Political and judicial influences on environmental issues in Malaysia

The recent detentions of opposition figures in Malaysia had spurred mounting unrest from the public, be it from the government supporters never mind the opposition parties themselves. The controversial Internal Security Act (ISA) 1960 used in the arrests, as well on several other occasions, has allegedly being accused as a misuse by the ruling party for its own interest.

The act was originally drafted as a pre-emptive measure to curb the communist movement during the early post-independence era. Under ISA, possible threats which are identified by the Home Minister can be held captive without proper trials for the duration of 60 days and can be extended to two years in which the detainee is transferred to the infamous Kamunting Detention Centre.

After the armed insurgency by the Malayan Communist Party had been resolved, ISA is still being enforced from time to time. It serves the purpose of protecting the nation's security, the maintenance of essential services and the economic life of Malaysia.

Nowadays, ISA has been more relevant than ever as new threats in the form of global and local terrorism going on sporadically and not to exclude socio-politic turmoil. This could be evident by the cripple of the Jemaah Islamiah, 1999 Reformation and, most recent, Hindraf subversive movements.

The most notable ISA arrest would be the 1987 Operation Lalang. It is reported that 106 detainees were arrested due to various allegedly wrongdoings from political to religious involvements during the cleanup.

However, one quite interesting involvement was overshadowed by the other high profile detention personalities. At least five detainees were brought in due to being rampant environmental activists. These prominent environmentalists were from various NGOs which include Environmental Protection Society of Malaysia (EPSM), Sahabat Alam Malaysia (SAM, the Malaysian's Friends of the Earth) and Perak Anti-Radioactive Committee (PARC).

Tan Ka Kheng, the Vice President of EPSM and also a former lecturer at the Department of Chemical and Environmental Engineering, Universiti Putra Malaysia, was accused to be involved in 'activities propagating communist influence and ideology among specific section of populations in Malaysia' and had 'undermined national security'. Meanwhile a legal advisor to SAM and Consumers Association of Penang (CAP), Meenakshi Raman, was also detained in Operation Lalang with similar allegations.

Both, together with fellow environmentalists detained, played an instrumental role in the most controversial environmental issues in the nation's history, which are the Asian Rare Earth plant's radiation and the protest of the proposed Bakun Dam. These two issues had become landmarks in the political and judicial superiority in rendering public concerns and protests impotent.

Asian Rare Earth plant was a joint venture between a Japanese company, Matsushita Chemicals and local business entities notably Lembaga Urusan Tabung Haji and state-owned Pilgrim's Management Fund Board besides several bumiputera businessmen. Incorporated in 1979, Asian Rare Earth (ARE) Sdn. Bhd. was involved in the extracting of monazite, found in tin ore in Bukit Merah, Perak.

Monazite was used to produce rare earth compound for the manufacturing of colour TV tubes and calcium phosphates whilst producing radioactive by-products, thorium hydroxide and barium radium sulphate. Prior to ARE began production, a contract was drawn up in 1982 whereby the radioactive waste generated would become the property of the Perak State Government.

It had been made known that the radiation and pollution from ARE were devastating to the local residents. In February 1985, eight residents of Bukit Merah New Village filed a complaint against ARE with the High Court of Ipoh alleging that exposure to ARE's radioactive materials and waste were harmful to their health. They demanded the cessation of the plant's operation, clean-up of the radioactive materials and payment for damages (without specifying any amount). An injunction was obtained in November 1985 ordering ARE to cease its operation.

Despite this, a licence was granted in February 1987 to ARE by a five-member Atomic Energy Licensing Board (AELB), representatives from the Tun Ismail Atomic Research Centre (PUSPATI), the Ministry of Health, and the Ministry of Science, Technology and the Environment. ARE interpreted it as the green light to resume its operations even though the legal action was still in process.

In July 1992, the high court ordered ARE to suspend operations. ARE then appealed the case to the Supreme Court seeking to overrule the lower court's injunctions. The Malaysia's Supreme Court ruled in December 1993 that there was no evidence that ARE was contaminating the local environment and rejected a high court ruling that the firm cease operations.

This would make contrary with reports saying childhood leukemia was 40 times higher than the surrounding areas besides high rate of miscarriages and infant mortality. Eight international experts claimed that the storage site was found unsafe. There were opinions saying that the Supreme Court ruling to be politically motivated. The closure of the plant would cause undue hardship to the 183 workers and shareholders thus reversing the High Court decision that favourable to the community.

Tan Ka Kheng and several SAM members were also questioning the needs of the proposed Bakun Dam. The High Court ruled that the mega project had violated the Environmental Quality Act, due to flaws in the Environmental Impacts Assessment (EIA) reports. Although the Bakun Dam suffered a series on setbacks in the course of construction, none of them came from environmental considerations. Economic recessions, engineering difficulties and corporate restructuring were issues that had caused the setbacks.

The then-Prime Minister had reckoned that the dam will benefit the nation that the environmental and social costs it inflicted will be outweighed in a long run. Currently, the construction of the 2,400 MW electricity generating reservoir is ongoing but with little progress.

Due to their belligerence, Tan Ka Kheng was detained for two years whilst Meenakshi was jailed for forty five days. The fate of fellow environmentalist detainees varies from being placed under residence order to detention, both for a period of two years.

Another good example of political and judicial involvement is the Bright Sparkler firework inferno in 1991. The disaster highlights the lack of coordination and strict enforcement among various government agencies. But interestingly how the plant managed to operate for 20 years illegally would also invite undesired speculations. To add to that, the Royal Commission of Inquiry was stopped in the middle of the investigation and was undone. This was justified by the adapted government policy that ban firework manufacturing operations following this devastating disaster hence the completion of the royal commission was considered unnecessary.

As of today, no charges where held against the executive officers nor the board of directors of the company in the court of law. The pending court hearing on the settlement for the victim families only shows the level of complexity in bringing the responsible parties forward. It has always been a tall order for environmentalists to fight on any issue when political and judicial stand in their way.

References

Rowell, A. (1996). Green Backlash: Global Subversion of the Environmental Movement. Routledge.

Toshiro, U. (2001). 4 Four Elements of Legal System: A Lesson from Asian Rare Earth Case [PDF document]. Retrieved from http://www.isc.niigata-u.ac.jp/~miyatah/nu/2004/env/ARE_case_by_makino2001-ch2-3-4.pdf

Asian Rare Earth. (n.d.) In Sahabat Alam Malaysia: The A-Z of the Malaysia Environment online. Retrieved September 1, 2008, from http://www.surforever.com/sam/a2z/content1.html

Furuoka, F. and Lo, M.C. (2005). Japanese Multinational Corporations and the Export of Pollution: The Case of Bukit Merah. Electronic Journal of Contemporary Japanese Studies. Retrieved from http://www.japanesestudies.org.uk/articles/2005/FuruokaandChiun.html