malaysia: pursuing citizens' rights in court
Friends of the Earth Malaysia / Sahabat Alam Malaysia is engaged in two such cases. Both are important in themselves, but could also set important precedents concerning the constitutional right of every citizen to a clean and healthy environment.
One is to save a water-catchment forest on the Jerai mountain in Kedah from a quarrying project illegally approved by the State Government. The communities located in the foothills of the mountain depend on its rivers for water for domestic use, to irrigate their rice fields and for their orchards. Clearing the mountain’s forests has also led to massive floods in several downstream villages, and the silting up of the communities’ rice-fields and the orchards.
The legal challenge was only mounted after all other options had been explored. In spite of the fact that the Malaysian companies involved are powerful and politically connected, the community aims to halt the quarry, and ensure that the affected part of the mountain is rehabilitated and the remaining water-catchment forests protected. In response, Friends of the Earth staff and community leaders have received death threats, and one of the community leaders has been assaulted.
The second case concerns another powerful Malaysian company, Raub Australian Gold Mining. An outdated 10-year old environmental impact assessment (EIA) has been used to authorize current mining using cyanide and other toxic substances, but a very active local community has launched a legal action to secure a new EIA, which allows community scrutiny, review and feedback. Friends of the Earth Malaysia is supporting their action.
In 2009, both cases involved the preparation of legal research, submissions and the filing of necessary documents in the High Courts, the Court of Appeal and Federal Court, as the cases unfolded. Both also involved mobilizing and engaging communities, alerting the media, and building alliances with other organizations and parliamentarians.
In the case of the Jerai Quarry, the companies and the government authorities raised a procedural issue concerning the question of whether the community representatives had locus standi or were in a position to bring the action. Friends of the Earth’s lawyers succeeded in making the argument that the community representatives were indeed the proper persons to bring the case and the High Court agreed with them; but the State government and the companies have now filed an appeal challenging that finding. The case continues.
With respect to Raub, the authorities and the company also mounted drawn out procedural objections. The community lost the High Court case and filed an appeal in June 2009. In the meantime, all other avenues are being pursued including media work, meetings with parliamentarians, State Assembly persons, and various government agencies and department heads. FoE Malaysia also raised questions in Parliament and the State Assembly, met with various government authorities, trained key residents in activism, and worked with film-makers.
The community is also contemplating bringing a nuisance action, and this new case is being prepared. Many residents are falling sick because of the noxious fumes emitted by the factory. A community health survey was completed and experts have prepared the report, which will be used in court.
Although the cases are still pending, both have brought community struggles and resistance to public attention. Had these cases not been pursued, illegal acts would have been gone unchecked and the health and the environment of the communities would have been further impaired.
what was learned?
Legal challenges through courts require extensive resources, both financial and human. They also need strong and determined community involvement and presence. Moreover, companies and governments will use the legal process to delay progress by raising procedural and technical objections, to discourage local communities. Friends of the Earth Malaysia recommends that legal challenges are only taken up as a last resort, if community mobilization and resistance have failed.