Searching for Eden – The Right to a Clean Environment in Malaysia

I. Introduction 

In the critically acclaimed book ‘The World Without Us’[1], readers were asked to envision our Earth, if all humans were to disappear tomorrow. In breathtakingly detailed paragraphs, the author explained how our massive infrastructures would collapse, the ozone layer would replenish, ultraviolet levels subside and flora and fauna would reclaim the earth– a “paradise”. In his closing, author Alan Weisman writes; “Without us, Earth will abide and endure; without her, however, we could not even be.”

To Malaysia’s credit, issues regarding the environment have, in the past years, been an agenda close to the heart of our judiciary, especially of our Chief Justice, Tun Arifin Zakaria. Since his appointment as Chief Justice of Malaysia in 2011, he has been active in furthering the environmental cause both nationally and regionally.

Under his leadership, Malaysia’s judiciary has seen heartening initiatives[2] such as the establishment of two environmental courts, active participation in regional judicial commitments such as the ‘Jakarta Common Vision’ and increased training and education for the members of our Judiciary to implement such commitments.

In his speech at the Opening of the Legal Year 2017[3], he brought his activism one step further when he recommended that the Federal Constitution be amended to include a right to a clean and healthy environment. The Chief Justice praised as ‘generous and accurate’ the landmark Court of Appeal judgment of Datuk Seri Gopal Sri Ram in the 1996 case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan[4] which stated that the right to live in a reasonably healthy and pollution free environment is implicit in Article 5 of the Federal Constitution[5], which guarantees the right to life.

This article aims to look at the status quo of Environmental Law in Malaysia, access our progress in the area according to established yardsticks such as the Environmental Democracy Index[6] and identify areas for improvement with suitable recommendations.

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