Constitutional Rights and Environmental Activism
05 June 2016 | Source: MLTIC News
I was privileged to attend a training last week which had as one of its eminent speakers, the very inspiring Right Honorable Mr. Justice Tan Sri Richard Malanjum; the Chief Judge of Sabah and Sarawak. Sharing his passion on the environment he regaled the audience with stories from his childhood. While these spoke to me at an individual level (given that we both come from the same state) it was something else he said, that made me think.

In his session he spoke candidly about the role of the judiciary today in environmental dispute resolutions and highlighted the famous words by Gopal Sri Ram from the case of Tan Tek Seng where the definition of ‘life' under Article 5(1) of the Federal Constitution was interpreted to mean "...all facets that are an integral part of life itself and those matters which go to form the quality of life...includes the right to live in a reasonably healthy and pollution free environment." He lauded this extension to the definition of ‘life' that recognised a clean environment as another facet of the right to life.

Yet, in the same breath when considering existing judicial attitudes towards environmental matters, he noted that in general the judiciary in Malaysia continued to hold to a conservative position. While efforts have been made to expose court officials and judges toward environmental issues and environmental sessions have been conducted to add to their existing knowledge (with great results to boot!), more can and should be done.

Judicial activism in environmental matters

Can more be done to encourage a conservative judiciary? It has been asked: why is environmental judicial activism present in other jurisdictions, and not ours? The answer is a complex one and too long a discourse for this article, however one obvious reason may be found within its constitutions.

Environmental issues are generally public interest issues that affect marginalised or disadvantaged groups within a society. In the Philippines, public interest litigation is often utilised by public-spirited individuals (like Tony Oposa) or non-governmental organisations to bring to the courts such environmental issues; and it is in these fundamental cases that judicial tenacity (or not) become evident. In Minors Oposa v Secretary of State of the Department of Environment and Natural Resources (1994) the court granted standing to children to represent their interests and those of future generations. This decision was exceptional as it demonstrated the court's far-sightedness and its understanding of an environmental right in a social and intra-generational context. In another example, MMDA v Concerned Citizens of Manila Bay (2008), Filipinos saw for the first time the creativity of the court in utilising a writ of continuing mandamus (adopted from the jurisprudence of the Indian Supreme Court) that required 13 governmental bodies to clean up and preserve the Manila Bay, and for these bodies to continually submit quarterly progress reports to the court. The court also created a writ of kalikasan (writ of nature)(not available in Malaysia) which authorises any natural or legal person to bring an action to court to have an environmentally harmful activity ceased, or to protect the environment.

A similar position is found in India, here public interest litigation is a deemed an affirmation of participative justice that has led to an expansion of the doctrine of locus standi. As an example, in M.C. Mehta v Union of India (1987) a simple letter written by an aggrieved member of the public to the judiciary may be accepted as a writ; sufficient for the court to commence an action (again, not available in Malaysia). In S.P. Gupta v Union of India (1982), the court even went as far as to say that "any citizen who is acting bona fide and who has sufficient interest has to be accorded standing." This extension of standing, allows for public-spirited or aggrieved persons with sufficient interest to bring an environmental action to the court.

Public interest litigation

The success of environmental public interest litigation in both these jurisdictions began with the relaxation of the test of locus standi (legal standing). The term locus standi is generally understood to mean, the right of a party to appear and be heard by a court. It is a principle that safeguards the judicial process against abuse by individuals who have no right to initiate an action in court. Generally for a potential litigant, having a cause of action does not necessarily mean that one has a right to initiate an action or to appear in court. Before a right to appear is ascertained, principles of legal standing must be satisfied. As a result, locus standi has often been described as a door-keeper.

In India, the liberalisation of this rule began as a result of "...the reasoning of the judges and in part on the mere existence of fundamental rights provisions in the Indian Constitution" [Mr Justice Krishna Iyer, ABSK v Union of India (1981)]. What is interesting is that when India's constitution was first framed in 1950, there was no mention of the environment. Similar to Malaysia's constitution it viewed natural resources from a natural resource specific point of view. However, change took place in 1976 with the passing of the 42nd amendment to the Constitution and from that point on, not only has there been a deluge of environmental jurisprudence, there has been judicial activism and creativity in the way the court has approached environmental issues.

In the Philippines, a constitutional right to a "healthful and balanced ecology" was enacted in 1987. Although this right was expressed in the constitution's "Declaration of Principles and State Policies" and not within its "Bill of Rights", the Supreme Court in Minors Oposa upheld its position as being legally enforceable. When the issue of locus standi was queried by the government, the Supreme Court emphasised the need to protect the environment instead. The judicial emphasis (and courage demonstrated, given that it was one of the, if not the first precedent setting case on this constitutional right) was clearly based on rights enumerated within the constitution. Without which, the outcome could have been different. Judges have even gone as far as to say that the "right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind..." [MMDA v Concerned Residents of Manila Bay (2008)]

Legal standing in Malaysia

In Malaysia, such opportunities for public spirited individuals and those aggrieved, are very limited given the existing position on legal standing. In the recent Federal Court case of Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor (2014) the court reviewed the previous test of ‘substantial damage' (under the 1988 case of Government of Malaysia v Lim Kit Siang) and held that it no longer applies. In its place, the court adopted the test of ‘adversely affected' which means that, an applicant now has to show that he/she has a real and genuine interest before the court will hear the matter. This decision has undoubtedly relaxed, what used to be a more conservative position on locus standi. It was even suggested immediately after, that with this more liberal interpretation of the test of legal standing the floodgates for public interest litigation in Malaysia would expand; this possibility unfortunately has thus far remained elusive.

Concluding Thoughts

Why is this so? Many Administrative lawyers would contend that this is simply because the test is still not sufficiently liberalised (comparing this to the English standard today, as an example), yet, I opt to focus instead on the lack of an express environmental right within the constitution as the source of this cause. Looking at the experiences from India and the Philippines, it is evident that the existence of a constitutional right was the pièce de résistance in their judicial reasoning; it was from the apex law that its courts drew resolution to create new jurisprudence and expand the tests of legal standing, for the protection of its environment. It is this piece of the puzzle that is missing for Malaysia.

In the closing minutes of his session, Yang Amat Ariff took questions from the floor. I put my hand up and asked him: do you think existing judicial attitudes could change with an environmental right in the constitution? And would you support such a right?

I am happy to say that he answered in the affirmative to both these questions.

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