Professional Documents
Culture Documents
MONEY
GLAMOUR
FAME
Q: Where does a vampire learn how to suck blood? A: During his first year of Law School.
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
7
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.
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 .
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.
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
However
The people continued their campaign Japanese ground support for the community and against Mitsubishi Mitsubishi voluntarily decided to close down its operations
New York Times Mar 8, 2011 Mitsubishi 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 hills 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.
Legal battle
Confrontation on the ground farmer shot dead, people injured People in CAP stood with the villagers in front of the bulldozers
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
Trustees of Leong San Tong Khoo Kongsi v Poh Swee Siang (1987) remedy of self help part of the law of this country
BUT as a result of this decision, and CAPs 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.
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.
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
- 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
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.
In the meantime.
- 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
- 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
WHO BENEFITS?
THANK YOU