However, any amendment made must address the all too common pitfall of Malaysian legislation – enforcement.
The lack of enforcement, coupled with tedious governmental red tape and the lack of access to justice for the average Malaysian, would result in the best of legislation failing to live up to its intended objectives.
The commonly-held unspoken notion is that the law is skewed to favour the powerful minority at the expense of the powerless majority, resulting in the lack of check and balance on the executives and the various agencies tasked to carry out its will.
What is urgently needed is the formation of an independent statutory body, with investigative powers to hold the executive in check and to ensure that the relevant agencies are held to account for their actions.
Why the need
The inability at present to hold government and corporations to account and to ensure proper procedures are being followed has led to much environmental destruction.
Take, for example, the case of the construction of power lines by TNB in the Janda Baik area.
From the earliest stage, several complaints of breaches of law and procedure had been made, yet despite the best efforts of the residents, the various agencies have been slow to respond, leaving the residents no other choice but to turn to our courts.
In the meantime, the people of Janda Baik have had to bear the brunt of the destruction, with their water source polluted and their lush green environment destroyed.
The perpetrators, be it loggers, developers or utility agencies, continue freely with their projects, possibly leading to more destruction with little avenue available to hold them accountable or to stop further destructions.
Another example that has made the news in recent times with devastating consequences is the pollution of Sungai Kim Kim. The scenario in this particular incident is an all too common one.
Residents of Pasir Gudang have been aware of the river pollution for many years and, as it is often the case, such reports go unheeded, or no actions are taken by the responsible governmental agencies.
Unfortunately, these are just some of the many examples borne out of the EQA’s inability to impose adequate checks and balances on the executive and its agencies at the earliest opportunity.
While the economic and modernisation concerns are certainly important in any development, proper enforcement and check and balance would ensure that work is carried out in accordance with the law.
A force for good
What exactly would this new environmental body need to do? Crucially, it would need to be equipped with the power to receive and investigate complaints on all matters pertaining to the environment.
In addition, it must also have the power to compel relevant ministers to respond to its conclusions arrived at after investigation, and to demand remedial action.
In order to achieve this while remaining independent, impartial and nonpartisan, it must be an external body established pursuant to an act of Parliament, ideally incorporated into the present amendments to the EQA.
Furthermore, proper funding to ensure its independence and to facilitate its ability to exercise its investigative powers is a crucial element of this body.
Possible further actions to strengthen this body would be to allow for its members to be elected, with some appointments being made by the government, and being made accountable specifically to Parliament rather than generally to the government.
Vitally, all of these will ensure that the body remains independent and powerful, easily accessible to all, particularly to those unable to afford expensive litigation.
In addition, this statutory body must also be given powers to carry out investigations at the state level to address matter involving land transaction by the government, particularly those involving degazettement of forest reserves.
This is because, matters pertaining to land, as per Schedule 9 of the Federal Constitution, fall under the purview of state governments. This means ministers are powerless to directly influence such matters.
One common form of environmental destruction that has flourished due to this jurisdictional separation between federal and state is the logging industry.
For instance, the recent blockade by the Orang Asli community in Kampung Tasik Cunex, Perak. The dispute arose following allegations of encroachment by the state authorities to carry out logging activities.
Coupled with this, were also allegations by the community that they were threatened by the Perak Forestry Department and the loggers themselves. In such scenario, limiting the powers of this statutory bodies to only matters falling under the purview of the federal government would mean, the bulk of the environmental complains, which is matters of land, would go unaddressed.
That being said, it does not follow that this new body would be totally impotent. Its powers would be limited to investigations of possible wrongdoing, including the issuance of licenses and permits, by the state level federal bodies. This in itself is a strong deterrent against abuses by the authorities and ensure proper enforcement.
Lest this be seen as a one-sided proposal, the benefits of such a body must be considered. This body is likely to improve the accountability and discipline of ministries and their officials, including the various agencies.
It would also help in making transparent that the state’s actions are not biased towards corporations, and that there is no corruption and abuse of power. In addition, such a body would serve to elevate the present standards of sustainable development we now hold.
Such a body is not a new idea; presumably, the soon to be formed Independent Police Complaints Misconduct Commission (IPCMC) would be vested with such powers. This move has been lauded by all stakeholders, including the police, and has provided a measure of relief to aggrieved parties.
In conclusion, high environmental standards are worth fighting for, and a powerful framework is needed to ensure those standards are actually implemented and enforced on all parties concerned.
A key role for environmental law is to empower those seeking to hold the government to account. After all, accountability is at the heart of democracy.