The Human Rights Fee of Malaysia (Suhakam) is among the many main advocates for this legislative change, alongside authorized professionals and environmental teams. Final month, Suhakam chairman Mohd Hishamudin Md Yunus known as for the “proper to a clear and secure atmosphere” to be included in Article 5 of the nation’s federal structure, which protects the appropriate to life and liberty.
“Suhakam believes that by having the appropriate to a clear atmosphere as an explicitly protected proper within the federal structure, victims adversely affected by local weather change could be empowered to hunt justice and uphold their rights to safe and wholesome residing circumstances,” stated Hishamudin on the inaugural Human Rights and Environmental Rights Dialogue hosted by Malaysia’s overseas ministry and the Asean Intergovernmental Fee on Human Rights (AICHR).
“It might additionally make sure that the federal government and different stakeholders are held accountable for sustaining a clear and secure atmosphere,” he stated.
Whereas Suhakam’s advice isn’t new – it informed Eco-Enterprise that environmental rights has been a recurring matter at its occasions and in its official reviews, the place the proposed constitutional modification is “persistently highlighted as a advice for constitutional reform” – the proposal has resurfaced in mild of Malaysia’s chairmanship of the Affiliation of Southeast Asian Nations (Asean) this 12 months.
Advancing environmental rights is among the many fundamental priorities of AICHR, which is assembly for the primary time below Malaysia’s chairmanship this week in Langkawi, Kedah. Among the many fee’s priorities are environmental rights, inclusive progress and sustainable improvement, AICHR stated in a current assertion. All ten 10 Asean member states might be represented on the assembly with Timor-Leste as an observer.
A key doc being mentioned is the proposed Asean declaration on environmental rights, which was first mooted in 2021 and a draft of which was revealed in March final 12 months. Malaysia goals to steer fellow Asean members in the direction of signing the declaration this 12 months, stated the nation’s minister for pure assets and environmental sustainability Nik Nazmi Nik Ahmad final week. He stated that there was “good progress to date” on the declaration and that Asean international locations are working in the direction of a consensus to signal the declaration this 12 months.
Nevertheless, environmental advocates beforehand expressed concern that the doc is watered down and wouldn’t sufficiently shield the area’s at-risk environmental human rights defenders, particularly because the declaration is not going to be legally binding.
Strengthened protections
Many consider that an modification to nationwide constitutions might enhance entry to justice, as all Asean member states besides Cambodia voted in favour of the proper to a clear, wholesome and sustainable atmosphere on the United Nations Basic Meeting in 2022. Suhakam and different environmental advocates have used the decision as a foundation to name for constitutional amendments of their house international locations.
By introducing the appropriate to a clear and wholesome atmosphere in nationwide constitutions, Asean international locations might elevate the appropriate to a clear and wholesome atmosphere “from the realm of administrative discretion to…an institutional proper,” stated Kiu Jia Yaw, a sustainability lawyer and co-chair of the Malaysian CSO-SDG Alliance, a coalition of non-profit organisations championing sustainable improvement.
“It’s essential for Asean to take management in the course of what the neighborhood articulates as our thought of the nice life, our thought of sustainable improvement,” he stated on the AICHR dialogue.
Edmund Bon, Malaysia’s consultant to AICHR, additionally expressed help for a constitutional modification, stating that jurisprudence or authorized concept on environmental rights is helpful, however not sufficient to guard environmental rights.
In keeping with Suhakam, a constitutional proper to a clear atmosphere would strengthen protections for environmental defenders towards threats comparable to strategic lawsuits towards public participation (SLAPP). The modification would provide stronger authorized grounds to dismiss lawsuits focusing on environmental activists.
Mohd Hishamudin Md Yunus, chairman of the Human Rights Fee of Malaysia (Suhakam). Suhakam is among the many main advocates for a constitutional modification for the appropriate to a clear atmosphere. Picture: Ministry of International Affairs, Malaysia
“The appropriate would kind a foundational foundation for stronger environmental legal guidelines, improved enforcement, and higher accountability from companies and polluters,” it informed Eco-Enterprise.
Constitutional recognition of environmental rights would additionally empower Suhakam and legislation enforcement companies to handle violations extra successfully. As a human rights fee, Suhakam at present has powers solely to analyze complaints and to advise related governement companies on potential treatments.
Different authorized reforms wanted
Nik Nazmi beforehand informed Eco-Enterprise {that a} constitutional modification is “not simple”, because it must have in mind present federal and state legal guidelines and agreements.
The authorized affairs division of Malaysia’s prime minister’s division, which is chargeable for legislative drafting and constitutional issues, just lately said in a draft of its nationwide motion plan on enterprise and human rights that “the federal government is of the view that any particular provision in the direction of a constitutional and authorized proper to a clear wholesome and sustainable atmosphere, contravenes present protections below the Environmental High quality Act,” which is at present the primary laws for environmental safety and air pollution management in Malaysia.
Nevertheless, the draft additionally harassed the necessity to enhance the governance and accountability of environmental rights, just about the 2022 UN decision and different UN frameworks. As such, it beneficial different authorized frameworks and measures to uphold environmental justice, together with new legal guidelines defending Indigenous peoples and their rights, in addition to to guard environmental defenders.
Suhakam acknowledged {that a} constitutional modification could possibly be difficult, because it sometimes requires intensive consultations, which might take a number of years, and a two-thirds majority in parliament. Nevertheless, it stated that whereas the modification isn’t categorized as pressing, it’s extremely advisable given Malaysia’s rising environmental challenges.
Classes from different Asean international locations
Malaysia wouldn’t be the primary nation in Southeast Asia to introduce the appropriate to a clear and secure atmosphere in its structure. Indonesia, the Philippines and Vietnam have enshrined rights to a wholesome and clear atmosphere of their constitutions, in response to a report by the United Nations’ particular rapporteur on the human proper to a wholesome atmosphere.
Within the Philippines, native residents efficiently used a constitutional provision often known as the writ of kalikasan or ‘writ of nature’ to cease mining operations in Brooke’s Level, Palawan in 2023.
In Indonesia, residents in South Sumatra sued three pulpwood corporations in September final 12 months for haze air pollution that they are saying have been attributable to burning on their concessions.
Nevertheless, Indonesia has solely just lately seen an improve in climate-related court docket instances, regardless of the nation having amended its nationwide structure in 2009 to offer the appropriate to “an excellent and wholesome atmosphere”.
Linda Yanti Sulistiawati, a senior analysis fellow on the Asia-Pacific Centre for Environmental Regulation and affiliate professor of legislation at Universitas Gadjah Mada, informed Eco-Enterprise that the hole between the constitutional modification and the rise in local weather litigation was largely as a result of the federal government, companies and folks have had completely different priorities over time.
“As growing international locations, the atmosphere and environmental rights are typically much less prioritised as compared, for instance, with financial prosperity or improvement objectives,” stated Linda, who wrote a 2024 paper on local weather change-related litigation in Indonesia.
There’s additionally nonetheless restricted public consciousness about how the atmosphere must be prioritised, stated Linda. Primarily based on a short examine of the coverage priorities of 548 Indonesian cities and municipalities, she discovered that atmosphere, waste administration and air pollution have been hardly ever within the high three. “It’s often financial improvement, training and well being due to Covid-19,” she stated.
Indonesia’s judiciary additionally requires additional experience in environmental legal guidelines to have the ability to higher apply the constitutional provision, she stated.
Nevertheless, she emphasised that the constitutional modification continues to be significant. “Having environmental rights protected within the Structure continues to be a giant constructive for Indonesia and its individuals,” she stated.
