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Resolving Disputes Arising from Land Development and Environmental Degradation in Malaysia: Proposals for Reforms
Ainul Jaria Maidin* and Abdulkadir Bolaji Abdulkadir**

Introduction Administrative dispute resolution and enforcement avenues in the environmental protection system are strictly restricted to persons aggrieved by the decision of the authorities. Similarly judicial avenues are also limited to individuals having interest in the action. This means that all other aggrieved or interested third parties and Non-Governmental Organisations (NGOs) will not be allowed to contest the planning decision. The question thus arises as to how third parties, who lack sufficient interest in the subject of the decision, could enforce a particular planning regulation or even try to redress environmental harm arising from poorly planned land development activities. The point the writers are trying to emphasise is the importance of granting access to whoever seeks to redress any harm or injury arising from a poorly planned land development. This should equally apply to development projects, irrespective of whether such projects are undertaken by the government, private individuals or corporations. Though the adjudicating body may or may not rule in favour of the party seeking to enforce a right in all the disputes brought before it, the fact remaining is that the planning body should be able to provide access to citizens and other interest groups to challenge the viability of any development. There should, therefore, be a wider scope of involvement on the part of citizens of a country in the planning of land use and development control. The desirability of involving the people in the development, implementation and enforcement of laws, regulations and policies must not only be said but must be actually realised. The prerequisite of a right to good land development practice that can deliver sustainable development is the ability to influence decisions; in other words, there is no right without a remedy.1 Modern legal
* Associate Professor, Ahmad Ibrahim Kulliyyah of Law, International Islamic University, Malaysia. E-mail ** LLM, BL, LLB; Lecturer, Department of Public Law, Faculty of Law, University of Ilorin, Nigeria. PhD Candidate, Ahmad Ibrahim Kulliyyah of Law, International Islamic University, Malaysia. 1 Schofield, M A, and Thompson, D S, Access to Justice and the Right to a Healthful Environment in Canada: Public Participation in Environmental Decision Making (1994) Review of European Community and International Environmental Law, Vol 3, No 4, 231237 at 231.


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writers have realised that access to justice encompasses not only traditional access to the courts but also access to administrative tribunals and even access to governmental decision making.2 This article examines the barriers posed to prospective litigants seeking to challenge the decision of the planning authorities which had caused adverse impact on the environment or to prevent potentially damaging development. The writers try to draw examples from other common law jurisdictions to explain the Malaysian position. The disputants amongst others are: (1) Aggrieved citizens whose quality of life or health has been affected, which would fit within the traditional nuisance type categories. (2) Non-governmental organisations (NGOs) concerned for protecting the environment in the public interest. (3) Business concerns, usually involving housing developers, industrialists, restaurants and construction and engineering companies. Housing developers are often the target since besides building houses and commercial centres, golf courses are also in their agenda. These activities often make adversaries to the enforcement agencies where they are the objects of enforcement. (4) The government agencies involved in protecting the environment, particularly the Department of Environment and the Town and Country Planning Department. Remedies for these groups of disputants can be by way of complaining to the DOE and local authorities. However, enforcement of planning laws appears not to be at the top of the political agenda in Malaysia especially with the present development policy favouring industrialisation. Thus, all the more reasons why the role of citizens in law enforcement is seen as an important aspect in improving accountability in land planning decision making. There are three important factors posing as obstacles to prospective litigants. These factors will be discussed in this chapter: (a) The need for an applicant to show that he has locus standi to sue, i.e. sufficient interest in the subject matter of the application to give him the right to be heard; (b) The limited availability of funding for litigation and the potentially prohibitive nature of awards of costs; and (c) Restrictions on the availability of information to prepare and argue a case.

2 Ibid.


Locus standi Locus standi denotes the legal capacity to institute proceedings. The concept is also used interchangeably with terms such as standing to sue.3 Although the concept of locus standi may well be invoked in private litigation without much difficulty, it becomes subtler and poses greater difficulty in cases involving the public at large. Public law litigation normally involves the constitutionality of legislation and the validity of administrative action while private law is concerned with the vindication of individual rights. Private individuals can enforce private rights but the public rights are rights concerning the general public and would normally be represented by the State.4 In matters concerning protection of public rights the importance remains as to who may be endowed with the appropriate capacity to invoke the aid of the courts to check on the validity of actions of the government, corporations or individuals. In the field of land planning and environmental protection where public interest may readily be invaded, judicial review of administrative decisions becomes not only a legal but also a social necessity. However, it is not as simple as it sounds since the courts have imposed restrictions on persons who may be allowed to proceed in their action against the public authority. Lord Diplock in R v IRC, ex p National Federation of Self-Employed and Small Business Ltd5 expressed the importance of rules of locus standi as to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative errors, and remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.6 The rules of locus standi have a gate-keeping function that will enable the exclusion of vexatious litigants and unworthy cases.7 It is undeniable that the standing rule assists the court to filter applications to prevent unnecessary litigation against public bodies.8 However, the scope of the courts jurisdiction to supervise administrative authorities, inferior courts and tribunals, would be substantially weakened if the availability of judicial review is restricted on the sole ground that the application lacks what could properly be regarded as a personal interest. It is this situation where the question arises as to who may be considered appropriate to invoke the aid of the courts to check on such illegalities.

3 Thio, S M, Locus Standi and Judicial Review (Singapore: Singapore University Press, 1971), p 1. 4 Nijar, G S, Public Interest Litigation, [1983] 2 Current Law Journal 234 at 235. 5 R v IRC, ex p National Federation of Self-Employed and Small Business Ltd [1982] AC 617, HL. 6 Ibid, at 643. 7 McEldowney, J F, Public Law (London: Sweet & Maxwell,1994). p 495. 8 Le Sueur, A P and Sunkin, M C, Public Law (London: Longman, 1997), pp 492494.


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Nijar uses the term collective or diffuse rights9 in referring to what is commonly referred to as public interest. Whatever term is used, they all refer to the interest of the general public and this includes the interest of land development and environmental protection, which needs to be represented as it cannot represent itself. An application of the traditional rule of locus standi will clearly amount to a denial of access to justice to protect collective or diffuse interest.10 Therefore, the important issue here is whether a citizen who feels concerned for the adverse effect of land development on the environment has sufficient interest to entitle him to commence an action under public law. The views of jurists differ. Geddes said that being a concerned citizen is not enough to have the necessary locus standi.11 Jaffe, on the other hand, defined the citizen concern as it might be conceived of in terms of demand for the enforcement of:12 (i) norms generally accepted as appropriate for the proper day-to-day conduct of the government; or (ii) norms basic to the political and social process and public participation in it, particularly where the political process itself does not reliably enforce the claim. The locus standi rules are developing progressively from the traditional role of protecting private interest to the modern contemporary ideology of protecting public interest. This development is very apparent in the land development and environmental protection regime where the role of citizen and pressure groups is important in ensuring that rapid land development does not affect the environment. The discussion below will examine the application and development of the rules of locus standi by the courts in granting access to interested third parties and NGOs in Malaysia seeking to enforce good planning practice. Developments in locus standi in Malaysia The Malaysian courts have over the years followed the rules of locus standi as developed in England.13 The requirement for locus standi in the United Kingdom is derived from the express provision of Order 53 rule 3(5) of the Rules of the Supreme Court and embodied in s 31(3) of the Supreme Court Act 1981. It is provided that the High Court shall not grant leave to apply for
9 Nijar, G S, loc cit, supra, n 4. 10 Ibid. 11 Geddes, A, Locus Standi and EEC Environmental Measures [1992] Journal of Environmental Law Vol 4(1) 2939 at 32. 12 Jaffe, L L, Standing to Secure Judicial Review: Public Actions [1961] Harvard Law Review Vol 74(7) 12651314 at 1296. 13 The issue of standing for the purpose of Malaysian public law is not affected by the changes introduced by Order 53 of the Supreme Court Rules in England.


judicial review, unless it considers that the applicant has sufficient interest in the matter to which the application relates. The rule of locus standi to commence an action against planning authorities in Malaysia appears to be interpreted rather restrictively by both the administrative and judicial authority. The Town and Country Planning Act 1976 (TCPA 1976) merely grants right to access to both administrative and judicial avenues to the local planning authority, an applicant for planning permission and an adjoining neighbour (who has made objections pursuant to s 21(6) of the TCPA 1976). This restricts the scope for the general public or NGOs to bring an action against the planning authorities for breach of planning rules and regulations. It would be interesting to examine the stand adopted by the Malaysian courts in recognising the rights to commence an action against the planning authorities. The first case relating to the problem of access to the court in land planning matters was District Council Central Province Wellesley v Yegappan.14 The facts were that Yegappan as an adjoining owner was invited to attend the meeting of the Municipal Council to voice his objections to the development plan submitted by the adjoining landowner. Yegappans complaint was that the development plan did not conform in its entirety with certain sections of the Rural Board Province Wellesley Building By-Laws 1950 and the Municipal Ordinance (Cap 133). Yegappan made an application seeking for an order for certiorari to quash the planning permission granted by the Council to the developer on the ground of breach of the Rural Board Province Wellesley Building By-Laws 1950. The Federal Court recognised the rights of Yegappan, as an adjoining landowner to participate in the planning process. However, the court held that Yegappan had no legal standing to seek certiorari for neither his right of ownership nor that of possession of his land was affected by the alleged breaches of the bye-laws. The courts further held that certiorari would not be available for vindicating mental or sentimental injury.15 This decision is certainly very unusual as the applicant, who was a ratepayer to the district council, was not given an opportunity to challenge the action of the council.16 The court despite recognising the rights of the adjoining landowner to participate in the land planning process despite there being no clear statutory provision to do so, limited the right to object on the grounds that the applicant lacked locus standi since neither his personal nor proprietary interest had been affected.

14 District Council Central Province Wellesley v Yegappan [1966] 2 MLJ 177. 15 Ibid, per Abdul Aziz J at 182. 16 However, later in Kulawante v Government of Malaysia [1978] 1 MLJ 92 the High Court ruled that in claiming a declaration that relates to a legal right, all that the applicant has to establish is that she had some legitimate expectation of such right or interest.


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Later, in Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors, (Datin Azizahs case)17 the appellant as an adjoining landowner applied to the court for an order of certiorari to quash the decision of the Datuk Bandar (Mayor) in granting planning permission. The respondents argued that the right of hearing for the adjoining landowner conferred by statute had been removed by the enactment of the Federal Territory (Planning) Act 1982 (FTPA 1982).18 Further, the provision of s 23(1) of the FTPA 1982 grants the right of appeal to an applicant for planning permission only. The amendment had provided for appeal to the appeal board only by those landowners whose application for planning permission had been rejected. The trial judge in following the decision in Yegappans case19 declared the appellant as an adjoining landowner had no locus standi to object against the grant of planning permission since there she had not shown that any legal right or interest belonging to her would be affected by the approval of the plans.20 However, on appeal to the Supreme Court21 an order for certiorari was issued in favour of the appellant to quash the development order in dispute. The Supreme Court however, did not address the issue of locus standi. The appeal was allowed on the ground that the respondent has certain duties to observe in carrying out its planning functions and the failure to observe such duties will render its decision unlawful. Abdul Hamid Omar LP, in allowing the appeal quoted22 Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corp,23 where his Lordship said that the court could only interfere with an act of executive authority if it can be shown that the authority has contravened the law. The Supreme Court decision in Datin Azizahs case brought about a significant development in the area of public participation in land development control in Malaysia.

17 Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors [1997] MLJU 204. In the application before the High Court, the appellant alleged that the respondent has infringed Rules 5, 6, and 11 of the Planning (Development) Rules 1970 which provided that upon receipt of any application for planning permission, the Authority shall inform the registered proprietors of the land adjoining the land to which the application relates, in order for them to exercise their right to object to the application. 18 Rules 5, 6 and 11 of the Planning (Development) Rules 1970 provides that the adjoining landowners have a right to be notified by the Datuk Bandar of Kuala Lumpur to put in their objections before the Datuk Bandar grants a development order. This rule was made pursuant to the Emergency (Essential Powers) Ordinance No 46 of 1970, which was later repealed by the City of Kuala Lumpur (Planning) Act 1973. However, the rule was re-enacted as s 17(3) of the 1973 Act. The present statue, the Federal Territory (Planning) Act 1982 when repealing the 1973 Act did not re-enact the provisions of s 17(3). 19 District Council Central Province Wellesley v Yegappan [1966] 2 MLJ 177. 20 Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors [1997] MLJU 204, HC at p 228. 21 Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors [1992] 2 MLJ 393. 22 Datin Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & 3 Ors [1992] 2 MLJ 393 at 401. 23 Associated Provincial Picture Houses Ltd. v Wednesbury Corp [1948] 1 KB 223, CA (Eng), at 228.


In Freddie Lee @ Lee Long Kooi & 2 Ors v Majlis Perbandaran Petaling Jaya & Anor,24 the court held that the plaintiffs nit-picking objections even if technically correct, would not confer locus standi in an application for certiorari. The issue before the High Court inter alia was whether the Residents Association had locus standi or a legitimate expectation to be notified of the submission of plans by their neighbour, the second defendant. The court clarified that locus standi means a place to stand in court or a right to appear in a court of justice on a given question.25 Such a right is given to a person who is suing to enforce some private or public right provided it causes direct damage to the person. It is important to determine first whether the right of legitimate expectation exists. The existence or otherwise of this element called legal right depends upon the facts of each case and the burden is on the objector to show that his proprietary rights have been injured.26 This decision appears to have brought a halt to the liberal interpretation of the rules of locus standi. Other cases decided in the early 1990s illustrated the difficulties encountered in establishing standing in commencing an action against the planning authorities. In Abdul Razak Ahmad v Ketua Pengarah, Kementerian Sains, Teknologi dan Alam Sekitar,27 Abdul Razak Ahmad brought an action as the Chairman of the Action Committee of Pencinta Alam Selat Tebrau, a non-registered body, and in his own personal capacity as a person affected by potential environmental problems from the project. The court granted a declaration that the DOE was obliged to produce to the applicant the EIA report on the project.28 However, in another action by the same plaintiff against the Government of the State of Johor in Abdul Razak Ahmad v Kerajaan Negeri Johor29 he failed to establish standing to compel the Johor State Government to produce their agreement with the developers. The court held that the State Government was not obliged to consult taxpayers before entering into the agreement and also that the plaintiff had suffered no special damage over and above that suffered by other taxpayers and residents. In a subsequent action against Johor Bahru City Council, in Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru,30 the plaintiffs application questioning the validity of the planning permission for the floating city was also rejected on the same grounds given in the previous case against the State Government31 and it was held that no legal right or interest of the plaintiff had been affected.
24 Freddie Lee @ Lee Long Kooi & 2 Ors v Majlis Perbandaran Petaling Jaya & Anor [1994] 3 MLJ 640. 25 District Council Central Province Wellesley v Yegappan [1966] 2 MLJ 177. 26 Freddie Lee @ Lee Long Kooi & 2 Ors v Majlis Perbandaran Petaling Jaya & Anor.[1994] 3 MLJ 640 at p 651. 27 Abdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar [1994] 2 CLJ 363. 28 Ibid. 29 Abdul Razak Ahmad v Kerajaan Negeri Johor [1994] 2 MLJ 297. 30 Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 AMR 1174. 31 Abdul Razak Ahmad v Kerajaan Negeri Johor [1994] 2 MLJ 297.


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The court said that the plaintiff had not suffered any special damages, as he was not an adjoining neighbour. The court commented further that to grant locus standi to a ratepayer like the plaintiff would open the floodgate of litigation that has the effect of stifling the development in the country. The plaintiff was described by the judge as a troubleshooter, a maverick of a sort out to stir trouble.32 If this is the sort of attitude that the court has towards citizens who are interested in checking on development activities that may pose a threat to the environment, this leaves practically no one who is allowed to check on environmentally unsound activities. Development is necessary but there has to be some sort of balance between development and environmental protection. Ratepayers are interested parties since a government owes a duty to its citizens, especially to protect their rights to a safe environment. An interesting development in the interpretation of rules of locus standi was demonstrated by the High Court decision in Kajing Tubek & Ors v Ekran Bhd & Ors (Bakun Dam case).33 The High Court granted standing to the plaintiffs to institute the action to enforce their rights. The defendants submitted that the plaintiffs had no locus standi to bring the action because they had not suffered specific, direct or substantial damage other than those common to the rest of the public. James Foong J referred to the decision in Tan Sri Hj Othman Saat v Mohamed bin Ismail,34 and accepted the decision as the best approach in determining question of locus standi. His Lordship said that, the sensible approach in the matter of locus standi in injunctions and declarations would be that as a matter of jurisdiction, an assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiffs interests substantially or where the plaintiff has some genuine interest in having his legal position declared, even though he could get no other relief, should suffice.35 James Foong J in the Bakun Dam case36 in granting the declaration sought by the plaintiffs analysed the position of the plaintiffs and said the sufferings and damage to be suffered by the plaintiff definitely were particular, direct and substantial to the plaintiffs themselves, which were obviously different and apart from what other members of the public would suffer. The plaintiffs may only be three of a community of 10,000 but, as uttered earlier, numbers is not the criterion for the granting or refusal of declaratory relief. What is fundamental is that the plaintiffs themselves had in this case suffered specific, direct and substantial damages caused by the Bakun HEP. Within this exception, this court found that the plaintiffs were entitled to seek their declaration prayed for in the application, even though statutory provision in this case subscribed a criminal offence which provided for a penal remedy.37
32 33 34 35 36 37 Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 AMR 1174 at 1186. Kajing Tubek &Ors v Ekran Bhd & Ors [1996] 2 MLJ 388. Tan Sri Hj Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177. Ibid, at 179. Kajing Tubek & Ors v Ekran Bhd & Ors [1996] 2MLJ 388. Ibid, at 401.


James Foong J also referred to the decision of Viscount Radcliffes in Ibeneweka v Egbuna,38 where it was said that:
there has never been any unqualified rule of practice that forbids the making of a declaration even when some of the persons interested in the subject of the declaration are not before the court Where, as here, defendants have decided to make themselves the champions of the rights of those not represented and have fought the case on that basis, and where, as here, the trial judge takes the view that the interested parties not represented are in reality fighting the suit, so to say, from behind the hedge, there is, in their Lordships opinion, no principle in law which disentitles the same judge from disposing of the case by making a declaration of title in the plaintiffs favour.39

The High Court decision in the Bakun Dam case started moving the pendulum of development of the rule of locus standi in Malaysia. The development of a liberal rule of locus standi can be expected. The liberal rule of locus standi can guarantee easier access to justice, for interested third parties who wish to institute proceedings against private or public bodies acts that may be damaging to the environment. The success of the plaintiffs in the Bakun Dam case was short-lived as the defendants appealed against the High Court decision.40 The Court of Appeal judges, Sri Ram, Mokhtar Sidin and Ahmad Fairuz held that the respondents lacked substantive locus standi and the relief sought should have been denied on the following grounds: (a) the respondents were, in substance, attempting to enforce a penal sanction. This was a matter entirely reserved by the Federal Constitution to the Attorney General of Malaysia in whom resided the unquestionable discretion whether to institute criminal proceedings; (b) the complaints advanced by the respondents amounted to deprivation of their lives under Art 5(1) of the Federal Constitution. Since such deprivation was in accordance with the law, i.e. the Land Code (Sarawak Cap 81), they had on the totality of the evidence suffered no injury and there was thus no necessity for a remedy; (c) there were persons, apart from the respondents, who were adversely affected by the project. There was no special injury suffered by the respondents over and above the injury common to others. The action commenced by the respondents was not representative in character and the other affected persons were not before the court; and (d) the judge did not take into account relevant considerations when deciding whether to grant declaratory relief. In particular, he did not have sufficient regard to public interest. Additionally, he did not consider
38 Ibeneweka v Egbuna [1964] 1 WLR 219. 39 Ibeneweka v Egbuna [1964] 1 WLR 219 at 226. 40 Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors [1997] 3 MLJ 123.


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the interests of justice from the point of view of both the appellants and the respondents.41 Sri Ram ACJ said that the Attorney General is the proper party to institute action to protect public interest. The House of Lords decision in Gouriet v Union of Post Office Workers & Ors,42 disallowed the enforcement of criminal law by a civil court. It reiterated the importance of differentiating between private law and public law, as in the context of that case, civil law and criminal law.43 The Court of Appeal said that when s 34A of the EQA 1974 creates an offence by prescribing a penalty for any breach committed under it and not providing a civil remedy, the general rule is that no private individual can bring an action to enforce that provision, either by way of injunction or by a declaration or for damages. Thus, the respondents lacked locus standi to institute the action. Sri Ram ACJ pointed out that, in deciding whether to grant locus standi to apply for a declaration in public law in a particular case, the court must be extremely cautious in applying decisions of courts of other countries because the reasons for granting standing in those other jurisdictions may depend upon the economic, political and cultural needs and background of individual societies within which the particular court functions. 44 The High Court judgement was like the spark of a new era. Unfortunately, it is too early to predict whether these steps are progressive strides in judicial activism or an isolated incidence in civil litigation where future cases of this nature will not surface. In the circumstance one can only assume that the Appeal Court has no regard for the environment and it did demonstrate its willingness to try to provide some sort of safeguard for it. It is interesting to note that the views of the trial judge and the appeal judge differ at such extremes. This is evidence that the Malaysian judiciary is not prepared to recognise rights without a holder. The role of the courts to construct creatively to meet the needs of the modern society, which is progressing scientifically, is critical. It often dismisses views which advocate changes as unsuitable considering the background of the country. If only the court had placed the interest of protecting the environment as its priority then all the other issues would not have arisen. The judgment could have been otherwise and it would be an assertion of the rights of the Malaysian general public and not only interested environmental pressure groups. The Court of Appeal however, has failed to consider the decision in Jok Jau Evong v Marabong Lumber Sdn Bhd,45 where the court was faced with the preliminary question as to whether the plaintiffs could bring a representative
41 Ibid. 42 Gouriet v Union of Post Office Workers & Ors [1978] AC 435; [1977] 3 All ER 70, HL. 43 Ibid, where Lord Diplock said, it is the failure to recognize this distinction that has led to some confusion and unaccustomed degree of rhetoric in this case. 44 Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors [1997] 3 MLJ 123. 45 Jok Jau Evong v Marabong Lumber Sdn Bhd [1990] 2 CLJ 625.


action on behalf of the native community. In this case, the plaintiffs were three members of the Kayan community in a remote village in Sarawak who brought an action on behalf of the native community. The Kayan had been granted native land rights over an area of protected forest by the colonial government by a proclamation under the Forests Ordinance. In 1987 they found that a timber company was granted a licence to carry out logging on their land by the State Government. They sought various declarations and injunctions in a representative action brought on behalf of the Kayan community. The court adopted a liberal view on the question of standing, and held that a representative action could be allowed even though the Kayan community had split into two groups, one of which had sided with the defendants in this action. The rule of locus standi, which arose during an era when private law dominated the legal scene and public law had not yet been born needs to be creatively adapted and developed.46 This is the era where development is rapid and the courts must be aware of the need to exercise some sort of control over the activities of the administrative authorities who have been vested with wide discretionary powers in the process of developing the country. As usual the role played by a political ideology where development policy is the driving force in the countrys economic growth overshadows the judicial will to develop the legal system. Judges need to be innovative in order to protect the rights of the underprivileged and obligate the government to carry out its function in accordance with the law. Judges also could assist the public in exercising judicial activism to avail justice in the interest of the public. The following paragraphs will examine the reforms to the rules of locus standi in other jurisdictions where access to court to review the exercise of discretionary powers by the administrative authorities has been made simpler. This could be useful in providing references for developing the Malaysian legal system. Reforms to the traditional concept of locus standi According to Harding the standing rule appears to serve no real purpose and he summarised the purposes which they seem to serve as:47 (1) to keep unmeritorious actions out of the courts; (2) to prevent those unaffected or indirectly affected by administrative action from disturbing that which is acquiesced in by those directly affected; or (3) to ensure that the best arguments are put against administrative action.48

46 Nijar, G S, loc cit, supra, n 4 at 244. 47 Harding, A J, Do Public Interest Environmental Law and the Common Law Have a Future Together in Dunkley, J and Robinson, D, (eds), Public Interest Perspectives in Environmental Law (England: Chancery Law Publishing Ltd, 1995), pp 218225 at p 222. 48 Harding, A J, Public Duties and Public Law (Oxford: Oxford University Press, 1989), p 221.


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Harding also advocates that the locus standi rules should simply be done away with so that a litigant need only show that he has an arguable case on the law.49 In cases involving breach of planning regulations, it is quite realistic to consider relaxing the position of locus standi. Further, NGOs and individuals are in reality taking the initiative by suing on behalf of the community. Land development giving rise to environmental harm affects all people and not merely those who are living near to a development area or exposed to sources of pollution. Therefore, it is important to reform the traditional rule of locus standi besides the judicial initiative of according a wider or liberal interpretation, which is not consistent since it depends on the discretion of the judges. Developments in United Kingdom, United States, India and Australia will be examined to provide some useful reference. Developments in United Kingdom In United Kingdom, s 31(3) of the Supreme Court Act 198150 specifies that an applicant for judicial review must demonstrate a sufficient interest in the subject matter of the application, which is also embodied in Order 53 rule 3(7) of the Rules of the Supreme Court.51 The leading case on sufficiency of interest is R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd.52 In this case, the Federation sought to challenge an arrangement made by the IRC for levying tax on casual workers in Fleet Street.53 The Federation applied for judicial review seeking a declaration that the arrangement was unlawful, and mandamus compelling the Commissioners to collect all the tax owed. It agreed that its own members had never received such favourable treatment and that this constituted a sufficient interest. The sufficient interest test is applied at both stages, the first stage is to exclude hopeless or vexatious applications and secondly to decide whether the applicant has a good case on the merits which would be judged in relation to his own concern with it.54 In the Court of Appeal Lord Denning MR took the point that if the Federation could not bring the action, no one would have the
49 Harding, A J, op cit supra, n 47 at p 223. 50 Now known as the Senior Courts Act 1981. No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has sufficient interest in the matter to which the application relates. 51 The Supreme Court Practice Vol 1 (London: Sweet & Maxwell, 1997), p 845, where it reads, The court shall not grant leave unless it considers that the applicant has a sufficient interest. This is not reproduced in the Civil Procedure Rules 1998 CPR Pt 54, which have replaced the RSC in England and Wales. 52 R v IRC, ex p National Federation of Self Employed and Small Businesses Ltd [1982] 2 AC 617, HL. 53 It had been the practice of the employees to give false names in order to avoid tax and it was agreed that provided proper declaration of earnings was made in the future and for the two previous tax years, no investigation would be made into earlier years. 54 R v IRC, ex p National Federation of Self Employed and Small Businesses Ltd [1982] 2 AC 617, HL, at 644 per Lord Diplock.


right to do so, and this would be a wholly unsatisfactory state of affairs. This is central to all the arguments in order to relax or abandon the rules of locus standi. It will be argued that there are no circumstances in which unlawful action should go without redress for want of a litigant who is able to show a greater interest in the matter than other members of the public.55 The sufficient interest concept is complex and requires reference to previous case law, the substance of the applicants claim, and the seriousness of the respondents allegedly illegal action.56 The UK Law Commission in 1994 recommended a two track system of locus standi as follows:57 (a) the first track would cover those who have been personally and adversely affected by the decision which is the subject matter of the complaint; (b) the other track would be a discretionary track and cover, inter alia, public interest challenges.58 The Justice/Public Law Project in 1996 after the submission of the Law Commission Report in 1994, commented that in public interest litigation, the issue of locus standi must be secondary to the issue raised.59 The Woolf Committee Final Report recommended that the claimant will have standing if he has been or will be adversely affected or if it is in the public interest that the claim should be sought.60 Citizens can be applicants before the court in a public law suit: even if they have not suffered direct injury, a citizen is competent to file a suit in the interest of the public.61 Schiemann J62 proposed an open and closed system of standing. In an open system any one could obtain a ruling from a court on any subject upon which he or she desired a ruling whilst in the closed system only a person who can show that one of the private law rights has been infringed may take an administrative authority to court. He further
55 Ibid, at 854. 56 Cane, P, Standing, Representation and the Environment, in Loveland, I (ed), A Special Relationship? American Influences on Public Law in the UK (Oxford: Clarendon Press, 1995), p 125. 57 Law Com No 226, Administrative Law: Judicial Review and Statutory Appeals (1994) para 5.20, at p 43. 58 Ibid, para 5.22, p 44 where the Commission recommended as follows: that an application should not be allowed to proceed to substantive hearing unless the court is satisfied that the applicant has been or would be adversely affected, or the High Court considers that it is in the public interest for an applicant to make the application. 59 JUSTICE/Public Law Project, A Matter of Public Interest: Reforming the Law and Practice on Intervention in Public Interest Cases (London, 1996), p 8; Lee, A A, Standing to Challenge Administrative Action: An Inadequate Claim of Relief [1974] Yale Law Journal, Vol 83(3) 276287 where the view is put forward that standing in public interest litigation should be considered by courts from the point of view of the importance of the issues to be adjudicated, not on the quality of the litigant who present them. 60 Woolf Committee Final Report, Access to Justice (London: HMSO, 1996), p 321. 61 Jaffe, L L, Standing Again [1971] Harvard Law Review Vol 84(3) 633638 at 635. 62 Schiemann K, Locus Standi, [1990] Public Law 342352 at 352.


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added that Parliament has not enacted legislation on this, hence it is left to the courts to decide.63 Lord Reid in 196464 admitted that a public law approach for judicial remedy is not well developed in United Kingdom; probably it was felt unnecessary until recent circumstances.65 In A-G, ex rel McWhirter v Independent Broadcasting Authority,66 Lord Denning MR said that the citizen who is aggrieved has locus standi to come to the courts to litigate an offence that has caused injury to them.67 Lord Denning, who believed in actio popularis and the liberalisation of standing for citizen action, strongly advocated seeking remedies against the public authorities as evident from the above judgment and in other cases as well.68 Woolf J in R v A-G, ex p Imperial Chemical Industries plc,69 said that the issue of locus standi is not solely within the realm of pure discretion. In determining locus standi, it does involve consideration of the issues of fact and law involved and it would be regrettable if a court had to come to the conclusion that in a situation where the need for the intervention of the court has been established this intervention was prevented by rules as to standing.70 In R v Secretary of State for the Environment, ex p Rose Theatre Trust Co (Rose Theatre case)71 a group of citizens, including a local Member of Parliament, challenged the Secretary of States order to reject the declaration of a theatre as a monument. Schiemann J dismissed the challenge of the applicants claim on the grounds of lack of sufficient interest and said that Parliament could have given such a wide right of access to the court but it has not done so.72 The judgement in the Rose Theatre case73 has been widely criticised.74 However, in R v Poole Borough Council, ex p Beebee & Ors,75 Schiemann J granted standing
63 64 65 66 67 68 Ibid. Ridge v Baldwin [1964] AC 40, HL. Ibid, at 72. A-G, ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629, CA (Eng). Ibid, at 648649. R v IRC, ex p National Federation of Self Employed and Small Businesses Ltd [1980] 2 All ER 378, CA (Eng), at 390 per Lord Denning MR: [I]t (the law) should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interest other than a regard for the due observance of the law. R v A-G, ex p Imperial Chemical Industries plc [1985] CMLR 588 at 618; 60 TC 1 at 30, quoting Lord Wilberforce in R v IRC, ex p National Federation of Self-Employed and Small Business Ltd [1982] AC 617, HL. Ibid. R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1991] 1 QB 504. Ibid, at 522. Ibid. See Cane, P, Statutes, Standing and Representation [1990] Public Law 307312. Also see Lewis, C, No Standing in the Theatre: Unreviewable Decision [1990] Cambridge Law Journal Vol 49 189191. R v Poole Borough Council, ex p Beebee & Ors [1991] 1 JPEL 643.

69 70 71 72 73 74 75


to sue to applicants seeking to question the planning permission granted by a local authority in respect of land notified as a Site of Special Scientific Interest (SSSI).76 Otton J in R v Inspectorate of Pollution & Anor, ex p Greenpeace Ltd. (No 2)77 (Greenpeace case) granted the pressure group the standing to sue. It has been suggested that pressure groups should have legal capacity to bring an action with a prerequisite of incorporation.78 Although the United Kingdom is behind some other developed countries in according a liberal interpretation of standing, it is definitely developing at a much faster pace than Malaysia. Locus standi in the Australian Land and Environment Court The inclusion of a definition of standing in planning and environmental regulation has proved to be an important development of a liberal rule of standing. The Australian position on standing,79 in planning and environmental disputes, is much simpler since it is clearly provided for in s 123 of the New South Wales Environmental Planning and Assessment Act 1979 (EPA 1979). Section 123 of the EPA 1979 provides:
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his own behalf or on behalf of himself and on behalf of other person (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body) having like or common interests in those proceedings; (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.80

The EPA 1979 is an effort to progress away from a narrow and traditional view of town and country planning largely based on British town planning legislation and sought to entrench public participation in plan-making, merit appeals, civil enforcement and judicial review into their new system. The Land and Environment Court in New South Wales, Australia (LEC) which was created with broad powers and wide jurisdiction of an administrative and legal nature has also been entrusted with the task of interpreting the provisions of s 123 EPA 1979. Among the first tests of the interpretation of the provisions of

76 Refer Harte, J D C, The Extent of the Legal Protection enjoyed by Sites of Special Scientific Interest in England and Wales [1991] Journal of Environmental Law Vol 3(2), 293309. 77 R v Inspectorate of Pollution & Anor, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329 at 351. 78 Upson, J and Hughes, D, Locus Standi [1994] Environmental Law and Management Vol 6(4) 136143. 79 Developed by the New South Wales Land and Environment Court. 80 New South Wales Environmental Planning and Assessment Act 1979 s 123.


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the section faced by the court was in Building Owners and Managers Association of Australia Ltd. (BOMA) v Sydney City Council,81 in which the council argued that BOMA did not have locus standi to maintain proceedings challenging the validity of a council policy regarding contributions to its public housing trust fund. At the trial before Cripps J it was submitted that any person in s 123 EPA 1979 did not permit an action to be brought by any person unless that person had a relevant interest in the outcome of the proceedings. Therefore, it had been established that s 123 EPA 1979 had not really changed the common law principles of standing.82 Cripps J had rejected the submission in the BOMA case that the provisions of s 123 EPA 1979 should be read down to give no greater rights than enjoyed under the general law. Cripps J had given the same grounds in the two earlier cases of Rowley v NSW Leather Trading Co Pty Ltd,83 and National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act.84 Cripps J in Rowley v NSW Leather Trading Co Pty Ltd85 had said:
In my opinion the applicant has the standing to maintain these proceedings. The clear words of s 123 make it plain, I think, that Parliament intended that many of the hitherto established limitations on the right of citizens to take proceedings in a court to enforce a public right have been removed insofar as the proceedings relate to breaches of the Environmental Planning and Assessment Act.86

Sydney City Council appealed against the decision in BOMA maintaining the same argument before the Court of Appeal. However the court rejected the submission and in giving his reason, Priestley J made some important observations on the rule of law and open standing provisions:87
It is a convention that all people in New South Wales are subject to the same laws. Although this proposition can be reduced to various components each of which can be argued about, I believe that it conveys a reasonably clear broad meaning and that it is true.

81 Building Owners and Managers Association of Australia Ltd (BOMA) v Sydney City Council (1984) 53 LGRA 54 82 Stein, P, The Role of the New South Wales Land and Environment Court in the Emergence of Public Interest Environmental Law Environmental and Planning Law Journal, June 1996, 179185 at 180. 83 Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250. 84 National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act (1981) 53 LGRA 37. 85 Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250. 86 Ibid, at 256. 87 Sydney City Council v BOMA (1985) 55 LGRA 444.


The convention is disturbed when individuals are observed by others to be breaking a law with impunity. The disturbance will be greater or less in a particular case according to the way in which many factors combine; two of the more obvious of these will be the degree to which the observer is affected by the observed breach, (he may be affected in a material way, he may be affronted) and the extent to which he believes the law to be a good one or otherwise. The observer who feels strongly enough about the particular breach may well ask, since all are subject to the same law, why should this persons breach of it be allowed, and if it should be allowed why should not it be dealt with at my instance.88

The decision in BOMA seems to have sent the message across to the applicants as, since the decision was given, the LEC has rarely received any argument relating to locus standi. The provisions of s 123 EPA 1979 have been replicated in almost every environmental statute in New South Wales and adopted in some other states.89 There has not been any obvious growth in the use of open standing provisions thus the argument about opening the floodgates of litigation can be rebutted. Any person may bring proceedings in the LEC to remedy or restrain a breach of environmental law. No special interest in the subject matter is required. An applicant for relief does not have to be an aggrieved person. No leave of the court is required except in the case of civil and criminal enforcement of pollution legislation. Most of the judicial review cases are concerned not with vindicating some personal or property right but to enforce breaches of environmental law in the public interest.90 The Australian Law Reform Commission in 199691 recommended a single test in public interest litigation. Under this test an applicants special interest is not required in public interest litigation. The test prescribed by the Law Reform Commission is:
that any person should be able to commence and maintain public law proceedings unless the relevant legislation provides otherwise or the litigation would be against the public interest on the basis that it would unreasonably interfere with the ability of a person having a private interest in a matter to deal with it as he or she wishes.92

The Law Reform Commission discussed further on the objects of locus standi as follows: it (a) recognises the desirability of allowing a wide range of people to commence and maintain public law proceedings;
88 Ibid, at 449. 89 Stein, P, op cit supra, n 82 at 180. 90 Stein, P, A Specialist Environmental Court: An Australian experience in Robinson, D and Dunkley, J (eds), Public Interest Perspectives in Environmental Law (Chichester: Wiley Chancery, 1995), Chapter 14 p 270. 91 Australian Law Reform Commission (1996). 92 Ibid.


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(b) avoids the inconsistencies of the broad discretionary tests that operate at present; (c) is simple to apply and more certain than the current tests; (d) recognises that the legislature, subject to constitutional limitations, has the ultimate power to determine who should be able to challenge government decision or to enforce statutory rights and obligations; (e) provides for cases where the public interest in protecting the ability of a person having a private interest in a matter to deal with it as he or she wishes outweighs the desirability of allowing public law proceedings to be brought by someone who does not possess that interest. 93 The statutory locus standi, which is granted to persons seeking to enforce land planning and environmental regulations, has been able to reduce the ambiguity surrounding the interpretation of the rule of standing as well as simplify access to interested citizens. Citizen suits in the United States The 1970s saw a growing concern for the protection of the environment, which is clearly evidenced by the passing of legislation providing for environmental protection.94 The earliest group of environmental law cases was essentially judicial reviews of administrative actions instituted by environmental advocates under statutory review provision, provided in the Administrative Procedure Act.95 The federal and state officials are entrusted with the duty of enforcing environmental statutes that are designed to protect human health and environment.96 The National Environmental Policy Act (NEPA) was promulgated in 1969 in response to the need for environmental protection. NEPA has been subject to judicial review since 1970. The most common challenge by environmental plaintiffs has been to enforce the environmental impact statement (EIS) requirements that have been specified in NEPA.97 The EIA are most often challenged on the grounds that they do not sufficiently assess environmental impact. Litigation brought by environmental organisations together with concerned local residents has stopped environmentally deleterious projects. The courts assumed a crucial role in NEPAs effectiveness as well as checking on its proper implementation by the executive administration.
93 Ibid, para 5.25 at p 57. 94 The Clean Air Act 1970 and the Federal Water Pollution Control Act 1972. 95 The Administrative Procedure Act provides that A person suffering legal wrong because of agency action within the meaning of a relevant statute is entitled to judicial review thereof. 96 Robbins, D H, Public Interest Environmental Litigation in the United States in Dunkley, J and Robinson, D (eds) Public Interest Perspectives in Environmental Law (England: Chancery Law Publishing Ltd, 1995), pp 535 at pp 56 generally. 97 Robinson, D, Public Interest Environmental Law Firms in the United States in Dunkley, J and Robinson, D (eds) Public Interest Perspectives in Environmental Law (England: Chancery Law Publishing Ltd, 1995), pp 3969 at p 41.


Environmental law enforcement and litigation is on the frontier of a critical new experiment in participatory democracy.98 The experiment involves direct and extensive citizen involvement in the law enforcement process. This experiment was initiated with the adoption of the Clean Air Act in 1970, which includes the first citizen suit provision. The citizen suit provision is meant to grant citizens the power to sue private parties who are in breach of the provision. Besides the power to sue private citizens, the provision also granted power to sue state and federal agencies which pollute in violation of the Act or fail to fulfil their obligations in implementing the Clean Air Act 1970. The success of the citizen suit provisions has prompted the inclusion of such provisions in nearly every new piece of environmental legislation since the Clean Air Act 1970.99 Lawsuits brought by citizens who seek to enforce public rights are an increasingly common part of the modern litigation landscape. Private citizen participation in the enforcement of the law is not a completely new phenomenon, the English common law system employed a number of legal doctrines such as qui tam, common informer laws, and public nuisance to enlist individuals in the enforcement of laws intended to protect public rights.100 The industrialisation and the growth of urban areas brought about the increase in legislation of rules of community conduct including legislation embodying notions of private enforcement of public rights.101 The Supreme Courts decision in Sierra Club v Morton102 also played an important role in the advancement of the citizen suit. The decision in the Sierra Club case and the provisions of s 10 of the APA allow any person aggrieved by agency action to seek judicial review of that action. This led to an increase in citizen suits against various government agencies for violations of obligations imposed by Congress. Public participation under the citizen suit has, through the judiciary, created the checks and balances on the executive interpretation and implementation of the law. There are three important features of interest representation in the United States, which are not available in other common law jurisdictions. Firstly, rules are made through open processes; secondly environmental laws are generally rule oriented; and thirdly open standing.103 Locus standi is a constitutional requirement for a federal court to be able to exercise jurisdiction in environmental cases as well as all federal cases.
98 Axline, M D, Environmental Citizen Suits (USA: Butterworths Legal Publishers, 1995), p xv. 99 Ibid. 100 Boyer, B and Meidinger, E, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws 34 Buff.L.Rev.833, 952 (1984) cited in Axline, supra 98 at pp 12. 101 Ibid. 102 Sierra Club v Morton 405 US 727 (1972). 103 Robinson, D, Public Interest Environmental Litigation in the US in Dunkley, J and Robinson, D (eds) Public Interest Perspectives in Environmental Law (England: Chancery Law Publishing Ltd, 1995), pp 3969 at pp 4445.


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Provisions as to locus standi in United States are very broad, especially with the inclusion of citizen suit provisions in all the environmental legislation. Citizen suit provisions enable any person to sue for non-compliance with statutory provisions or with standards and regulations issued under the statute.104 Article III of the US Constitution, which deals with the judiciary, provides that federal courts have jurisdiction only in actual cases and controversies. According to the traditional law interpreting this clause, in order to demonstrate standing under Article III a plaintiff must prove at a minimum that:105 (i) he has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant; (ii) the injury fairly can be traced to the challenged action; and (iii) the injury is likely to be redressed by a favourable decision. United States Supreme Court Justice Scalia in Lujan v Defenders of Wildlife (Lujan II),106 stated that the United States Congress is not free to confer on environmental citizens organisations an abstract, self contained right to ensure that agencies comply with the law.107 Rather, the Constitution requires that the groups show that they have some interest different from that of the general public, which gives them a right to use the courts to enforce environmental laws. The United States Supreme Court has held in a line of cases beginning with Sierra Club v Morton in 1972108 and culminating in Lujan II in 1992 that concern for the environment or even for a specific resource that is being depleted or contaminated is not sufficient injury to confer standing. The stand of the judiciary in the United States appears not to be very different from that adopted by the Malaysian Court of Appeal in the Bakun Dam case,109 where the natives were told that they have to proof that they have some interest different from that of the general public. However, the inclusion of citizen suit provisions in virtually all-environmental protection enactments110 has provided a broader definition for standing. Citizen suit provisions enable any person to sue for non-compliance with statutory

104 Greeve, M S, The Private Enforcement of Environmental Law (1990) 65 Tulane Law Review 339 at 340. 105 Robbins, D H, Public Interest Environmental Litigation in the United States in Dunkley, J and Robinson, D (eds) Public Interest Perspectives in Environmental Law (England: Chancery Law Publishing Ltd, 1995), pp 535 at p 13. 106 Lujan v Defenders of Wildlife (Lujan II) 112 S Ct at 2143. Cited in ibid. 107 Beers, R, NEPA in the Supreme Court, Internet Edition dated 3/1/96 http://www.igc.apc. org 108 Sierra Club v Morton 405 US 727. 109 Kajing Tubek & Ors v Ekran Bhd & Ors [1996] 2 MLJ 388; Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors [1997] 3 MLJ 123. 110 For instance in the Federal Water Pollution Control Act 1972; the Clean Water Act 1970.


provisions or with standards and regulations issued under the statute.111 Citizen suit is a proven enforcement tool. They operate as Congress intended to both spur and supplement government enforcement actions. They have deterred violators and achieved significant compliance gains.112 The Clean Water Act 1970 provides that a citizen plaintiff can seek injunctive relief and civil penalties.113 The benefits of citizen suits under the Clean Water Act 1970 were said to be as follows;114 (1) in several citizen suit settlement agreements, the alleged violators have avoided the infliction of civil penalties by instead paying a sum of money to a third party environmental organisation or to an environmentally beneficial project; (2) the defendant pays less than it might have had to in civil penalties, and the citizen plaintiff (or environmental organisation) benefits indirectly through the payment of funds to a public interest organisation. Citizen participation in environmental enforcement is a direct connection between individuals and their environment.115 Justice Scalia felt that through citizen standing, Congress could make courts the constant monitors of executive action and further observed that Congress can give power to the public to enforce environmental legislation, but the litigants, either individuals or groups, must establish the constitutional standing.116 In the United States, the environmental movement is founded on the attitude that environmental issues are not only immensely important but that they are within the grasp of every citizen.117 The citizen suits provisions provided in the environmental statutes empowered ordinary people to become involved in environmental
111 Greve, M S, The Private Enforcement of Environmental Law (1990) Tulane Law Review 339 at 340. 112 Statement made by the Senate Committee on Environment and Public Works in discussing 1985 amendments to the Federal Water Pollution Control Act 1972 which contains the most widely used citizen suit provision, cited in ibid. 113 Section 505 of the Clean Water Act 1970 provides: any citizen may commence a civil action on his own behalf(1) against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. Axline, M D, Environmental Citizen Suits (Charlottesville: Michie, 1995), pp 631 also refers to s 304 of the Clean Air Act 1970. 114 Roberts, J and Dobbins, J, The Role of the Citizen in Environmental Enforcement unpublished paper presented in the International Conference on Environmental Enforcement compiled by Axline, M D. 115 Ibid. 116 Smith, B D, Lujan v Defenders of Wildlife: A Slash and Burn Expedition Through the Law of Environmental Standing [1994] San Francisco Law Review Vol 28 at 859917. 117 Harbinson, J, Private Enforcement of Public Values in US Courts: Some Disturbing Cases from Environmental Law, paper presented at the Conference on New Directions in Environmental Dispute Resolution, at the University of Wales, Aberystwyth on October 31, 1997, at p 1.


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issues at every level, national, regional and local. The lawsuits brought by ordinary citizens have been the most important element and the force in the development of United States environmental jurisprudence. Citizen suit provisions enable any person to sue for non-compliance with statutory provisions or with standards and regulations issued under the statute and the government for acts contrary to law.118 Public interest litigation in perspective The concept of public interest provides a forum for general interest rather than private or personal interest which the traditional legal system has been protecting. The success of public interest litigation relies heavily on developing liberal rules of standing and an awareness and willingness on the part of the courts to take into consideration the interest of the general public against the arbitrary powers of the administrative authorities. Public confidence and public esteem are essential, if institutions are to survive in a democratic country.119 The welfare relationship of the State and citizens regarding public interest was pointed out as follows:
[F]or the Welfare of the Statistics, there is something which we call the public interest which exists over and above the politicians and the public servants who manage the Welfare State; to advance the public interest is to adopt policies and practices which advance the good of all citizens directly and indirectly.120

The interpretation of the concept of public interest depends on the existing system of social values of any society since it is a collective or common interest intended for the benefit of the members of the society. The JUSTICE/ PLP project jointly submitted a report, which defined the meaning of public interest issues as those which raise a serious issue which affects or may affect the public generally or a section of it.121 The aims and functions of public interest are to enable individuals or interest groups to approach the judiciary under the concept of public interest to obtain appropriate remedies in situations where a statute is silent on the matter.122 The public interest concept
118 Greeve, M S, The Private Enforcement of Environmental Law (1990) 65 Tulane Law Review 339 at 340. 119 Lord Mackay of Clashfern, Litigation in the 1990s [1990] Modern Law Review Vol 54(2) 171181 at 175. Refer Keenan, D, Smith and Keenans English Law (London: Pitman, 1995), p 1, where it has been said that political scientists and jurists have advanced a number of definitions of public interest and of the interrelation between society and the three pillars of the state, that is the executive (administrative authorities), legislature and the judiciary, regarding public interest, its functions and legal relationship between citizens. 120 McAuslan, P, Public Law and Public Choice, [1988] Modern Law Review Vol 51(6) 681705 at 688. 121 Justice/Public Law Project, A Matter of Public Interest: Reforming the Law and Practice on Intervention in Public Interest Cases (London, 1996),t p 5. 122 Wenz, P, Democracy and Environmental Change, in Dower, N (ed) Ethics and Environmental Responsibility (Aldershot: Avebury, 1989).


influences decisions made by the legislature or the judiciary as to how best the public can be served in a particular social activity.123 It was also argued that statutes meant for environmental protection could not provide a remedy for all environmental harm.124 Timms is of the view that a common law approach would be an appropriate solution for public interest litigation seeking environmental protection.125 The concept of public interest can be said to be able to influence decisions made by the legislature or the judiciary as to how best the public can be served in a particular social activity and it remedies the shortcomings of environmental protection statutes. The objects of public interest litigation are a co-operative and collaborative effort by the state or public authority and the courts to secure rights of the citizens.126 The structure of public law litigation under the constitutional rights was defined as follows: (a) The scope of the lawsuit is not exogenously given but is shaped primarily by the courts and parties. (b) The structure is not rigidly bilateral but sprawling and amorphous. (c) The fact inquiry is not historical and adjudicative but predictive and legislative. (d) Relief is not conceived as compensation for past wrong in a form logically derived from the substantive liability and confined in its impact to the immediate parties; instead it is forward looking, fashioned ad hoc on flexible and broadly remedial lines, often having important consequences for many persons including absentees. (e) The remedy is not imposed but negotiated. (f) The decree does not terminate judicial involvement in the affairs: its administration requires the continuing participation of the court. (g) The judge is not passive, his function limited to analysis and statement of governing legal rules; he is active, with responsibility not only for credible fact value but for organising and shaping the litigation to ensure just and viable outcome.

123 Jacob, J, Safeguarding the Public Interest: New Institutions and Procedures in Cooper, J and Dhavan, R (eds), Public Interest Law (Oxford: Basil Blackwell, 1986), pp 5189. 124 Timms, G G, Statutorily Awarding Attorneys Fees in Environmental Suits: Jump Starting the Public Watch Dog Southern California Law Review [1992] Vol 65, 17321768. 125 Ibid, at 1739, where Timms, G G, said: Environmental statutes in particular are drafted to remedy particular, narrowly defined problems. Similar problems may escape regulation because they are not explicitly addressed in statute, regardless of the need for regulation. A public nuisance cause of action can be used to fill the gaps left by the statutes. 126 Bhagwati, P N, in Peoples Union for Democratic Rights & Ors v Union of India & Ors 1982 AIR SC 14731492 at 1477.


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(h) The subject matter of the lawsuit is not a dispute between private individuals about private rights, but grievance about the operation of public policy.127 The judicial approach to public interest litigation in the UK is provided in The Law Commission Report128 and the Woolf Committee Final Report.129 The Law Commission Report framed rules for public interest challenges as follows: (i) the importance of the legal point; (ii) the chances of the issue being raised in any other proceedings; (iii) the allocation of scarce judicial resources; and (iv) the concern that in the determination of issues the court should have the benefit of the conflicting points of view of those most directly affected by them.130 The United Kingdom courts are entertaining litigation of a public interest nature more widely at present as evidenced by the recent decisions in the R v Her Majestys Inspectorate of Pollution, ex p Greenpeace,131 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees Mogg,132 and the R v Secretary of State for Foreign Affairs, ex p The World Development Movement Limited cases.133 These cases illustrate the United Kingdom courts view on public interest litigation. The citizens and other NGOs are prepared to commence legal action of public interest in nature for the benefit of the public at large.134 The JUSTICE/ PLP report suggested:
Public interest challenges should be explicitly recognised as a category of case and the High Court in judicial review proceeding should continue to have broad discretion to allow individuals, groups or organisations to bring such cases.135

127 Chayes, A. The Role of the Judge in Public Law Litigation, [1976] Harvard Law Review Vol 89(7) 12811316 at 1302. 128 Administrative Law: Judicial Review and Statutory Appeals, Law Commission Report No 226 (London: HMSO, 1994). 129 Access to Justice, Final Report by Lord Woolf (London: HMSO, 1996). 130 Commonwealth of Australia, Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report 78: Australian Law Reform Commission, 1996 at p 44 para 5.22. 131 R v HM Inspectorate of Pollution, ex p Greenpeace [1994] 4 All ER 321, CA (Eng). 132 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees Mogg [1994] 1 All ER 457. 133 R v Secretary of State for Foreign Affairs, ex p The World Development Movement Ltd [1995] 1 All ER 611. 134 Ashton, K, Public Interest Litigation in Legal Action (1997) June, p 9. 135 JUSTICE/Public Law Project, A Matter of Public Interest: Reforming the Law and Practice on Intervention in Public Interest Cases, (London, 1996), p 5; also refer Reid, C T, Judicial Review and the Environment, in Hadfield, B (ed) Judicial Review: A Thematic Approach (Dublin: MacGillan, 1995), where he said that the Law Commission report swept away a number of restrictive rules in the judicial review process.


Lord Justice Schiemann, in commenting on the JUSTICE/PLP report pointed out that there could be a danger in conferring wider discretion on the judges.136 In Australia, the benefits of public interest litigation were analysed by the Australian Law Reform Commission as follows: (1) development of the law leading to greater certainty, greater equity and access to the legal system and increased public confidence in the administration of the law (which in turn should lead to less disputes and less expenditure on litigation); (2) economies of scale; (3) impetus for reform and structural change to reduce potential disputes (for example, a test can encourage the development of rules and procedures designed to ensure greater compliance with a particular law); (4) contribution to market regulation and public sector accountability by allowing greater scope for private enforcement; (5) reduction of other social costs by stopping or preventing costly market or government failures. Public interest litigation appears to provide easier access to the public in promoting justice and assuming shared responsibility in implementing and enforcing laws. Can public interest litigation be developed to provide access to resolving land planning disputes? There are positive developments in environmental public interest litigation. Public interest litigation is often described as an action filed before the courts to enforce the statutory rights provided by the legislation against a person or corporation who violates environmental legislation.137 It is considered to be the best method to enforce environmental rights guaranteed by legislation.138 Three approaches have been prescribed for environmental public interest litigation as follows:139 (a) the right to be free of environmental harm to the status of a constitutionally protected right; (b) the protection of natural resources (land, air, water) as interests of public concern; and (c) the increase in citizen participation in environmental protection efforts.
136 Schiemann J, Intervention in Public Interest Cases Public Law 1996 (Summer) 240243. Schiemann Js fear of danger in giving wider discretion to the judges is an improbable one and this can be learnt from the recent judicial approaches and the Law Commission and the Woolf Committee Final Report. 137 Anderson, M R, Human Rights Approaches to Environmental Protection: An Overview in Boyle, A E and Anderson, M R (eds) Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), p 20. 138 Ibid. 139 Delogu, E O, Citizen Suits to Protect the Environment: The US Experience May Suggest a Canadian Model [1992] University of New Brunswick Law Journal Vol 41 125130.


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These approaches can guarantee the rights of the citizens to a clean environment, which is guaranteed as a matter of constitutional right. The increasing public participation in protecting the natural resources can help to achieve this. This concept will be able to promote greater protection for the environment at present, as well as for future generations. The present human society is implicitly appointed as guardians to protect the interest of the future generations. Guardians are, therefore, entitled to better access to justice especially in relation to the stringent rule of standing prevailing at present. However, the rights of the citizens to bring an action under public interest litigation were not without guidance. The litigant, in resolving environmental disputes by resorting to public interest litigation, is required to consider the following issues:140 (i) An important asset at risk? (ii) Is there any evidence of abuse of power or any omission by the public or private bodies responsible? (iii) Do good legal arguments exist to support the claim? (iv) Can weaknesses in the established legal system be revealed? (v) Is the extent of public support for the action overwhelming; and (vi) Can losing be sustained by the potential plaintiff(s)? The emergence of public interest litigation in the early 1980s enlarged the scope of environmental law both in developed and developing countries, as a method for granting access to citizens seeking to redress environmental harm.141 It will be interesting to examine developments in public interest environmental litigation by the Indian courts. The environmental case law developed during the years after the Bhopal tragedy in India would be able to shed some light on the awareness of the Indian courts towards environmental predicament. In Gobind Singh v Shanti Swaroop,142 the court ordered demolition of the chimney and oven within a period of one month and observed that in a matter of public nuisance what is involved is not merely the right of private individuals but the health, safety and convenience of the public at large. In Krishna Gopal v State of Madhya Pradesh,143 the court found in favour of the complainant and observed that merely because only one complainant has come forward to complain about the nuisance it cannot be said to be not a public nuisance contemplated by s 133 Cr. P.C. The judge appreciated the complainants efforts in instituting the action and made an order as to costs
140 Cameron, J, Environmental Public Interest Litigation in Vaughan, D (ed) EC Environment and Planning Law (London: Butterworths, 1991), pp 279294. 141 Anderson, M R, op cit supra, n 137. 142 Gobind Singh v Shanti Swaroop AIR 1979 SC 143. 143 Krishna Gopal v State of Madhya Pradesh 1986 Cr LJ 396.


towards the factory owner. Indian courts addressed the crime committed against the environment as one more heinous than murder and said court sentences must be deterrent rather than merely prescribing penalty, which will encourage flouting of the laws by the offenders. The role of the judiciary was also observed seriously in this decision and the court said clearly that administration of justice by the judiciary should inspire confidence in people as a whole for whom it exists. Lodha J pointed out that the judiciary exists for the people and not vice versa, thus it must be ready to impart effective, prompt, and ready justice in matters involving peoples civil rights and public interest litigation.144 In Prabhakar Rao v State of Madhya Pradesh,145 the court said that justice may be blind, but it is not deaf and that judges are not to sit in soundproof rooms. The court appears to give strong assurance to the people that the right to health, hygiene and a pollution free environment is a fundamental right guaranteed under Article 21 and a constitutional directive under Article 48(A) and 51(A)(g) of the Constitution and no one has the right to infringe it and if it is infringed or curtailed the courts will not keep silent and will provide relief for the victims which is their fundamental duty.146 The court directed the state not to keep laws as paper tigers but to be enforced and if they are not enforced the judiciary will activate itself and issue the mandate to enforce the laws.147 In MC Mehta v Union of India,148 a petition was filed for issue of writ of mandamus to restrain the respondents from discharging effluent into the river Ganga. The court held that just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery that cannot set up a primary treatment plant cannot be permitted to exist. The reason is one of fear of adverse effects on the public at large which is likely to ensue by the discharging of the effluent from the tannery to the river Ganges. The court directed about 30 companies to stop running their tanneries and also not to discharge effluent either directly or indirectly into the river Ganges without setting up of primary treatment plants as approved by the State Board. The court emphasised that the value of preserving the environment should be given priority even if it means an increase in unemployment and loss of revenue, since the life and health of the people ought to be given priority.149 The Indian judiciary appears to have agreed in principle that the pollution menace could only be curbed effectively if the public is well informed and aware of the situation and is willing to co-operate in preventing and checking on polluting activities. A Supreme Court judgment in India is taken as the
144 Krishna Devi v Vishnu Mitra AIR 1982 Raj 281. 145 Prabhakar Rao v State of Madhya Pradesh AIR 1986 SC 210. 146 Mehta, C S, Environmental Protection and The Law (New Delhi: Ashish Publishing House, 1990), p 83. 147 L K Koolwal v State of Rajastan AIR 1988 Raj 2. 148 M C Mehta v Union of India AIR 1988 SC 1037. 149 Ibid.


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law of the land and binding as it is entrenched in Article 141 of the Indian Constitution. Therefore, judicial pronouncements are a step forward towards implementing the provisions of the Environmental Protection Act and development of environmental law in India. In Shri Ram Food and Fertilizers Industries150 (Oleam Gas Leak case) the Supreme Court held that an enterprise which is engaged in any hazardous or inherently dangerous industry that could pose a threat to public health and the safety of the persons in or outside the factory or residing in the neighbourhood owed an absolute duty to the community to ensure that no harm is caused. It should conduct its hazardous and inherently dangerous activities with highest legal standards of safety. The court directed the industry to implement certain guidelines and conditions that must be adhered to strictly. The court tried to provide relief to the victims of the gas leak tragedy by awarding them compensation and by making the polluter strictly liable. The courts concern for the disadvantaged and underprivileged citizens have widened access to the courts as well as other procedural innovations. They used the wide powers granted to them respectively by Articles 32 and 226 of the Indian Constitution to issue orders and writs which have assisted public interest litigants in the expensive task of gathering evidence and have fashioned new remedies.151 In SP Gupta v Union of India,152 it was held that any member of the public can maintain an action for an appropriate direction, order or writ where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provisions or without authority of law or any such legal wrong or legal injury or legal burden is threatened, and such person is by reason of poverty, helplessness or socially or economically disadvantaged position unable to approach the court for relief. 153 Bhagwati J, expressed the Indian approach to public interest litigation:
If public duties are to be enforced and social collective diffused rights and interests are to be protected, we have to utilise the initiative and zeal of public minded persons and organisations by allowing them to move the Court and act for a general or group interest, even though they may not be directly injured in their own rights.154

150 M C Mehta v Union of India AIR 1987 SC 965. 151 Du Bois, Francois, Well-being and the Common Man: A Critical Look at Public Interest Environmental Law in South Africa and India in Robinson, D and Dunkley, J (eds), Public Interest Perspectives in Environmental Law (Chichester: Wiley Chancery, 1995), pp 136152 at p 144. 152 S P Gupta v Union of India AIR 1982 SC 149. 153 S P Gupta v Union of India AIR 1982 SC 149 at 188. 154 Ibid.


The court, in keeping with the current accent on justice, broadened forms of legal proceedings to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings.155 The liberated attitude towards providing access for justice has gone to the extent where it is prepared to cast aside all technical rules of procedure. The courts are willing to entertain letters written to them drawing their attention to a legal injury or wrong as a writ petition on the judicial side and take action upon it.156 The abandonment of the usual formalities applying to the commencement of the proceedings has become one of the hallmarks of Indian public interest litigation. The Indian judges have been prepared to convert articles and letters published in newspapers into writ petitions, thus intervening suo motu.157 In Malaysia, too there were a number of cases that have some form of public interest element. In Jok Jau Evong v Marabong Lumber Sdn Bhd,158 despite adopting a liberal view on the question of standing, the court rejected the application on the ground of failure to meet the statutory time limitation to institute the action. The natives have very little means of access to legal advice and other legal measures that may be able to provide them with the information necessary to institute legal proceedings.159 If the judge could have indulged in disallowing the defence of limitation in this case, it could have been the beginning of development of public interest litigation in Malaysia.160 In Government of Malaysia v Lim Kit Siang161 the Supreme Court refused standing to the leader of the opposition party162 to seek an injunction to restrain the signing of a contract for the privatisation of the major north-south highway project. The Supreme Court overturned its own prior decision by a 3-2 majority on an interlocutory application. The case having been decided in favour of the government proved that the Supreme Court with a different group of judges sitting might decide otherwise. The scope within the Malaysian legal system for promoting public interest litigation at present appears to be dim since when faced with cases that are public interest in nature the courts often fail to promote its growth. Developments in according standing to pressure groups in Malaysia are still tentative and in a state of flux.163

155 du Bois, Francois op cit supra, n 151, at p 145. 156 Bhagwati, J in Peoples Union for Democratic Rights v Union of India AIR 1982 SC 1473 at 1483. 157 Upendra, B, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India in Tiruchelvan, N, and Coomaraswamy, R (eds), The Role of the Judiciary in Plural Societies (Great Britain: International Centre for Ethnic Studies, 1987). 158 Jok Jau Evong v Marabong Lumber Sdn Bhd [1990] 2 CLJ at 625. 159 Ibid. 160 Ibid. 161 Government of Malaysia v Lim Kit Siang [1986] 2 MLJ 12. 162 Democratic Action Party (DAP). 163 Nijar, G S, Public Interest Litigation [1983] 2 Current Law Journal 234.


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Relator action Relator action has often been cited as the appropriate mode for ordinary citizens wishing to seek remedy in favour of public interest. A relator action is an action instituted by the Attorney General either at his own motion or at the instance of a member of the public against a public authority in the event it is found to have abused its powers. The rationale of this action is that the state as parents patriae is entitled to enforce the law for the benefit of the general public. The broad scope of the Attorney Generals position as representative of the Sovereign in the role of parents patriae functions as the guardian and representative of public interest. A relator action consists of a suit brought in the public interest by a private individual or group, which sues in lieu and with the consent or fiat of the Attorney General. A relator action provides a citizen with the advantage of overcoming the legal requirements of standing where a public spirited individual may seek a remedy to restrain an administrative authority from committing a breach of public law even though his own personal right has not been infringed. The relief sought must be such as to benefit the public or at least a section of the public.164 A relator action is instituted at the discretion of the Attorney General, who may or may not exercise his discretion in instituting the action. The court on its part does not interfere with the Attorney General exercising his discretionary powers to institute or not to institute the action. Case law may provide some insight into the practical application of relator actions. In A-G, ex rel McWhirter v Independent Broadcasting Authority,165 (McWhirter) a member of the public sought to obtain an injunction against the Independent Broadcasting Authority (IBA), which was planning to allow an indecent film on television, on the grounds that it is illegal to show an indecent film on television. The Attorney General refused to undertake a relator action, but the Court of Appeal held that a member of the public could maintain the action and granted an interim injunction against the IBA. Lord Denning MR stated that while Parliament placed large statutory powers and duties for public benefit in the hands of the public authorities, it provided no remedy for its breach. Therefore, if the Attorney General refuses leave in a proper case, then a member of the public who has sufficient interest could apply to the court for a declaration and in a proper case for an injunction. Lord Denning emphasised that:
In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the

164 de Smith, S A, Judicial Review of Administrative Action, 4th edn (1980), cited in Nijar, G S, Public Interest Litigation [1983] 2 Current Law Journal 234. 165 A-G, ex rel Mc Whirter v Independent Broadcasting Authority [1973] QB 629, CA (Eng).


ordinary citizens so that they can see that those great powers and influence are exercised in accordance with law. I would not restrict the circumstances in which an individual may be held to have a sufficient interest.166

The liberal judicial trend exhibited in McWhirter received a set back in 1977 when in Gouriets167 case the House of Lords disapproved the McWhirter approach. The House of Lords adopted a conservative approach and insisted that a plaintiff without a special interest may not seek a declaration or injunction unless the action is brought in the name of the Attorney General. However, in the UK this may not pose much problem since a relaxation in the application of the rules of standing has come about. In Malaysia, s 3 of the Civil Law Act 1956 provides that the Attorney General has powers similar to the English common law power to bring a relator action. The case of Pesurohjaya Ibu Kota v Wan Kam Fong168 started the development of relator actions in Malaysia. In this case the Attorney General sued the respondents for a permanent injunction to restrain them from using, causing or permitting the premises to be used as a restaurant without the licence of the Pesurohjaya (Commissioner). The court held that the Attorney General as the guardian of public right was competent to bring a relator action to restrain interference with a public right or to abate a public nuisance or to compel the performance of a public duty. However, in order to give validity to use the relators name in such actions, the prior written consent to act as relator must be filed before or at the time of the issue of the writ.169 The failure in fulfilling this condition precedent will lead to the nominal plaintiff not obtaining the locus standi. To enable the court to entertain jurisdiction in cases where the individual suffers injury, the harm done to the private right of such individual must be grave and irreparable for which damages could not provide adequate compensation. The only recourse open to the plaintiff in a case where grave and irreparable injury is proved is to cite the Attorney Generals consent in a relator action. In Government of Malaysia v Lim Kit Siang170 the Supreme Court judges voting for a restrictive rule of locus standi put their faith in the procedure by way of relator action for vindication of public rights against the government. Salleh Abas LP referred to the decision in Gouriets case171 and said that the Malaysian system requires the public to trust the impartiality and fair mindedness of the Attorney General. If he fails in his duty to exhibit this sense of fairness and to protect public interest of which he is the guardian, the matter can be raised in Parliament or elsewhere.172 Hashim Yeop Sani SCJ affirmed the
166 167 168 169 170 171 172 Ibid. Gouriet v Union of Post Office Workers & Ors [1978] AC 435; [1977] 3 All ER 70, HL. Pesurohjaya Ibu Kota v Wan Kam Fong [1967] 2 MLJ 72. RHC O 15 r 11. Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at pp 26&27. Gouriet v Union of Post Office Workers & Ors [1978] AC 435; [1977] 3 All ER 70, HL. Gouriet v Union of Post Office Workers & Ors [1978] AC 435; [1977] 3 All ER 70, HL.


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position further by adding that the fundamental principle is that individuals could assert private rights; however, public rights can only be asserted by the Attorney General as representing the public. Thus, the courts have no jurisdiction in any circumstance to grant the plaintiff the right to represent public interest.173 The judges who have opted for a liberal locus standi rule have taken a different view. The reason that the action in this case was brought was primarily to test the legality of the proposal to award the North-South Highway contract to UEM. It was a public interest suit requesting for judicial review of the legality of the proposed executive action unlike the Gouriet case where it was concerning private law. George Seah SCJ said that, the Attorney General being the principal legal adviser to the Government of Malaysia under Article 145(2) of the Federal Constitution, no one would have expected the learned Attorney General to give his consent to the respondent to institute the proceedings in a court of law.174 The judge also observed that it would be a dereliction of the Attorney Generals constitutional duty if the learned Attorney General did not defend the suit vigorously.175 George J, in the High Court176 ruled out a relator action as inefficacious in the present situation as it is archaic and impracticable and he called for the adoption of a liberal locus standi rule. According to the judge, the office of Attorney General in England is a political office and is answerable to Parliament, if, for instance, the Attorney General refuses to give his consent to the use of his name in a Relator action he could be asked in Parliament to explain why he did not. However, in Malaysia the Attorney General is a civil servant appointed to the office as a legal adviser to the government whilst members of his chambers defend cases for the government.177 Therefore, in the circumstances to ask for his consent to bring a relator action against the government is to embarrass him. Thus, given the socio-political situation in Malaysia, it is not possible to presume that relator actions can assist interested individuals and interest groups seeking to stop environmental harm. In PP v Manager MBF Building Services Sdn Bhd,178 a challenge was made against the prosecution of an offence under the EQA 1974 brought by the Public Prosecutor. It was argued that in the absence of a provision in the EQA 1974 expressly providing for the sanction or consent of the Attorney General179 to institute proceedings for offences, the case would fail. It was contended that the Federal Constitution provides that only the Attorney General has the
173 174 175 176 177 178 179 Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 2627. Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 3536. Ibid. Lim Kit Siang v Government of Malaysia [1988] 1 MLJ at 5859. Ibid. PP v Manager MBF Building Services Sdn Bhd [1998] 1MLJ 690. In Malaysia the officers alter ego being the Public Prosecutor.


power to prosecute offences. Where sanction was not given or consent not obtained from the Attorney Generals office, a prosecution would fail merely on technical grounds, the principal reason being that technically the accused may be liable for the same offence in more than one proceeding. However, the High Court came to the conclusion that the EQA 1974 could not have been intended to contravene Article 145(3) of the Federal Constitution. Vohrah J upheld the validity of the provisions of the EQA 1974. Similarly to all other laws in Malaysia, the EQA 1974 must be read subject to the provisions of the Federal Constitution. The fact was that Parliament may choose not to require the exercise of the power vested in the Attorney General in respect of certain offences to be manifested either with his consent or written authorisation or by his sanction before a court could take cognisance of the offence. The High Court held that the EQA 1974 was not valid in so far as it was inconsistent with the provisions of the Federal Constitution. The High Court had opted to take a broader view, which the Parliament would have intended when passing the EQA 1974. Needless to say that in passing the EQA 1974, Parliament had taken into consideration the social, economic and political conditions warranting the need for the legislation.180 Relator action may be able to provide access to the public seeking to enforce environmental related planning regulations. However, the Malaysian and United Kingdom cases have proven that this may not be possible unless the Attorney General exercises his discretion to give his fiat to a relator action. The Attorney General who is appointed by the government will definitely not want to risk antagonising the government or ministers of the ruling party, which is very much a concern in a developing nation. This limitation has the effect of reducing the actual impact which a relator action may be able to provide in paving access for environmental justice. The Australian Law Reform Commission181 said that relator actions might involve the Attorney General in a serious conflict between competing duties when the government to which he belongs is the defendant in the case. The reason is that on the one hand he is required to represent public interest with complete objectivity and detachment, and on the other hand, he may have to prepare the case for the defendant ministers. The Australian Law Reform Commission has expressed the view that time has come in Australia to provide an alternative to the Relator action so as to permit private individuals to approach the Court in public interest cases.182 Therefore, it is necessary to have a system to enable private individuals to sue in public interest without a fiat from the Attorney General. In the circumstances, a relator action may not
180 See also Quek Gin Hong v PP [1998] 4 MLJ 161. 181 Law Reform Commission of Australia, Standing in Public Interest Litigation, Report No. 27 (1985). 182 Law Reform Commission of Australia, Access to the CourtsStanding: Public Interest Suits, Discussion Paper No 4, (1977).


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be a suitable remedy for providing access to interested individuals seeking redress to environmental harm since the Attorney General has discretion on whether to consent to an action. Harding commented that the office of the Attorney General does not have an illustrious history of enforcing public duties and they are unwilling to act against public bodies.183 In the Malaysian socio-economic and political situation, it is not advisable to suggest that the relator action will develop in line to provide access to interested citizens seeking to resolve land planning disputes in the public interest. Environmental rights Developments in conferring environmental rights in Constitution can assure rights of interested citizens to seek relief for environmental harm. This can to a great extent ensure that an interested litigant will not be hindered by the requirement of locus standi in seeking to question the decision of the administrators. The idea of environmental rights emerged from a statement supporting the principle of the human right to environmental quality in the Stockholm Declaration on the Human Environment in 1972:
[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.184

Further to the Stockholm Declaration, the Rio Declaration conferred further rights on the people to protect the environment, by proclaiming that all human beings have the fundamental right to an environment adequate for their health and well being.185 It is generally understood that although environmental rights may be derived from existing treaty rights such as the right to life, health, and property, international law has not incorporated an independent right to environmental quality.186 Environmental rights include the right to be free from environmental conditions that threaten health and life itself.187 Environmental rights can be conferred on citizens by statutory and constitutional provisions and this right can be invoked before a court of law in the event that it can be proven that the rights have been infringed. Environmental rights according to Shelton are the reformation and expansion of existing human rights and duties in the context of environmental
183 Harding, A J, Public Duties and Public Law (Oxford: Clarendon Press, 1989), p 227. 184 Declaration on the United Nations Conference on the Human Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987), p 348. 185 Ibid. 186 Birnie, P W and Boyle, A E, International Law and the Environment (Oxford: Clarendon Press, 1992), p 192. 187 Aguilar, A F.and Popovic, N A F, Law Making in the United Nations: The UN Study on Human Rights and the Environment [1994] Review of European Community nad International Environmental Law, Vol 3 (4) 197205.


protection.188 The direct involvement of individuals in protecting the environment should be a matter of right and it is recommended as follows:189 (1) a right to prior knowledge, with a state duty to inform; (2) a right to participate in decision making; and (3) a right to recourse before competent administrative and judicial organs. Proponents envisage environmental rights as a philosophical and practical advance, which would not only acknowledge the fundamental importance of environmental preservation as a public value, but also facilitate enforceability by helping to overcome existing obstacles seeking for environmental protection.190 These obstacles include constraints on opportunities for participation in judicial and administrative decision making, broad delegation of discretion to government officials, and the significant weight or priority accorded to property interests in cases of conflict with other values of the community.191 Attempts have been made in a number of countries around the world to confer constitutional status on environmental interests or to establish environmental rights on a legislative basis. Provisions of the treaty arrangements governing the organisation of the European Union establish that the Unions policy on the environment shall contribute to pursuit the following objectives:192 (a) preserving, protecting and improving the quality of the environment; (b) protecting human health; (c) utilising natural resources prudently and rationally; and (d) promoting measures at the international level to deal with regional or worldwide environmental problems. Moreover, the treaty requires that community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the EU. It must be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Environmental protection requirements must be integrated into the definition and implementation of other EU policies.193 The Draft Declaration of Principles of Human Rights and the Environment (final report, 1994) prepared for the United Nations Commission on Human Rights and the Environment provides as Principle No 2:
188 Shelton, D, Human Rights, Environmental Rights and the Right to Environment [1991] Stanford Journal of Environmental Law Vol 28 103138. 189 Ibid. 190 Benidickson, J., Environmental Law,(Canada, Irwin Law, 1997) at p 38. 191 Ibid. 192 Ibid. 193 Treaty on European Union, February 7, 1992, 31, I.L.M. 247, art 130R.


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All persons have a right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights are universal, independent and indivisible.194

Principle No 20 of the Declaration provides further that all persons have the right to effective remedies and redress in administrative or judicial proceedings for environmental harm or threat or threat of such harm.195 The UK Labour Partys Environmental Policy, In Trust for Tomorrow made reference to environmental rights as:196 (i) legally enforceable rights to clean air and water, access to open country, compensation for environmental damage; (ii) introduction of an environment division to the High Court; (iii) increased freedom of environmental information; (iv) consumer rights and environmental rights at work to be improved. The report also referred to a Charter on Environmental Rights, the implementation of which could lead to the enactment of an Environmental Bill of Rights. However, this policy has yet to be implemented. There is no express recognition of a right to environmental quality or protection in the Federal Constitution. Yet the absence of an explicit reference to the environment does not preclude argument that environmental rights exist implicitly within other constitutional provisions. The right to life and personal liberty is entrenched in Article 5(1) of the Federal Constitution that provides, No person shall be deprived of his life or personal liberty save in accordance with law. Article 8(1) of the Federal Constitution further provides that all persons are equal before the law and entitled to the equal protection of the law.197 The provisions of article 5(1) Federal Constitution can be read as guaranteeing natural justice where the citizens are guaranteed the right to life, which should encompass the right to a clean and healthy environment.198 Article 8(1) Federal Constitution can be read as guaranteeing equality before the law for all persons as well as equal protection in law. Granting

194 Popovic, N A F, In pursuit of Environmental Human Rights: Commentary on the Draft Declaration Principles of Human Rights and the Environment [1996] Columbia Human Rights Law Review Vol 27 487603. 195 Ibid. 196 Labour Party (1994) In Trust for Tomorrow, Report of the Policy Commission on the Environment at pp 4952. 197 Article 8(1) of the Federal Constitution of Malaysia 1957. 198 See Abdul Haseeb Ansary, Right to Healthful Environment as a means to ensure Environmental Justice: An Overview with Special Reference to India, Philippines and Malaysia [1998] 4 MLJ xxv and Abdul Aziz Bari, Right to Life under the Federal Constitution and Environmental Issues [1999] 1 MLJ lx.


equal protection and rights to each and every person can also guarantee an equally healthy environment for all. Though the literacy rate in Malaysia is high compared to many other developing nations, there are still natives (orang asli) of West and East Malaysia who have yet to be touched by modern development. These people need to be given equal protection by the law to prevent logging and other development from threatening their homes and livelihood. They too have the right to live peacefully and not be threatened by allowing development to be carried out by the privileged few. One problem is that the Malaysian Constitution provides for a federal structure that inhibits concerted environmental policy development at both federal and state level.199 Harding is of the view that the right to a healthy environment can be given some practical force by a proper division of environmental responsibilities between states and central government.200 The Constitution guarantees an institutional structure, which may help to enable issues of environmental human rights to be ventilated through for example, judicial independence and representative parliamentary democracy.201 However, legal institutions have constantly been under attack from the executive branch of the government.202 This has resulted in concentration of power within the executive sector that has been absorbing most of the powers of the judiciary and legislature. Human rights, as set out in the Federal Constitution, are not sufficiently protected, so to expect these rights to be developed along the lines of granting environmental protection is unlikely to occur.203 The rights in the Constitution though said to be fundamental rights are not absolute and are subject to restrictions, which are imposed in the name of security, public order or morality.204 These are the powerful instruments of the government where it resorts to declaring activities of the NGOs actively involved in critically examining governments environmental policy and development projects as promoting anti-government sentiment. The NGOs have managed to assist the community to exercise their rights to gain access to justice despite the restrictions and obstacles faced by them in their pursuit to promote environmental justice in Malaysia. The role of the NGOs in promoting human rights and environmental concerns in Malaysia cannot be denied and they
199 Harding, A J, Practical Human Rights, NGOs and the Environment in Malaysia, in Boyle, A E and Anderson, M R (eds), Human Right Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), p 227 at p 229. 200 Ibid. A good example of the concentration of powers on the state or the central government is the Bakun Dam case. 201 Ibid, p 230. 202 Harding, A J, The 1988 Constitutional Crisis in Malaysia (1990) 39 International and Commonwealth Law Quarterly 57. 203 Ibid. 204 Sulaiman Abdullah, Citizens Rights and Conservation Laws [1983] Journal of Malaysian and Comparative Law 3343 at 43.


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must be given rights to represent the public especially the underprivileged citizens.205 The actual scope of fundamental rights guaranteed by the Federal Constitution has been subject to restriction since the British colonial period and since then the scope in some areas has even decreased.206 The true meaning of the rule of law is rule, which emphasises individual rights and freedoms. It is the function of judges and lawyers to keep this meaning predominant, for the rule of law is trivialised when made subservient to the transient needs of government, which is also the administrative power. It was suggested that if it is necessary to limit specific rights with the aim of overcoming grave threats during exceptional circumstances, then measures of protection ought to be observed so that a reasonable balance may be achieved between individual freedoms and genuine national interests.207 This is the way where the rule of law in Malaysia could then be said to be in accord with the precepts of justice according to law.208 Environmental protection is indeed a basic human right, which is essential for the promotion of the growth and well being of the present society and future generations. Suggestions to reform concept of locus standi in Malaysia The complexities of the rules of locus standi are definitely posing a barrier to the development in the area of environmental law where public interest litigation and judicial review appear to be the most usual methods of accessing to environmental justice. The failure of the judiciary, especially the higher appellate body in Malaysia, in according a wider interpretation of the rule of locus standi may be posing a barrier to the development of the avenues of access to environmental justice. This hinders the development of public interest litigation, which relies heavily on the liberal rule of standing. The law entrusting the Attorney General with the task of guarding the interest of the public by invoking the relator action needs to be reviewed as in our view it can never be useful to avail avenues for accessing to courts. The Attorney General being an employee of the government often refuses to grant his fiat to a public citizen than to seek the wrath of the government by granting the same. Relaxing the rules of locus standi may be able to provide litigants legal interest to commence legal proceedings.209 Citizens will not be able to control

205 The illiterate and poor citizens who are not capable of enforcing their rights. 206 Princen, H J C, Access to Justice in Scobie, H M and Wiseberg, L S (eds), Access to Justice Human Rights Struggles in South East Asia (London: Zed Books Ltd, 1985), Chapter 8 pp 7896 at p 90. 207 Ibid. 208 Ibid. 209 Davis, K C, The Liberalised Law of Standing [1970] University of Chicago Law Review Vol. 37(3) 450473 at 473.


governmental activities and their fate if the rules of locus standi are not relaxed.210 Arguments on the fear of floodgates of litigation owing to the relaxed rule of locus standi can be rebutted by citing the United States and Australian positions. It is clear from the United States211 and the Australian experience that relaxing the standing procedures will not increase cases before the courts. The fear of opening of floodgates of litigation is a wrong presumption. The Australian Law Reform Commission claimed that fear of opening of floodgates of litigation on relaxing the standing rule is unfounded. The Commissions reasons are as follows:212 (1) The cost of pursuing claims. (2) The risk of having to pay the other partys cost if unsuccessful (loser pays the winners costs). (3) The discretionary nature of public law remedies. (4) The delays and demands of litigation and the lack of empirical evidence militated against the argument. In the UK the JUSTICE/PLP report recommended that:
the key to proper control of litigation of this kind rests in a recognition that in a public interest challenge, the court, in deciding whether the application should go ahead, is not primarily concerned with the question of standing at all.213

The Malaysian courts and legislators can consider incorporating a definition of standing in the Town and Country Planning Act 1976 in order to relax the strict rules of locus standi so as to avail access to interested citizens and environmental interest groups who may be able to represent the interest of the environment for the sake of the present and future generation. The Malaysian courts can also learn something from their Asian neighbours. In the Minors Oposa case,214 the Philippines Supreme Court recognised that a group of children have the right to uphold environmental rights for themselves and

210 Winter, S L, The Metaphor of Standing and the Problem of Self Governance [1988] Stanford Law Review Vol 4 3989 at 42. 211 Bulatao, L, Citizen Suits Under the United States Clean Water Act in Fuhr, M and Rotler, G (eds), Participation and Litigation Rights of Environmental Association in Europe: Current Legal Situation and Practical Experience (Frankfurt am Main: Peter Lang, 1991), pp 121125, in summarising on environmental citizen suits in the US identified that the number of suits has not increased even after the enactment of citizen suit provisions in many of the environmental protection statutes. 212 Commonwealth of Australia, Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report 78 (Australian Law Reform Commission, 1996), para 2.35 at pp 2223. 213 Justice/PLP Report, Law Com No 226, Administrative Law: Judicial Review and Statutory Appeals (1994), p 11. 214 Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) (DENR) 33 ILM 173.


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for the benefit of the future generations. In delivering the judgment the court cited s 16 of Article II of the Philippines Constitution, which provides that:
The State shall protect and advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature.215

The court held that the plaintiffs had standing to represent their unborn posterity, that they had adequately asserted a right to a balanced and healthful ecology.216 The court said that:
Rhythm and harmony of nature include, inter alia, the judicious disposition, utilisation, management, renewal and conservation of the countrys forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilisation be equitably accessible to the present as well a future generations.217

The Philippines Supreme Court by encouraging the plaintiffs right to sue on behalf of future generations has established the concept of intergenerational standing for environmental issues.218 In UK the Woolf Committee Final Report referred to the concept from the Philippines and said that the court has the duty to protect the interests of claimants, especially those unidentified or unborn.219 However, this concept has not been accepted by all and some objection has been raised against the concept of representing future generations.220 The objections are as follows:221 (a) Future generations do not exist, so they cannot be represented in court. (b) An attorney that would represent future generations has no way of knowing what their interests are or what environmental damage they would be concerned about. (c) Standings for future generations could be abused by unscrupulous lawyers and open the floodgates for needless litigation. (d) Representation of future generations is not appropriate in all environmental cases, and should therefore be limited to litigation
215 Ibid. 216 La Vira, M, The Right to a Sound Environment in the Philippines: The Significance of the Minors Oposa Case [1994] Review of European Community and International Environmental Law Vol 4(3) 246252. 217 Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) (DENR) 33 ILM 173 at 185. 218 Just, R A, Intergenerational Standing Under the Endangered Species Act: Giving Back the Right to Biodiversity after Lujan v Defenders of Wildlife [1996] Tulane Law Review Vol 71(2) 297249 at 249. 219 Woolf Committee Final Report, Multiparty Actions, Recommendation 15, Chapter 17, Section IV, pp 223249 at p 249. 220 Allen, T, The Philippines Childrens Case: Recognising Standing for Future Generations [1994] Georgetown International Environmental Law Review Vol 6 713741. 221 Ibid.


against the government to stop long-range environmental damage, or to prevent future damage. (e) Who should represent the interests of the future generations: court appointed attorneys, certified lawyers, a federal agency, an independent ombudsman or any plaintiff that claims to represent future generations? Allen suggested the introduction of sufficient rules, procedures and guidelines to the judiciary in dealing with this type of matters in order to overcome these objections.222 The Malaysian courts and legislators have to seriously consider relaxing the rules of standing in order to grant access to interested citizens and also public interest groups who may be able to prevent environmental degradation. The Malaysian courts may besides learning from the developed countries also learn something from their Asian neighbours. They must try to resolve the two opposing judicial views on the interpretation of the rule of standing; the first is the narrow test of aggrieved person and the other adopting the liberal test of sufficient interest. Public interest litigation is a positive development in providing access to citizens. Granting of environmental rights for citizens to seek to enforce their rights is a development which Malaysia can consider seriously. The Malaysian judiciary can develop some guidelines that could be used in interpreting the strict rule of standing depending on the nature of the action before them. Procedural infirmities may result in thwarting justice and it is therefore necessary that the procedures be reformed to effectively meet the needs of the society as it progresses. Law must be stable but at the same time it must be dynamic and accommodating to changes. The NGOs in Malaysia must be given the right of access to environmental justice. They play an important role in helping the people to obtain justice against environmental harm arising from land development activities.223 Concluding remarks The discussion examined the application and development of the concept of locus standi in Malaysia and the developments in various other jurisdictions. There is a significant development in relaxing the strict rules of locus standi to provide access to interested citizens and NGOs in other countries. It is very important to provide access to interested citizens and NGOs since ideology of land planning itself is aimed at balancing needs of public interest against private proprietary rights. Thus, relaxing the rules of locus standi to persons seeking to enforce planning laws in order to promote public interest can be deemed timely and essential. However, relaxing the strict rules of locus standi itself may not resolve the problem since access to information and high
222 Ibid. 223 The Bakun Dam case and the Asian Rare Earth case are very good examples. The NGOs helped the affected citizens to seek redress from the court.


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costs also can pose an obstacle to a prospective litigant. In Malaysia, access to information either from the public or private corporations in general is relatively unavailable and what more can be said for land planning and environmental information.224 During the research process, there were difficulties in accessing related information, as most information was classified and confidential. The EQA 1974225 has provided a clause on secrecy to be maintained by the officers. However, the provision of this clause has yet to be tested in the courts. There are certain restrictions especially the provisions of the Official Secret Act 1972 (OSA 1972), restricting the rights of citizens in accessing important information.226 The OSA 1972 modelled from the English Official Secrets Act 1889, was aimed at preventing official secrets of the government from being revealed to external forces which may lead to invasion. However, at present the OSA 1972 can be subject to abuse by the government to suppress the release of information including that related to land development and environment. Effective means of accessing information can promote improved participation. The public must be willing to use the available information for the benefit of promoting public participation. For instance, research carried out in Scotland227 on access to information in the context of the register system concluded that the public at large does not have the motivation or incentive to assume the role of active involvement in environmental matters that the government has made out for them. Much has been said about relaxing the strict interpretation of the rules of locus standi; however, relaxing the stringent interpretation of the rule standing does not necessarily provide easy access to citizens. The other hurdle, which is considered more daunting than the stringent rule of standing, is the aspects relating to costs incurred in instituting court proceedings and related expenses which, can also be a deterrent factor in instituting legal action for public citizens. In Malaysia, the public is often unwilling to participate. They readily seek the assistance of NGOs or other interested citizens to shoulder this task. Therefore, it would be difficult to prove in absolute terms that making information on land and environment available will lead to improved protection of the environment. However, if this assumption can be rebutted, then irrespective of the amount of information made available to the public, there will be little impact on their role as environmental protectors, what more can be said for Malaysia, where economic development is given paramount consideration. The government will definitely not be inclined to promote public participation

224 Shad S Faruqi, Access to Information [1992] 4 Current Law Journal at xxiii where the author discusses the problems related to access to environmental information in general in Malaysia. 225 Environmental Quality Act 1974 s 50. 226 Abdul Aziz Hussain, Undang-undang Berkaitan dengan Rahsia Resmi (Kuala Lumpur: Dewan Bahasa dan Pustaka, 1997),t pp 34. 227 Rowan Robinson J, Ross, A, Walton, W, and Rothnie, J, Public Access to Environmental Information: A Means to What End (1996) 8 Journal of Environmental Law 19.


for fear of inviting unwanted interference with their economic activities. There are various developments in other countries in reforming and creating easier access to the courts. The Malaysian courts and legislature must be prepared to make the necessary changes to meet the changing needs of the society. Providing easier access to courts is very essential, as it will enable citizens and NGOs to assume a useful role in protecting the environment, which is seriously threatened at present. The growth of public interest litigation must be encouraged to ensure the citizens participate in the overall land development planning decision making.