Chief Justice Tun Arifin Zakaria (pic) would like the Federal Constitution amended to expressly include a right to a clean and healthy environment.
“While our Federal Constitution does not specifically provide for such a right, it is implicit in Article 5, which guarantees the right to life,” said Arifin at the Opening of the Legal Year 2017 Friday.
He quoted Datuk Seri Gopal Sri Ram’s judgment in the 1996 Tan Teck Seng case when he was in the Court of Appeal: “It incorporates all those facets that are an integral part of life itself and those matters, which go to form the quality of life.
“Of these are the right to seek and be engaged in awful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment…”
“Notwithstanding this generous and accurate analysis of the definition to be accorded to the word ‘life,’ it would be ideal if our Federal Constitution is amended to expressly include a right to a clean and healthy environment as is found in numerous other modern constitutions,” said Arifin.
“After all, the environment and its preservation is an ancient wisdom that has comprised an integral part of our culture and society for hundreds of years,” he added.
Arifin, who retires as head of the judiciary this year, said development should be in harmony with the environment, and cannot be pursued so as to substantially damage the environment.
He noted that an “environmental rule of law” has not been formally defined.
He added that analysis of the fundamental elements requisite to encapsulate the concept include:
> A system of laws that regulate, as far as is feasible and practicable, all human-induced actions that by themselves or collectively have a significant impact on the environment;
> A consistent application of these laws over time; and
> An effective and fair enforcement against those who break the law, regardless of the offender’s socioeconomic or political status.
Arifin pointed out that this definition immediately highlights the key role of the judiciary in implementing the environmental rule of law.
“A core duty is to safeguard and uphold our constitutional guarantees, which must include the right to a clean environment both for the present generation and the future of unborn generations, not forgetting our wildlife and other life systems, which form part of our ecosystem.”
One year after Arifin was appointed Chief Justice in 2011, environmental courts became a reality in Malaysia.
Initially, some 42 Sessions Courts and 53 Magistrates’ Courts were assigned as environmental courts nationwide for criminal cases.
On Jan 1 last year, Special Environmental Courts for civil matters were established throughout Malaysia, said Arifin.
“Ultimately, we in Malaysia hope to follow in the footsteps of nations like India and the Philippines which have made giant strides in environmental law and enforcement.
“It also remains my hope that the Judiciary will continue to embrace the concept of the environment, and its undeniable and irreversible connection with sustainable development.
“Increased efficiency and enforcement coupled with commensurate punishment, will have a tremendous effect in curbing illegal practices, assisting directly in the protection and conservation of our matchless environment.
“To this end, I would like to ask my brother judge, Tan Sri Richard Malanjum, who enjoys a similar dedication to the environment, to spearhead the drafting and introduction of a set of Environmental Rules of Court to facilitate and bolster the practice of environmental law in our courts.”
Among the guests at the Opening of the Legal Year 2017 on Friday were the Chief Justices of Indonesia’s Supreme and Constitutional courts, Papua New Guinea, and Singapore.
Others included Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said, Inspector General of Police Tan Sri Khalid Abu Bakar, Solicitor General II Datin Paduka Zauyah Be T. Loth Khan (representing the Attorney General of Malaysia), and Presidents of the Malaysian Bar, Sabah Law Association and Advocates Association of Sarawak.