Abstract
The United Nations General Assembly affirms the right to a clean, healthy and sustainable environment as a human right. Malaysia has acknowledged this imperative and has taken incremental steps to protect the environment. Yet, as creative and preventive as environmental laws and policies may be, it is ultimately the courts that can give practical effect to this right, for the law is void if it is not effectively enforced. Through liberal interpretation of the Federal Constitution, Malaysian jurisprudence has recognised a right to live in a reasonably healthy and pollution-free environment, most notably in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor. However, this recognition, articulated more than twenty years ago and not forming the ratio decidendi, has not been reinforced by subsequent judicial authority. The absence of doctrinal clarity has created hidden risks. While the right exists in principle, its lack of enforceability undermines long-term well-being for communities whose health, livelihoods and cultural practices depend on a sustainable environment. Malaysian courts continue to face substantive, procedural and evidential obstacles in discharging their role as guardians of the environmental rule of law. This paper undertakes a thematic analysis of these obstacles, drawing on reported decisions from the higher courts to highlight the gaps that persist in embedding this right within the legal framework. Comparative best practices from the Association of Southeast Asian Nations (ASEAN) will also be examined to suggest pathways for strengthening judicial protection of the right to a healthy environment in Malaysia.
Presenters
Tamara Joan DuraisingamSenior Lecturer, Centre for Commercial Law and Justice, Sunway University, Selangor, Malaysia Kanchana Chandran
Senior Lecturer, Centre for Commercial Law and Justice, Sunway Business School, Sunway University, Selangor, Malaysia
Details
Presentation Type
Paper Presentation in a Themed Session
Theme
Education, Assessment and Policy
KEYWORDS
ENVIRONMENT, HUMAN RIGHTS, RULE OF LAW, SUSTAINABILITY
