WHITHER JUSTICE ?

Why do you want to be a lawyer?

GLAMOURMONEY FAME

What kind of lawyer do you want to be?

Q.  What do lawyers use for birth control? A.  Their personalities

Q:   Where does a vampire learn

how to suck blood? A:   During his first year of Law

School.

7

WHAT IS PUBLIC INTEREST LITIGATION (PIL)?

• Emergence of PIL attributed to the (post-emergency) Supreme Court of India of the 1980s – particularly the efforts of Justice P.N. Bhagwati and Justice V.R. Krishna Iyer

• Also known as “social action litigation” or “alternative lawyering”

• Litigation commenced in the pursuit of the public interest, either by a public-spirited individual or group or by the court acting in suo motu

• Public interest litigation is thus not initiated directly by the victim of the omission or commission complained of

• It is not in pursuit of individual remedies by or for a specific person, but often for the protection or advancement of group rights

• Most useful in the pursuit of social, cultural, economic and environmental rights

In George John v Goh Eng Wah Bros Filem Sdn Bhd & 2 Ors, J Lim Beng Choon traced the origin of public interest litigation and its justification

“ The concept of “public interest litigation” was said to have been first

mooted by the Indian Supreme Court in Fertilizer Corporation Kamgar Union v Union of India AIR 1981 SC 344. The judgment of Krishna Iyer J (ibid at 350) had no doubt influenced greatly the Indian judicial thinking on the concept.

“Law, as I conceive it, is social auditor and this audit function can be

put into action when someone with real public interest ignites the jurisdiction”.

• Public interest litigation :• - promotes, rather than hinders good • governance in public administration • - can be a panacea for administrative

ills • in public administration• - involves judicial review of

government • policies and actions • - seeks to uphold the fundamental • principle of rule of law.

EARLIEST PUBLIC INTEREST LITIGATION IN MALAYSIA

General Public Interest Litigation:• LIM CHO HOCK (1980)

Environmental Public Interest Litigation:8j9• ASIAN RARE EARTH SDN BHD • (1984-85)

Barriers on the Road to Justice

Restrictions on “legal standing” (locus standi)

Inadequate remedies (no injunctions, small damages)

Corrupt or timid courts – judicial activism or judicial in-activism?

High court costs, undertakings for injunctions

High costs for lawyers, experts

Who gets justice?•Busines

s and industry•Stand

ing to sue

•Money to pay lawyers

Who gets access to the courts without even

trying?

•Citizens, NGOsWho needs help

in gaining access to justice?

The issue is not access to justice

The issue is equal access to justice

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread.” – Anatole France

LOCUS STANDI in Malaysia

• In Government of Malaysia v Lim Kit Siang, the courts made a fundamental shift from a liberal to a restrictive approach in terms of the rules of standing which a public interest litigant is required to meet before his action against the executive can be maintained.

• “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 contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiff's 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.” Salleh Abas LP

• The decision was described in the strong dissent registered by Abdoolcader SCJ as

• “a retrograde step in the present stage of development of administrative law and a retreat into antiquity.”

• Prof MP Jain said that: • “the Malaysian law as to locus standi to

seek judicial review of administrative action is ancient and antiquated and out of tune with modern developments in judicial thinking in the common law world.”

KETUA PENGARAH JABATAN ALAM SEKITAR & ANOR v. KAJING TUBEK &

ORS

• Gopal Sri Ram JCA adopted the majority decision in Lim Kit Siang i.e. for a public interest litigant to establish locus standi he has to show that he has suffered a peculiar damage as a result of the alleged public act and that he has a genuine private interest to protect .

The end result of the Lim Kit Siang decision

In most PIL situations, there is no infringement of a litigant’s constitutional or personal rights.

Injustice to the citizenry.

Administrative decisions virtually shielded from scrutiny

Practise judicial restraint, judges told

• New Straits Times31/07/2010

•

KUALA LUMPUR: Chief Justice of the Federal Court Tun Zaki Azmi wants his judges to practise judicial restraint.

• He wants them to play the role of being interpreter of laws passed by the legislation (Parliament and state assemblies) and not be an extreme judicial activist.

Zaki said activist judges were looked up by some lawyers, academicians and students because in their view this was a form of development of the law.

"While it may be good and necessary in some instances, in my opinion, it can be a dangerous weapon in the hands of a too activist judge," he said in his paper titled "Judicial Activism: Is it activism or plain interpretation?" delivered at the 15th Malaysian Law Conference here yesterday.

COSTS normally go to the winning party

• But in Superintendent Of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors And Another Appeal , the Court of Appeal held:

• “As for costs of these appeals and in the court below, in the exercise of our discretion we would order that each party pays its own costs here and below. We take such a course in view of this case being one of public interest in nature. Moreover it is not in dispute that the respondents are persons of little means. Thus, to award costs against them could be an economic catastrophe for them and their families.”

Nor Nwayai’s decision on costs has been applied in a handful of cases

• Azizan bin Osman v Kerajaan Negeri Kedah - quarry on Gunung Jerai

• Wong Kin Hoong & 3 Ors v DOE & RAGM - gold mining facility in Bukit Koman, Raub

• Bato Bagi v Govt of Sarawak (heard with Jalang ak Paran v Govt of Sarawak and Anor) – Federal Court decision in September 2011

The courts have a role to play

• “Even if the law’s pace may be slower than society’s march, what with increased and increasing civic-consciousness and appreciation of rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful ordering of the relations between and among persons in society, and between and among persons and government at various levels.” Abdoolcader SCJ in Tan Sri Haji Othman Saat v Mohamed bin Ismail

The courts must therefore be relevant to the needs of society. History warns us of disastrous consequences if public grievances and injustices are ignored. There will come a time when administrative abuses are so repugnant to common sense as to make the law look asinine that public opinion demands a change in judicial attitudes. The judges cannot then just stand there and fold their arms and do nothing; otherwise they would indeed be hanging their heads in sorrow and perhaps even in mortification in not being able to at least entertain for consideration on its merits any legitimate complaint of a public grievance or alleged unconstitutional conduct. Abdoolcader SCJ in his dissenting judgment in Government of Malaysia v Lim Kit Siang

CASE STUDY NO. 1

• The Bukit Merah Villagers v Asian Rare Earth

• - Factory producing radioactive wastes • - Asian Rare Earth (ARE)• - JV between Mitsubishi & Malaysian co.• - Perak anti-Radioactive Waste Committee• - Studies by scientists revealed high levels of

radiation exposure• - impacts – high miscarriage rates, childhood

leukemia, lower blood cell count of children etc.

Woon Tan Kan & Ors v Asian Rare Earth

• At the High Court – Peh Swee Chin J• “In my opinion, such radioactive radon gases are extremely

dangerous to health and would cause very serious injuries in the long term. The gases thus cumulatively are damaging the DNA in the cells of human beings in Bukit Merah, it being so near to ARE. They contribute a very substantial interference with the comfort of the plaintiffs in the enjoyment of the land and they reasonably constitute an annoyance to them. Damage is presumed by law once this nuisance is established that is with regard to the substantial interference with enjoyment of their land, viz. their health is being affected harmfully, insidiously, significantly or to substantial degree. Once damage can be presumed on proof of such annoyance or discomfort of the plaintiffs in their enjoyment of their land, an injunction may be suitably considered though no pecuniary compensation may be awarded.”

But at the Supreme Court:

• (a) The joint venture factory between Mitsubishi and the local partners have been operating since 1979.

• (b) At present there are 183 people employed by the factory;

• (c) It is not possible to switch off the entire manufacturing process of the factory to a complete halt on the date of the order because of many stages involved in the operation of manufacturing process;

• (d) The mandatory injunction to remove toxic waste and radioactive waste within a period of fourteen days is not adequate as this removal involves scraping of the plant which has been in operation for more than twelve years.

However

The people continued their campaign

Japanese ground support for the community and against Mitsubishi

Mitsubishi voluntarily decided to close down its operations

Sunday Star June 13 2010Dumpsite danger

• It has been 28 years but the people of Bukit Merah and Papan have not forgotten. Triggered by Tun Dr Mahathir Mohamad’s recent comments about the radioactive waste in Perak, The Star has unearthed some new developments there.

• FOR almost 30 years, the country’s cache of dangerous radioactive waste has been stored in drums in a concrete facility – and not buried “deep in the ground” as claimed by Tun Dr Mahathir Mohamad.

• The former prime minister, commenting on the Government’s proposal to build a nuclear power plant, told a press conference on May 14 that there was ‘’a small amount’’ of nuclear waste buried in Perak and that the disposal site was still regarded unsafe.

New York Times Mar 8, 2011Mitsubishi Quietly Cleans Up Its Former Refinery

• Nearly two decades after shutting down, a rare earth plant in Bukit Merah near Ipoh is now the site of the largest radiation cleanup in the lucrative industry

• Mitsubishi Chemical is spending US$100 million (RM303 million) to decontaminate the site despite having no legal compulsion to do so.

• In the current cleanup operation, workers in protective gear have already removed 11,000 truckloads of radioactive material, hauling away every trace of the old refinery and even tainted soil from beneath it — down to the bedrock as much as 25 feet below

• To dispose of the radioactive material, engineers have cut the top off a hill in a forest reserve nearly five kilometres away, buried the material inside the hill’s core, and then entombed it under more than 20 feet of clay and granite.

• The NYT reported that the toughest part of the Bukit Merah cleanup is yet to come, when robots and workers in protective gear will start trying to move more than 80,000 steel barrels of radioactive waste from a concrete bunker. They will mix it with cement and gypsum, and then permanently store it in the hilltop repository.

CASE STUDY NO. 2

Farmers who had lived on the estate for generations were given one month’s notice to vacate.

Supplied a great deal of Penang’s agricultural needs

Legal battle

Confrontation on the ground – farmer shot dead, people injured

People in CAP stood with the villagers in front of the bulldozers

Lawyers ran to court to obtain injunctions

Thean Teik Estate

• Perumahan Farlim (Pg) Sdn Bhd & Ors v Cheng Hang Guan & Ors [1988 & 1989] – on injunctions and res judicata

• Cheng Hang Guan v Perumahan Farlim (1994)

• - on tenancy, estoppel, notice, trespass, damages

• BUT as a result of this decision, and CAP’s efforts, S 7 & 8 of the Specific Relief Act was amended. The remedy of self help has been regulated into oblivion as the owner of the said land can only seek to enforce his right to recover his property from the occupier, even after the tenancy has terminated, by way of a court action.

Trustees of Leong San Tong Khoo Kongsi v Poh Swee Siang (1987)– remedy of self help

part of the law of this country

BAKUN DAM AERIAL VIEW

CASE STUDY NO. 3

• - The Bakun Dam was to be the largest concrete filled dam in the world

• - the size of Singapore• - would displace more than 10,000 indigenous

peoples• - expected to produce > 2400MW of energy

upon completion

Kajing Tubek v DOE – the Bakun case

The Environmental Impact Assessment Report (EIA)

- approval was first announced by Datuk Abu Bakar Jaafar, then DOE DG, in KL DOE

- announcement created an uproar – as EIA Guidelines provide for public participation and consideration by Review Panel prior to approval

- suddenly another announcement – EIA actually approved under Sarawak Natural Resources & Environment Order (NREO)

The EIA report

• - BUT dams don’t come specifically under the Federal prescribed activities list

• - SO they enacted an order to RETROSPECTIVELY remove dams from the federal list and insert it in the State list

• - WHY all the trouble? – because under the State NREO – PUBLIC PARTICIPATION IS NOT MANDATORY

The Legal Battle

• -Kajing Tubek & others sued the DOE and Ekran

• - the Sarawak State Government was brought in as a necessary party

• - argued that subsidiary legislation cannot be retrospectively amended if the effect is to take away a substantive right

• - the right to public participation

Victory at the High Court

At the Court of Appeal

• - Ekran Bhd applied for a “suspension” of the declarations granted at the High Court – the first of its kind

• - Appeal allowed on several issues:

• - that environment depends on where the project is situated

• - that the appellants do not have locus

• In my judgment, the activity described in para. 13(b) of the 1987 Order cannot exist in the abstract. Dams, hydroelectric power schemes, reservoirs and the like must exist on land, which of course, is part of the environment, as is the very air that we breathe. Admittedly, the land and river on which the project is to be carried out lie wholly within the State of Sarawak and are its domain. So, when the respondents speak about "the environment" in this case, they are in fact referring to environment that wholly belongs to the State of Sarawak; subject, of course, to those customary or other rights recognised by its laws.

• The respondents sued in their own capacity. They did not seek to represent any or all of the 10,000 other natives whose livelihood and customary rights were equally affected by the project. There was no averment in any of the affidavits filed in support of the summons to the effect that the respondents were championing the cause of the other natives who, so to speak, were fighting the cause from behind the hedge. Neither does it appear, from the record provided, that the case was fought on such a basis.

New Civil Suit Bato Bagi & Ors v Govt of Sarawak

• Bato Bagi and 6 others representing 5 longhouses

• Challenged the extinguishment of Native Customary Rights (NCR) for the Bakun Dam

• Sarawak law on extinguishment of NCR is unconstitutional and therefore null and void

• No proper compensation, no assessment, no criteria

Our journey through the courts

• Kuching High Court – suit thrown out on Order 14A – no trial on the merits

• Court of Appeal – upheld the decision of the High Court

• Federal Court – granted leave on 1 question of law:-

“Whether S 5(3) and (4) of the Land Code are ultra vires A5 and A13 of the

Federal Constitution”

Our Submissions

• That the law has no criteria for compensation nor does it provide for adequate compensation

• That therefore the provision violates A13 of the Federal Constitution

• That the law does not provide for consultation• This is a violation of the fiduciary duty of the

Government to the natives• That the extinguishment of NCR (which is a

right to life) by way of an unfair and unjust law violates A5 of the Federal Constitution

8th September 2011 – what was supposed to be a historic decision of the Federal Court

• 2 judges of the Federal Court refused to answer the question that they granted leave on

• Blamed lawyers for failing to sufficiently address the constitutional question – despite a total of 7 sets of submissions and 14 bundles of authorities on the question

• Blamed lawyers for insisting that the matter be returned to the High Court for trial – when such argument was not the crux of the case at all

CASE STUDY NO. 4

• 1993 – State Govt of Kedah compulsorily acquired 100 acres of prime padi land under the Land Acquisition Act 1960

• Purpose – to convert them for shrimp farm cultivation

• JV between Saudi company and State govt – Samak Aquaculture

• Thousands of farmers and families affected

Kerpan – from padi fields to tiger prawn farms

• - Landowners refused to accept the menial compensation offered.

• - Jan 1995, about 100 farmers gathered at the entrance of the project site to stop excavators from moving into the site.

• - Police battalions gathered at the project site. Heavy machinery moved into the project site. Rice farmers watched helplessly as bulldozers and heavy machinery began to tear up their paddy during harvest season.

• - Farmers, couldn't bear to watch and lay down on the road to prevent vehicles from moving in.

• - The police arrested 33 of the protestors, comprising of 10 women and 23 men. The women were released after three days whilst the men spent seven days in jail.

• - One of those detained lamented that "The tragic of the day is that we are the victims and we were arrested for defending our rights".

• - After years, the ponds had been dug, but disease outbreaks, legal wrangles, management problems and conflict over land have meant that in several years of existence, the operation has lost millions of dollars and had yet to export any prawns.

• - As a farmer in Kerpan said, "Each prawn produced here represents a teardrop that belongs to one of us. That's how much we have suffered".

Strategies adopted

• - CAP helped to mobilise community• - Campaign against the project• - Legal challenge – Siti Bedah v Kerajaan

Negeri Kedah – acquisition cancelled• - State Govt re-acquired lands• - 2nd case filed – lost at the High Court• - Pending appeal – settlement reached –

farmers received much higher compensation• - Landmark victory in terms of compensation

for rice farming land

CASE STUDY NO. 5

• - A Carbon-In-Leach facility which uses cyanide, for processing gold still present in old gold tailings discarded from past mining activities.

• - Facility is located within a kilometer from the village.• - Project only commenced in 2006. Operations

commenced in Feb 2009.• - The experts said that the PEIA is not only outdated but

lacks important information about the project – especially about the waste, treatment, methods of preventing or dealing with possible contamination, rehabilitation plans etc

Gold Mining at Bukit Koman, Raub

THE ENTRANCE TO THE PLANT

• Residents set up Bukit Koman Anti Cyanide Action Committee

• Actively protested against the project• Sought help of NGOs and experts• Appealed to authorities

The EIA• - Preliminary Environmental Impact Assessment report

[PEIA] approved by DOE in 1997. No consultation with the residents was carried out prior to, or as part of the EIA process.

• - The residents of Bukit Koman did not have knowledge of the 1997 approval of the EIA until sometime in early 2007 and a copy of the PEIA was only obtained later that year.

• - The residents wrote to DOE asking for a detailed EIA to be done, which would include the aspect of public participation, which is a requirement under the EIA guidelines.

• - The DOE responded that they will consider the request, and will revert with their decision.

•  - On 21-2-2008, the DOE responded and said that they were satisfied with the PEIA that was carried out in 1997 and approved, and that there was no need for a DEIA.

Wong Kin Hoong v DOE & RAGM

• - The residents of Bukit Koman then filed an application for leave for judicial review against the Director General of the Department of Environment of Malaysia and RAGM.

• - The proceedings are primarily to quash the approval of the PEIA in 1997, and the decision by the DOE on 21-2-2008 that the developer be required to submit a fresh DEIA.

At the High Court

• On 9.6.2009, the High Court dismissed the people’s application on 2 main grounds:• - there was a delay in applying for

leave for judicial review (see Order 53)• - the decision of the DOE refusing to

conduct a DEIA is not a reviewable decision

At the Court of Appeal

• Decision on 3rd August 2011• The Court upheld the decision of

the High Court• No order as to costs in view of the

matter being of public interest• Leave to Appeal to the Federal

Court fixed on 11 January 2012

In the meantime….

the people suffer…

CASE STUDY NO. 6

• - involving a granite quarry situated at the foothills of Gunung Jerai, Kedah

• - Yan District Structure Plan states that the area is not to be touched except for tourism and small scale agriculture

• - Forest reserve since 1930s

Azizan bin Osman v Kerajaan Negeri Kedah & 5 Ors

• - Company wanted to set up quarry• - Approached State• - State EXCO approved project

ALTHOUGH situated on forest reserve and protected by the Structure Plan

• - Forest reserve de-gazetted• - Permits granted to extract rock

materials• - project commenced• - BUT No planning permission

• - Suit filed at the High Court• - objections raised on procedure

• - taken to Federal Court – won

• - back to High Court• - objection raised on locus standi - won• - to be heard by Court of Appeal on

13.12.11

• - issue of illegality – lost• - to be heard by Court of Appeal on

13.12.11

CASE STUDY NO. 7• Sampath Kumar Vellingiri v Chin Well• - involving >100 foreign workers brought

in to work in a factory in Penang• - promises of wages, perks etc did not

materialise• - workers cheated• - sued employer for breach of contract• - victory for workers all the way to the

Fed Ct• - received compensation

CASE STUDY NO. 8

• - Chinese New Village - > 6000 people• - Rubber processing plant next door• - People suffered from pollution – smell,

fumes, respiratory problems, skin ailments, discomfort, damage to property

• - nuisance action commenced – injunction sought

• - people marched – detained & questioned• - at the end - factory relocated – VICTORY

Kampung Baru Kuala Kuang, Chemor

At the end of the day…

•WHO BENEFITS?

THANK YOU