The Malaysian environmental framework: Jurisdictional weaknesses and the effects of a constitutional provision
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Abstract:
Every system of government has its own set of environmental issues and challenges. Uncertainty, with regard to jurisdiction between state and federal authority in environmental management, or where environmental degradation has occurred, is one of the more common and prevalent issues in countries with a federal structure of government; Malaysia is no exception. This article contends that this jurisdictional uncertainty in Malaysia can be alleviated and its effects, to an extent, diminished with a constitutional provision. A provision within the Federal Constitution (Malaysia) explicitly providing for the right to a clean environment could have a substantial and positive effect on existing jurisdictional challenges. It is this relationship, and the possible effects that a constitutional provision could engender, that this article will examine in more detail.Keywords:
Environmental degradation
Strengths and weaknesses
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This first round of eight case studies was completed in 2012. The case studies were prepared examining the experience of a number of countries that have passed Right to Information (RTI) legislation within the last 15 years: Albania, India, Mexico, Moldova, Peru, Romania, Uganda, and the United Kingdom. Each country case study assesses four dimensions critical to the effective implementation of RTI legislation as follows: 1. The scope of the information that the law covers, which determines whether an RTI law can serve as the instrument of more transparent and accountable governance as envisaged by its advocates. For example, a law that leaves too many categories of information out of its purview, that does not adequately apply to all agencies impacting public welfare or using public resources, or that potentially contradicts with other regulations, like secrecy laws, will not be effective. 2. Issues related to public sector capacity and incentives, additional key functions and demands within the public sector created by RTI, entities responsible for these functions, and various organizational models for fulfilling these functions. 3. Mechanisms for appeals and effective enforcement against the denial of information(whether it be an independent commission or the judiciary); the relative independence, capacity, and scope of powers of the appeals agency, and the ease of the appeals process; and the application of sanctions in the face of unwarranted or mute refusals, providing a credible environment. 4. The capacity of civil society and media groups to apply the law to promote transparency and to monitor the application of the law, and a regulatory and political environment that enables these groups to operate effectively. The in-depth research presented in these case studies was conducted to examine factors that promote the relative effectiveness of these four key dimensions when implementing RTI reforms, including institutional norms, political realities, and economic concerns. An analysis was conducted to determine which models have the potential to work in different contexts and what lessons can be drawn from these experiences to help countries currently in the process of setting up RTI regimes.
Freedom of information
Scope (computer science)
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The central problem of federalism results from the lack of a clear demarcation of authority between the states and the Federal government. Recently, the dispute has focused on clashes between state and Federal energy policy. State and Federal perspectives regarding energy may differ markedly. To the Federal government the energy issue involves balance of payments, foreign relations, and national security. To state and local governments, on the other hand, the focus is pragmatic and localized, the welfare of the state and its citizens being the primary concern. Thus, for instance, concern for safety may make a locality leery of nuclear power, while the Federal government sees it as the only alternative to drastic increases in oil imports. This article examines the bases of state and Federal power, exploring areas of both potential and existing conflict within the energy field. Situations in which either the state or Federal government appears to have exclusive authority are also scrutinized. Possible answers to problems caused by the clashing of governmental interests are suggested, with an eye toward aiding policymakers to reach agreements that may avert such conflicts. Finally, a prognosis of the future of federalism in regard to the energy issue is presented.
Cooperative federalism
fiscal federalism
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The issue of the limits of the courts' inherent jurisdiction and inherent powers has always been an important one. For a long time the courts have been satisfied with broad tests based on 'need' or the 'justice of the case' to set such limits. These tests are highly useful by being flexible, but that flexibility is also a source of uncertainty. This article suggests a new way of understanding the limits of the Singapore courts' inherent jurisdiction and inherent powers. It does this with a three-step approach. First, it argues for a new approach towards terminology and explains why this is important. From a study of all reported Singapore cases between independence and mid-2010 that contain the expression 'inherent jurisdiction' or 'inherent power(s)', it will be seen that the Singapore courts have meant different things even when the same expression is being used. It is thus necessary to be clear about what is actually meant by the expressions 'inherent jurisdiction' and 'inherent power(s)'. Second, utilising the suggested approach towards terminology, this article shows that it is possible to separate three distinct categories of the courts' inherent jurisdiction and inherent powers. Third, and finally, this article argues that the limits to be placed on each category ought to be distinct. Thus, a test based on 'need' or 'justice of the case' may be more strictly (or liberally) applied in one category than in another. The underlying consideration is that of legislative exclusion; and, where this is not express, it may be possible to imply this based on a sliding scale according to the three categories of inherent jurisdiction and inherent powers suggested in this article.
Inherent powers
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A common feature within the European Union is that the responsibilities for environmental protection are separated from those managing natural resources and the economy. There are strong arguments for the idea that to be able to successfully resolve the many environmental challenges that lay ahead, it is necessary to integrate environmental concern in those sectors of the economy that affect them. The principle that environmental concerns should be integrated into EC sectoral policies was first introduced into the EC primary law in 1987. The integration aim got a boost with the placing of the Integration Principle in Article 6 EC which increased the pressure on the EC competition authorities to integrate environmental protection requirement into its policies. Despite heighten political awareness of the necessity to integrate the environment into other policy areas, it has proved difficult to achieve this in practice. The thesis aims to analyse how integration of environmental protection requirement has been defined and implemented into the EC competition policy. Having in mind that the Integration Principle offers a process that has great potential for improving the environment in Member States. The main emphasis was on the exploring three areas of the EC competition policy, first, the general aim of the competition policy with emphasis on its objectives. Second, the main methods that the Commission applies to enhance environmental protection requirements regarding horizontal agreements and lastly, the method of giving State Aid for environmental protection. The thesis explores the debate regarding the Integration Principle's legal meaning and strength at the EC level. The starting point for the argument is that the Integration Principle has little or no legal effect since it is highly improbable that it would amount to a legal test upon which Community acts could be assess and even found unlawful in the event of insufficient integration of environmental concerns. Conversely, the ECJ case law indicates that the Integration Principle can have legal effect and that there is no reason to disregard the Integration Principle as not being compulsory or effective. It was argued that the main methods used by the Commission to enhance environmental protection requirements regarding horizontal agreements are to restrict the scope of application of Article 81(1) EC, or to widening the scope of Article 81(3) EC. The new Horizontal Guidelines, which include for the first time special sections regarding environmental agreements illustrate this point. Decisions of the Commission and the Horizontal Guidelines indicate the Commission willingness to exempt agreements in accordance with Article 81(3) EC solely on environmental benefits of the agreement. The Horizontal Guidelines also indicate that although the DG Competition emphasises the need for other policy areas to respect competition rules when integrating environmental objectives, it has also integrated environmental protection concerns into the competition policy.
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'The present Malaysian constitution does not have an explicit provision for the protection or conservation of the environment. What it does have is a fundamental right enshrined under Article 5(1) of the Federal Constitution which provides for the Right to Life. While this right has been judicially interpreted for the protection of aspects of the environment, it has had very limited scope and success.
It is often said that Malaysia has an impressive number of environmental-related legislations and a slew of government policies in place. Yet, the present environmental framework of laws and policies, it is submitted, is a fragmented web of uncertainties. Uncertainties that range from issues concerning the division of authority between federal and state jurisdictions to issues on legal standing; all of which have contributed to the present weakness within the framework of environmental protection in Malaysia.
It is against this background, that the paper aims to chart out the present environmental framework and examine the possible outcomes an express constitutional provision could have, with particular emphasis on the primary tensions between the federal and state governments concerning environmental authority, whether a constitutional provision would have any effect on this relationship and if Malaysia has the requisite “ingredients” present for the introduction of a constitutional environmental provision.
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Jurisdictions around the world are increasingly considering the utility of rights-based approaches to environmental protection, a trend which has been termed the ‘environmental rights revolution’. Although Australia has not embraced this global trend, it is fortunately placed to learn from the experience of other jurisdictions which have already begun to integrate versions of these concepts into their legal systems. The aim of this thesis is to consider the potential utility of one particular rights-based approach within the Australian environmental protection context. The thesis seeks to explore whether legal recognition of the human right to a healthy environment at the international level and at the Australian domestic level might offer some potential benefits for environmental protection (hereafter ‘the right’). In order to explore the possible realisation of these general benefits in a specific environmental protection context, the thesis conducts a case study on Australian water resources management.
Firstly, it outlines the nature of existing approaches to environmental protection in Australia, in order to identify the challenges currently facing environmental protection, and to ascertain whether there is room for the adoption of new approaches. It then seeks to explain why Australia has failed to embrace rights-based approaches as a possible means of addressing environmental protection. Having identified various potential rights-based approaches which Australia could adopt, the analysis concentrates on one particular rights-based approach, namely, legal recognition of the human right to a healthy environment. The legal status of the right at international law is considered, concluding that the right may be interpreted as an implied right under the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).1 It is noted that as the right has yet to receive explicit recognition under the Covenant, it is not yet possible to determine the precise content of the right and the obligations it imposes on state parties. Despite this, it is argued that it is possible to identify a number of potential benefits for environmental protection in Australia associated with international legal recognition of the right. Specifically, increased scrutiny of Australia’s environmental protection performance, the opportunity to learn from international experiences with implementation of the right, and the facilitation of comparison against an international standard. The potential realisation of these benefits in the case study context of Australian water resources management is discussed. A number of limitations associated with international legal recognition of the right for environmental protection are outlined, including the fact that the obligations imposed by the right may be largely duplicative of existing international environmental law obligations, and the Australian Government’s human rights record in relation to rights recognised at the international level which are not recognised under domestic legislation.
Options for domestic legal recognition of the right are then outlined, explaining that there are constitutional and legislative options for recognition in Australia. A set of potential benefits for environmental protection associated with domestic recognition of the right in other jurisdictions is explored, in order to ascertain whether realisation of these benefits in the Australian context would constitute benefits for environmental protection according to the definition adopted by the thesis. These benefits include increased prioritisation of environmental protection considerations in government decision-making, and increased avenues to bring legal actions in the interests of environmental protection. As it is concluded that the identified benefits would be considered benefits if they could be realised in the Australian context, Chapters Six and Seven discuss the potential realisation of these benefits under specific forms of constitutional and legislative recognition.
The case study of Australian water resources management is utilised to demonstrate the potential operation of these benefits in a specific environmental protection context. It is argued that although both forms of recognition are unlikely to occur in the near future, legislative recognition of the right is more likely to be accepted than constitutional recognition. Having evaluated a range of possible legislative recognition options, it is argued that the most preferable form of recognition is recognition of an independent human right to a healthy environment in the context of a broader statutory bill of rights based on the dialogue model at both the Commonwealth and state/territory levels. It is argued that recognition of the right through this form of recognition may be a potentially useful, albeit limited, tool for environmental protection in Australia.
The limitations of the right as a tool for environmental protection are outlined, in particular the limitations associated with the form of recognition, the nature and content of the right, and the social and political context in which it must operate. It is concluded that whilst the right may have a potentially useful operation as a tool for environmental protection in Australia, its general utility should not be overstated. This is due partly to the inherently limited nature of the right as a tool for environmental protection, and partly to the limited scope of the thesis research. It is explained that future research is necessary to ascertain further potential benefits associated with recognition of the right in Australia, including consideration of the right’s potential operation in specific environmental protection contexts.
However, it is explained that this cannot occur until the normative content of the right is authoritatively outlined, as only then will it be possible to consider the potential impact of the right at a more specific level. It is hoped that the research will contribute to a national discussion regarding the adequacy of traditional legal and regulatory approaches to environmental protection, and to a broader international discussion concerning the utility of rights-based approaches to environmental protection.
Realisation
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In recent decades, the eyes of the world have been trained on China’s remarkable feats of rapid economic development. Yet the enormous environmental toll associated with China’s growth has also drawn global attention, as Chinese air and water quality plummet to historic lows. Epic levels of environmental degradation have fueled a growing domestic consensus that China must do better at reconciling these competing goals. This article reviews the contemporary challenges facing the second wave of environmental governance in China (with an addendum addressing important environmental law amendments enacted as it went to press). In the first wave of environmental governance, the government promulgated a series of environmental statutes that seem comprehensive — at least on paper. Nevertheless, it has become an article of faith among observers that they are superficially designed and too often unrealized for lack of meaningful implementation. Many environmental law and policy directives are crafted in aspirational form, and even those that do contain enforceable provisions are too often obstructed, for reasons both political and economic. When political patronage and economic interests take precedence over the faithful implementation of these laws, environmental protection suffers alongside other fundamental goals of good governance. For Chinese environmental law to succeed at its increasingly urgent objectives, it must become more than an elaborate paper tiger, moving from the present era of exhortation toward a more mature era of consistent implementation and enforcement. However change unfolds, China will have to wrestle with three basic challenges that continue to obstruct enforcement efforts: (1) effective pollution source management, (2) faithful local implementation of national environmental policies, and (3) reliable judicial access by the victims of environmental harm. This article considers these three distinct hurdles and their implications for the relationship between environmental governance and broader rule-of-law challenges in China. Part I reviews environmental enforcement lapses against polluters and the resulting groundswell of public frustration over health and safety. Part II explores the frequently broken link in the enforcement chain that occurs between central policymaking and local implementation. Part III reviews routine failures by the judicial system to provide redress for the victims of environmental harm and deterrence against future wrongdoing. Part IV considers environmental enforcement problems as a subcategory of more generalized failures of the rule of law in China. Part V concludes with a modest but concrete suggestion for advancing rule-of-law objectives through judicial reform that would materially benefit environmental governance. The proposal would facilitate greater judicial access and accountability, without imposing a fully Westernized model or triggering the massive political upheaval that most Chinese fear.
Environmental Governance
Environmental degradation
Rule of Law
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The current regulatory state of our environmental laws and agencies provides an elaborate blending of inequitable results and unsustainable environmental policies. The purpose of this essay is to highlight some of these concerns from the road-less-traveled, a land use perspective. In doing so, this essay proposes that a more regionally focused administrative perspective in our environmental agencies could result in beneficial environmental outcomes in the future.
Externality
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This paper addresses the impact of WTO-and EC-driven liberalisation of trade in services on non-trade policies.Adopting a human rights perspective, which is given as having a critical bearing on both "trade" and "non-trade" in "trade and …" discussions, it seeks particularly to map an analysis of the merits of (further) subjecting education provision to economic liberalisation.As concerns the WTO, assessment of the GATS´ wording leads to the fi nding that education provision seems likely to be construed as within GATS' scope, and therefore fully subject to its disciplines.In that context, it is submitted that states' decisions concerning offering (and seeking) commitments in the area of education provision need to be informed by human rights obligations, such as that of provision "free of charge".In the EC context, distinction is made of the internal and external component of education-as-service discussions.Internally, the Court of Justice has excluded education provision from the legal discipline of the free movement of services, a situation seemingly increasingly at odds with the far-reaching subjection of the provision of similar public goods, such as health care.Yet, due to education's specifi c nature in forming individuals and societies, it is argued that there are important reasons to keep excluding (parts of) education provision from the EC services law discipline.Externally, the concern relates in particular to the possibility that developing countries will be requested by the EC to provide EC-based economic operators access to their education ´markets´ at a stage when it is not yet possible to determine whether the EC foreign policy objective of human rights advancement can be guaranteed.
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From green-building initiatives to local farmers’ markets, local governments have become major players in addressing the most pressing environmental and public health concerns. For example, in the absence of national climate change legislation, municipalities are leading the way in transportation and development strategies to mitigate and adapt to climate change. Local governments have also used their zoning authority to ban or restrict land uses that pose environmental risks. Recognizing this trend, environmental law scholars have also begun exploring the positive potential of local governance in addressing a range of contemporary environmental problems.
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New Federalism
Cooperative federalism
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