Focus on Arts and Ecology

January 9, 2021 

In September 2020, more than a million households in Malaysia’s densely populated Klang Valley suffered extended water cuts after illegal chemical dumping debilitated the region’s aging water purification systems. In the midst of the pandemic, residents donned masks and lined up to fill buckets with water.

A month later, before courts could identify and charge the culprits responsible for the September incident, a similar chemical dumping again left more than a million homes without water for days. It kept on happening, leading a groundswell of citizens calling for stronger enforcement against industrial polluters, and for reforms that could prevent water cuts from becoming the new normal.

As pollution increasingly seeps into Malaysians’ daily lives, this surge of angry consumers is amplifying a call long made by civil society organizations that have demanded better environmental stewardship and heftier fines for violators — and there are signs that the current government, motivated by the recent power transitions and the increasingly dynamic competition among political parties, is taking note and is showing a concerted effort to reform the country’s environmental law.

The baseline for environmental policy

At the core of Malaysia’s national environmental policy is one fundamental document, the Environmental Quality Act (EQA) of 1974, which aimed to prevent and control pollution and set up a system to punish those who recklessly harm the environment. However, even with sporadic amendments, some officials and critics say both Malaysia’s economy and increasing attention to environmental concerns in society have far surpassed the scope of the 46-year-old law. They say that building a new and broader-ranging code is necessary to prevent further pollution issues.

From its outset, the EQA was tailored to stop pollution incidents. Its provisions set up licensing and environmental impact assessment protocols and defined pollution across a range of substances and environments. It remains the backbone of Malaysia’s environmental law at the federal level; most decisions about land use and enforcement against violators are made at the state level.

It was only in 1996, more than two decades after it was passed, that the EQA gained real teeth against violators. The environmental law, like the country’s other legislation, was shaped through five-year development plans. It was the third of these “Malaysia Plans,” for 1976-1980, that first took the environment into account, notes legal scholar Maizatun Mustafa in her 2011 analysis of the law.

Only in the Sixth Malaysia Plan, for 1991-1995, did Malaysia start to seriously consider the idea of sustainable development. Maizatun says that then-prime minister Mahathir Mohammad, who was reelected in 2018, urged Malaysia to focus on achieving “developed nation” status by 2020. As part of that program, the concept of protecting and preserving natural resources was folded into the idea of construction and growth. Not long after, the EQA, once a document of environmental recommendations, gained higher fines and jail terms for its violations.

Meenakshi Raman, president of environmental and social justice group Sahabat Alam Malaysia, says the recurring pollution incidents and water cuts have exposed a fundamental problem with the EQA: the fines are insufficient to deter companies from polluting land and waterways, even after the 1996 amendments.

“Even if [the fine] is 100 million [ringgit, or about $24 million], it won’t be deterrence enough [for multinational corporations] because they make much more than that,” she says.

Though other laws can be used to punish environmental crimes, Meenakshi advocates for stronger penalties — in particular, longer jail sentences — under the EQA to make enforcement of the law more serious.

Court charges for the September 2020 pollution episode demonstrate the contrast in sanctions imposed by the EQA versus other laws. The two directors of the construction equipment company that was blamed for polluting the Gong River in Selangor state’s Rawang municipality were each hit with two charges in early November: one under the EQA and another under the Penal Code. The maximum sentence they face under the EQA charge, for polluting inland waters, is five years in jail; under the Penal Code charge of wrongfully diverting water, they could be jailed for up to 30 years.

Beyond the law’s omissions — excluding certain types of pollution in certain areas, ignoring specific contaminators like plantations, and lacking any advice on climate change or greenhouse gas emissions — Meenakshi says the mentality and strategy behind the EQA needs to be reformed.

This is particularly true when it comes to the law’s recommendations on environmental impact assessments (EIA) for private and public projects, Meenakshi says.

In practice, she says, the government tends to approve most companies’ EIA reports with a slew of suggestions on how to reduce pollution or damage, rather than thinking about a project’s longer-term development and the impacts it will have on an area.

“[Developers] see the EIA as an impediment to their intentions rather than seeing it as a planning tool,” she says, adding that the Department of Environment tends to “tread very carefully” when reviewing EIAs. “There is a political pressure on the Department of Environment not to hold up development, so that’s a weakness.”

To Aishah Bidin, a law professor at the National University of Malaysia and a specialist on business, human rights and the environment, the challenges are clear-cut: international law and conventions surrounding environmental policy have progressed, while the EQA has largely remained unchanged, apart from a few updated definitions.

“It was passed in 1974 and now it’s 2020,” she says. “It’s a long time, and it’s high time that there was a review of the law.

Defining a future code

In the wake of the 2018 election, which dealt an unexpected finale to the long-running rule of the National Front government, the time appeared to be right for reforms to the EQA. Yeo Bee Yin, who from July 2018 to February 2020 served in Mahathir’s Pakatan Harapan government as minister of energy, science, technology, environment and climate change, made environmental law reform one of her main issues. Early in her term, she ordered an investigation into the public-private environmental monitoring system that did not respond during a the chemical poisoning of the Kim Kim River, which sickened thousands, shut 111 schools, and left the river smelling of oil and black with dead fish.

Then, at the start of 2020, Yeo vowed to make procedures within the ministry’s Environment Department more efficient and increase the number of employees working on enforcement of the code, which she previously said was focused too heavily on monitoring environmental quality without having teeth to punish. At the time, Yeo called for a complete overhaul of the EQA, saying the law was outdated in its fines against polluters and that the environmental impact assessment process did not do enough to hold companies accountable.

The government changed again in March 2020, but the environmental leaders under the new administration have continued the law reform work started under Pakatan Harapan, emphasizing a desire to strengthen law enforcement as soon as possible, with plans to reform the EQA on the horizon.

After a review by the Department of Environment in 2019, the government assigned a group of officials, scientists, civil society members and a legal expert to perform a broader review of the 1974 act and its amendments.

Drawing on her experience advising government policy and investigating cases involving land, resource and human rights conflicts with corporations, Aishah, the law professor, served as a legal consultant on the task force. She says she was excited by the task, but keenly aware of the complex system of laws that overlap with the EQA and make it a challenge to modify. “I have to admit, it has layers and layers of issues,” she says. “When [the Department of Environment] asked me to sit on the steer committee, I thought, ‘wow, we have a difficult job to do.’”

She declines to reveal specific recommendations made by the task force because the group is just at the advisory stage, and any new legislation would undergo substantial review, and potentially change dramatically from the expert group’s initial suggestions.

Despite some heated debates among task force members on specific details, Aishah says the group is strongly united on certain goals, which she offers to explain.

She says the group is keen to find a solution to the bureaucratic challenges that diluted the EQA in the past, particularly in regard to state and federal power, as well as the ways that the EQA bisects other legislation.

For example, when it comes to water, the EQA does include provisions banning inland pollution and industrial water contamination. However, different states have control over their own enforcement as well as specific policies, whereas the country’s 1984 Exclusive Economic Zone Act has more jurisdiction over industrial pollution in marine waters.

Such overlaps make it difficult to enforce the federal environmental law in states, as officials are cautious not to encroach if a different ministry holds the “upper hand,” Aishah says.

“We realize these are complicated issues, and sometimes of sensitive nature too, but for the first time I think [the task force members] have highlighted that,” she says.

Aishah says one of the key ways the task force tries to settle those inter-ministry conflicts is by recommending stronger definitions in the EQA, which she calls “very, very weak.” The law’s definitions for terms like “biodiversity” and “ecosystem” could be updated to better match current international standards, which she says would further empower government officials to clearly recognize and then protect those terrains.

The task force also aims to add climate change to the law’s definitions and policies, as the term does not appear at all in the EQA or any of its amendments. However, Aishah says the group debated whether climate change policy would be added into this law or covered by its own separate legislation.

Zakri Abdul Hamid, the chair of the task force, which is under the Malaysian Academy of Sciences (ASM), would not comment on the group’s recommendations, nor would Nadzri Yahaya, the chair of the ministry’s Environmental Quality Council, which would eventually review and approve amendments to the EQA.

Mongabay also reached out to representatives from the Department of Environment and Ministry of Environment and Water, who did not respond as of the time this article was published.

But Faizal Parish, director of the Malaysian nonprofit Global Environmental Centre and a civil society member of the ASM task force, says he is optimistic after participating in the process because of its broad range of stakeholders and the government’s interest in reform, noting that law enforcement is the clear priority. Though the task force would not set any penalties for environmental violators, he says the group is aware of the need to strengthen the law’s power, and the government has shown signs of being receptive. The fact that Malaysia’s long-time opposition coalition ordered a review of the law weighing expert opinions and international best practices, and that it continued even after the coalition lost power, is a positive development, Faizal says.

“The work by Academy of Sciences of Malaysia was comprehensive, bringing in new concepts,” he says, adding he expects that their recommendations will be debated or changed as they pass through parliament, the attorney general’s chambers and other reviewing bodies.

Hazy future for enforcement, even with reform

Even if the reform effort can strengthen the EQA’s power, entrenched tension over state versus federal power will continue to have a major impact on environmental policy on the ground. As haze from fires has grown more detectable and burdensome throughout the nation, it has both revealed holes that can be fixed in the EQA, and bigger federal-state challenges on the horizon.

Though the sources of haze are numerous, one of the main causes — clear-cutting and burning on plantations — had been largely excluded from Malaysia’s domestic environmental policies. The EQA only approaches the issue of burning and clearing forest for plantation use in a 2000 amendment, in which the government banned open burning with a punishment of up to 500,000 ringgit ($124,000) — but one year later added an exception to allow specific instances of open burning with a minister’s written permission.

Plantations are mostly governed by the 1984 Forestry Act, which revolves around the various licenses and permits pertaining to protected and unprotected forest areas. Malaysia’s forestry governance requires those with licenses to write a management and reforestation plan, but there are little to no recommendations or enforcement for sustainable forest use or ways to mitigate pollution or other environmental impacts on the area, protected or not.

Faizal, from GEC, says problems like this could be addressed in a reform to the EQA by considering stricter requirements for issuing licenses to companies in the first place, rather than a retroactive response.

“The issue is the current act is focused more on penalizing for the resulting pollution, not prevention, so if you do open burning, and it leads to pollution, then you’re fined,” he says, adding that he advocates for better licensing practices as part of the ASM task force.

However, conflicts will likely continue, he says, as state governments have tried to assert sovereignty, even if they lack the resources to handle effective enforcement.

“[State authorities] won’t come out and say they want to allow companies to burn [forests and peatlands],” he says. “The issue is they’re saying it goes beyond federal boundaries, it’s a local issue, and there may be resistance from that perspective, so we’ll have to see how that issue goes.”

The federal forestry law has no power in the Bornean states of Sabah and Sarawak, which govern their own forestry and are calling for more sovereignty over their respective environmental policies. The two states alone were responsible for 56% of Malaysia’s forest cover loss between 2001 and 2019, according to a Global Forest Watch report released in June.

Though the forestry policy remains political and heavily influenced by the oil palm, rubber and other powerful industries, there are signs that government officials are preparing to confront states’ control of power in forest preserves.

In February, Selangor state announced that it would degazette and raze 931 hectares (2,300 acres) of the Kuala Langat forest, a biodiverse peat swamp that absorbs floodwaters and houses Malayan sun bears, Langat red fighting Fish and other rare animals for a “mixed development project” with few known details. Though other bids to raze forests had been approved by state governments and passed with few questions from the federal level in the past, Environment Minister Tuan Ibrahim Tuan Man joined civil society and Indigenous Orang Asli communities in voicing concerns about the project and Selangor state’s power. Despite the state government’s proposal to replace the 931 hectares with nearly 1,200 hectares (3,000 acres) of other reserved forest, the undisclosed development plan has been widely rejected through public complaints to the Selangor Forestry Department, and several state assembly members protested the plan during the ongoing decision, saying they had not been consulted about a proposal to degazette the forest.

Long road to reform

Overall, Faizal says he is pleased to see the government’s apparent conviction to identify major culprits behind recent pollution events, though he notes both federal and state authorities are also constrained by their resources.

The Environment Department has about 1,500 staff members, Faizal says, but only a small portion are enforcement personnel. “Do those enforcement teams have the necessary forces, vehicles, drones, and test equipment?” he asks. “What we understand is that they don’t, and [resources] need to be significantly expanded.”

Officials also have to contend with vast numbers of unknown polluters, ranging from restaurants that carelessly dump oil and other food waste, to large unlicensed factories dumping tons of chemical waste.

“If [a business] is not licensed, then it’s not on the radar at all, and the fact that there are large-scale unregulated companies implies incompetent or inefficient work by local authorities,” Faizal says.

Though there are long-term challenges on the horizon, the immediate need is for a modern EQA, says Aishah, the law professor. And with the country’s capital currently under stricter movement restrictions amid another spike in coronavirus cases, she says she has no estimate for when the task force’s recommendations can be tabled in parliament.

But overall she says the political climate seems promising for an overhaul of the EQA.

“[Malaysia’s environment] was becoming a public debate, and we are able to deliberate issue in public and we’re able to talk over issue in the government, that’s a very positive development,” Aishah says.

Meenakshi, from grassroots group SAM, agrees with that assessment, suggesting that a stronger presence by the opposition coalition has encouraged all candidates to “look out for public issues,” and citizens have voiced their concerns.

“The new minister has shown that he’s concerned about the environment, partially because of the recent water crises,” she says. “They are aware the environment situation has become much more critical, and the public is not taking this lying down anymore.”

This article by Danielle Keeton-Olsen was first published on Mongabay.com on 23 December 2020. The Malayan tiger (Panthera tigris jacksoni) a critically endangered species native to peninsular Malaysia, has been squeezed out by habitat fragmentation. Image by Rhett A. Butler/Mongabay.

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