In the critically acclaimed book ‘The World Without Us’, 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 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, 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 which stated that the right to live in a reasonably healthy and pollution free environment is implicit in Article 5 of the Federal Constitution, 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 and identify areas for improvement with suitable recommendations.
Statistic shows that the number of legal foreign workers in Malaysia amounted to 6.9% of Malaysia’s population of 30 million. The number of foreign workers in Malaysia is so vast that it is equivalent to one-third of the population of Singapore (5.5 million).
However, alarmingly, the actual number of foreign workers could be much higher, in 2014, the United States of America had downgraded Malaysia to tier 3 in its annual Trafficking in Persons Report (TIP). Malaysia's relegation to Tier 3 in the TIP indicates that the country has categorically failed to comply with the most basic international requirements to prevent trafficking and protect victims within its borders.
Malaysian ranking in the international platform is justified by various evidences of forced labour, and prostitution occurring throughout the country.
I. Introduction of Restorative Justice Practice
The traditional criminal justice system focuses solely on the offender, and how to punish him or her to create a deterrence effect both for that particular offender and for potential offenders within society. At the same time, the system excludes the victims of the crime who are only regarded as witnesses to help the prosecutor prove that the offender is guilty of an offense. This practice has resulted in a disheartening weakness in the current criminal justice system.
Subsequently, after much soul searching and research, a new paradigm of justice known as restorative justice emerged. Restorative justice has been widely developed and applied in many countries to handle crime. Recently, it has developed sporadically in various ways, following from its first experimental inception in North America and subsequently spreading to European and Asian countries.
On the 26th of November 2015, an application for logging permits on gazetted land allocated to Orang Asli was filed and granted by the State Executive Council in Jerantut, Pahang. However, there were allegations that the granting procedure did not incorporate the consent needed from the local Orang Asli community. Instead, pecuniary ‘gifts’ were given to each household as well as a certain sum of ‘donation’ to the local community funds.
Albeit such ‘gifts,' a few joint rallies have been organized by the affected parties such as the Malays as well as the Orang Asli communities residing around the compartment areas against the land development. This conflict between the developers and the local community is especially prominent in Kg. Sg. Kiol as due to the ongoing activities of logging, the Orang Asli living in Kg. Sg Kiol has suffered from contaminated water sources, trespass of land, loss of forest resources and threats from wild animals whose habitat had been destroyed by logging.
This case study aims to analyze the implementation of free, prior, and informed consent in regards to the land rights of Orang Asli residents in general.