Comparing UK Environment Law and Malaysia Environment Law

Comparing UK Environment Law and Malaysia Environment Law Introduction For centuries, we have been focused on industrialisation. We focus on how to make our life more comfortable and convenient, focus on economic development and have become addicted to the competition among ourselves. This dissertations primary focus is the contrast that exists between environment law operating in England and Malaysia. Similar to the other areas of law, environment law is a mix of primary legislation, secondary legislation, with a number of reports and policies. However, it is different in the sense that the aim is not always to punish or compensate the parties involved. The law is used to achieve the statutory objective which is to protect the environment as a whole to achieve sustainable development.[1] Most of us would think that environmental law is used to eliminate the pollution discharged into air, land and water. This, however, is not an accurate statement, since the key function of law is to act as a bridge between the polluting emission generated by economic activity and the publics tolerance of a healthy environment. There are 6 chapters in this dissertation. This chapter focuses on the historical background of Environmental Law in England and Malaysia. The evolution and the sources of Environmental Law will be discussed. Regarding the Environmental Law in England, the law evolved faster than the law in Malaysia. The other discussions will focus on the organisation of the enforcement agency in both jurisdictions, with external dependency relationships such as European Union (EU) and Association of Southeast Asian Nations (ASEAN), with sanctions available if the regulators decide to prosecute and the existence of a specialised Environmental Court or tribunal. The dissertation aims to provide a framework of how the Environment Law in England and Malaysia are being enforced. By comparing both the enforcement of Environmental Law in England and Malaysia, whether either the regulation in England or the regulation in Malaysia is more effective in regulating polluting discharges can be shown. More impor tantly, this analysis can show which parts of the law they can learn from each other. Comparative law research increases the lawyers ability both to understand and to indirectly manage the legal system.[2] Historical Background of Environmental Law in England The earliest environmental legislation did not focus on environmental problems. Rather, it concentrated on public health aspects of pollution and housing.[3]An example is R v Secretary of State ex parte Duffridge which relates to a risk of illness due to radiation from high voltage electricity.[4]One of the landmark legislations is the Town and Country Planning Act 1947. The act itself was not specifically designed to deal with environmental matters. Rather, it provides a legal framework for the discretionary power of control which can be used for any purpose relating to land use. It was confirmed in Stringer v Minister of Housing[5]. Indeed, at that time, the concern of the legislators was with the economic development. It was only in the mid-1950s that legislators displayed any interest in the environment, by establishing the green belt policy. Silent Spring which was published by Rachel Carson, a biologist, in 1962, brought public attention to environmental matters.[6] She attacked the single-minded technological process with high economic value and warned that pesticides would endanger many species, especially birds. She argued that nature has irreplaceable value irrespective of human interests. During the 1970s, fears of technology getting out of control and overpopulation were finally being spoken about. Irvine and Ponton argued that the earths natural resources would be used up if the industrial and population growth continued. Pollution would lead to serious climate change[7]. Therefore, changes had to be made. Before April 1991, the pollution in the United Kingdom was regulated in three distinct control regimes, which are classified by the environmental media as air, land and water. At that time, the legislations fell into two categories. The first category concentrated on specific problems. The examples are The Clean Air Acts 1956, the Litter Act 1983 and the Water Act 1989. The second category originated from the Control of Pollution Act 1974 which dealt with waste, water pollution and atmosphere pollution separately. It recognised that there was a need to control the environmental matter as a whole and improve environmental awareness. However, this lacked the ability to harmonise pollution control mechanisms. A new statute, the Environmental protection Act 1990 (EPA 1990), was created. It was concerned exclusively with pollution regulation and attempts to control pollution that was released by industry into all media through Integrated Pollution Control (IPC). IPC regulates most of the heavy industrial processes. Besides, at that time, the Government also showed their intention to create a new regulatory authority which would have the responsibility to consider environmental matters as a whole bringing, together all the regulatory documents. In order to achieve this aim, the government enacted the Environment Act 1995 (EA 1995) which is still effective now, to establish the Environment Agency (EA). Before the Environment Agency was created, the obligations of environmental protection and controlling pollution was split across a number of bodies, namely Her Majestys Inspectorate of Pollution (HMIP), the National Rivers Authority (NRA), the Waste Regulation Authorities (WRAs) and the local authorities. Each of these exercised control under different statutory provisions. HMIP was created in 1987 to replace the Industrial Air Pollution Inspectorate and the Radiochemical, the Hazardous Waste and Water Inspectorates of the Department of Environment (DoE). Its principal roles were to provide a centralised system to regulate the pollutions through IPC which was established under EPA 1990. It was part of the DoE and operated on a regional basis. Unlike HMIP, NRA was created in 1989 under the Water Act 1989 as an independent public body. It was responsible for regulating water pollution, water resources, flood defence and fisheries. The NRA was regarded by many as a strong regulator, wi lling to prosecute if necessary.[8] Under EPA 1990, local authorities were appointed as WRAs to enforce the provisions relating to waste management and waste licensing systems. However, there was always a conflict of power between these three agencies.[9] The most obvious example is the conflict between HMIP and NRA. As HMIP was responsible for the regulation of pollution through IPC, it was responsible for air, land and water pollution. However, NRA was responsible for regulating water pollution. Therefore, there was a need to create a unified regulation body to control the discharges of pollution into the environment as a whole. Another reason was that the system of control was too complex because there were three agencies and overlapping controls. There was a need to simplify that. Therefore, the government created the EA to regulate the environmental matters. The role of this agency will be discussed in the next chapter. Historical Background of Environmental Law in Malaysia As in most of the countries, the early form of law related to the environment in Malaysia was not designed to address environmental problems. The general quoted legislation which impeded environmental problems was the Water Enactments in 1920. Other examples of the law which related to environmental control included the F.M.S. Forest Enactment 1934, the Merchant Shipping Ordinance 1952, the Land Conservation Act 1960 and the Fisheries Act 1963. Nevertheless, during the period of Strait Settlements[10], some ordinaries related to environment regulations have been designed. One of the examples is the Settlement Ordinance No.3 of 1894 which was drafted to protect certain species of wild birds. It was considered that these laws were enacted to solve certain problems which were prominent during that period. They were not designed to address the environmental problems. Instead, the focus was on nature, and its preservation, with a key interest in this particular area alone. Therefore, we c an see that during that time, not much focus was put on environmental protections, and there was a clear lack of foresight. Developing countries such as Malaysia started to pay more attention to environmental problems during the 1970s, especially after the United Nations Conference on the Human Environment which took place in 1972. Following the Conference, Malaysia introduced the Environmental Quality Act 1974 (EQA 1974) which forms the basis for environmental law and environmental policies. Also this established the first important policy directive as is now implemented through the Third Malaysia Plan[11]. Since then, a lot of mechanisms (administrative and executive) such as the National Water Services Commission and Solid Waste Management Corporation have been established to implement the environmental laws and policies. Apart from that, different statutes such as the Fisheries Act 1985 and National Forestry Act 1984 have been enacted to manage and conserve the environment. The distribution of legislative power results in both the federal and state governments competency to deal with environmental matters. This coincidence is also the reason why there are several agencies which deal with environmental matters at all levels of government. Therefore, environmental legislation in Malaysia is said to take a piecemeal approach.[12] This is one of the problems that has been introduced by Kylie. Another two main factors which characterise the environmental legislation in Malaysia are the desire of ex-Prime Minister Mahathir to champion the interests of the non-western nation in an internati onal forum and the need to balance environmental protection with the national imperatives of economic development. In the late 1980s, Mahathir became known as he suggested linking the considerations of environmental issues with development issues. He particularly blames western nations trying to shift the blame of the environment for the state onto developing countries and at the same time, slowing down the development of developing countries. Under his leadership, Malaysia played a main role in environmental diplomacy.[13] In April 1992, 55 ministers of developing countries signed the Kuala Lumpur Declaration on Environment and Development to pledge a common position at the Earth Summit which was held during the following month.[14] Nowadays, the Kuala Lumpur declaration is a critical element involved in the discussion of environmental problems by governments. Section 4 of the declaration states that economic development is a fundamental right of all peoples and countries. One of the main points of this Declaration is that forest ecosystems have been declared to be national patrimony[15] which is managed by national policies within the exercise of sovereignty powers[16]. In addition, under s.14 of the Declaration, technology should be transferred to developing countries as preferential and concessional. New and additional funding should also be made available by developed countries to developing countries. One thing that should be noticed is although Mahathirs thought on linking the consideration of environmental issues and development issues has an important impact on Malaysias foreign policies, in general, international agencies and western nations disagree with it.[17] Regarding the conflict between environmental protection and developmental issues, logging is a good example. In the Sixth Malaysian Plan, the government broadened the concept of sustainable development[18] and therefore the licensing of the wholesale of logging is consistent with the concept of environmental protection which is stated in the Kuala Lumpur Declaration. It is thought that logging offers thousands of jobs to the country, but western environmentalists criticise Malaysia regarding deforestation practises. For example, Swiss rainforest activist Bruno Manser helped to organise the Penan, who are the indigenous peoples live in the jungles. Mahathir has written a letter to Manser and condemned them, stating that he had no rights to harm the Penan and to decide the fate of the others[19]. Last but not least, the environmental administration is rather complex as the power is distributed between federal and state governments. The Federal Constitution is the supreme law in the country and any law which is inconsistent with it is void. The division of power of federal and state government is listed in the Ninth Schedule of the Constitution which is known as the Federal List, the State List and the Concurrent List. The State List lists the areas where state governments have the power to make law, while the Federal List lists the area where the federal government can make laws. On the one hand, the Concurrent List describes the areas where the state or the federal governments can create new laws. On the other hand, although land is a state matter, Parliament is allowed to make laws. The reason given is that matters relating to law and policies of land need to uniform the law and policies between states and the federals. The constitutional legislation therefore gives both fe deral and state governments power to deal with environmental matters and this results in the existence of various agencies. The example here is the Department of Fisheries, a federal department, which has the power to administrate Marine Park. Although the federal government has control of the water, the island is under the control of the state government. This leads to examples where land is used for a purpose which is incompatible with the use of the surrounded Marine Park. [1] S.1(1) Environmental Act 1995 [2]Jan Darpo and Annika Nilsson, On the Comparison of Environmental Law [2010] 3(1) Journal of Court Innovation 315 [3]John Alder and David Wilkinson, Environmental Law Ethics (Macmillan Press Ltd 1999) 14 [4] R v Secretary of State ex parte Duddridge [1995] Env LR 151 [5] Stringer v Minister of Housing [1971] WLR 1281 [6]Rachel Carson, Silent Spring (1st edn, Houghton Mifflin 1962) [7]Irvine Sandy and Ponton Alex, Green Manifesto: Policies for a Green Future (Macdonald Optima 1989) [8]Irvine Sandy and Ponton Alex, Green Manifesto: Policies for a Green Future (Macdonald Optima 1989) [9]Neil Stanley and Susan Wolf, Wolf and Stanley on Environmental Law (6th edn, Routledge 2014) 31 [10] Group of British territories located in Southeast Asia. [11]JabatanPerdanaMenteri,UnitPemodenanTadbirandanPerancanganPengurusan, Malaysia, Third Malaysia Plan 1976-1980 (Jabatan Percetakan Negara 1976) [12]Kylie Elston and Greg Bankoff, Environmental Regulation in Malaysia and Singapore (University of Western Australia Press 1994) [13]Mahathir Mohammad, Statement to the UN Conference on Environment and Development [1992] 22(4) Environment Policy and Law [14]David Humphreys, Forest Politics: The Evolution of International Cooperation (Routledge 2013) 101 [15] A national with non-monetary wealth or reserves such as its national monuments, cuisine, and artistic heritage [16]S. 15 Kuala Lumpur Declaration on Environment and Development [17]Kylie Elston and Greg Bankoff, Environmental Regulation in Malaysia and Singapore (University of Western Australia Press 1994) [18] Organising principle for meeting human development goals while at the same time sustaining the ability of natural systems to provide the natural resources and ecosystem services upon which the economy and society depends [19]Doug Tsuruoka, The Pen and the Saw [1992] Far Eastern Economic Review