PUBLIC ACCESS TO ENVIRONMENTAL RIGHTS AND JUSTICE: A LEGAL PERSPECTIVE FOR AN IMPROVED PUBLIC SERVICE SYSTEM OF THE LOCAL AUTHORITIES

DR. MAIZATUN MUSTAFA
AHMAD IBRAHIM KULLIYYAH OF LAWS

IIUM

INTRODUCTION

Environmental quality of both urban and rural areas can greatly affect the quality of life of the public that are vulnerable particularly when issues such as deteriorating state of air and water quality, lack of proper solid waste management and inadequate sanitation happened within their area. Coincidently many of these issues also concerned with environmental rights which is available to them. Thus, on the part of the local authority, it is necessary that these rights are understood in the context of Malaysian laws. In relation to environmental issues, this paper argues that what is considered as `effective’ provision of services of the local authority should be appraised against legal, social and ethical values, as well as the actual state of the environment. What is meant here are values that are applicable and important to environmental governance and local good practice. These include the recognition of public’s rights to the environment, and their contribution to the resolution of environmental problems associated with the quality of service delivery. Such recognition is important particularly considering that in the event of environmental harm, such as the pollution of water resources, it is the public that will be mostly affected by such harm. In this regard, it is pertinent to identify environmental functions of the local authority, as well as public environmental rights under the law, so that it can serve as a guideline especially towards the improvement of service delivery. At present, there are many areas of law dealing with the matters. In what follows, this paper identifies existing legal measures and decided cases relevant to the issues.

LOCAL AUTHORITY IN GENERAL

 Administratively, Malaysia is organized based on a three-tier system of government that consists of federal, state and local governments. The Federal Constitution as the supreme law of the land provides for three legislative lists, i.e. Federal List, State List and Concurrent List, allowing each of these three levels of government to have jurisdiction over certain matters. The lowest in the hierarchy is the local authority. Item 4 in List II of the Ninth Schedule of the Federal Constitution stipulates that local authority to be a subject under the State List. Hence, all local authorities fall under the exclusive jurisdiction of the state governments.

By virtue of the Town and Country Planning Act 1976, local authority is being classified into two groups: municipality for large towns and district council for small urban centres. The Local Government Act of 1976 provides local authorities in Malaysia with a very comprehensive set of functions and responsibilities. Under Section 5 of the Act, a local authority is the local planning authority and thus the authority that approves and controls all planning and development applications in its area. The two other main laws, the Town and Country Planning Act 1976 and the Street, Drainage and Building Act (1974), together with relevant by-laws enacted by virtue of these Acts also set up the jurisdiction within which the local authority can perform its functions.

Indeed, with a wide statutory powers bestowed upon them, the local authorities are enable to expand their functions and responsibilities especially in facing the rapid urban growth and multiple needs of the local community. Specifically, the increase in the rate of industrialization, trade, commerce and development of modern services not only pushes the demand for urban space but also that of urban services. This requires local authority in Malaysia to perform multifarious roles that include providing efficient service delivery functions; maintaining function for public places, drainage and sewerage, market places and crematorium; maintaining road and street-lighting and landscaping; maintaining public health and sanitation; controlling development and land-use plans; and developing infrastructure and support facilities.

In relation to environmental protection, the local authority is also entrusted with various functions, such as to maintain and improve the environment within the area of jurisdiction. Specifically, these functions include obligatory services such as cleansing, collection and disposal and wastes, proper drainage and sewage, sewerage system and beautification programmes. Others are sanitation and solid waste management system, cleaning drains and roads, and the general upkeep of the environment. The licensing of hawkers, stall holders, shop and business operators whose businesses are public nuisances and obnoxious in nature also fall under this function. Arguably, these demands imposed administrative pressures on the local authority, and provide new challenges to increase and improve its delivery of urban services. Local authority’s statutory functions on environmental matters are examined below.

ENVIRONMENTAL RESPONSIBILITIES OF THE LOCAL AUTHORITY

In Malaysia, it is interesting to note that jurisdiction over environmental regulation, including power to take action against environmental harm, does not come exclusively within the power of the Department of Environment alone. In fact, environmental functions are also assigned to the local authority.

While the Department of Environment is known to be the main regulatory agency in charged with various aspects of environmental quality, its power is only confined to that provided in the Environmental Quality Act 1974 and the relevant Regulations. Within the local authority’s laws, the local authority is entrusted with environmental functions within its locality. One example of pollution control which comes under the power of local authority is sewage regulation. Sewage[1] is known to cause harm to the environment and hazard to public health if not properly treated and regulated.

At present, there are several laws that can be used to deal with the discharge of sewage including Local Government Act 1976, and Environmental Quality (Sewage and Industrial Effluents) Regulations 1979.  The latter is a regulation under the Environmental Quality Act 1974. The reach of this Regulation is wide as it is applicable not only to rivers, but also lake, stream and drain[2]. Under this Regulation, the Department of Environment is entrusted with the discharge of sewage, either from industries or private person, from a private premise, or a man-made toilet, and whether the discharge was made into any river or drain.

However, the prohibition of the discharge of sewage under this Regulation is not absolute but conditional. This Regulation is applicable only to the discharge of sewage within a certain load of waste only. If the amount of load discharged is less than that stipulated by the EQA, then such discharge is not covered by this law[3]. Nevertheless, this does not mean that the lesser discharge is not considered illegal. In fact, such action still constitution an environmental offence within the jurisdiction of the local authority as provided in section 70 of the Local Government Act 1976. Here, the local authority is given the power over any person who discharge sewage matter into any stream, either within the limit of the locality area or otherwise. In this case, the local authority can impose a fine up to RM5000, or jail up to two years, or both to the person if found guilty[4].                                                                                                                               

Another form of water pollution that is within the responsibility of the local authority is sullage water, which is discharged into the drainage system without any treatment. Sullage water may come from trade and commercial activities such as restaurants and vehicle workshops, domestic discharge, wet markets and slaughter-houses. In fact, it is the local authority that is mainly responsible towards sullage as this type of pollutant is not covered by the Department of Environment[5]. Under the Street Drainage and Building Act 1974,  `sullage’ is defined to include:

 “any household waste liquids discharged from any bath, shower, lavatory, basin, floor gully, laundries or sink but excludes faecal water and urine”.

There are several provisions which empowered the local authority to take action against this pollutant. For example, section 56 of the Act disallows pipe used for the carrying off of rain water from any roof to be used for the purpose of carrying off the soil or drainage from any privy or water-closet or any sullage water. Any person who contravene this section can be fined up to RM500. Section 55 is another related provision which disallows the discharge of domestic sullage through the prohibition of water closet[6] or privy shall to be communicated with any river, canal, stream, pond, lake, sea or with any public surface or storm water drain without permission from the Local Authority or State Authority’.

Similarly, the discharge of sullage water from wet market and slaughter-houses also comes within the control and regulation of the local authority. Under section 47 (1)(d) of The Street, Drainage and Building Act 1974, the local authority can take action against any person who throws, places, spills, or scattered any blood, brine, swill, noxious liquid or other offensive or filthy matters of any kind in such manner as to run or fall into any public place. In this situation, the local authority can arrest without warrant any person who commit such offence, and can impose a fine of up to RM500 to the offender[7].

Another environmental responsibility of the local authority is pertaining to solid waste. Solid waste which is considered as a major contributor towards water and soil pollutions especially through the illegal dumping of garbage. In most cases, the regulation of solid waste comes under the responsibility of the local authority through the Local Government Act 1976 which has provisions on public nuisance[8]; pollution of stream from solid refuse or any rubbish or waste matter[9]; cleanliness and sanitary services such as removal of rubbish, litter, solid or liquid refuse and effluent within its area[10]. Another relevant law is the Street, Drainage and Building Act 1974. Section 47 of the Act can be applied in relation to the discharge of solid waste into the environment. This section gives the local authority the power to take action against any person, who, among other things:

1.      places, deposits or throw refuse, boxes, barrels, bales or other article or things in public places;

2.      drops, spills, scattered garden refuse, stable refuse, trade refuse, manure, garbage or any other things in any public places; or

3.      Throw or leave behind bottle, glass, can, food wrapper, particles of food in any public places.

Under this section, any person who is guilty of the offence can be arrested without warrant by any police or local authority employee and can be fined up to RM500.

Apart from the provisions above, the local authority also has statutory functions that are indirectly related to environmental protection. One of which is regarding the power over illegal factories. In general, factories and industries can affect public health and environmental degradation through their activities that can cause air, water, soil and noise pollutions, apart from emitting bad odour to the surrounding environment. While the main agency dealing with pollution from factories is the Department of Environment, nevertheless, it has no powers when such pollution involves that of illegal factories. In this regard, it is within the power of the local authority, apart from the State Government, to deal with this matter.

In the case of illegal factories, the local authority can apply the Town and Country Planning Act 1976 which contain a provision to prohibit any person from using any land or building otherwise than in conformity with the local plan[11]. This provision means that the construction of a factory on a land which is not meant to be an industrial lot may constitute an offence under this Act. In cases where factories were in fact built on the designated land, it is the requirement under this Act that before the building or development can commence, one must obtain a planning permission and comply with the conditions of that planning permission[12]. From here, it is clear that erecting a building or factory without obtaining relevant permission, or operating it for activities different from what it is supposed to be, may cause the factory to carry its trade illegally. In cases where such factories have been built on a private land without permission, the local authority has the power to order that the land be restored as far as possible to the condition it was in before the development was commence[13]. If the development does not stop, the person may be liable to a fine of up to RM50000, and a further fine of RM1000 for each day the offence continues.

After examining the relevant provisions of the local authority’s laws, it can be seen that its environmental responsibilities, especially those that concern public health, are immense. Many aspects of environmental protection and pollution control are under the direct jurisdiction of the local authority which is expected to perform them effectively. Thus, the degradation of environmental quality within a local authority area, due to the inability of the local authority to undertake the required tasks, may cause a concern on the part of the public who have to endure the displeasure and hardship of such consequent. It is possible that the public may take a legal action based on their environmental rights, either for the payment of compensation for harm suffered, or to restore back the environment to its natural state. There are several provisions under the Malaysian laws that provide for these rights. For this purpose, it is necessary to examine these provisions as provided in the Federal Constitution and common law, and whether they have any implication towards environmental performance of the local authority.

ENVIRONMENTAL RIGHTS UNDER THE MALAYSIAN LAWS

Malaysia is a federal system of government where the Federal Constitution is the supreme law of the land and from it derives the present legal system. The Constitution and its various features have a great influence over the nature of environmental jurisdiction and administration in the country, including that concerning environmental rights. Indeed, the right to a clean environment may be considered to be a human right which is taken by some societies to be vital for human dignity and life. It is a general contention that one of the greatest attractions of fundamental rights is that they can override lesser legal obligations and if made available under the Constitution, can serve to override the existing statutory regime. Thus it needs to be secured by the highest law of the country that is the Federal Constitution.

In general, under the Federal Constitution, there is no specific provision which speaks about the recognition or protection of public rights to a clean environment, which includes air and water. However, even though the Constitution does not have any explicit provision securing right to a clean environment, Part II of the Constitution does however contain a provision on fundamental liberties in its article 5 which states that:

                `No person shall be deprived of his life or personal liberty save in accordance with the law’

Even though this article does not specifically deal with environmental rights, its provision pertaining to personal liberties has called for many debates on whether it should be interpreted to include right to clean water and air. It has been argued that this article provides an implicit provision on this matter and must therefore be construed liberally to allow for the right to a healthful environment[14]. In Malaysia, efforts have indeed been made by some judges in trying to deal with issues pertaining of the rights to clean water in a more liberal manner. One example is the observation of Judge Mahadev Shankar in the case of Sinuri bin Tubar v. Syarikat East Johor Sawmills Sdn. Bhd  [1987] 1 MLJ 315[15], when he said that `human calls for nature do not wait for governments to function. Clean water is a birthright of every human being as much as clean air’.

Until now, there have been several cases where issue pertaining to right to fundamental liberty has been raised against the conduct of the local authority. The recent one is a Federal Court case of Ooi Kean Thong & Anor v. Public Prosecutor [2006] 3 MLJ 389. In this case, the applicants were accused of behaving in a disorderly manner, i.e. hugging and kissing, at the Kuala Lumpur City Centre Park. This park is under the jurisdiction of the Dewan Bandaraya Kuala Lumpur (DBKL). The DBKL has alleged that such disorderly conduct was an offence under section 8(1) of the Parks (Federal Territory) By-laws 1981 which states that `any person found behaving in a disorderly manner in any park commits an offence’. Initially, the matter was compounded by DBKL and the applicants were supposed to pay the fines imposed. They decided not to pay the fines as they were strongly of the view that they had committed no wrong in law.

Subsequently, the applicants brought an issue before the High Court on a constitutional ground, i.e. whether the said section is ultra vires section 102 of the Local Government Act 1976 and the effect is that the applicants have been deprived of their constitutional right of freedom, and whether the charge against them is contrary to article 5(1) of the Federal Constitution. Since the issues raised were constitutional in nature, the case was referred to the Federal Court. At this court, the counsel for the applicants submitted several defenses. Among others, were that :

1.      The power given to the local authorities under section 102 of the Local Government Act 1976 does not include the power to make by-law relating to `indecent behaviour’. Thus, the applicants’ constitutional rights of fundamental liberty have been infringed contrary to article 5(1) of the Constitution since they are denied of their freedom to live in the way they want; and

2.      DBKL in legislating the by-law had infringed article 5(1) of the Constitution as it failed to take into consideration that Malaysia is a multiracial country thus hugging and kissing in public places should not be deemed wrong.

The deputy public prosecutor (DPP), on the other hand, argued, among other things, that:

1.      The by-law is constitutionally valid as supported by section 102 of the Local Government Act 1976;

2.      For a special purpose, a local authority may also enact by-laws under section 102(f) of the Act[16], thus, under this section, it was within the power of DBKL to regulate the use of any of its own public park;

3.      In relation to article 5 of the Constitution, the applicants were never arrested or detained for the alleged offence. Thus, the allegations in the DBKL’s summons on the applicants should not be interpreted as an infringement of their personal liberty.

In giving the judgment, the judges deliberated on several issues, among which is `behaving in a disorderly manner’, which, according to the judges should depend on the prevailing circumstances. Accordingly, it is within the power of the local authority to legislate a by-law for the health, safety and well-being on the inhabitants of a local authority to disallow users of its public park behaving in a disorderly manner. With regard to article 5 (1) which reads `no person shall be deprived of his life or personal liberty save in accordance with the law’, the court held that this article is not applicable since the applicants were never arrested or detained. Thus, there is no question of deprivation of rights, life or personal liberty.

Apart from the Constitution, public’s rights over environmental quality are also provided in common law. In Malaysia, common law[17] is an area of law which gives protection for any individual or the public in case of the degradation of environmental quality, and over allowing individual claims to be brought for a wide range of environmental wrongs. The common law takes the same view of pollution as other activities which interfere with the lawful use by another of his or her property. It is generally agreed that one of its advantages is that common law, through the various tort principles, can provide a platform for the public to seek directly remedy for injury inflicted upon them. In Malaysia, nuisance is one ground of civil litigation in respect of environmentally related matters. One cause of action that can be taken under public nuisance arises when a defendant’s conduct causes interference with some right common to the general public. It is common to see a public nuisance be remedied through a suit by a public representative for abatement or recovery of costs responding to conditions resulting from a public nuisance.

One decided case on this matter involving a local authority is the Federal Court case of Majlis Perbandaran Pulau Pinang v. Boey Siew Than & ors [1979] 2 MLJ 127. This was an appeal case from the decision of the High Court[18]. The respondents were alleged to have made structural alterations to a building and to have used it as a restaurant without the approval or the licence of the local authority. The appellants, the local authority, brought an action for an injunction to restrain the respondents from illegally operating the eating house for public nuisance. They also applied for an injunction to restrain the respondents from operating the said eating house until trial of the actions. The respondents applied to strike out the actions and the High Court upheld their applications. The local authority appealed. Here the court of appeal examined sections 80 and 13 of the Local Government Act 1976 on the power to take legal action in cases of public nuisance, and held that, for the purpose of the protection of public interest, the local authority is given an enabling power and duty to take such action. In giving the judgment, the court upheld the appeal from the local authority allowing them to impose the injunction on the basis of the protection of the public interest in their area.

Another example of a case where a common law principle of negligent has been taken against local authority is the case of Muhamad Saleh bin Hashim & Ors v. Percon Corp Sdn. Bhd. [2003] 6MLJ 483. This is a case where the plaintiffs have brought an action against the defendant for negligent as a result of the defendant’s project in building a highway. The plaintiffs’ houses were built along the river banks of Sungai Kelang and the defendant’s activities have caused, among other things, siltation and the rise of the river bed causing the plaintiff’s houses to be flooded. The defendant alleged that the floods were caused by the inadequate drainage system and requested a third party notice against the Datuk Bandar Kuala Lumpur (DBKL) and the Majlis Perbandaran Ampang Jaya (MPAJ). In this case, the plaintiffs relied on section 53(1) and section 54(1) of the Street Drainage and Building Act 1974 pertaining to the local authority’s duties to maintain surface or storm water drains, and to properly clear and cleanse them so that they do not cause a nuisance or injurious to health.

However, the plaintiffs’ action failed on two grounds. First, the said provisions do not entrusted the local authority with a duty to pay compensation in the event of a flood as what is claimed by the plaintiffs. Secondly, it was the facts of the case that the plaintiffs were illegal squatters who had unlawfully built their houses along the river banks. Under the law, construction of squatter houses is illegal as provided in section 425 (1) of the National land Code; sections 70 (1) and (13) of the Street, Drainage and Building Act 1974; and regs. 18 to 20 of the Essential (Clearance of Squatters) Regulations 1969. Since the damage pleaded arose directly from the illegal acts of the plaintiffs, the issue of compensation did not arise at all. This is because the local authority does not owe any duty to illegal squatters to perform any act in order to ensure that the squatters’ property and their belongings are not damaged by flood.

One more common law action that can be taken by an individual or a group of individuals against the local authority is trespass as decided in Azizah Zainal Abidin & Ors. V. Dato Bandar Kuala Lumpur [1999] 5 CLJ 565. In this case, the plaintiffs were registered owners of undivided shares in a piece of land in the Mukim of Setapak. There is a river running substantially along and to a greater part inside the boundary of the land. In 1996, the Dewan Bandaraya Kuala Lumpur’s (DBKL) Jabatan Saliran Pengurusan Sungai, through its appointed contractors, undertook works to channelise the river with the objectives, among other things, to prevent and minimize soil erosion; to increase depth of river; and to remove silt deposited in the upstream. The plaintiffs in this case brought an action for trespass for the claim of compensation for areas of their land utilized for the project as they argued that no compensation was paid to them by the defendant. In deciding the issue of trespass, the court examined the objective of the enactment of the Streets, Drainage and Building Act 1974 and held that, in determining the extent of local authority’s power with regard to watercourses, the definition of `watercourses’ as provided in the Street, Drainage and Building Act 1974 to include both natural and man-made watercourses[19].  On this basis, the DBKL has a legal right to enter upon the land for the purpose of section 53(1) of the Act and it is not an act of trespass as long as prior notice of entry into the land is given.

From the judgments for cases Muhamad Saleh and Azizah Zainal Abidin above, several observations can be made. In relation to the scope of jurisdiction of the local authority control with regard to water pollution, the decision in  Azizah Zainal Abidin indicates that it is within the power of the local authority to maintain watercourses within its locality. This decision was subsequently referred to in the case of Majlis Perbandaran Ampang Jaya v. Steven Phao Cheng Loon & 81 Others [2006] MLJU 49 where the court held that “the local authority [of the area] has a duty to maintain watercourses within its jurisdiction. And `watercourses’ under sections 53 and 54 of the Act include streams and rivers”.

The second observation is that, on the part of the public, they are able to take action against the local authority. This common law action, such as through trespass and negligent, can be taken for the purpose of compensation on any harm infliction by the local authority in the course of performing its statutory duty. Other common law action such as nuisance may also be taken in cases where the local authority’s activities have caused an interference with the individual's lawful use of his land. Similarly, in cases of development work or land-use activities that happened within an area, the public can also take a similar action against the local authority for causing interference with the public's lawful use of the land.

RECOMMENDATION AND CONCLUSION

Discussion above has highlighted various local authorities’ environmental duties under the law. On the part of the public, they have certain rights over the environmental quality which mean that they can take a legal action should their rights are infringed. These are the two underlying needs that might invoke some implications in relation to service delivery. This is specifically true in many local authority areas in Malaysia where the impact of rapid growth and urbanization have caused an increase in the environmental problems effecting urban governance, and requiring the application of new approaches, strategies and solutions.

From the legal perspective, it can be argued that local authority’s by-laws have adequate provisions covering the various environmental issues. In fact, its flexibility enables local authority to amend provisions to suit changes that happened within its locality. This means that the local authority can, and should, play proactive roles in environmental protection. This is more so when higher degree of environmental awareness and better understanding of environmental rights among the public enable them to demand concrete solutions of the matter. It is quite common to see, in case of environmental issues within a particular neighbourhood, such as landslide due to improper planning, a group of neighbours would take a community action and put forward their demands for actions. It is noted that the public or residents are more likely to know of their rights and hence would be in position to assert them if the need arises. In most situations, these resident associations may assume the role of a local pressure group in voicing the people's concerns on issues affecting them. In view of this growing expectation and the general demands of the local population, local governments must be responsive to meet public needs. In this regard, it is vital for the local authority to provide the public with certain access enabling them to highlight their grievances. This can be done through various methods, such as from public consultation where the council can respond to issues raised.

At the same time, considering the rise in the level of education and affluence among the public, it is also necessary for the local authority to take public participation seriously and consider it as an important aspect of its decision-making process. The important role of public participation within local government management is universally accepted and is crucial in the performance of local authority. The public can be encouraged to be involved in environmental issues, and participate in environmental activities such as tree planting, recycling of wastes, reducing litter and controlling vandalism. Such measures will greatly enhance or improve abilities of local authorities in discharging their duties. Under the law, the element of public participation has been incorporated in the Town and Country Planning Act 1976 particularly in the preparation of the Structure Plan. According to section 13 of the Act, the local planning authority must consider representations from the public when preparing the plan. In this case, adequate publicity and access to both the draft Structure and Local Plans would have to be made available to the general public. The public, on the other hand, have the right to give any objection or suggestion regarding the Structure Plan. Subsequently, this Plan may be changed and modified after taking into consideration the views of the public. In this regard, it can be argued that the provision on public participation under the Town and Country Planning Act of 1976 is an important cornerstone in the history of the development of physical planning whereby the role of public participation is formally recognized. As a whole, it is through better and effective local authority-public interaction and participation that a balanced situation could be created for the betterment of service delivery which will benefit all interested parties.