAEL.

Introduction uNot giving theoretical views on the role of

the Judiciary in environmental protectionuBut to share on the practical roles and

experiences so far played by the judiciaries with special reference to the Malaysian Judiciary

uEnvironment encompasses – the air, land and water plus flora and fauna and include wild life and marine life

© Developing Environmental Law Champions, Train-the-Trainers (TTT) Program 2016. All rights reserved by ADB and IUCNAEL.

Primary Questions

uWhat business has the judiciary in environmental protection

uWhy not leave such matters to the Executive and the Legislature since it involves policies


Traditional perception uThe court is a ‘reactive’ institution

ØNot to do anything until someone approaches but must comply with all procedural rules

ØNo guarantee it will react though it is supposed to be the fountain of justice

ØDecades ago a person would be a ‘busybody’ if he came to court to plead on environmental issue


The Executive?

uCould it be relied upon to protect the environment

uProper and regular enforcement of environmental laws is questionable

uChecks and balance should existuThe need to balance economic

development and environment


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

uAdvancing Public Interest Litigation (PIL)


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’


ASEAN Chief Justices Roundtable on Environment

uMalaysian judiciary participation – first meeting in 2011

uJakarta Common Vision - envisioned a common the approach by the judiciaries of the ASEAN nations in protecting the environment


Jakarta Common VisionuSome of the contents:Ø Collaborate to improve environmental law and

enforcementØ Share information on ASEAN environmental

challenges among legal profession and the general public

Ø Impose appropriate sanctions and penalties and consider innovative remedies

Ø Make judgments public and share with Asian Judges’ Network on Environment (AJNE)

Ø Encourage environmental law in law schools and bar associations

Ø Hold an Annual ASEAN Chief Justices Roundtable© Developing Environmental Law Champions, Train-the-Trainers (TTT) Program 2016.


Hanoi Action Planu In order to implement the Jakarta

Common Vision the Hanoi Action Plan was agreed. The basic agendas:Ø each ASEAN nation is to set up a National

Working Group on Environment with certain agendas

Øthe setting up of ASEAN Judicial Working Group on Environment with certain agendas


National Working Group on Environment

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


ASEAN Judicial Working Group on Environment

uAgendas:ØPrimary purpose – to oversee the implementation

of the Jakarta Common VisionØChair/Chief Justice of each National Working

Group is national representative advisorØ the production of progress reports on the

implementation of the Jakarta Common VisionØorganizing environmental twinning programs

among ASEAN JudiciariesØ sharing content of Rules of Procedures for

environmental casesØ inviting experts on environment in judicial training

and conferences.


Asian Judges’ Network on Environment (AJNE)

uThe AJNE has the following:

ØSteering Committee/Advisory BoardØSteering Committee/Advisory Board RoleØSecretariatØVision StatementØWebsite and TranslationØBench bookØJudicial Training and Needs Assessments


Malaysia National Working Group on Environment

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


State Working Groups on Environment

Sabah & SarawakuInitial activities

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

ØSarawak Group has conducted one phase



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

uOne way is for the courts to expeditiously dispose of cases involving environmental issues and to impose meaningful sentences against convicted offenders on environment© Developing Environmental Law Champions, Train-the-Trainers (TTT) Program 2016.


1st workshop Group Photo


Dead mother and baby

Wildlife hunting/poaching

Gibbon killed by gun shot in the head (Sabah) ©WWF

Pig bombing (Kinabatangan) ©DGFCMaroon langur & mouse deer (Sabah) ©WWF

Sun bear ©BSBCC

©DGFC

©SWD

©DGFC

©DGFC

Results of poaching

Totally protected species in MalaysiaCITES Appendix 1IUCN Red List

Vulnerable decreasing

Use of social media to sell wildlife


Anson Wong, the Lizard King

Fish bombing

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


Pre and Post Workshop uWild life case before the 1st workshop

Ø Charge under section 41(2) Wild Life Enactment SabahØ On conviction sentenced to RM10,000.00 in default 1 year imprisonment

uWild life case after the 1st workshopØ Charge under section 41(2) Wild Life Enactment SabahØ On conviction sentenced to 36 months imprisonment

uPre workshop -Section 16(1) Akta Kualiti Alam Sekeliling 1974 – sentence passed - Fine RM15,000.00 in default 3 months imprisonments

uPost workshop on same section – sentence passed -Fine RM25,000.00, in default 12 months imprisonment



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

IOs Training

POs training

The Trainer


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

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

Environmental Courts in MalaysiauEnvironmental Courts – Civil & Criminal – specialized

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


Beautiful Imbak Canyon

Inspirational quotes on environment

uMahatma Gandhi said:‘Earth provides enough to satisfy every man’s needs, but not every man’s greed’

u‘We are mere trustees of our Mother Earth for our children and that the survival of this planet is our survival! – Tun Arifin Zakaria CJ


developing environmental law champions program …

Documents