Petikan dari The Star, Jumaat, 13.1.2017
Make clean environment a clear right in the Constitution, says CJ
PUTRAJAYA: 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.
Excerpts from Chief Justice Tun Arifin Zakaria's Speech at the Opening Of The Legal Year 2017
Assalamualaikum and Good Morning.
Ladies and gentlemen,
The Rule of Law
In my speech last year I alluded to the fact that the rule of law defies precise definition. It is a concept, which has been described as one "that resonates across borders and boundaries while reflecting a diverse set of perspectives rooted in societies' culture, history, politics, institutions and conceptions of justice."
At its core, however, it may be said that the rule of law is a means of ordering society. It includes state-citizen relationships, systems of rules and regulations and the norms that infuse them, as well as the means of adjudicating and enforcing such rules.
The substance of values, rules and their application vary deeply across cultures and contexts. The inexplicable singularity of the rule of law, certainly from my point of view, is its ability to encompass and embrace this diversity of culture, history, politics and conceptions of justice such that it is, in reality, a multi-dimensional concept, that is inextricably linked to the values, norms and politics espoused by a nation state or region.
Judicial independence, both institutional and personal, comprises key elements of the rule of law in relation to justice. The law and the administration of the law are not designed to obstruct or obliterate the activities and lives of the general populace.
On the contrary, our objective is to improve the lives of our citizens, so as to enable them to live with dignity, within our prevailing laws.
It is our duty to ensure unhindered access to justice for all citizens, and to enforce the laws of the land equitably and transparently. Inherent in these functions is our paramount duty to be independent, impartial and incorruptible.
Correlation between the Rule of Law, the Environment and Sustainable Development
The right to development has long been recognised. Article 1 of The Declaration on the Right to Development, 1986 asserts that "The right to development is an inalienable human right."
However it is equally recognised that the protection of the environment is similarly a part of the human rights doctrine. In short, development should be in harmony with the environment, and cannot be pursued so as to substantially damage the environment.
This principle, also recognised as a principle of international law, is embodied in the concept of sustainable development.
Protection and Conservation of the Environment
The concept, indeed the principle of the maintenance and conservation of the environment, is not new. It traces its roots back to ancient wisdoms, religions and numerous cultures.
The Qur'anic verse in Surah Al-Baqarah verse 164 extols as follows:
"In the creation of the heavens and earth; in the alternation of the night and the day; in the ships that sail the seas with goods for people; in the water which God sends down from the sky to give life to the earth when it has been barren, scattering all kinds of creatures over it; in the changing of the winds and the clouds that run their appointed courses between the sky and earth:- there are signs in all these for those who use their minds..."
A saying of the Holy Prophet is as follows:
"The world is beautiful and verdant, and verily God, be He exalted, has made you His stewards in it, and He sees how you acquit yourselves."
Mahatma Gandhi said:
"The earth, the air, the land and the water are not an inheritance from our forefathers but on loan from our children. So we have to hand over to them at least as it was handed over to us."
The Taoist doctrine says:
"If the pursuit of development runs counter to the harmony and balance of nature, even if it is of great immediate interest and profit, people should restrain themselves from it. Insatiable human desire will lead to the over-exploitation of natural resources. To be too successful is to be on the path to defeat."
And moving on to more modern times, (Former US Vice President) Al Gore, when delivering his Nobel Lecture in 2007, stated:
"The future is knocking at our door right now. Make no mistake, the next generation will ask us one of two questions. Either they will ask: "What were you thinking; why didn't you act?" Or they will ask instead: "How did you find the moral courage to rise and successfully resolve a crisis that so many said was impossible to solve?"
The Environmental Rule of Law
This aspect of the rule of law is referred to as the "environmental rule of law."
While it has not been formally defined, as is the case with other aspects of the rule of law, the following analysis of the fundamental elements requisite to encapsulate the concept include:
(i) 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;
(ii) Consistent application of these laws over time and throughout the jurisdiction;
(iii) Effective and fair enforcement against those who break the law, regardless of the offender's socioeconomic or political status."
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.
While our Federal Constitution does not specifically provide for such a right, it is implicit in Article 5, which guarantees the right to life. The word "life" has been accorded a broad and liberal interpretation in our case law (Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor  2 CLJ 771 at 800) where Gopal Sri Ram JCA (as he then was) stated as follows:
"... I have reached the conclusion that the expression 'life' appearing in Article 5(1) does not refer to mere existence. 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.
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.
Insofar as environmental legislation is concerned we have, in Malaysia, no less than 38 statutes and ordinances, as well as a sizeable quantity of subsidiary legislation, regulations and Orders relating to the environment. Our fundamental statutes include the Environmental Quality Act 1974, Protection of Wildlife Act 1972 and the National Forestry Act 1984.
Apart from this, our international environmental obligations comprise another important source of environmental law.
The Progress Made by the Judiciary in enhancing the Environmental Rule of Law
In 2011 at the inception of my appointment as the Chief Justice of Malaysia, I attended the roundtable conference for Asean Chief Justices on the environment in Jakarta.
The objective was to develop a common vision on the approach to be adopted by the Judiciaries in shaping the rule of law to the challenges we face in the region. This was termed the "Jakarta Common Vision."
The lack of cognisance of the significance of environmental protection, and the dearth of education and sensitivity in this respect, is borne out by a comparison I drew in my inaugural speech at the Opening of the Legal Year ceremony in 2012.
I referred to the disparity between sentences meted out by our courts in relation to environmental offences. You may recall the contrast I drew. A man in Tumpat, Kelantan who was convicted for being in illegal possession of a dead tiger, a protected species, was fined a mere RM7,000-00 in 2005, while a man convicted for the theft of 11 cans of "Tiger Beer" and "Guinness Stout" worth RM70 in 2010 was sentenced to five years imprisonment.
It illustrates just how misplaced our value system was then, as well as how little exposure and awareness there was amongst our magistrates and judges.
With the implementation of our environmental courts, our training programmes and our national strategy workgroups, these attitudes have, hopefully, changed.
I was therefore impelled to first deliberate upon, and then establish the environmental court for our jurisdiction. Vide Practice Direction of the Chief Registrar No. 2/2012, the environmental courts became a reality. Initially some 42 Sessions Courts and 53 Magistrates' Courts were assigned as environmental courts nationwide.
Although the jurisdiction of these courts was confined to criminal cases, the scope of their enforcement function was wide, spanning 38 Acts and Ordinances and 17 Regulations, rules and Orders.
Subsequently on Jan 1 last year, Special Environmental Courts for civil matters were established throughout Malaysia. The High Courts, Sessions Courts and Magistrates' Courts in all 13 states have been assigned to hear civil environmental cases.
In 2012 we hosted and co-organised the 2nd Asean Chief Justices' Roundtable on Environment and Enforcement in Malacca. From this meeting, the Asean judiciaries agreed to establish a technical working group of judges from each Asean judiciary, to formulate a consensus on the terms of the memorandum of understanding towards attaining the Jakarta Common Vision.
This was followed by our co-organisation of the 1st Asia and Pacific International Colloquium on the Environmental Rule of Law – Defining a New Future for Environmental Justice, Governance and Law in Putrajaya, in 2013.
The colloquium culminated in the issuance of the Putrajaya Statement. The outcome of this meeting amounted in effect to the first step towards building, through a regional process led by UNEP (United Nations Environment Programme), global consensus on the precise benchmarks for the further development, implementation and measurement of the environmental rule of law.
In recognition of our interest and participation in the environmental rule of law, I was honoured, on behalf of Malaysia, to have been appointed as Co-Chairperson of the World Congress on Justice, Governance and Law for Environmental Sustainability in 2012 in Rio de Janeiro, Brazil which was held on the sidelines of the Rio + 20 Summit.
The country was further honoured by my appointment as a member of the International Advisory Council for Environmental Justice under the UNEP in 2013 and this continues to date.
To further enhance and educate the members of the Judiciary and the Judicial and Legal Service, we established the National Judicial Working Group on the Environment in 2015. Its function is to implement the Jakarta Common Vision and the Hanoi Action Plan.
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.
The Past Year, 2016
This last year has, as always, been a challenging one for the Judiciary. We have been faced with adjudicating upon issues as far ranging as:
(i) Religion and conversion rights which look set to continue through the current year;
(ii) Disputes testing the constitutionality of newly introduced statutes such as Sosma (the Security Offences (Special Measures) Act 2012); and
(iii) The constitutionality of specific sections in older statutes, not to mention other public law litigation.
Issues of this nature affect not only those parties directly before the court but carry considerable significance to the population of the nation as a whole.
Notwithstanding that these issues are weighty, and that the results of adjudication have given rise to both criticism and unhappiness on the one hand, as well as approval and acclaim on the other, judges remain cognisant of their continuing constitutional duty to exercise their judicial powers so as to ensure that litigants are given an opportunity to be heard, and that justice is dispensed vide their judgments, after according mature consideration to the dispute and arguments raised.
The Creation of Specialised Courts
(a) Environmental Court
I have already spoken about the background to the creation of the environmental court.
(b) Anti-Profiteering, Goods and Services Tax Court
With the coming into force of the Goods and Services Tax Act 2014 on April 1, 2014, specialised courts were established throughout Malaysia to deal with cases falling within the purview of the statute.
(c) Anti-Terrorism Court – set up in 2016 to handle cases related to extremism, such as the Islamic State (IS) militancy, as well as security matters. Five judges of the High Court, four in Kuala Lumpur and one in Sabah have been selected and assigned to hear these cases.
(d) Construction Court – set up in April 2013. These courts are located at the Kuala Lumpur Court Complex and the Shah Alam Court Complex. In January 2016, an equivalent appellate court was set up at the Palace of Justice specifically to hear construction appeals.
(e) Coroner's Court – Due to widespread public concern over the increase in custodial deaths, the Judiciary established 14 dedicated Coroners' Courts in April 2014. Fourteen senior Sessions Court Judges were appointed throughout Malaysia as coroners. These cases are expected to be disposed within a nine-month timeline. A coroner is assisted by a medical doctor.
(f) Cyber Court – set up on Sept 1, 2016, in the Kuala Lumpur Court complex. It specialises in hearing cyber-criminal cases and will soon expand to cover civil cases.
(g) Fast Track for Street Crime Offences – the Judiciary introduced the fast track proceedings at the subordinate courts for street crime offences which include cases involving robbery, mugging, snatch theft, hit and run accident and cheating on taxi fares.
Enhancing the Use of Technology in the Court Delivery System
The current E-Court systems face critical challenges as the usage of the system has grown significantly since its implementation in 2009. E-Court Phase 2 have additional modules which are not available in Phase 1.
They include online filing for criminal matters and Power of Attorney, appeal module for the Court of Appeal and Federal Court, e-Lelong, integration with Bar Council for Practising Certificate Module, as well as system integration with PDRM (the police), JPJ, JKPTG, Insolvency Department and JPN.
We do however require more funding to update these systems to better serve the public.
The E-Bidding system will be developed to replace the manual public auction process in court and is to be launched in 2017. It is expected to make the bidding process more transparent as it will be open to more prospective bidders.
Importantly, this system is expected to eliminate any syndicate that seeks to interfere with the bidding process, which could lead to artificial pricing at the expense of the chargors.
Establishing the Inns of Court Malaysia (ICM)
The ICM was established on Nov 10, 2016. It is a professional membership body comprising judges, lawyers, jurists, legal academics and other legal professionals from all backgrounds.
Like the Inns of Court in the United Kingdom and the United States of America, the ICM serves as a venue for talks, dining sessions and law libraries, designed for members to share and discuss their views on legal issues.
When I took my oath of office as the Chief Justice, one of my main goals was to improve the quality of judgments handed down. My predecessor, Tun Zaki Tun Azmi, had, with his transformation plan, which was executed admirably, efficiently cleared the backlog of cases that had plagued the courts in Malaysia for decades.
My task was to take the next step of improving the quality of judgments at all levels of the Judiciary.
In short, to "polish the silver," as it were.
Progress of the Environmental Courts and the Law
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.
Integrity and Independence
I trust that the Judiciary will continue to maintain and uphold its integrity and independence, which is crucial to the rule of law and the ultimate well-being, indeed survival of our democracy.
In concluding, I go back to the beginning of my speech, and reiterate that the Judiciary will remain a bulwark for the plural society of our unique nation.
I take this opportunity to wish all of you the very best for a fruitful and progressive year ahead.
Saya akhiri ucapan saya dengan empat rangkap pantun:
Istana Kehakiman Gah Dijulang
Bangunan Kemegahan Badan Kehakiman
Untuk Menjamin Malaysia Gemilang
Kedaulatan Undang-Undang Jadi Pegangan.
Tahun Pembukaan Disambut Gembira
Mari Semua Kita Raikannya
Keluhuran Perlembagaan Asas Negara
Menjadi Tugas Kehakiman Menegakkannya
Hembus Pawana Bayu Terasa
Alam Yang Indah Dipandang Mata
Janganlah Kita Membuang Sisa
Kelak Binasa Alam Semesta
Indah Malam Tanpa Pelita
Terbang Beramai Si Rama-Rama
Janganlah Lupa Peranan Kita
Persekitaran Indah Tanggungjawab Bersama