Extracted from The Star
Date: 27 January 2002
When courts can't do their bit for the environs
By Chelsea L.Y. Ng
KUALA LUMPUR: There is not enough public interest in environmental litigation in the country to allow the courts to do their bit in conserving the environment, Court of Appeal judge Datuk Gopal Sri Ram said in a seminar yesterday.
The judge, who is known for his outspokenness, said there were "quite a number" of laws enacted to protect the environment but "what is missing is a will on the part of the public to comply with the relevant laws, coupled with an apparent reluctance on the part of the appropriate authorities to enforce those laws."
"As long as there is indifference, the environment will continue to suffer. And you cannot blame the courts because we cannot deal with complaints that are never brought to us.
"If you want the judiciary to act, then perhaps, the answer lies in making it easy and inexpensive for public-spirited citizens and organisations to invoke the court's jurisdiction to ensure that those charged with enforcing the law do their duty.
"And the Malaysian judiciary should respond in a positive manner by not insisting on the filing of formal applications. It should be prepared to abandon formalism in the field of public interest litigation," he said before engaging in a dialogue session with several participants of a seminar entitled "The Malaysian Judiciary and the Environment" organised by the Bar Council.
He added that complaints made informally in writing by either individuals or non-governmental organisations could be addressed to the Chief Judge of a appropriate High Court, who would then refer each case to a single judge to access the genuineness and prima facie merits of a complaint.
Once the judge is satisfied, he should report his views to the Chief Judge, who could then assign the matter to any judge of the appropriate High Court, he said.
The said High Court judge should then treat the informal complaint as an application for judicial review and issue notices to the complainant, the relevant public authority against whom the complaint was directed at, the Bar Council and the Attorney General.
"The hearing at the return date of the notice may be treated as the hearing of the application for leave. If leave is granted, directions may be given, including the filing of affidavits and other cause papers.
"In the event that the particular complainant is impecunious, the court may direct the Bar Council to provide legal assistance through its legal aid centre.
"The rest of the process could follow along the lines of any ordinary application for judicial review. In the interest of justice, provisions should be made disentitling all parties from obtaining an order for costs save in the most exceptional of cases," he said.
Sri Ram also pointed out the importance of the courts carrying out a balance exercise when adjudicating on public interest environmental cases, which aimed at protecting the environment.
He said the court would have to consider, at one end, the public interest in preserving and protecting the environment and at another, the necessity to ensure that bona fide economic interests vital to the nation's survival were not necessarily harmed or destroyed.
The answer, he said, might lie in the kind of remedy, especially the kind of directions that the court issues.
Also present at the seminar was council chairman Mah Weng Kwai.
In his welcoming address, he said the country urgently needed a dynamic growth of environmental laws to protect the environment.