While Malaysia’s new reform federal government has stated its commitment towards sustainable forest management and policies, working with states can be challenging. This is the second of a two-part look at conservation policy and legislation in Malaysia.
Related report: Conserving New Malaysia (Part I)
[These articles first appeared as a single essay in New Mandala as part of its ‘Changing Malaysia’ series.]
ON the ground, stopping deforestation and implementing reforestation programmes for Malaysia’s federal Ministry of Water, Land and Natural Resources (KATS), means working with states and the tricky maxim of Malaysian federalism, that “land is a state matter”.
Surin Suksuwan, environmental consultant and a member of the World Commission on Protected Areas, explains the Malaysian federal government’s limited purview:
“Whenever a forest reserve in a state is excised, it becomes state land to be used for housing or plantations or mining. It doesn’t require any consultation at all. All it requires is for the member of the state executive council member in charge of forestry, to sign away that area. It’s as simple as that.”
States needed to be incentivised to maintain forests, he avers.
“The previous federal government demonstrated commitment to environmental protection by signing various international conventions. But when it is time for the states to implement what is pledged, the funds are not available.
“On the one hand, states lack capacity to manage resources. On the other, the resources provided by the federal government are far from adequate.”
Specific federal grants
He lauds the Pakatan government’s 2018 budget allocation of RM60 million for state governments to “protect and expand our existing natural reserves”.
While the allocation is small and its disbursement mechanics have yet to be worked out, “this is probably the first time the federal government has framed funding this way, to help state governments, and because this is not specific, will allow states to come up with their own proposals”.
KATS Minister Dr Xavier Jeyakumar is cognisant of these issues, having engaged with state governments, including those of opposition states.
“When we tell them there’s to be no more deforestation … they quickly tell us we have to compensate them. So we are finding other means where these state governments can get income.”
He is starting with states that are “critical” in terms of having few alternatives to logging income, such as Kedah, Pahang and Kelantan.
“We are looking at how we can approach it in a different way in order to make sure they leave the forest alone but … [adopt] new ideas … to get income. I think it will work if I show them how it is going to be done”. He declines to elaborate as discussions are still underway.
A tough stance
At the same time, Dr Xavier is taking a tougher stance. Regarding conservationists’ long-held concerns about weak enforcement and corruption in related agencies, he says, “I’m treating it as a national security issue, as far as the degradation of forest or deforestation is concerned.
“Because if we don’t get to sell this main commodity of the country [timber], we are going to be in deep trouble.
“The states have to come on board with us and work with us to make sure there is a proper balance and we get the right messaging out in order to protect [the] national interest.
“The states have to play a big role in this because the power is completely in their hands as far as land is concerned, also the policing and action that needs to be taken in terms of safeguarding these areas.”
He says the federal government is giving states time to “do things correctly” but warns that “if they go ahead and do things that will be detrimental to national security, then we have to do things differently”.
This new approach is in line with Pakatan’s larger reform agenda. Dr Xavier says that all federal ministries are undergoing reform. Most of the 18 agencies under him, for instance, are in the process of “renewing and changing or interpreting the laws that are currently in place”.
As with the forestry and wildlife bills, he is hopeful of tabling these other new or amended laws by early 2020.
A fundamental right
Recognising this window for change, NGO Sahabat Alam Malaysia is urging the government to go further. “The Federal Constitution should be amended “to ensure that all Malaysians have the right to a safe and healthy environment as a fundamental right”, says Theiva Lingam, SAM’s legal advisor.
“Many countries in South and Southeast Asia like Indonesia, Pakistan and the Philippines have done so.”
Malaysia should be aiming for environmental justice, she adds, ensuring socio-economic equity and ecological sustainability in natural resource management.
For example, “senior Pakatan policymakers continue to show ignorance on the law when it comes to the indigenous customary land rights”, she says.
“Some even appear to lack the understanding that the law does not only comprise statutory law, but it also includes common law, customs and usage having the force of law and judicial decisions”.
In fact, the judiciary and the Malaysian Bar Council have been quietly working towards environmental justice.
When the new government came into power, the Bar Council’s Environment and Climate Change Committee submitted a reform proposal to them for the development of a policy on environmental justice.
“The policy’s intended to inform judges in decision-making,” says the committee’s co-chair, Kiu Jia Yaw. “It would be along the lines of enabling and protecting environmental justice and would be the basis for devising rules of procedure for environmental proceedings.”
The judiciary has already put up for discussion these very rules of procedure, and the Bar Council committee is working with them on this.
Kiu described this rule-change as an innovating and widening of the legal funnel to allow more civil litigants to seek judicial remedy.
“Our laws are filtering out people who do not fit in that funnel, particularly people who are not land owners—a colonial legacy that our legal system continues to maintain—even though they have every right to a clean and healthy environment.
“We need to break out of our mental structures of land titles with their imagined boundaries and owners with their property rights … In pursuing environmental justice, we need to recognise these ecosystems for what they are and the dynamic relationships different human beings have with them.”
Real engagement
These environmental proceedings rules would enable private citizens, community groups, NGOs and even corporations to bring cases of environmental harm to court to be heard.
“This would open up a different level of engagement,” he adds. “It is a profound thing when you give power to people. Then there is no longer the excuse of saying, ‘why should we care so much about the forest or the river’, because hey, now you can do something about it!
“That’s empowering. It changes mindsets. And it’s an important part of democratic participation when these narratives can come to court.”
While the teams have a long way to go due to the complexity of the task and the need also to engage with stakeholders, Kiu is more optimistic about these rules’ seeing the light of day under the new Pakatan government.
However, reforms related to conservation will only be effective if instituted together with larger overall reforms.
Separation of powers
The bruising experience of the previous Najib era shows that separation of powers in democracy is crucial to ensuring that no one branch—legislative, executive or judicial—controls and can therefore destroy the whole system.
Says Dr Xavier, “The separation of the executive and Parliament is taking place. But this is also a learning process for the new government because it was not there before.
“Now we are introducing new ideas whereby we will see more democratic processes and more transparency and check-and-balances between the executive and Parliament.”
The senior Pakatan minister, who is heavily involved in this reform process, added that “this will take a bit of time because it’s a transitional period … We are looking at all models, but we have to tread carefully because we are in an experimental stage, trying to see whether these changes are appropriate for the country.”
Where conservation is concerned, it is still too early to gauge if the new government can achieve lasting change, but the steps they are taking are positive.
Using a multi-agency and holistic approach to safeguard biodiversity, working out solutions to incentivise states to keep their forests, and effecting legal and institutional reforms all pave the way towards environmental justice and, ultimately, sustainable development.
This is the final of the two-part feature on ‘Conserving New Malaysia’. In Part 1, the Pakatan government makes a commitment to conserving tigers as keynote species, and forests.
(Main photo: SL Wong)
