Environmental Law Full Notes

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Environmental law full notes
Environmental Law (Universiti Malaya)
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Environmental law full notes
● Historically since independence, there has been a rapid development - sustainable

TOPICdevelopment,
1: INTRODUCTION
economicTO ENVIRONMENTAL
growth and environmentalLAW
issue
● Major export which has caused Malaysia slowly moving towards manufacturing country instead
of agricultural country
● Cost of development and economic growth has resulted on the impact of the environment
Megadiversity
● Malaysia is the 12th megadiversity country of 17 in the world
● Megadiverse country is the country who has a large number of endemic species -the
only species that only exist in that country
● A country to be called as megadiverse must:
a. The country must have a minimum of 5,000 endemic plants
b. The country must have a marine ecosystem within its borders
● Megadiverse countries have a high biodiversity within their borders which means there are many
more animal and plant species living in these countries than in other parts of the world.
What is environment
● Section 2 of Environment Quality Act - Environment includes the physical factors
of the surroundings of the human beings including land, water, atmosphere,
climate, sound, odour, taste, the biological factors of animals and plants and the
social factor of aesthetics
- Environmental law means the laws that regulate the impact of human activities
on the environment
- It covers a broad range of activities that affect air, water, land, flora and fauna
- It is also an inter-disciplinary complex mix of federal, state and local laws,
regulations, policy, choices, science and health concerns
- In other words, it can be concluded that it is a dynamic area of law with changes
occurring rapidly and wide
Environmental issue in Malaysia

1) Forests
● Primary forest loss in Malaysia
- Malaysia has lost about 2.77Mha of humid primary forest from 2002 to 2021,
which making up 33% of its total tree cover loss in the same time period.
- Total area of humid primary forest in Malaysia decreased by 17%
● Tree cover loss

- Malaysia has lost 8.67Mha of tree cover, equivalent to a 29% decrease in tree
cover since 2000.
- The top 2 regions were responsible for 56% of all tree cover loss between 2001
and 2021 which is Sarawak that had the most tree cover loss at 3.11

Mha compared to an average of 542kha
Co-relation between tree cover and CO2

● Human and animal breath oxygen and exhale co2. The tree used co2 and exhale oxygen. When
the trees were cut down, the trees cannot exhale oxygen
● Sarawak, Sabah and Pahang are top three countries in Malaysia were responsible for tree
cover loss.
Impact of these issue:

● Soil erosion - the land is clear, there is no plant. Therefore, when it is raining, there is no layer to
catch the rainfall which caused the landslide
● Protracted period between clearing and planting the crop - take long time to plant the trees
but take a few second to cut it down
● Lack of tree storeys result in per precipitation - relate to rainfall which will directly fall to the
land
● Tractor damage & construction of roads
● Forest fragmentation + effect on animals
● Lack of water catchment areas
2) Wildlife
● Wildlife are under threat from many different kinds of human activities, from
directly destroying habitat to spreading invasive species and disease
● There are types on endangered species:
a) Extinct
b) Critically endangered
c) Endangered
d) Vulnerable
e) Near threatened
f) Least concern
● Birds - hundred of pet birds are estimated to be killed each year by the fumes and particles
● Fish - chemical pollution can be cause hormone disruption
3) urbanisation
● More town has been urbanised
● Urbanisation in Malaysia has been steadily increasing
● There is also increase number of registered motor vehicles that can be estimated 1.9
million tons of carbon monoxide is released - this has caused air pollution from mobile emissions
accounts for almost 81% of air pollution occuring in Malaysia
● Black smoke from diesel motor vehicle
● Urbanisation affect the broader regional environmental - increases in the amount of precipitation,
air pollution and the number of days with thunderstorms
● Urban areas affect not only the weather patterns but also the runoff patterns for water - generally
urban areas generate more rain but they reduce the infiltration of water and lower the water tables
4) marine pollution
● Threatened ecology - threats from fishing and degradation. Indeed, fishing is not

friendly as it actually damaging the marine environment that actually caused degradation of
phytoplankton - this has resulted fish are dying because there is no food for them
● Animals are common victims of ocean pollution. For example oil spills, will ensnare and
suffocate marine animals by permeating their gills. - animals that are nit killed by crude oil may
suffer from cancer, behavioral changes and become unable to reproduce
● Small plastic debris will also look as food or become entangles in or strangles by plastic bags
● It also cause depletion of oxygen in sweater - low levels of oxygen in the ocean lead to the death
of ocean animals such as penguins, dolphins, whales and sharks
5) wetlands
● Wetlands are some of the world’s most important and productive environments - it improves the
water quality by filtering out pollutants, providing large societies with water for drinking and
irrigation
● It is also stop coastal erosion, absorbs atmposheric carbin, woods for homes and charcoal, water
purification purposes and it is a nursery for many plant and species life
● Pollution, urban development, agriculture and land reclamation are edging wetlands out the
picture in malaysia
● Losing wetland has caused:
- Intensive huan exploitation
- Increase in demand for oil palm
- Aquaculture and agriculture purposes
- Urban development - pollution, over-hasting of wood in the coastal forests and
destructive fishing

TOPIC 2: SOURCES OF ENVIRONMENTAL LAW
● There are several sources of law that can be used under environmental law:
a) The federal constitution
b) Legislation particular in EQA
c) Common law principles
d) Policies
e) Conventions and international environmental treaties
1) Federal constitution
● Federal constitution is one of the sources that can be related to the environment
● Under FC, there is no provision provided on the environment per se
● There is no word “environment” mentioned in the FC in the Federal List, State list
nor concurrent list
● But it can be said that, the protection of environment is indirectly prvided in the
FC, and it must bear in mind that FC covers everything as it is the supreme law of the
land
● Can also refer to definition of environment itself which shows that environment
brought a large and wide meaning
● To relate with FC, can refer article 5(1) of FC which shows that the word “life” in the
provision cover many things and not only refer to the mere existence
● It shall be noted that, under our Constitution, there are several entries or items related to
the environment prescribed under the Ninth Schedule.
● Some of them are listed under the federal list, some on the state list and some on the
concurrent list. There is also some part where there are overlapping’
● Section 2 of the Environmental Quality Act 1974

- "environment means the physical factors of the surroundings of the human being
including land, water, atmosphere, climate, sound, odour, taste, the biological
factors of animals and plants and the social factor of aesthetics."
- From the definition itself, it can be understood that, the word environment bring
a wide interpretation or meaning which covers so many things
● Article 5(1) of Federal Constitution
- "No one shall be deprived of his life or personal liberty save in accordance with
law"
- Tan Tek Seng @ Tan Chee Meng v Suruhanjaya Perkhidmatan
Pendidikan & Anor [1996] 2 CLJ 771, the expression "life" appearing in the
article 5(1) of FC does not refer to mere existence but also incorporated
all those facets that are an integral part of life itself and those matters
which go to form the quality of life.
- the word "life" also includes the right to live in a reasonbly healty
and pollution-free
2) Legislation
● Pre-independence

- Straits settlements forest ordinance 1908
- Forests enactment 1920
- Waters enactment 1920
- Drainage works ordinance 1954
- Water act 1920
- Straits settlement ordinance No.3 1894
● To date
- Environment quality act 1974 and its regulations 1989
- Factories and machinery act 1967
- Protection of wildlife act
- National forestry act 1984
- Fisheries act 1985
- National parks act 1980
- Land conservation act 1960
- Continental shelf act 1966
- Petroleum mining act 1966
- Wildlife conservation act 2010
- Local government act 1976
- Town and country planning act 1976
● Common law: tort
➢ Trespass to land - can voluntary or involuntary can refer to Semantan Estate (1952)
HC case
➢ Private or Public Nuisance - Jones v DPP [1999] 2 AC 240 on Does the grass verge
of the highway constitute part of the public highway?
- court ruled "the public highway is a public place which the public may enjoy for any
reasonable purpose, providing that the activity in question does not amount to a public
or private nuisance and does not obstruct the highway by reasonably impeding the
primary right of the public to pass and repass; within these qualifications there is a public
right of peaceful assembly on the highway."
➢ Principal in Rylands v Fletcher - Steven Phoa Cheng Loon & Ors v Highland
Properties Sdn Bhd & Ors, Milik perusahan Sdn Bhd v Kembang Masyur Sdn Bhd
➢ Negligence - League Against Cruel Sports v Scott [1985]: Park J issued an

injunction in respect of one area restraining the defendants themselves, their servants or agents, or
mounted followers, from causing or permitting hounds to enter or cross the property.
➢ Occupiers’ liability - Indermaur v Dames - occupier as reasonable man has is prone to

the danger could have occurred. ‘And, with respect to such a visitor at least, we

consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to
expect that the occupier shall on his part use reasonable care to prevent damage from unusual
danger, which he knows or ought to know; and that, where there is evidence of neglect, the
question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise,
and whether there was contributory negligence in the sufferer, must be determined by a jury as a
matter of fact.
3) National policies
● Malaysia’s national policies although are not a source of law per se, it is part of the
framework of laws and policies that influence and regulate environmental
matters in Malaysia
● Analogy: policy is the engine in the statutory car
● Sometime policies begin at international conventions - so they help to jump-start positive
responses for the local environment front
● For example: Stockholm declaration 1972 (which contained 25 principles, placed
enviromental issue at the forefront of international concerns
➢ Policy: Malaysia Plan –

● 3rd Malaysia Plan (1976-1980): Focused on the need to balance socio-economic
objectives with that of environmental conservation.
- This objective continued with 6th MY plan to the 10th - building an
environment that enhances the quality of life
● 11th MY Plan: “The ‘grow first, clean up later’ development model is not sustainable.
● Green growth will ensure minimal impact on the environment and conservation of
natural resources. We will fundamentally change how policy is determined, how institutions
are regulated...”
- continued in the present 12th Malaysia Plan – “building an environment that enhances
the quality of life”
● continued in the present 12th Malaysia Plan – “building an environment that enhances the quality
of life”
● In 2002, Malaysia passed its National Policy on the environment which had 3 pronged
objectives to achieve which are:
a. A clean, safe, healthy and productive environment for present and future
generations
b. Conservation of the country’s unique and diverse cultural and natural heritage with
effective participation by all sectors of society
c. Sustainable lifestyles and patterns of consumption and production
● It shall be noted that all of these are no binding but it intended to be the guideline for
federal and state on policy decisions.
● The National Green Technology Policy 2009:
- To ensure sustainable use of energy, acknowledging that adequacy of
energy supply is important for acceleration of economic development yet it can be
produce undesirable impact - need to balance this and produce sustainable , renewable
energy
● National Climate Change Policy 2009
- To ensure a climat resilient development that fulfils national aspirations for

sustainability
4) treaties
● International Treaty Entered Info

- Malaysia ratified the Convention on Wetlands of International Importance
Especially as Waterfowl Habitat (known also as the ‘Ramsar Convention’) in 1971
- Convention on Biological Diversity was signed by Malaysia at the Rio Earth
Summit in 1992 and ratified domestically two years later.
● Effects of Said Treaty on Malaysia

- Setting up of the National Steering Committee on the Ramsar Convention
established under the Ministry of Science, Technology, and Environment (MOSTE). (old
name)The Designated Tasik Bera and several other sites as wetland sanctuaries.
- Resulted in the National Policy on Biological Diversity

TOPIC 3: INTERNATIONAL ENVIRONMENTAL LAWS AND MALAYSIA
● The term international itself means govern on the global and regional - includes asean,
asia, south pacific
● Wide area of law is the limitation of time and matter discussed
● The aim of international environmental treaties or convention is to address global problems

of global proportions, for example climate change, loss of biological diversity
● There are many competing interests on environmental issue as in the development countries,
they are not put priority on the protection of forest but more on concern of welfare
of human
● It is a need for IEL in global + regional laws, for example asean agreement on transboundary
haze pollution = regime of international / regional cooperation to combat environmental issues
● Environmental issue are generally divided into green / brown categories:

- Green - focus on wildlife which is saving species of plants and animals
- Brown - people focus on human - urban environment and people’s basic right to a
clean and healthy environment
- Some include blue agenda - ocean
● Three main challenges:

- Structural and institutional challenges
● The local laws, courts system and national policies ready to meet changing
environmental issue
- Substantially
● Existing international agreements that are drawn along territorial line - haze,
animal trafficking
- Procedurally
● it challenges the various actors and practices within the international legal
order
● Who created IEL

a) United Nations General Assembly
➢ Resolution 2398 (1968), talk about the problem of the human
environment - aware that serious environmental problems are arising in
all countries and these problems must be progressively addressed through
preventive measures at their source.
➢ for example, UNGA Resolution 2997 (1972) - recognizing the responsibility
for action to protect and enhance the environment rests primarily with
Governments and in the first instance, can be exercised more effectively at
the national and regional level, recognizing further that environmental
problems of broad international significance falls within the competence of
the United Nations system
, 34/188, 35/8
➢ It is the main policy-making organ of the Organization. It provides a
unique forum for multilateral discussion of the full spectrum of
international issue covered by the Charter of the United Nations.

➢ UN General Assembly adopted a historic resolution declares access to a
clean, healthy and sustainable environment, a universal human right
➢ Even the recognition of the right to a healthy environment by the UN
bodies are not legally binding, but it is exepcted to be a catalyst for action and
to empower ordinary people to hold their government accountable
b) UN Environment Program (UNEP)

➢ UNEP has been the global authority that sets the environmental agenda,
promotes the coherent implementation of environmental dimension
of sustainable development within the UN system and serves as an
authoritative advocate for the global environment
c) UN Commission on Sustainable Development

➢ was established by the UN General Assembly in December 1992 to ensure
effective follow-up of United Nations Conference on Environment
and Development (UNCED), also known as the Earth Summit
➢ responsible for reviewing progress in the implementation of Agenda 21 and
the Rio Declaration on Environment and Development; as well as
providing policy guidance to follow up the Johannesburg Plan of
Implementation (JPOI) at the local, national, regional and international levels.
d) ICJ cases
➢ establishes the basic duty of states, for example, trail smelter arbitration
- one of the first international cases on transboundary pollution
➢ Trail Smelter Arbitration

- It is the case where US sought damages from Canada by suing them to court and
also prayed for an injuction for air pollution in the state of Washington, by the Trail
Smelter, a Canadian corporation which is domiciled in Canada
- The company operating smelter and met a lot of hazardous. As the place was situated
near columbia river, it has impact lake Roosevalt as it flows from the columbia
river. Due to this, the crops, fish of the farmers were dying
- The issue of this case is whether it is the responsibility of the State to protect
other states against the harmful acts by individuals from within its
jurisdiction at all times
- It was held that, it is the responsibility of the State to protect other states
against harmful act by individuals from within its jurisdiction at all times.
No state has the right to use or permit the use of the territory in a manner as to cause
injury by fumes in or to the territory of another of the properties or persons therein.
- This case established the concept of transboundary harm + the “polluter pays”
principle
➢ Corfu Channel Case

- In May 1946, British warships passed through the Corfu Channel in Albanian
territorial waters, and were fired upon by Albanian coastal batteries.
- When the two British warships passed through the Corfu Channels the ship

struck mines and was damaged. Members of the crew were killed
- The UK seised the court of the dispute by an application and accused albania of
having laid or allowed a third state to lay the mines after mine-clearing
operations had been carried out by the Allied naval authorities.
- The court held that Albanian was responsible for the explosion oin Albanian
waters and for the damage and human loss that has resulted. This is because,
the Albania had the responsibility to warn British warships of the danger the
minefields exposed them to
- While UK did not violate its territorial waters = international strait
e) Customary international law

- Principles become part of states basic fundamental obligations
- Consists of rule that come from a general practice accepted as law and exist
independent of treaty law
- Customary law serves to regulate the use and the management of natural
resources
- Example: customary oath in dayak community - it was done by praying to
their ancestors and asked them to punish anyone who changed their borders and
territory
- Example: the sasi in maluku community - sasi law prohibit sasi community
to extract natural resources in a set period of time. Violation to this regulation
will be punished by their ancestral spirits in the form of illness or it can be a
physical punishment such as caning, fines or forced labour.
f) Treaties and conventions
➢ UN Conventions of The Law of The Sea
- Article 192 of UN Conventins on the law of the sea, provides, states have
the obligation to protect and preserve the marine environment
- Articl 194, measure to prevent, reduce and control pollution of the
marine environment where states shall take, individually or jointly as
appropriate, all measures consistent with the convention that are necessary to
prevent, reduce and control pollution of the marine environment from any source,
using for this purpose the best practicable means at their disposal and in
accordance with their capabilities and they shall endeavour to harmonize their
policies in the connection
➢ Stockholm Declaration 1972 - global inter-governemntal action on
environmental issue began with the United Nations Conference on the Human
Environment in Stockholm (Sweden) - come wth action plans over 100
recommendations on environmental assessment, management and support
measures.
- Principle 2 of Stockhold Declaration 1972, management of natural resources.
The natural resources must be safeguarded for the benefit of present and futur
generations through careful planning of management as appropriate
- Principle 21, rights and responsibility of sovereign nation. States have the
sovereign right to exploit their own resources pursuant to their own
enviornmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other states or
of areas beyond the limits of national jurisdiction.

● There is a long list of international, regional agreements which limited to key
ones.
➢ UN Conference on the Human Environment 1972 (Stockholm)
- It was the first world conference to make the environment a major issue. The
participants adopted a series of principles for sound management of
the environment including the Stockholm Declaration and Action
Plan for the Human Enviornment and several resolutions
- It contained 26 principles placed environmental issues at the forefrom of
international concerns and marked the start of a dialogue between
industrialized and developing countries on the link between the economic
growth, the pollution of the air, water and oceans and the well- being of people
around the world.
- The action plan contained three main categories which are global
environmental assessment programme, environmental management
activites and international measures to support assessment and
management activities carried out at the national and international levels.
- This convention is not binding
- It influenced Malaysia law by the creation of Environmental Quality Act 1976
➢ United Nations Conference on Environment and Developmentin Rio de
Janeiro
- It is also known as the Earth Summit which is held on the occasion of the
20th anniversary of the first Human Environment Conference that
brought effort to focus on the impact of human socio-economic
activities on the environment.
- Earth Summit was to produce a broad agenda and a new blueprint for
international action on environmental and development issues that would
help guide international cooperation and development policy in th 20th century
● Although this instrument is formally not binding, many of its provisions affirms Stockholm,
reflect customary international law or expected to shape future normative expectation.
● For example, principle 21 of the stockholm declaration (States have the sovereign right
to exploit their own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the limits of national
jurisdiction) was affirmed under principle 2 of the Rio Declaration (The creativity, ideals
and courage of the youth of the world should be mobilized to forge a global
partnership in order to achieve sustainable development and ensure a better future
for all)
● Effect - polluters pay principle under Principle 16 Rio Declaration = many

international conventions and section 47(1) of EQA stated that, “where any segment or
element of the environment is polluted by any person in contravention of this act of the
regulations made thereunder the Director General may take such action as is necessary

to remove, disperse, destroy or mitigate the pollution and may recover from that person all costs
and expenses incurred in connection therewith
ASEAN example:
● ASEAN established in 1967, members are bound by fundamental principles in their

relations with each other - Treaty of Amit and Cooperation in Southeast Asia 1976, guided
by the fundamental principles
● The aim is to foster greater co-operation between ASEAN countries in recognition
of common challenges
● There are difference between hard law (refers to legally binding instruments, which in
international law typically take the form of treaties) and soft law (recommendations,
guidelines, codes of conduct, non-binding resolutions and standards)
- Hard law - it will make the nation states bound toward the common goal and
preservation of the environment
a) ASEAN Charter 2008 - article 1(9) purpose of ASEAN is to “promote
sustainable development so as to ensure the protection of the
region’s environment..”
b) ASEAN Agreement on Transboundary Haze Pollution 2002 - Article 2 -
The objective of this agreement is to prevent and monitor Haze Pollution
- Based on these hard law, it bound nation states including Malaysia toward a common goal and
preservation of the environment
- Regional principles can influence how we deal with our environemnt nationally
- However it shall be noted that ASEAN effort is limited
● ASEAN Way of cooperation, non-interference with domestic affairs - musyawarah (consultation)

and mufakat (consensus), recognition of sovereignty and non- intereference in to domestic affairs
give and take process etc
● Reality, influence of environmental treaties are limited
● Commonly the use of word “treaty” can also be called various other names:
conventions, protocols, covenants, declarations, charter, pacts
● These treaties are important sources of international law, under Article 38(1)(a) Statute of the
International Court of Justice - international custom should be the evidence of
general practice “accepted” as law.
● Generally it regulated by the Vienna Convention on the Law of Treaties 1969 which came
intor force on 27 January 1980
● Not all states globally are members of the Vienna Convention 1969, but most of its provisions
have become CIL or simpy reflect existing CIL, thus it is widely utilised and applied
● Malaysia is a party to the Vienna Convention + ratified the convention
● Some of the formalities under the convention that states are required to adhere to in order to have
a formal valid convention
● Under the convention, the treaties must be

a) In written form
b) Between parties with legal personalities
c) It must state clearly that international law will govern it
d) It is intended to create legal obligation
● Under article 2(1)(a), treaty means an international agreement concluded between states in
written forms and governed by instrument law, whether embodied in a single instrument
or in two or more related instruments and whatever in particular description
● Article 3, the fact that the present convention does not apply to international agreements
concluded between states and other subjects of international law or between what subject of
international law, or to international agreements not in written form
● Under the convention, there are three ways where states can be bound
1) As a signatory
- States sign the treaty - this comes within the designated period - this
signals the country’s interest in adhering to its principles
- Person who are signatories
- Article 7(1), a person is considered as representing a state for the
purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the state to be bound by a treaty if
a) He produce appropriate full powers
b) It appears from the practice of the state concerned or from other
circumstances that their intention was to consider that person as
representing the state for such purposes and to dispense
with full powers
- Article 7(2), in virtue of their functions and without having to
produce full powers, the following are considered as representing their state
a) Head of state, heads of govt and ministers for foreign affairs,
for the purpose of performing all acts relating to the conclusion of a
treaty
b) Heads of diplomatic missions for the purpose of adopting the
text of a treaty between the accrediting state and the state to
which they are accredited
c) Representative accredited by states to an international conference
or to an international organisation or one of its organs for the purpose of
adopting the text of a treaty in that conference organizations
or organ
2) ratification
- This is a process done within each country (formal act) to ensure that national laws are
in place to implement the convention
3) accession
- For countries not involved from the beginning or which did not sign the treaty originally,
accession is a mechanism to become a contracting party

- This is usually done at a later date
Entry into force
● Sometimes treaties may specify certain date or event of coming into force
● Where it does not, there is a presumption that the treaty will and is intended to
come into force as soon as all negotiating states have expressed their consent to
be bound by it = difficult
Effect
● After signing the treaty, a nation is deemed to be committed to implementing the agreed-
upon measures
● What are the some of obligations under international law for signatories, or those who have or not
ratified or acceded
● Treaty provision apply to state parties only, it does not apply to third parties - article
34 - a treaty does not create either obligations or rights for a third state without it
consent
● Article 29 - treaty made shall be applicable within the whole territory of the state.
“...a treaty is binding upon each party in respect of its entire territory”
● The rule of Pacta Sunt Servanda is fundamental principle of the law of treaties. Expressed
under Article 26 “every treaty in force is binding upon the parties to it and must be
performed by them in good faith - the states cannot at their fancy release themselves from
treaty obligations
● Article 42(2), as a result of the application of the provisions of the treaty or of the
present convention - this is the way how they can release themselves
● Article 27, a party may not invoke the provisions of its internal law as justification
for its failure to perform the treaty
● A breach of international law by a state entails the international responsibility of that

state - international courts and tribunals have repeatedly affirmed the principle
● Rainbow Warrior Case - ay violation by a state of any obligation of whatever origin gives
rise to state responsibility ( if a state breaches its state responsibility, it will be accountable
under international law for its breaches )
If a treaty is not in force or incomplete
● Under article 18 “a state is obliged to refrain from acts which would defeat the object
and purpose of a treaty when (a) it has signes the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or approval until it shall have made its
intention clear not to become a party to the treaty
● Malaysia = has international and regional obligations on environmental protection but
it is not necessarily legall binding but it has obligations

● International obligations that must be met - we must take our international environmental
obligations seriously
Local / national obligations
● Federal constitution
- Article 73, parliament can make laws for the whole part of the federation, having effect
within and outside the federation
- Power “external affairs” - article 74 + schedule 9, item 1 of the federal list - Thus
federal govt has legislative authority to enter into treaties internationally for and
on behalf of malaysia
- For state, can refer to article 76(1)(a) - only gives legislative power but not
executive power to federal govt - the effect is that the enforcement of the law still
remains with the state
- Article 76(2), conditions attached and that state consulted first - Thus, federal govt
can for the purposes of implementing a treaty pass laws that affect the
states after it has been consulted
● while states have a legal right to exercise its executive powers on all matters under the state list
and federal has a similar power, the state also has a legal obligation to ensure it
complies and not impede federal authority
● In reality, the federal laws may be ineffective if there is poor/little enforcement of federal
laws by the state and these challenges are real
● Although the federal gov has a constitution right to legislate on laws agreed upon in a
treaty, it still has no power to execute these laws within the states. Regardless of
article 81, it is the limitation that effect of the international agreement’s objectives
● Other option:
- Amending the eqa - Vienna Convention on the Protection of Ozone Layer 1985,
Montreal Protocol on Substances that deplete the Ozone Layer and Basel Convention on
Transboundary Movement of Hazardous Waste 1989
- Pass specific acts - climate change act, renewable energy act, enacting nation- wide
policies
● Exercising practice
- Federal government’s role - negotiations made among officers of the AG’s
chambers, the ministry of foreign affairs and all relevant ministries and
agencies - they will be assisted by experts from universities, and research institutions.
- Representatives of state governments are not usually involved in these initial stages.
- Their role is dependent to a large extent on the nature of each international agreement
● Category 1:
- Generally where delineation of a resource under the state is involved (land)
the agremeent is first sought from the chief minister by the federal minister in

change
● Category 2:
- Where implementation does not necessarily involve the state
- Once a treaty has been entered into, generally information is conveyed to state
representatives + discussions take place between federal and state level although it
remains the federal governemnt’s responsibility - convention on international
trade and endangered species (CITES)
● Category 3:
- Sabah and sarawak where the relationship is not cleary defined
● Judicial approach
- In the national context, it is established that international law does not apply in a
domestic context unless it is incorporated into a domestic law
Case:
Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 3 MLJ 681
- the plaintiff was as a flight stewardess and was bound by a collective agreement. The
first respondent terminated her service because she broke the provisions of the collective
agreement as she refused to resign when she was pregnant. Therefore, she brought
this case to court and argued that the collective agreement void because the provisions of the
collective agreement were discriminatory and therefore contravened article 8 of the Federal
Constitution. In this case, the plaintiff has no hope of success because the 'law' in
article 8 does not include a collective agreement. Next, the amendment to the Article
8(2) which added the word "gender" to that provision only took effect from 28 September 2001
AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318
- The appellant, Airasia Bhd, executed a Training Agreement and Bond in October 2006 (“the
agreement”) with the respondent, a female employee of the appellant. The agreement
contained a term prohibiting the respondent from getting pregnant during the
duration of the training period, which was for approximately four years. When the
respondent subsequently confirmed her pregnancy before the end of the four year
period, the respondent’s employment was terminated. The appellant commenced a civil
suit at the Sessions Court for breach of agreement and a summary judgment was entered against
the respondent. On appeal, the respondent filed an action for a declaration that the term in the
agreement was illegal, null and void as it is discriminatory against her right as a married woman,
and contravened the Federal Constitution as well as the Convention on the Elimination of All
Forms of Discrimination against Women (“CEDAW”).
- Allowing the appeal. It was held that as a branch of public law, constitutional law concerns only
the contravention of an individual’s rights by a public authority, and therefore did not apply to the
agreement in question, which was a lawful contract between private parties. Additionally, while
Malaysia is signatory to CEDAW, without express incorporation into domestic law or local
legislation, the provisions of international obligations in the said convention did not have any
binding effect

Bato Bagi & Ors v Kerajaan Negeri Sarawak and Anor [2011] 6 MLJ 297
- In this case, the plaintiff, a group of indigenous people, challenged the new Sarawak Land
Code which changed the land tenure legal framework with regards to native customary rights as
it allowed the minister to extinguish any customary rights
- The plaintiff challenged the constitutionality of the new land code in front of the Federal Court of
Malaysia. The plaintiff pointed out that the new land code was violating the right to
life and liberty, the right to equality, the right to property and their indigenous
rights respectively protected by Articles 5,8,13,and 153 of the Federal Constitution of Malaysia.
- The Federal Court reviewed the new Sarawak Land Code and held that the compensation
mechanisms offered by the Code for the extinguishment of the native customary rights was
sufficient. Consequently, the Federal Court refused to answer the question of the constitutionality
of the code and dismissed the appeal.
Contrast decision with previous case:
Noorfadila Ahmad Saikin v Chayed bin Basirun
- the plaintiff applied for and obtained employment as a temporary teacher. The post
offered to her was revoked because she was pregnant. This act of the defendants was
tantamount to gender discrimination and thus against article 8(2) of the Federal Constitution. The
defendant was ruled it against the Article 8(2) because of the amendment. Besides, the ‘law’ in
article 8 applied in this case because the defendant is indisputably public
authorities, and agent of executive.
Lai Meng v Toh Chew Lian
- The court held that unless parliament expicitly excludes international law, the norms
of all international law & treaties ratified by the government must be grafted on to
every malaysian statute even if parliament has not adopted international law into local
statutes

TOPIC 4: CLIMATE CHANGE
● Article 2 of United Nations Framework Convention of Climate Change, climate change means a
change of climate which attributed directly or indirectly to human activities that
alters the composition of the global atmosphere and which is in addition to natural
climate variability observed over comparable time periods
● There is difference between weather and climate change.
● Weather would refers to short term atmospheric conditions while climate is the weather of a
specific region averaged over a long period of time.
● Weather specifically is the mix of events that happen each day in our atmosphere, even
though there’s only one atmosphere on Earth, the weather is not the same all
around the world.
● Climate specifically describes what the weather is like over a long period of time in a
specific area. Different regions can have different climates. Climate is concerned on
precipitation, temperature, humidity, sunshine, wind and other measures of
weather that occur over a long period in a particular
How climate change happened
● Since the 1800, there are a lot of developments happen from human activities that has
been the main driver of climate change due to burning fossil fuels like coal, oil and gas.
● The act of burning fossil fuels, cutting down forests and farming livestock are
increasingly influencing the climate and the earth’s temperature.
● As greenhouse gas emissions blanket the Earth, they trap the sun’s heat and this
leads to global warming and climate change.
Cause:
● Generating power
- Generating electricity and heat by burning fossil fuels such as coal, oil and natural
gas causes a large chunk of global emissions. Most electricity is still
produced from fossil fuels only about a quarter comes from wind, solar and other
renewable sources.
● Manufacturing goods
- Manufacturing and industry produce emissions, mostly from burning fossil
fuels to produce energy for making things like cement, iron, steel,
electronics, plastics, clothes and other goods. Mining and other industrial
processes also release gases.
● Cutting down forest
- To create farms or pastures or for other reasons causes emissions since trees
when they are cut, release the carbon they have been storing. Since forests
absorb carbon dioxide, destroying them also limits nature's ability to keep
emissions out of the atmosphere
● Using transportation
- Most cars, lorries, ships and planes run on fossil fuels. That makes transportation

a major contributor of greenhouse gases, especially carbon-dioxide emissions.
Road vehicles account for the largest part, but emissions from ships and planes continue
to grow.
● Producing food
- Requires energy to run farm equipment or fishing boats, usually with fossil fuels.
Growing corps can also cause emissions like when using fertilisers and manure.
Cattle produce methane, a powerful greenhouse gas and emissions also come
from packaging and distributing food
● Powering buildings
- Globally, residential and commercial buildings consume over half of all electricity.
As they continue to draw on coal, oil and natural gas for heating and cooling,
they emit significant quantities of greenhouse gas emissions.
Effect:
● Natural hazards
a) Heatwave
- According to national security council malaysia, heatwaves is when the daily
maximum temperature surpasses 37 celsius for three consecutive days
- This happened because there is high pressure in atmosphere that forces hot air
downward and traps it near the ground. The high pressure system acts like a lock
that prevents the hot air from rising and this has caused the rain cannot form and the hot
air gets hotter.
b) Drought
- According to world meteorological organization, drought is a slow onset
phenomenon caused by a lack of rainfall
- National Hydraulic Research Institute of Malaysia, severe drought phenomenon is
expected to occur in Malaysia in 2025 until 2030.
- Drought generally happened when there is a lack of rainfall which has caused
serious shortages. Unlike other extreme weather, the event happen gradually.
- Plants will die when the soils dry out because there is no rain, and when the level
rainfalls is less than normal for weeks to years, stream flow declines, water levels
in lakes and reservoirs fall and the depth to water in wells increases.
c) Flood
- Warmer temperature can cause more water to evaporate & change rainfall
patterns.
- As more moisture in the atmosphere, the rain becomes heavier which leads to
flooding.
- Based on meteorological department, rise in temperature changes rainfall by as much as
30 percent less in certain months and 30% more rain in other months of the year
- As climate change warms up the atmosphere, the air can hold 7% more water vapour for
every-one-degree celsius rise in temperature
- When the air rapidly cools, water vapour turns into droplets which join together to form
heavy rainfalls.

● The community
a) Fatality, livelihood, poverty, vulnerability
- Malaysia’s geographic location and low poverty rates mean both its risk and vulnerability
to natural hazards are lower than some of its Southeast Asian neighbours
- While Malaysia can experience drought, landslides ad storms surges, the large majority
of its losses are attributable to flooding
- Rains which caused serious flooding and landslides in affected states resulted in the loss
of lives, homes and business which according to environmental experts, “exposed the
reality of extreme weather patterns caused by climate change”
- For example: floods in Sabah killed 241 people and caused approximately USD$100
million in damage, with thousand of houses and building destroyed
- Vulnerability to flooding has been significantly increased by land-use and natural
resource management practices, notably deforestation to make way for rubber and palm
oil has led to increased risk.
- Many of climate changes projected are likely to disproportionately affect the poorest
group in society. For example, heavy manual labor jobs are commonly among the lower
paid whilst also being most a risk of productivity losses due to heat stress. Poorer
business are least able to afford air conditioning, an increasing need given the frequent
heat waves
- In malaysia, climate change threatens to exacerbate poverty, with low-income earners
economically dependent on activities where climatic conditions play a prominent role,
such as agriculture, fishing and informal sectors in the urban economy
b) Human health
- Nutrition
International Response
● United Nations Framework Conventions on Climate Change (UNFCC)

- Adopted on 1992 and ratified 1994
- Objective - to achieve stabilisation of greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthroprogenice intereference with
climate system
- Article 3 - principles that the parties will be guided by, eg: intergenerational equity,
precautionary principle
- Article 4 - took into account “common but differentiated responsibilities”
- Article 4(2) - developed countries and those under annex 1 are to commit themselves to
(1) take the lead in adopting measures
- Article 4(3) - developed countries are to provide financial and tech resources
● Kyoto Protocol 1997
- Kyoto protocol was adopted on 1997 and ratified on 2005 and there are 192 parties to the
protocol
- It is the operationalizes the UNFCC by committing industrialized countries and
economies in transition to limit and reduce greenhouse gases (GHG)

emissions in accordance with agreed individual targets. The convention itself only asks
those countries to adopt policies and measures on mitigation and to report
periodically
- This protocol is based on the principles and provisions of the conventions and
follows its annex-based structure which only binds developed countries and places
a heavier burden on them under the principle of “common but
differentiated responsibility and respective capabilities” because it recognise
that they are largely responsible for the current high levels of GHG emissions in the
atmosphere. - only binds developed countries to emission reduction targets
- The objective of the protocol is to reduce the onset of global warming by
reducing greenhouse gas concentration in accordance with article 2 of
UNFCCC.
- It applies to the six greenhouse gases listed in Annex A:
1) Carbon dioxide
2) Methane
3) Nitrous oxide
4) Hydrofluorocarbons
5) Perfluorocarbons
6) Sulphur hexafluoride
● Paris agreement
- Adopted on 2015 and came into force 2016 which Malaysia is among 55 nations
formallya agree to the agreement
- 195 parties acknowledge climate change is urgent and irreversible there it is a need of
cooperation and deep reductions necessary
- This agreement is a legally binding international treaty on climate change and its
goal is to limit global warming to well below 2 preferably to 1.5 degree
celsius compare to pre-industrial levels
- To achieve this long term temperature goals, the countries aim to reach
global peaking of greenhouse gas emission as soon as possible to achieve
a climate neutral world by mid-century
- Paris agreement is the first binding agreement that brings all antions into a
common cause to undertake ambitious effort to combat climate change and adapt to
its effects
● In order to achieve this, it needs financial flow, establish goals, technology transfers
and capacity building to support developing countries.
● The main obligations would be the developed nations to lead and assist developing
nations switch from fossil fuel to greener sources of energy.
Binding or not binding issue
● Deemed a treaty under public international law. Word “may” “shall” has different
weightage. “May” is not compulsory to do it while “shall” shows the mandatory of
doing something
● While for hybrid treaty only procedural commitments binding
● Article 4(2), all parties shall prepare Nationally Determined Contributions (NDC)
● Article 4(3), 5 years evaluation period, each time must have progression + represent its highest
possible ambition

● Withdrawal of agreement - it can be made 3 years after its come into force and 1 year
notice must be given prior to withdrawing
● Inter-governmental panel on climate change (IPCC)

- Created by the World Meteorological Organization (WMO) and the United Nations
Environment Programme (UNEP) (1988)
- Objective - provide governments with scientific information that they can
use in negotiations and developing of climate policies
- Immediate goal is to keep global warming below 1.5C by 2030-2050.
- IPCC was created to provide policymakers with regular scientific
assessments on climate change, its implications and potential future risks as well
as to put forwards adaptation and mitigations options.
- The assessments include assessment report, special report and methodology
report
Malaysia’s response
● Sign and ratified UNFCCC on international obligations.

● After UNFCCC, established a National Climate Committee (1995) - chaired by MOSTE,
coordinate climate change efforts through out all ministries, stakeholders from relevant sectors
etc
● The efforts include economic planning, legislative, institutional
Economic effort made
● Reduce greenhouse gases emission by 25% by 2030

● Conserve 17% terrestrial and inland water areas + 10% coastal and marine areas
● Why green growth - commitment to economic growth while meeting challenges of changing
environment and growing population
Malaysia response: Biodiversity
● Ratify convention on biological diversity 1994

● Issues cross sectoral by setting up national committee on biological diversity
● National policy on biological diversity (1988) - conserve, manage and promote
sustainable use of biological resources
● Ramsar convention - to halt the worldwide loss of wetlands and to conserve, through wise use
management those that remain.
● Designation of sites : 7 sites
Forests
● Participation in Stockhold before Rio: Kuala Lumpur Declaration

● Greening the Earth: commitment to maintaining 50% of forest cover + urged others
● Amending town and country planning act 1976 to 1994 - to include conservation measures

Coastal and marine resources
● A national coastal zone management policy - guidance and principles for resolving
conflicts: different types of development
● Introduced integrated coastal zone - management system for federal and state arising from
different coastal developments
Mineral resources and rivers
● National mineral policy 1992 = led to mineral development act 1994

● Department of irrigation and drainage adopted the integrated river basin management system =
better management of rivers
● Water allocation, pollution control, flood control, integration of different water
allocations
Lower greenhouse gases
● Malaysia’s voluntary targets

● Kyoto protocol = clean development mechanism (CDM)
● As of 2013 = 102 registered energy projects and 37 issued certified emission reduction (CER),
for example, palm biomass industry
● Encourage more green projects, green building index
Environmental policies
● National forestry policy 1977

- National forestry council 1978
- Objective is to strengthen the relationship between federal and state
government
● National policy on climate change 2009
- Efficient use of resources and environmental conservation
- Provide framework to mobilise and guide all agencies, industries in
addressing climate change
● National water resources policy 2012
- Manage water more sustainbly
● National green technology policy 2009
- The green technology master plan (GTMP)
- Earmarked for green growth - started from 11th Malaysia plan
- Framework to facililate and mainstream green tech into developments in malaysia.
Environmental legislations
● Amending EQA
● National forestry act 1984
● Fisheries act 1985
● Petroleum mining act 1986
● Renewable energy act 2011
- Sustainable energy development authority under the sustainable energy development act
2011
- Feed-in-tariff mechanism, an energy policy focused on supporting the

development and dissemination of renewable power generation. It provides energy such
as solat, wind, water, receive a price for what they produce
● National biofuel industry act 2007
- Encourage this and mandatory use of biofuel and manage this under licensing
● Efficient management of electrical energy regulations 2008
- Energy commission of malaysia
- Passed under electricity supply act 1990
- It is not full implemented and data is still voluntary
- Only applicable in sabah and west malaysia
- Feed in tariff limitations and license
Effect of policy
● It is not binding
● No enforcement mechanism
● No penalties for non-compliance
● Many efforts are more mitigations than adaptation
- Mitigation = strategies to reduce and prevent the change of climate itself
- Adaptation = adjusting strategies to reduce harmful effects of climate change
● More adaption efforts needed quickly given climate trends
- Although national policy on climate change has this, significantly fewer compared to
mitigation
● Gaps in strategy - different ministries
- None interconnected
- Not holistic over long period of time
● Limited data available
● Lack pf participatory planning in relation to flood, housing, transportation,
infrastructure, no consultation with all stakeholders
● Insufficient monitoring and enforcement
● Need to increase forest land
● Malaysia is till utilising coal/fossil fuel as it is main source of energy source

TOPIC 5: THE CONSTITUTION AND THE ENVIRONMENT
Malaysia = federalism
● Distribution of political, legislative & executive powers between federal & state
governments
● Article 73(a) and (b) lays down the power of the federal parliament within a physical
location and differentiates it with that of the state’s
● It is not absolute power as there is conditional upon subject matter
● Article 74, federal, state and concurrent list: distribution of legislative authority
● This means, the legislative power of federal parliament is defined geographically and on the
subject matter
● There is no express provision on the environment but the items on various aspects of the
environment are provided in all three list including additional list for Sabah and Sarawak.
● Article 74 provided on the way the powers has been divided

a) Federal list + concurrent list = federal power
b) State list + concurrent list = state power
- There are three main lists under schedule 9
- Any residual matters not falling within the 9th schedule us under the state power (article 77)
- Yet the constitution does provide for exceptions that blur the lines
● Exception 1: article 76(1)(a), (b), (c)
(1) Parliament may make laws with respect to any matter enumerated in the State
List, but only as follows, that is to say:
(a) for the purpose of implementing any treaty, agreement or convention

between the Federation and any other country, or any decision of an
international organization of which the Federation is a member; or
(b) for the purpose of promoting uniformity of the laws of two or more States; or
(c) if so requested by the Legislative Assembly of any State
● Constitution provides for situation where federal parliament can make laws cocnenring
matters enumerated in the state list
● Art 76(1)(a)

● Art 76(2), power is provided for federal government to make laws for the purposes of
implementing treaty provisions across malaysia
● Reality the legislative competence of federal parliamen to impse treaty obligations
upon states in this manner is uncertain
● This exception might look good for environment management but in reality the
legislative competence of federal parliament to impose treaty obligations upon
states in this manner is uncertain (article 80 & 81) on executive power
● Even more so for east malaysia states where this remains untested
● Under art 76(1)(b), promoting uniformity of laws for two or more states which must be read
together with article 76(3) Subject to Clause (4), a law made in pursuance of paragraph (b)
or paragraph (c) of Clause (1) shall not come into operation in any State until it has
been adopted by a law made by the Legislature of that State, and shall then be
deemed to be a State law and not a federal law, and may accordingly be amended
or repealed by a law made by that Legislature.
- However, for sabah and sarawak, there is no uniform laws on land or local
governemnt
- under article 95D In relation to the State of Sabah or Sarawak, Clause (4) of
Article 76 shall not apply, nor shall paragraph (b) of Clause (1) of that
Article enable Parliament to make laws with respect to any of the matters
mentioned in Clause (4) of that Article
- Under this article, if federal govt wants to pass a law for the purpose of uniformity,
state must first adopt it and it is deemed as state law before it is binding
except for land and local government in sabah and sarawak where no
uniform laws are allowed.
● Exception 2: article 76(4) - that parliament has power to provide uniformity of law
and policy with regards to land matters, without needing prior consent of state
- In oriental holding sdn bhd v government of the state of penang &
government of malaysia
➔ It was suggested that “subject to clause 4…” and “any law made in
pursuance for the purpose of promoting uniformity of the laws of two or more
states, does not require adoption by any state legislature before it comes
into operation in that state”
➔ This shows that article 76(4) only pass on land matters
● Exception 3: article 76A(1) It is hereby declared that the power of Parliament to make
laws with respect to a matter enumerated in the Federal List includes power to
authorize the Legislatures of the States or any of them, subject to such conditions or
restrictions (if any) as Parliament may impose, to make laws with respect to the whole or
any part of that matter
- It gives the parliament the power for matters under the Federal List to
extend the powers of the state with or without conditions to make laws on
the matter
- In article 95C for sabah and sarawak, power to extend legislative or executive

powers of states.
● Exception 4: article 92(1) If, after a recommendation from an expert committee and
after consultation with the National Finance Council, the National Land Council and the
Government of any State concerned, the Yang di-Pertuan Agong is satisfied that it is
conducive to the national interest that a development plan be put into operation in any area or
areas in one or more of the States, the Yang di-Pertuan Agong may, after publishing the
plan, proclaim the area or areas as a development area; and thereupon Parliament
shall have power to give effect to the development plan or any part thereof,
notwithstanding that any of the matters to which the plan relates are matters with
respect to which, apart from this Article, only States would have power to make
laws
- Federal power to declare an area with any states as part of its National
Development Plan
- Under article 92(3), “development plan” means a plan for the development,
improvement, or conservation of the natural resources of a development area, the
exploitation of such resources, or the increase of means of employment in the area.
- For sabah and sarawak, there is a safeguard on the national plans for
development as provided under article 95E(3), Under Article 92 no area in the
State shall be proclaimed a development area for the purposes of any
development plan without the concurrence of the Yang diPertua Negeri
● Exception 5: article 75, state law is deemed void to the extent of the inconsistency
- While the FC seems to provide a clear delineation of legislative powers the reality is that
“in practice this division is usually adjusted by circumstances” and a balance is struc
“...according to the needs and stresses of a federal polity in accomodating and restraining
varying forces making for unity or diversity within a society”
- This means that there is federal ability to interfere with state legislation but it is
tempered with caution.
● Exception 6: creation of a national land council - article 91(1) There shall be a National
Land Council consisting of a Minister as chairman, one representative from each of the
States, who shall be appointed by the Ruler or Yang di-Pertua Negeri, and such number of
representatives of the Federal Government as that Government may appoint but, subject to Clause
(5) of Article 95E, the number of representatives of the Federal Government shall not exceed ten
- Article 91(5) It shall be the duty of the National Land Council to formulate
from time to time in consultation with the Federal Government, the State
Governments and the National Finance Council a national policy for the

promotion and control of the utilization of land throughout the Federation for mining,
agriculture, forestry or any other purpose, and for the administration of any laws relating
thereto; and the Federal and State Governments shall follow the policy so
formulated. Here the purose is to formulate a national policy
- Article 95E(2) and (5) are specifically for Sabah & Sarawak
● Exception 7: article 93(1) The Federal Government may conduct such inquiries
(whether by Commission or otherwise), authorize such surveys and collect and publish
such statistics as it thinks fit, notwithstanding that such inquiries, surveys and collection and
publication of statistic relate to a matter with regard to which the Legislature of a State may make
laws
- Enquiries and statistic
● Exception 8: article 150(2B) and (2C) in proclamation of emergency
● Exception 9: problem with environmental issues such as do not respect the boundaries
or legal boarders. Resulting in overlap of jurisdiction between federal and state
authorities on natural resources
- Under federal list, only 4 subjects directly related to environmental resources are
mentioned - mining, fisheries, water, power and energy
- However these are not absolute as many of these powers are subject to the state
- For example: mining under item 8 (j) on federal list + 2(c) on state list
- Many matter within federal list that are environemntal-related overlap with state
actions
- While under state list, many items directly relating to the environment/natural
resource also share similar challenges
- Example: list II item 2(a)-(f) = land matters which are not absolute
- Eg: land is subject to article 83 - acquisition of land for federal purpose of article
92 national development plan which has caused overlap of jurisdiction with federal
powers
- Under concurrent list, it shared environmental-related matters, such as wildlife and
national parks (item 3) and land rehabilitation (item 9)
- Under the additional supplementary list - for sabah and sarawak include
fishing and fisheries, water power and agriculture

Weaknesses
Sectoral Approach
● Legislative division of powers under article 74 has had a huge impact on the
management of the environment
● The division of power is not clean as it is overlapping
● This is the sectoral approach taken towards the management of the environment. This means that
different deepartments or agencies are concerned only that one issue that fall
within the jurisdiction, given the width of their powers as granted by legislation
- For example, the department of fisheries only concern on marine and river fishing. Their
powers do not extend to the pollution of the sea or coral bleaching.
- Water service commission under water industries act 2006 which concern on the clean
water supply in peninsular malaysia and only empower to look to the sources of those
other supplies. Any other sources which are not for water supplies which is polluted is
not the concern of the commissioner
● Here, each of the agencies passed their legislation with a result that there are a large numbers of
sector-specific pieces of legislations.
● The end result is that many grey areas are unregulated
● Before the EQA existed, there are law very sector specific and until now, EQA does not
change the position because although vested with wider powers, the scheme of
EQA is centred more in controlling pollution rather than conserving and protecting
environment holistically.
● Sectoral approaches create weaknesses and uncertainty and its operations fails to take into
consideration the management of the environment as a whole
Case: Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek
● In this case, the court held that enviroment is a multidimensional subject which could be related
to various subjects in the federal, state and concurrent legislative lists.
● While under federal law, the court held would govern environmental issues arising
out of subject in the federal list, while state law would deal with those aspects of
the environment that could be related to land, water and forests which are state
subjects
● Here, this is rather simplistic approach because environment has no boundaries where it can cut
the line between federal and state and cannot simply pigeon hole into only federal matter or only
state matter
● There are instances collaboration between state and govt

a) The state government through the Selangor Water Management Authority (LUAS) is
looking at implementing a “polluter pays” principle (PPP) as an enforcement measure
against culprits polluting water sources
- As water supply mainly comes from river and water catchment situated at
the state boarders, the state would have to cooperate with the department of
environment, federal agency to enforce “polluter pays” principle
b) A company director and a road contractor believe th be behind the latest Sungai selangor
water pollution incident are facing a lifetime in prison for sabotaging water
services in the state which the first individuals to be charged under section 124K of penal
code
- There are also charged under section 61(1)(b) of the water services industry act 2006 and
section 34B(40 of the EQA
- Here the boundaries of the environment is under state power but the
prosecution of the offence is under the govt level
Similar Drafting Patterns
● Due to constitution division of power, authorities has adopt a similar but not
necessary identical legislation with similar drafting patterns
● For example, similar licsensing, subject matter, body of authority, offence ,
enforcement, within dealing statutes with the different aspects of environment
such as fisheries act 1995 and national forestry act 1984. Both deals with different subject matters
but find similar drafting patterns of the using of words in both acts.
● These statutes also has the similarity on the omissions of co-operation, referencing
laws, statutory sharing of resource. In other words, each statutes deals only with the
subject matter without reference to any other statutes so that it will enability the gaps
and loopholes of the law which are left ungoverned.
● Generally, no specific provisions made to ensure that each is read in consideration of the other.
- Example, national forestry act 1994 is to be read together with wildlife conservation
act 2010. Afterall both statutes deals with forest and forest life. But one concern only
with forest and another one only on wildlife protection although both are necessary co-
dependent and intertwined.
- At the end, it resulted lack of unifromed laws and standards.
Duplication and confusion
● Multiple sectors and laws has resulted in confusion that arise in concerning jurisdiction
● This confusion affect both at the administration and also public
- Eg, during covid 19, dring mco there were instances where the govt order businesses to
be closed but some states allowed certain business to in operation.
- The confusion happened between the local businesses as if they continue with their
business they might be fined by the ministry under federal power while yet the state
which issuing the license for them will allow them to remain open
● Under federal-state structure, much of its federal level functions have a duplicated, to some
extent, state level function

- For example, federal and state wildlife department, federal and state economic planning
unit, federal and state DOE requirements
● This weakness has resulted administrative fragmentation
● Example on environmental issue that cause duplication and confusion
- Doe is only responsible for monitoring factories licensed to release
schedule waste (any waste that has hazardous characteristics that have the
potential to negatively impact to the public and the environment). Small and
medium industries (SMIs) that do not release scheduled waste are licnesed by the local
authorities under the state.
- Sungai gong in rawang is an example of factory pollution which not cause
scheduled waste. But local authorities might not understand the types of industrial
waste because they are not as equipped as doe
- Their licensing is not as sophisticated as in eqa and its regulations
- Therefore, both state government and federal agencies need to constantly monitor
activities along the river so that pollution can be avoided.
Uncertainty jurisdiction
● It has been observed that the existence of both federal and state environemntal
legislation results in unnecessary overlap and duplications
● In certain cases, it led to the diversity of environmental laws in the country. The federal and state
govt set various environmental standard for the protection of air and water quality and for the
assessment of impacts certain projects will have an environment
● Consequently, this led to jurisdictional disputes between the federal and state govt and
inconsistencies between the federal and the state environmental law
Case: Ketua pengarah jabatan alam sekitar v kajing tubek
● The court was asked to decide which of the two sets of environmental law, the environmental
quality (prescribed activities) (environmental impact assessment) order 1987, a
law made under the EQA or the Natural Resources and Environmental (Prescribed
Activities) Order 1994, a Sarawak law made under the Natural resources ordinance
1949 was applicable to the bakun dam project
- This is important as the state law has provided simply 5 approval process for
the environmental impact assessment (eia) report without any form of
public participation
- Conversely, eqa requires project developer to allow public consultation on
the eia report before it can be approved
- The COA held that in the context of state and federal relations, parliament is
presumed not to enroach upon matters that are within the constitutional
authority of a state
- Since the “environment” is in the question, that is matters of land and waters, lies
within the constitutional province of the state of sarawak, the state should
have exclusive authority over bakun dam and the relevant statute to be applied would
be state and not the federal
Case: malaysian vermicelli manufacturers (melaka) sdn bhd

● In this case, one of the issue before the court was whether section 25 of EQA which
penalised the discharge of effluents into inland waters was a matter within the ambit
of list II and therefore beyond the power of the federal government.
● The court held that section 25 and the regulations made under it were in pith and substance
legislation with respect to item 7 of list II that deals ith public health, sanitation and the
prevention of disease
● therefore , section 25 was within the legislative competency of parliament and thus
valid
● The court has to distinguished kajing tubek - if the court follow kajing tubek, the inland
water was under state matter therefore the perpetrators would escape from the liability.
Right to Life
● Even in Our Consitution there is no words explicitly mentioned on environment per se

in order to protect and preserve the environment but Article 5 itself can be interpreted in a
broad way by the judge as it is implicitly recognizes the right.
● Article 5 provides: "No one shall be deprived of his life or personal liberty save in
accordance with the law"
● The word "life" is the crucial term for an extensive judicial interpretation as the term "life" can
be significant for environmental purposes.
● it can be said this article is depending on the interpretation by the judges based on their
creativity.
● Definition of "life" in Article 5 of our Constitution can be said that it is more than a right to
simply be alive
Case: Tan Tek Seng v Suruhanjaya Perkhidmatan Awam,
- where the court interpreted the expression of “life” does not refer to mere existence but
also incorporated all those facets that are an integral part of life itself and those
matters which go to form the quality of life
- Not only that, the judge (Gopal Sri Ram JCA) also mentioned that the right to live in a
reasonably healthy and pollution free environment are also can be understand from the
article itself.
● However, even it is said to be appreciated the existence of the right to environmental protection,
as the word is not explicitly mentioned under the FC, therefore somehow it has created
hesitation among the judges to interpret it.
Case: Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor 1997 – MLJ 418 1998
- where the court hestitated to expand the ambit of the right to life under article 5 to
include the right to environmental protection even the plaintiff contended that there have been
deprived of the right of heritage in land, freedom of inhbaitation or movement
under Article 9(2), future living for themselves and their immediate family and also the
depravation of future living for their descendants.
- However the judge made no reference that such deprivation was also tantamount to

denial to healthy and decent environment to live for the aborigines
- the court more in favour to use article 13 which provides for the right to property rather
than expand the ambit to the right to life under article 5 to include the right to environment
protection
● Reluctance of the court to use right to life for the environment is because it is not the right
specifically stipulated and the court found it is not their duty to make new law.
● Therefore, the concept of a right to a clean environment as a fundamental liberty is only
implicitly provided for under Article 5(1) introduced in obiter, with no real legal bite

TOPIC 6: ENVIRONMENTAL LITIGATION IN MALAYSIA
● Environmental litigation can be divided into criminal litigation and civil litigation
Criminal litigation
● Can be category as mandatory crime imprisonment offences which are mostly governed under
the penal code and statutory offence
Penal code:
● Most of the offences under the penal code, carry imprisonment as the sentence. In addition
for that, there is also tendency for fine and whipping
● But not all provide imprisonment as sentence, some only provide for fine such as section 268 on
public nuisance and section 278 on making atmosphere noxious to health
● These are some offences that may be utilised for the environment
● All of these offences is the effect on the human life not on the environment but nevertheless this
provision may be used as deterring weapon to prevent people from damaging the environment
Statutory offences:
● It is referred as quasi-criminal which is in the sense that imprisonment is not mandatory

● Main provision - EQA, most of the offences under EQA are strict liability offences which has
nothing to do with the element of mens rea and only limited offences that has been provided
under the act.
● A part from EQA, there are also other statutes
- Section 60 of wildlife conservation act 2010, any person who hunts or keeps any
protected wildlife (other than immature protected wildlife or the female of a protected
wildlife) or take or keeps any part or derivation of any protected wildlife without a
licence commits and offence and shall be liable on the decided fine
- Section 81 of national forestry act 1984, any person who contravene on the said provision
o the permanent reserve forest shall be guilty of an offence and shall be convicted
- Section 121 water services industry act 2006, a person who contaminated any waters
supplies system with the intention to cause death/with the knowledge that he is likely to
cause death/to endanger life of any person, where death is the result of the conduct, he
shall be liable - death penalty
● Serious charges has brought to the catfish pond owner and contractor on polluting sungai
selangor and causing water cut throughout the klang valley. They are charged under section 124K
of penal code which is the crime of sabotage and section 34b of eqa also section 31(1)(b) of water
service industry act - no reported decision as yet
● For both offences (penal code or statutory offences) only public prosecutor can bring

prosecution or anyone sanctioned/authorised/with the consent of the public prosecutor
● For individual, then it has to turn to the civil litigation, instead of criminal litigation.
Civil Litigation
● For harm to the environment - civil litigation can be divided into tort and public interest
litigation
Public interest litigation
● In malaysia, public interest litigation can be brought on judicial review by the order 53 rules of
court 2012
● However, public interest litigation is there but not existence due to the stringent rules on the locus
standi and cumbersome procedures
Tort / common law
● Claims in tort play a complementary role to the protection of the environment which will
encompass to the nuisance, negligence, strict liability, occupiers’ liability and trespass to land
● Negligence
- To establish negligence, there are three elements must be satisfied, there is a duty of care,
the duty is breached by the defendant, the loss was sustained as a result of the breach
(a) Duty of care - use the neighbour principle on donoghue v stevenson:
- Damage is reasonably foreseeable
- There is a close and direct relay of proximity between the plaintiff and defendant in terms
of time, space or relay, and sometimes there is a situation where there is no physical
injury or damages but loss are suffered, then it is pure economic loss
- Circumstance as a whole must be fair, just and reasonable for imposing a duty of care
(b) Whether the defendant has breached his duty - refer to the case of blyth v birmingham
waterworks company
- Negligence is an omission to do something which is a reasonable man would do or
doing something which a reasonable man would not do
- The test whether a reasonable man in his shoes would have done the same
● To determine who is the reasonable man, it must be noted that, a reasonable man is not a perfect
man but he is just an ordinary man with the usual hiccups in life, meaning to say, he is
the one who with reasonable behaviour and ordinary intelligence
● However, where the reasonable man professes expertise in a specific field or if he suffers from
incapacity, the standard will vary according to his capacity
● If the person has a special skill or represent himself as having skills and experience, then the
court would expect him to demonstrate that standard of care
● Reasonable man in the context of EQA = reasonable waste disposer operator, reasonable factory
owner, reasonable water supply etc - he will be the judged according to prevailing standard and
the prevailing knowledge at the time

Persuasive argument in the defendant’s favour
● Reasonable man - as if it can show the conduct is measuring up to the industries standard, then he
has not reached the duty of care
● Compliance with statutory standard or license requirements prove that there was no breach of
duty?
- Budden v BP Oil - the claim in negligence failed as the court accept the defendant’s
argument that their conduct has followed the limitations set under the control pollution
act 1974n
- Thus, this case has been the standard of the argument of compliance on statutory
standard which means that, even if there is claim on tort, but if the defendant succeed in
proving they follow the standard in the statutory or requirement, then the court will
favour on them
(c) damage suffered
- Plaintiff must show that the damage suffered was a result of the defendant’s breach
- Causation in fact and causation in law must be proved
● Causation in fact
- But-for test, generally suitable when there is one defendant and one cause to the damage
- Material contribution test can be used when there are more than one defendants and
damages. It can be merely to the damage or to the risk
Case: wu siew ying v gunung tunggal quarry
● The plaintiff was the owner of the plant nursery situated in perak
● There is port of land adjacent to the plaintiff land which is natural limestone hill was owned by
the second defendant
● The second defendant has leased the land to the first defendant for the purpose of operating a
quarry
● The director of land and mines in perak who was the third defendant has granted the first and
second defendant a license to operate quarry on the second defendant’s land
● Later, following the heavy downfall, a large slides of the hill has collapsed and fall onto the
plaintiff’s land and has caused damages to plaintiff’s nursery
● Plaintiff’s claim it happened due to the quarry activities which permitted by third defendant and
claim negligence and nuisance
● The court found that there are many factor as to the event of land collapsed which includes,
vibrations, rainfall, natural instability and etc
● The FC held the blasting operating quarry by the first defendant has caused vibration and it is
one of the cause to the landfall and one of the significant contribution of the event, thus the first
defendant is to be held liable for negligence
● Causation in law

- Known as remoteness of damages
- Use the reasonable foresight test where the defendant must have reasonably foreseen that
his act would give rise to the particular damage to suffered by the plaintiff
● There are generally 2 categories of nuisance, public nuisance and private nuisance
Public nuisance
● Public nuisance has been defined as an “act or omission which inflicts damage, injury or
incovenience on subjects of the state or on members of a class who come within the sphere or
neighborhood of its operation and it might affect some members to a greater extent than other”
Case: UDA Holdings Bhd v Koperasi Pasaraya Malaysia Bhd
● Simplisticly public nuisance is some conduct or omission that causes interference to the
enjoyment of a piece of public property shared by all. It interferes with public enjoyment and
comfort
● Public nuisance is often viewed as being suitably determined for environmental litigation matters
especially when it is a determinate source
● 2 technical requirements for public nuisance
(1) Satsify the legal requirements
- In order for a plaintiff to bring a tortious action in public nuisance no physical
interference with his or her interest in land is necessary
- Attorney-General v PYA Quarries, a public nuisance arises geerally when an act
materially affects the reasonable comfort and convenience of life of a class of the
society
- The sphere of nuisance is within the neighborhoof but the number of person that
affected is depends on the question of fact in every case
● To bring an action under this, the plaintiff need to demonstrate that
(a) He or she has suffered special or particular damage and injury over and above the
ordinary inconveniecen suffered by the rest of the public
- Pacific engineering v haji ahmad rice mills, the plaintiff showed personal
discomfort and damage to property which satisfy the requirement. It shall be
noted that it is no need to have attorney general if in the situation itelf there is
special damage but that is the difficulty ie to establish special damage because
must demonstrate that the damage is more than damages that suffered by anyone
else
(b) The damage is not only a direct consequences of the defendant’s actions but that it is
substantial
- Challenge to to the environmental cases as it is hard to prove that the particular
contaminant has caused harm
- For example, factory which generate radioactive waste, it may be no immediate
harm but i might happened in years or generation later, the

harm manifest itself like increase number of cancer cases etc. therefore, in this
situation, it reduce the chance of any case succeeding as it is hard to prove that
such action has its own direct consequence
(2) Discretion of attorney-general

- If plaintiff cannot demonstrate that he suffered peculiar damage, but the plaintiff
can still institute the proceedings if he first obtains AG’s consent which also
known as relator action
- It is governed under section 8 of govt proceedings act 1956 where it provided
that for relator action, it is a need to obtain the consent from AG.
- Further support in the case of Majlis Perbandaran Pulau Pinang v Boey Siew
Than & ors - an action of public nuisance can only be commenced by either the
AG or with his consent
Private nuisance
● The law of private nuisance is generally concerned with the protection and comfort of persons
with proprietary interests in land
● This has been defined in the case of Read v Lyons & Co Ltd - as being any unlawful, substantial
and unreasonable interference with a person’s use, comfort, enjoyment and any interest that a
person may have over his land - affirmed in the case of Hiap Lee Brickmakers
● In order for plaintiff to bring an action under this, it is limited to the persons who have an interest
over the land and he or she need not prove special or particular damage suffered although
damage per se must have been suffered.
● The elements required are:
(1) Substantial interference
- It is premised upon and specific to the individual facts and circumstance in
each case
- There must be substantial interference - with the comfort of enjoyment of the
land, use of land or physical damage to the land
- Such interference need not be activities that are inherently illegal or unlawful
- Substantial interference is presumed when there is a physical damage but it is
recoverable only where there is actual physical damage + damage is substantial -
substantial damage means mining and water, which resulted in loss of structural
support, collapse, floodingm, erosion
- Other example: additional flood resulted in cracks in heritage building (hotel
continental case) and dead worms (chan jet chiat case)
- The important thing is what is substantial damage is depend to the fact and
particular thing in such cases.
● Where interference is with the use, comfort or enjoyment of land, the english common law
dictates that these amenity nuisances must not be trivial
● What is substantial interference will depend on the facts of the case itself

Woon tan kan v asian rare earth - define the interference with the use, comfort or enjoyment of the land is
something as over and above the inconvenience normally existing in the locality where a plaintiff and a
defendant both reside.
(2) The interference was unreasonable

- Measured by balancing the interest of both parties
- The reasonableness of the defendant’s actions balanced against the rights of the
plaintiff to use and enjoy the land
- In assessing whether this balance is achieved, the court will take into
consideration on five factors:
(a) Locality
(b) Duration
(c) Extraordinary sensitivity
(d) Intention of the defendant
(e) Utility
● None of these factors are conclusive of whether the interference is unreasonable or
otherwise. They are merely relevant considerations to be taken into account.
Strict liability
● Rules in ryland v fletcher - we think that the rule of law is that the person who for his own
purpose brings on his land and collects and keeps there anything likely to do mischief if it
escapes must keep it in at his own peril and if he doest not do so, is prima facie liable for all
damages which is the natural consequence of its escape
● Strict liability - duty is owed to the whole world to ensure that things brought onto one’s land that
has escaped, does not cause damage to another
● Requirements:
(a) The thing when it escapes is dangerous
(b) Defendant intentionally stores it there
(c) The thing escape from a place where defendant has control over it
(d) Non natural use of land
(e) Foreseeabiltity of damage
Occupiers’ liability
● A specific branch of the law of negligence

● It applies to all persons or entities that are the occupiers of a premise
● An occupier is a person who ha sufficient degree of contorl over a premise
● Liability may be attached not only to the person in possession of a premise, but may also extend
to the owner of the premise, as long as the plaintiff can prove that the land owner still retained a
sufficient degree of control over the premise, as longs as the plaintiff xan prove that the land
ownner still retained a sufficient degree of control over the premises
● The land owner may not be physically in possession of the premises
● Type of entrants

- Contractual entrants
- Invitees
- Licensees
- Trespassers
● Generally, an occupier owes entrant a duty to take reasonable care to prevent injury to them
arising from dangers on the premises
(i) whether the occupier knew or ought to have known of the danger
(ii) whether the danger was peculiar to the type of entrant using the premises
(iii) Whether the entrant knew of the danger and appreciated its significance
(iv) whether the occupier used reasonable care to prevent the injury from occuring
Trespass to land
● When a person directly and voluntarily interfere with another person’s lawful possession of the
land
● Trespass to land has 4 elements
(a) There must be directed interference with the land
(b) The interference must be voluntary
(c) The defendant need not be aware that they are trespassing
(d) There is no requirement for harm or damage
● Section 5 of NLC defined land as - the surface of the earth, the earth below the surface,
vegetation, natural products, water and things attached to the earth
● Trespass to land is actionable per se, which means that a plaintiff is entitled to damages
regardless of whether he has sustained any actual loss
The concern on common law/tort
● Protecting private proprietary intrest, not environment

- The entire basis of tort law is mor geared towards compensating the individual rather
than protecting the environment
Case: puncak niaga (m) sdn bhd & anor v syarikat sidhu adek beradek sdn bhd & anor
- The defendants oil tankers were involved in a collision near the gombak water treatment plant
causing pollution to sungai gombak
- Cause the gombak water treatment plant operated by the plaintiff to be shut down for four
days

- Plaintiffs sued the defendants for loss and damage as a result of their negligence
- The HC found that the defendants liable in negligence but only awarded nominal damages as
special damages not proved
- Finding the defendants liable in negligence is good, but it is looking after the proprietary rights
of the plaintiff, not sungai gombak.
- The pollution to sungai gombak remained lost in the civil dispute between the parties
● No specific limits
- Tort law is also geared more towards the concept of reasonbleness, therefore any
activities which are considered to be reasonable is presumed to be lawful or permissible
even if it pollutes the environment
● Limited rights to bring an action

- A person may only bring an action in tort if that person has a private proprietary
interest
- In other words, the person must have certain rights ober the land in the question and he
must have suffered damage as a result of the wrongful act
Case: SAJ Ranhill sdn bhd v swm greentech sdn bhd & anor
- Plaintiff operated a water treatment plant along sungai benut, johor

- The defendant was the statutory operator of a landfill located long the banks of ulu sungai benut,
some 16km upstream from the plaintiff’s water treament plant
- Plaintiff alleged that its water treatment plant had to be shut down on eight separate occasions as
a result of overflow of leachate from the landfill which led to pollution of sungai benut
- The plaintiff’s claim was premised on negligence breach of statutory duty and the principle in
ryland v fletche and nuisance
- The court held that it must involve the interference with the plaintiff’s assets or property. But in
this case, the river belongs to the state, then there has no interference to the plaintiff’s property
hence it is rejected
● Based on the case, the restriction there must be damage caused to the plaintiff’s property,
especially harsh on fishermen facing loss of livelihood as a result of pollution to the sea.
● In the case of merchant shipping (oil pollution) act 1994 - allows aggrieved persons to claim
damages against the owner of a ship or vessel that causes oil pollution
● There is no remedy other than oil pollution - in the case of mohd nor bin jamil, the plaintiff’s
claim failed due to the fact that the claim made by him on the issue of pollution to the sea is
caused by coastal reclamation.

● Difficult to prove cause or source of pollution
- Need scientific analysis in order to prove the cause or source of the pollution which
necessarily entails significant time and money
- By the time, envi is already polluted
Case: woon tan kan & 7 ors v asian rare earth sdn bhd (bukit merah case)
● The plaintiff who were residents of bukit merah village sued the defendant for a permanent
injunction to restrain the defendant from operating its factory
● The plaintiff claimed that the operations of the factory generated radioactive material which was
harmful to human health
● In order to show this, expert evidence had to be adduced from around the world to prove a link
between radioactive waste generated by the defendant’s factory and the harm to human health
● The court held in favour of the plaintiff in nuisance but not in negligence and the rule in rylands v
fletcher since the plaintiff were unable to prove actual loss and damage.
● In recognising the harm and danger to health, the HC granted a permanent injuction and ordered
the factory shut
● Unfortunately the decision of the highcourt was overturned by the supreme court.
● Remedies insufficient
- The usual remedy in tort actions is damages, in other words money
- Pollution / damage to environemnt is priceless
● Limitation period
- In bringing a tortious action in malaysia, consideration must also be made to the
limitation period of such actions
- Section 6(1)(a) limitation act of 1953, note that the period is calculated from the time or
date of the commission of the relevant unlawful act = which equivalent to 6 years.
-

TOPIC 7: ENVIRONMENTAL QUALITY ACT
introduction:
● The EQA 1974 - the legislation in malaysia

● Various provisions in the EQA
● The creation of EQA was influenced by the stockholm conference 1972 and conceived as a
result of its commitment
● Problem at the inception of the EQA is that there is no word of environment per se in the
schedule 9 in FC - compromise is to combine health and trade as its basis
● EQA was enacted on 1974 where it was praised ase being the beginning of an organized and
committed effort by the government
● The obj of the act: an act relating to the prevention abatement, control of pollution and
enhancement of the environment and for purposes connected therewith
● However, there are some of the complaints on the existing of eqa which one of them is on the
weak penalties on the contravention of licensing and it can be obtained at the cheap price
● Eqa has amendments since its existing as there are so many weakness that need to overcome. (7
times)
● First amendment was amde in 1986 where the main changes is on insertion of section 34A and
the creation of P.U(A) 362 in EIA Order 1987 which prescribed 19 categories of prescribed
activities
- Environmental Impact Assessment (EIA) is to identify, predict, evaluate and
communicate information on the impact of proposed project and to propose mitigation
- The EIA lost its credibility because there are some complaints on the over- geneorus
portion size required for assessment, insufficient public participation, no process for
feedback, understaffed doe and unable to understand technical parts.
- Example, schedule 1987 EIA order which listed out the activities that required EIA
report, item 1(a) provided for land development schemes covering an area of 500
hectares or more to bring forest land into agricultural production.
● Second amendment was in 1996 with the intention of plugging more loopholes
- For example, introduced an environmental audit, research cess or charge for waste,
increased penalties across the board
● Third amendment - introduced open burning on 1998
● Fourth and fifth amendments were done on 2001 and 2007 on the minor amendments
● Then on 2012, it was substantially amended further
- Some of the changes that was amended on 2012 include:
(a) Wider definition of pollution
(b) Statuory requirement to appoint qualified persons to conduct and write EIA

(c) Increase of penalty for contravening section 34A’s requirement
(d) Increase of DG’s powers and investigation powers
● After 2012, the new EIA 2015 order was enacted and replace the old 1987 EIA order. It made
significant changes to the list of prescribed activities by dividing them into two schedule 1
( which would no need of public participation) and schedulr 2 ( need for public participation )
● Final amendment - recently passed on october 2022 known a environment quality (amendment)
act 2022
- Increase penalties for some of the matter mentioned under the act (s16,
18,22,23,24,25,27,29,30A,31,31A,33,34A,34AA,34B,37,41,45(1),48,48A,48AD)
- The main difference of the penalties are that, there are minimum amounts mentioned and
maximum amount increased are increased. Before this only cover on the maximum
amount of a fine
- In the act also introduce penalty for section 19 (prohibition for vehicle, ship or premises
to become prescribed conveyance / prescribed premisses) and section 32 (owner or
occupier to maintain and operate equipment) which previously no specific penalties for
this provision.
- New section 29A on open burning, definition of open burning & deletion of section
29AA - deletion means there are now more instances open burning liable prosecution
- Amendment to section 51 on regulations that are allowed for increased penalty for the
regulations made under the EQA
● EQA is geared towards control of pollution and not prevention. The environment conservation
was not the intention. However, through the amendments, there are some broadening of this
scope
- It works through a licence system which is provided under part III in the EQA which
consequently it control of pollutants via a fixed standard
- The eqa is frameworks legislation which means it require regulations to be effective. For
example, environmental quality (licensing) regulations 1977, environmental quality
(prescribed activities) (environmental impact assessments) order 2015, environmental
quality (appeal board) regulations 2003, subsidiary legislations and other guidelines.
Administration of EQA
● The latest one is administered by ministry environment & water (the name will change from govt
to govt) from the ministry of local govt and envi, the ministry of science and technology and envi
etc.
● Under the environment limb of these ministry is responsible for forest management, natural
resources, minerals management, land management, marine park management etc
● A number of department falls under this ministry including the department of forestry, national
land and survey institute, FRIM, Dept of marine parks
● The ultimate authority for this EQA is the minister who tasked with this portfolio

Person incharge
● However in reality, each of the individual states have their own acts and their own ministries at
their department concurrent with the federal ministries and federal department
● For example: sabah, has a ministry of tourism, culture and environment. The department in
charge is the environmental protection department and their authority is drawn from the
environmental protection enactment 2002
Director general
● Under eqa, when the federal level and state level of authority differ, there will be specific person
who will incharge for the specific person to enforcing the eqa
● Under section 3 of eqa, the administration of eqa falls under the director general and his officials
- The DG’s duties are provided under section 3(1)(a) until (p) **(p) to determine
uniforms for the officers appointed under (2) - the new amendment on oct 2022
● Under section 3(4), the duty of dg may be delegated to deputy dg and other officers
● While section 49(1) until (4) mentioned on the delegation to anyone else listed there
Power of DG
● The DG has the large number of powers under the eqa and many of these powers have been
extensively extended under the amendment of 2012
- Section 37 - power to require owner to furnish him with information. Section 37(2) the
obligation to be truthful
- Section 37A - power to investigation
- Section 37C - power to arrest
- Section 38 - power to stop, board, search premises
- Section 38A - power to examine person acquainted with the case
- Section 38AB - power to require attendance of persons acquainted with the case
- Section 44 - DG has the power to prosecute with the consent to PP
- Section 47 - power to recover costs and damages to remove, disperse destroy or mitigate
pollution
- Section 51 - power to make regulations
● There has been significant on widening of powers after 2012 amendment, whether it is good or
bad in the eyes of human rights and environmental value
● The additional power, include section 37A, 37B and 37C which extended the powers of DG for
investigation
● This happened through the delegation of any officer authorised with an authority card - section
37A(1)
● While under section 37A(2) and section 37C(1) provided that the DG has the power

similar to those of the police who can arrest without a warrant
Enforcement powers
● Under section 3(1)(a) the DG is to administer this act and its regulations
● Section 3(1)(k) - to undertake investigation and inspections to esnure compliance with this act
and regulations thereunder and to investigate complaints relating to breaches of this act
- It means, the enforcement of eqa is under DOE only which is headed by DG
● Police ?? - Section 37A onwards, the dg or any officer duly authorized in writing by him, section
49 right to delegate power
- Technically, the police can play a role in enforcing the provision under the eqa with the
duy authorised in writing. If there is no authorized writing then it will only be under the
doe.
● Malaysia
TOPIC 8: FORESTRYforest is a huge repository of genetic resource as a 12th mega diverse country
● During pre-independence, Malaysia was a tin mining and rubber producer. The sources were to
be sold to the small stakeholders to the huge capitalist
● However, later, it has showed that the number of natural forest cover in West Malaysia has began
to steadily decline. It can be seen from 2000 to 2022, Malaysia has experienced a net change of -
1.2Mha in tree cover loss.
● There are some causes of deforestation:

1) Logging - two type:
a) Clear felling where all the trees chopped down in an area
b) Selective logging - only fully grown trees are cut down. Any trees that have
important ecological value are unharmed
2) mineral extraction - mining, rainforest has been cleared for the mines and road
construction. Drilling for oil and gas on the island of borneo
3) population pressure - govt encouraged the poor to move to the countryside to get people
away from the overcrowd cities.
4) energy development - in 2011, after years of delays, the Bakun Dam in Sarawak started to
generate electricity where the largest hydroelectric dam project in southeast asia and the
second tallest dam in the world.
5) subsistence farming - tribal people this small-scale, subsistence farming. Slash and burn to
clear the land for crops. The burning creates nutrient that helps plant to grow. But they can
get out of control, destroying large areas of land
6) commercial farming - large scale farming where Malaysia is to be the largest exporters of
palm oil in the world. The land has more and more converted to plantations because people
tend to start planting as there are tax incentives to the plantation owners

● Impacts of deforestation
a) Soil erosion - trees cut down and roots die. The roots which bind the soil together without
it, easy for wind and rain to loose or remove soil
b) Loss of biodiversity - deforestation destroys the ecosystem and the mny habitats that
exist in the forests are destroyed. Therefore the variety of plants and animals are reduced.
c) Contribution to climate change - less tree means less transpiration so the climate becomes
drier, less tree means less CO2 is absorbed through the process of photosynthesis.
Therefore the CO2 remains in the atmosphere contributing to global warming
International law
● Earth Summit in Rio De Janeiro

- Malaysia committed to maintain at least 50% of the country’s land area to consist of
forests and tree cover
- This includes:
● Permanent reserved forests
● Forest reserves
● Permanent forest estates
● State land forests
● Totally protected areas
● International tropical timber agreement 2006

- Adopted in 2006 and being ratified by Malaysia 2007
- Come into force on 7 december 2011
- Objective in Article 1 - to promote the expansion and diversification of international
trade in tropical timber from sustainably managed and legally harvested forests and to
promote the sustainable management of tropical timber- producing forests
- International tropical timber organization (ITTO) established and operates through
International Tropical Timber Council (ITTC)
- All members of ITTO are members of ITTC
- ITTO members - both consuming and producing countries
- Malaysia is a member of ITTO

- Introduced concept of Sustainable Forest Management (SFM)
- Introduced Bali Partnership Fund to assists producing countries develop SFM
- Consequently, Malaysia implemented forest certification scheme to ensure SFM is
implemented based on international standards

- 1998 - Malaysia Timber Certification Council (MTCC) was set up as an independent
organisation to develop and operate the Malaysian Timber Certification Scheme (MTCS)
- Under the MTCS, the standard used for forest management certification of natural
forests is the Malaysian Criteria and indicators for Forest Management Certification
(MC&I)
- Forest certification supports trade in timber and timber products that use wood
originating from legal and sustainable sources that takes into account environmental,
social and economic aspects.
- Certified timber is timber that can be tracked at every stage, from its logging in the
forest to the last stages of manufacture, where the consumer can be confident that sound
forest management principles have been followed
Malaysia
● Before independence, land is a state matter. Various states had their own state forest enactments,
eg: federated malay states forest enactment 1934 - each had its own forest management laws and
policies
● Historically, peninsular malaysia, sabah and sarawak developed on is own, enjoying some
similarity, yet there are differences in implementation and interpretation
● Forest department of malaysia established in 1883 and no co-ordination
● Under federal constitution, article 74(2) and schedule 9 provided forest is under state jurisdiction
● State is empowered to enact laws and policies independently
● Forest related issues is under concurrent list, item 3: wild animals, wild birds and national parks
- shared legislative power
● Sabah + sarawak - agriculture and forestry research under list IIIA
● Article 49, executive power by federal over states on matters of agriculture and forestry - fed govt
can provide advice and technical assistance + state officers are to accept any professional advice
given
● National land council - article 91: intended to provide a forum for state and federal govt to pass
policies on the development of amongst others forestry issues
National land council
● Post independence
- NLC was established on 1958 in accordance with the article 91(1) of FC
- It enables the federal and state govt to discuss and promote cooperation in land, mining
and forestry sectors.
- Council members consists of a minister as chairman, representatives of the Federal govt
elected by the cabinet amounting to no more than 10 members and one representative
from each state govt elected by the sultan or the governor

- Both sabah and sarawak are represented on the NLC but neither of them is obliged
to follow any policies formulated by the NLC
- To facilitate coordination between federal and state approach to forestry - national
forestry council was set up in 1971
● NFC
- It is a forum for discussion and coordinate efforts and cooperation of laws and policies
between both fed and state legislations
Current policy
● Malaysia policy on forestry 2021

- Formulated by encompasing the key aspects of the forest policies of the peninsular
malaysia, sabah and sarawak
- The policy statement, rationale and objectives in this policy are general in nature and
serves as a reference and guidance for the three regions to formulate their respective
forestry policies and strategies
- Review and revision of the forestry policies and legislation will be made from time to
time to ensure that the legislation and policies are in line with the latest developments in
forest management at the national and international levels
- Obj:
a) Ensure sufficient forest areas are managed through good governance and
practices for the conservation of biodiversity and ecosystem services
b) Manage, conserve and rehabilitate permanent reserved forests or forest reserve or
permanent forests based on the principles of sustainable forest management
c) Ensure the continuous supply of raw materials from natural forest and forests
plantations to sustain the development of wood-based and non- timber forests
industries
d) Encourage the participation of indigenous, native and local communities in the
protection, conservation and rehabilitation of forests
e) Strengthen capacity building, research, development and commercialisation, and
innovation including providing adequate human financial resources to improve
forest management and utilisation of forest resources
● Forestry policy of peninsular malaysia
- National forestry policy 1978 (revised 1992)
- The first concerted effort toward holistic approach to forest management
- The NFP was intended to apply to all states in the peninsular malaysia as well as sabah
and sarawak but since both have exclusive legislative power over land and forestry
under the FC, it only applied in peninsular malaysia
- There is division between production and non-production forests upon the establishment
of permanent forest estates
- It is classified under 4 functions:
a) Protection forests - safeguard climate, soil fertility, water catchment areas,
biodiversity
b) Amenity forests - for recreation, eco-tourism,
c) Research and education forest - FRIM
d) Production forest - for supply in perpetuity of all forms of forest produce
- Revision made is to address issues on biodiversity conservation and the use of genetic

resources. It is intended to promote greater environmental conservation, sustainability and
uniformity
- As a result, NFA was passed and it was the first uniform legislation on forest through out
malaysia. Passed pursuant to article 76(1)(b) FC
- In the preamble itself, it provided that an act to provide for the administration, management and
conservation of forests and forestry development within the states f malaysia and for connected
purposes - standardization was not without objections from the states.
● EQA and particularly in EIA order 2015 are also among the basic jurisdictions for forestry
● National policy bilogical diversity 1998, malaysia plan
● Jurisdiction is also derived from the federal constitution
Institutional Framework
● Peninsular malaysia
- Forestry department of peninsular malaysia
- State forestry department - responsible for the management of forests in peninsular
malaysia & regulated by NFA and forestry policy of peninsula malaysia
● Sabah
- Sabah forestry department
- Responsible for forest management, control of harvesting operations and royalty
payment requirements
- Forest enactment 1968
- Forest rules 1969
- Forest (timber) enactment 2015
- Sabah forest policy
● Sarawak
- Forest department sarawak
- Responsible for forest management and administration of foret resources
- Forest ordinance 2015
- Forest regulations
- Sarawak forest policy

National forestry act 1984
● NFA is enacted to ensure uniformity of law

● It is an act to provide for the administration, management and conservation of forests and
forestry development within the states of malaysia and for connected purposes
● Section 1(2): shall not come into force in a state unless it has been adopted by a law made by
the legislature of the state pursuant to article 76(3) FC
● Section 111(1): the state authority may make rules to carry out the objects and purposes of the act
*** all states in peninsular malaysia adopted NFA
● Sabah - sabah department administers:

- Sabah forest policy 2018
- Sabah forest enactment 1968
● Sarawak - forest department of sarawak administers:

- Forests ordinance (sarawak 2015)
- Forest policy of sarawak 2019
- The state land use policy
● This act specified the authority for the adminisration, management, enforcement and
conservation of forests. The authorities are
a) State authority
- Section 3, 3A: appointment by state authority
- State director of forestry + deputies
- May authorise officers from Federal Forestry Department to carry out
enforcement functions under Part VIII
- Section 6: State Authority may delegate powers to Director
b) State director of forestry
- Section 4 lays out the duties of the State Director
- Delegate to any forest officer any power or duty conferred or imposed on him in
writing (Section 5)
- Section 20: requirement to be satisfied by applicants before any license is issue
- Section 24, 25,26,27: revoking the licence cease operations and suspensions

- Approval of license issued by the state forestry director under the state forest
rules
c) Forest officer
- Section 25: order to cease operations
- Section 26: cancel a (form 2) notice
- Section 27: show cause as to why his licence should not be suspended or revoked
- Section 70: issuance and form of removal pass
- Section 92: power to stop and search conveyances in transit
- Section 88(3): power of investigation
- Section 88 & 89: power of arrest, seizure
- Section 91: search without warrant
- Section 94(2): temporarily release things seized
- Section 96: enter and inspect conversion plant
● Amendment for additional power
- Section 86A-86D
- Section 91A + Section 96A
Permanent Reserve Forest
● NFA administer, manage and conserve forests by: defining and recognizing forest areas
according to their uses: permanent reserved forest
● Under Section 2: land constituted under the act
● Section 8: definition of PRF, Land that was previously a “reserved forest” before NFA
● section 9 - “Any land” can be constituted as PRF by the State Authority if it acquires it and
considers it expedient to do so
● Section 7 provides on state authority will be the one who can constitute the land as PRF by
gazette notification after meeting the requirement as mentioned under section 7(1)(a) and (b)
● Section 10(1): The land must be classified after SA gazette PRF
- Classification is based on the purpose for which the land will be used
- Different purposes – listed under 10(1)(a) – (k) **newly added section 10(1)(ja) - hutan
taman negeri (state forest park)

- “Under one or more of the following classificatio” - several classification can be done on
one plot
● Section 10(2): PRF can be divided into parts and each part “may be classified under one or more
of the classifications..” - the whole PRF can be divided and each division with multiple
classification
● Section 10(3): change of classification where change of purpose can be made by director via
gazette.
- Classification have legal standing
- Thus, if there is any change to be made, state authority would give the approval to the
director by notification in the gazette to change the classification of any part of PRF or
part thereof classified under (1) if there is a change in the purpose or purposes for which
such forests or part thereof had been classified
● Default position under section 10(4) = a timber production forest
● The effect of these classifications

- Recognize the multiple use of the forest
- Overlap of the delineation = every new gazette will make de-gazetting it more
difficult and not without real consideration
● State can de-gazette land by section 11(1) must have public enquiry in prescribed manner before
de-gazetting and 11(2), SA to identify equal or bigger area of land as replacement and gazette it
as PRF (new amendment in 2022)
Ownership
● Section 14: it is an absolute ownership where all forest produce within the PRF is the
property of the SA
● Section 15(1): as a result of which, there is a general prohibition from taking anything on PRF
land unless with a licence or in accordance with any other written law
● Section 15(2), fine and term of imprisonment for those failed to follow the rules and may be
subject to other penalties specified under section 15(3)
Licensing system
● Licence for forest produce

- Using form 1 section 19
- Forest produce is defined under section 2 as being (amongst others) – guano, river-
sand, trees and all parts of it, plants, bark, surface oil etc.
- It is also parts of trees, those attached to trees.
- Section 19, 19A, on who has the authority to licence
- Section 20: Before a licence is issued: applicants might be asked to do several things
- Section 21: Licence can stipulate terms for the licencee taking the said forest

produce
- Section 21(3): form 1 as the form of licence
- Section 22: renewal of licence
- Section 23: licence not capable of transfer
- Section 25,26,27: licencee may be ordered to cease operations, suspend or revoke
licence. Usually when there is contravention of the law or licence conditions
● Minor licence for major forest produce
● Minor licence for minor forest produce
- Major forest - form 3 section 28
- Section 28 = 2 types of minor licence for taking of major forest produce not exceeding
seventy cubic metres or any minor forest produce on PRF or State land.
-
● Use permits
● Other licences / permit
TOPIC 9: WILDLIFE

● Problem that wildlife face today
- Human-wildlife conflict
- Habitat loss
- Illegal wildlife trade
- Invasive species
- Pollution
- Bycatch (incidental capture of non-target species) - seamen
● This problem resulting in species extinction
● Wildlife trading
- Covers of legal and illegal trading
- It is generally the sale and exchange of wild animal or plant resources
- Illegal wildlife trading and forest crimes is the 4th largest transnational crime in the
world with annual value up to USD7-23b
- Animal trafficking is increasing as it has created big business which is profitable
especially if it is paid for rare species which driven to high profit margins
- It is run by the dangerous international networks, wildlife and animal parts are
trafficked much loke illegal drugs
- Example: poaching of elephant for ivory, tigers for their skins and bones
● Malaysia response:
- Signed the convention on international trade in endangered species of wild fauna and
flora (CITES) - entered into forced on 1975, ratified on 1977
- The obj - to ensure that international trae in specimens of wild animals and plants does
not threaten their survival = sustainability
- It covers animals and plants and all derivatives. Illegal trading is an activity that deemed
to be the largest direct threat to the future of many of the world’s most threatened
species.
● International framework
- Convention on International Trade in Endangered Species of Wild Flora and Fauna
(CITES) - enforced 1975 and ratified on 1977 to ensure that international trade in
specimens of wild animals and plant does not threaten their survival = sustainability
- CITES covers animal and plans and all derivatives (any part of the animal or plant)
- Not all species is covered in CITES
● Malaysia met international obligations on International Trade in Endangered Species Act 2008
(INTESA) - TAK MASUK EXAM

Protection of wildlife
● Malaysia passes legislation as a method of control

● primary - wildlife conservation act 2010 which later replaced with protection of wildlife act 1972
● Secondary - wildlife are protected in wildlife sanctuaries, wildlife reserves and marine parks
● Responsibility under department of wildlife and national parks (PERHILITAN)
● Malaysia started with wild animals and wild birds protection ordinance 1955 as the effort in
protecting wildlife
● Later in FC, under concurrent list, there is shared responsibility between state and federal
govt
● In malaysia there are three semi-autonomous administrative regions
- Peninsular - wildlife conservation act 2010 - totally protected species, fine up to
RM50k to RM500k / 3 years imprisonment
- Sabah - wildlife conservation enactment 1977 - totally protected species - no fine 6
months / 5 years
- Sarawak - wild life protection ordinance 1998 - protected species, 10k and/or 1 year
● Legislation in malaysia
- Protection of wildlife act 1972
- Wildlife conservation act 2010
- International trade in endangered species act 2008
- Sabah - wildlife conservation enactment 1977 (2016 amendment)
- Sarawak - wild life protection ordinance 1998
Wildlife conservation act 2010
- Section 2 (1), only applies in peninsular malaysia and labuan

- Section 2(2), does not apply to list II FC and fisheries act

- Wildlife falls under schedule 9 list II, item 12: turtles and riverine fishing
- Under the fisheries act, fish means any aquatic animal or plant life, sedentary or not and
include all species of finfish, crustacea, mollusca , aquatic mammals or their egg or
spawn, fry, fingerling, spat or young but does not include any species of otters, turtles or
their eggs.
- Based on the definition itself, the act applies to all wildlife except for turtles and fish
under fisheries act 1985
- Under section 3 of act 2010, the definition of wildlife is very widely and it is
differentiated between those that are protected (1st schedule) and totally protected (2nd
schedule)
Person in charge on wildlife conservation act
● Minister
- Minister who in charge of enviroonment will also in charge this act
- Section 6: minister may give general directions on powers and duties of DG
- Section 132: minister may make regulations
- Section 133: minister may exempt certain persons from the provisions of this act
- Section 134: minister may amend schedules
● DG
- Section 3(2) has general control of all officers
- Section 3(1), other officers - deputy DG, directors, deputy directors, assistant
directors, rangers
- Section 3(4) all officers are public servants
- Section 5: to delegate powers
- Section 7: to issue orders on general control, training, duties and responsibilities of the
officers
- Section 8: includes order for officers to carry and use arms
● Enforcement officers
- Section 3: definitions
- Section 89: every offence under this act is seizable offene
- Section 90: DG may in writing authorize any public officer to exercise enforcement
powers under the act
- Section 92: power of investigation
- Section 93: power of arrest (without warrant)
- Section 96: search of person
- Section 97: power to enter land
- Section 98: power to enter premise
- Section 99: access to computerized data
- Section 100: setting up obstruction or roadblock
- Section 94: search seizure with warrant. Warrant is admissible notwithstanding defects
(section 102)

- Section 95: search and seizure without warrant. Officer to prepare list of things seized
(section 103), seized wildlife may be released or disposed of (section 105), seized things
(including wildlife) may be released (section 109), forfeited (section 110) in which case it
becomes the property of the govt (section 111)
- Section 101: power to stop, search and seize conveyance. Conveyance may be
temporarily returned (section 104)
- Section 112, cost of holding seized things can be recovered from a convicted person
- Section 113: no costs or damages arising from seizure is recoverable
- Section 106: power to require attendance of person acquainted with the case
- Section 107: examinations of persons acquainted with the case
- Section 114: obstruction to search
- Section 115: additional powers (production of records and doc, production of
identification and doc, make inquiries)
Wildlife regulated under the act
● Classifying wildlife
- Protected wildlife - 1st schedule
- Totally protected wildlife - 2nd schedule
- Controlled species - 5th schedule
● Regulate
- All activities via licence, permit or special permit
- 3 types of applications - the use of each is dependent on its purpose
● Requirement for a license
- Section 9: no person can unless he holds a licence do certain acts (section 1(a)- (g)) **(g)
is added but (e) is deleted in 2021
- For activities that involve protected and controlled wildlife and othe specific activities -
import and export, hunting, keeping, dealing, birds nest etc. in these situations it would
need licence
● Requirement for obtaining permit
- Section 10
- Permits are used for people who operate zoos, commercial captive breeding, circus,
carrying out research on wildlife etc (there are further activities in (e) to (k) amendment
made on 2021
● requirement for obtaining a special permit
- Section 11: special permits are required for certain acts that affects totally protected
wildlife. Eg: hunting, keeping, import, export (section 11(a)-(f)) ** (d) and (e) deleted;
(f) added in amendment 2021
- Section 12(1): application for licence or permit made to licencing officer
- Section 12(2): application for special permit to the same person
- Section 14(1) + (2), difference is in approval
- Minister’s approval required for totally protected species
- Section 13: request for additional information
- Section 14(3): pay fee
● Condition can be imposed to the licensing officer - section 14(4) + (5)

● Section 35: sort of conditions that can be imposed that applicable to all by publication in gazette
- (a)-(f)

● Section 23(1) a+b - if there is a breach of the term of licence or permit or failure to
comply it wil be suspended or revoked
● Section 60(1) if there is no licence = penalty
● Section 60-65, see penalties for all offences under a general licence
● Section 16-24, 25A on licences
● Section 28, permits. Before granting a permit, licencing officer must first be satisfied of
matters in (a) to (c)
● Section 66-67 if there is no permit
● Section 68, when there is no special permit

● Section 69 and 70 for immature and female totally protected wildlife
● Similar for licence as well (section 61 and 62)
● Section 71-73 for other offences
● Section 29 no snares
● Section 32: license/permit are based on a quota system and can be changed from time to time
(upon the availability)
● Section 25: if there is no licence, permit, special permit given then it can be appealed - appeal
to the minister
● Prior conviction
- Section 31: “offence under this act” and “barred for period..not exceeding 5 years”
- Wong keng liang v pp
● Present conviction
- Section 23(1)(c) - licence suspended
● Operating zoo
- Old law: there was no zoo management legislation or guidelines
- Applications were easier to obtain

- Under the old act, minimum enclosure sizes were not indicated
- Penalties low and cruelty to wildlif was rm5,000 or 5 years imprisonment
- Lack of licence or failing to satisfy conditions: rm1k or 1 year imprisonment
- New law: section 10(1), require a permit

- Section 11, if there are totally protected wildlife, it need to get special permit
- Section 28, pre-requisite to operating a zoo
- Section 66, operating a zoo without permit - penalty up to 50k-110k or 3 years or both
- Section 34 and 132(2)(e) - day to day zoo management
● Wildlife reserves / sanctuaries

- This comes under part V
- Section 47 - the state authority may gazette and declare land as being a wildlife reserve
or a wildlife sanctuary and designate officers to have control of the same
- The state has great powers: it can designate, define and alter boundaries for such
reserves and sanctuaries - see (a) - (c)
- Section 48(1), once this has been done, no one can enter the wildlife sanctuary or
reserve without a written permit in such manner determined by DG & fees paid under
section 48(2A)
- Only exception is: section 48(2) - you obtain permit for the intention of “art
science or recreation”. The written permit will indicate the time period in which it can be
done (section 48(3))
- Section 49, things cannot be done,

➔ Hunt any wildlife, animal or bird
➔ Take , disturb, damage or destroy the nest or egg of any wildlife, animal or
bird
➔ Disturb, cut, remove, or take any soil, timber or vegetation
- Exception: Part IV - aboriginal hunting, officers hunting, capture or killing of wilflide for
protection of crops, killing wildlife which is an immediate danger to human life
Piecemeal laws and regulations
● National parks act 1980 - provides for establishment and control. Federal legislations applies
throughout malaysia except for sabah and sarawak
● Federal constitution - national parks are listed under the concurrent list - reality is parks are state
parks, eg: taman negara kelantan under enactment 1938
● Wildlife conservation act 2010 - indirectly protects flora through the declaration of wildlife
sanctuary and wildlife reserves
● Fisheries act 1985 - part IX provides for the establishment of marine parks: intention to manage
marine ecosystems, reefs, and associate flora and fauna - focus is to protect and preserve natural
breeding grounds of aquatic life

Protection of flora
● There is no one act that provides for this protection. Piecemeal protection are found in
different federal legislations.
● Under the national forestry act 1984 some protection is afforded as the act enables the
administration, management and conservation of forests and forestry development
● Section 7(1)
● Section 7(2)
● Section 14
● Section 15
● After
TOPIC WW2, the
10: HUMAN universal
RIGHTS ANDdeclaration of human rights adopted by the un general assembly
THE ENVIRONMENT
● There was a need for human rights, preamble recognised human right “as the highest
aspiration of the common people”
● For example:
- Article 1: all human beings are born free and equal in dignity and rights
- Article 2: everyone is entitled to rights and freedoms without distinction
● Objective of UDHR is to recognise that all human beings have basic rights. Human is entitled for
every right regardless of race, religion, nationality etc which shall be protected
● Apart from udhr, there are other convention that provides on human rights:
- International covenant on civil and politcal rights 1966 - right to life, freedom of speech
etc
- International covenant on economic, social and cultural rights - recognised that udhr
ideals can only be fully achieved if we live free of fear or want
Environmental human rights
● Internationally it is recognised that there is a link between human rights and the

environment
● Stockholm conference (1972) = first global treaty to protect human health and the
environment = 26 principles were agreed upon
- In the preamble, it recognised and proclaimed that the protection and improvement of the
human environment is a major issue which affects the well- being peoples and
economic development throughout the world; it is the urgent desire of the peoples
of the whole world and the duty of all governments
- Principle 1 - “man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and well-
being, and he bears a solemn responsibility to protect and improve the environment for
present and future generations
- Principle 2 - for the benefit of present and future generations
- Principle 24 - handled in a cooperative spirit by all countries, big and small on an equal
footing
● Rio declaration on environment and development
- This recognised a link between the environment and the developement that must be
sustainable
- First time = laid down general principles for managing environmental resources and
obligations of states
- Principle 1 - human beings are entitled to a healthy and productive life in harmony with
nature
- Principle 2 - the state has the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies and the responsibility to ensure that
activities within their jurisdiction or control do no cause damage to the environment
- Principle 10 - “environmental issues are best handled with participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public authorities,
including information on hazardous materials and activities in their communities and the
opportunity to participate in decision making process. States shall facilitate and
encourage public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings including
redress and remedy shall be provided.
● The global started to response at it recognised threat to the environment = threat to human
existence and species survival
● Likelihood of the risk
● Link between preservation of the environment and basic human rights
● Urgency
Environmental rights should be protected as human rights as:
● It will ensure that higher standard of rights be advocated rather than only looking at
personal or private rights

● Make it necessary on states to promote the rule of law by making govt directly accountable to
citizen
● Encourage govt to embrace principles 10 of rio declaration
● Could increase judicial activism
● Encourage public participation and govt accountability + attitudes towards the environment
Existing laws in malaysia
● Human rights in malaysia is governed under part II on fundamental liberties. Many of the rights
are actually reflected from udhr
● However, there is no environmental rights specifically provided under the constitution
● Article 5(1) and the case of Tan Tek Seng in providing healthy and pollution free
environment as part of the definition “life” under the said article, it is not absolute right
Other laws:
● Human rights commission act 1999

- Purpose: to provide the establishment of the human rights commision of malaysia to set
out the powers and functions of such commission for the protection and promotion of
human rights in malaysia and to provide for matters connected therewith or incidental
thereto
- Section 2: defines human rights as referring to fundamental liberties as enshrined in part
II of the FC
- Section 4(4) “for the purpose of this act, regard shall be had to the udhr 1948 to the
extent that it is not inconsistent with the FC”
- As such, we have human rights in malaysia, these rghts are listed under part II of the FC
and the udhr
- The act also established a human rights commission (SUHAKAM) where udner section
4(1) it provided that the function and power of the commision is to inquire into complaint
regarding infringements of human rights and referred to section 12
Three pillars
● Pillars to environmental democracy

1) Access to information
- Affected individuals are able to make informed judgement and decisions
2) Public participation
- In decision making process, for decisions that affect citizens is a first step in
ensuring individual rights are protected
- There a number of federal legisaltions that have such provision: town and
country planning act 1976, local government act 1976, eqa 1974 and the 2015
order, biosafety act 2007, national forestry act 1984
-
3) Access to justice

- Individual want to bring action against public authority by, two ways:
a) Civil claim
b) Judicial review proceeding
** the difference between those two is looking at the subject matter of the claim and types of remedies
that can be granted
- For example: MPAJ cause accident to one person - civil claim for injury under tort
- If MPAJ failed to perform the public duty, therefore can only bring judicial review proceeding -
cannot claim civil because it include public
Judicial review:
● Stringent the locus standi

● Case: boyce v paddington
- Interference public right might affected private right
● Govt of malaysia v lim kit siang
● Kajing tubek
● Malaysia trade union congress v menteri tenang, air dan komunikasi
Cumbersome procedure
● Timeframe is 3 months to file the procedure from the date

●

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Environmental law full notes

Environmental Law (Universiti Malaya)

Studocu is not sponsored or endorsed by any college or university

● Historically since independence, there has been a rapid development - sustainable

Environmental issue in Malaysia

● Tree cover loss

Downloaded by Arjoon Amalourde Raj (arjoondumdum@gmail.com)

Co-relation between tree cover and CO2

Impact of these issue:

Downloaded by Arjoon Amalourde Raj (arjoondumdum@gmail.com)

Downloaded by Arjoon Amalourde Raj (arjoondumdum@gmail.com)

● Section 2 of the Environmental Quality Act 1974

Downloaded by Arjoon Amalourde Raj (arjoondumdum@gmail.com)

● Common law: tort

➢ Negligence - League Against Cruel Sports v Scott [1985]: Park J issued an

➢ Occupiers’ liability - Indermaur v Dames - occupier as reasonable man has is prone to

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➢ Policy: Malaysia Plan –

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● International Treaty Entered Info

● Effects of Said Treaty on Malaysia

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● The aim of international environmental treaties or convention is to address global problems

● Environmental issue are generally divided into green / brown categories:

● Three main challenges:

● Who created IEL

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b) UN Environment Program (UNEP)

c) UN Commission on Sustainable Development

➢ Trail Smelter Arbitration

➢ Corfu Channel Case

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e) Customary international law

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● Effect - polluters pay principle under Principle 16 Rio Declaration = many

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● ASEAN established in 1967, members are bound by fundamental principles in their

● ASEAN Way of cooperation, non-interference with domestic affairs - musyawarah (consultation)

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Entry into force

● A breach of international law by a state entails the international responsibility of that

If a treaty is not in force or incomplete

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Local / national obligations

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AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318

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Contrast decision with previous case:

Noorfadila Ahmad Saikin v Chayed bin Basirun

Lai Meng v Toh Chew Lian

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How climate change happened

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● United Nations Framework Conventions on Climate Change (UNFCC)

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Binding or not binding issue

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● Inter-governmental panel on climate change (IPCC)

● Sign and ratified UNFCCC on international obligations.