STATES MUST NOT BE ALLOWED TO WEAKEN ENVIRONMENT PROTECTION

Sahabat Alam Malaysia (SAM) is very concerned with the statement of the Sarawak Premier Datuk Patinggi Tan Sri Abang Johari Tun Openg that Sarawak will have absolute control in managing its own environment, published by the Borneo Post on 5 March 2024.

The ‘environment’ has not been mentioned in the federal constitution as a subject matter for either federal or state jurisdiction. This lack of explicit provision has raised problems over the issue of environmental governance between the federal and state governments and legislatures.

However, in relation to the environmental rights of citizens, our Courts through case law, have recognised the right of every citizen to a clean and healthy environment as a fundamental right, within Article 5 of the Federal Constitution, which deals with a person’s right to life. Hence, in this regard, both the federal and the state legislatures and governments have a duty to ensure the protection of every citizen’s right to a clean and healthy environment, without discrimination.

The term environment is multi-disciplinary, and it transcends the boundaries of a state or even country. For example, the pollution and degradation of air, water, biodiversity and ecosystems have impacts beyond state boundaries, even though land and forests are subject matters within the jurisdiction of a state.

For purposes of ensuring uniformity among states, Parliament has enacted legislation such as the Environment Quality Act 1974 (EQA 1974) that is to be applied to all states.

Hence, Sarawak, in wanting to manage its own environment appears to negate the applicability of the EQA 1974 on the state. Come August 2024, the state’s Department of Environment (DoE) will be absorbed into the Natural Resources Environment Board (NREB) set up under the Sarawak Natural Resources Environment Ordinance 1993 (NREO 1993).

This wresting of control over the environment from the federal government by the Sarawak government is most disconcerting, especially when the Sarawak law over environmental impact assessments (EIAs) for example, are weaker than that in the Peninsular. The Sarawak law on EIAs, unlike its federal counterpart, excludes the mandatory requirement for public participation and consultation over projects which have significant environmental impacts. It leaves the issue of consultations over the EIA to the discretion of individual project proponents, whose interests are self-serving, and contrary to the public interest.

We consider public participation, consultation and engagement as a fundamental component of any EIA process, as it ensures that the principles of transparency and accountability are upheld to ensure good governance.

Thus, without this key component of public participation in decision-making incorporated into the Sarawak legislative process as regards EIAs, the right to a clean and healthy environment cannot be protected. In fact, this is tantamount to having weaker rules for Sarawak, which is unfair to the state’s residents, including those who are particularly vulnerable, such as the indigenous peoples, who have persistently raised issues of environmental degradation, pollution and flooding.

Further, in relation to climate change, Sarawak has been advancing its own climate related legislation related to carbon trading, when such measures call into question the legality of such efforts, especially in relation to rules under Article 6 of the Paris Agreement, which is the remit of the federal government and not the states.

Malaysia has ratified environmental related international treaties including the UN Framework Convention on Climate Change (UNFCCC), the Paris Agreement and the UN Convention on Biological Diversity (UNCBD). States must give effect to the international commitments made by the federal government and not undermine them.

Given the above, we call on the Sarawak state government not to advance laws which are weaker and not in uniformity with federal laws and requirements, as seen in the case of the EIA process.

We fear that other states too will follow the Sarawak example. In this regard, the federal government, in the balancing of federal-state relations, must not allow states to adopt weaker laws and rules.

Therefore, we call on the federal government to clarify what steps it is taking to ensure that states like Sarawak do not depart from their obligations to ensure that all Malaysians are protected equally as regards environmental protection and climate change.

Meenakshi Raman
President
Sahabat Alam Malaysia

Letter to the Editor,  8 March 2024