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Brave New World

Published: Wednesday January 21, 2015 MYT 12:00:00 AM
Updated: Wednesday January 21, 2015 MYT 6:50:49 AM

The responsibility to protect forests

Forests are under state jurisdiction, but Parliament can pass laws to make the various state laws uniform and to meet international obligations.

INDISCRIMINATE logging in the east coast has been attributed as one of the causes of the terrible floods that we have suffered this year. To my knowledge, there has been no study conducted to verify this claim although, of course, it is very possible.

Any school child will tell you that forested areas (especially on hills) are vital to the environment. They act as catchment areas, help to absorb rainwater and hold the soil together. All these actions are important not only for our water supply but also to prevent water rushing uncontrollably down from the highlands and to stop soil erosion; both factors in flood control.

Whose responsibility is it, then, to protect our forests? According to the law, forests are under the jurisdiction of the states. The Federal Government only has power over forests in the federal territories; which is not much at all, seeing that Putrajaya, Kuala Lumpur and Labuan are not exactly overrun with jungle.

The main law that governs forest on the peninsula is the National Forestry Act. This is a law made by Parliament. “Hold on”, I hear you say, “why is Parliament making laws for something in the states’ jurisdiction?”

Well, the Constitution allows Parliament to do so if the purpose is to make the various state laws uniform. Before the National Forestry Act, each state had its own forest law and it differed from one another.

After the Act was made, the states then took it upon themselves to turn the text of the law into state legislation by making it a state enactment passed by their legislative assembly. So, even though the law has its origins in Parliament, the fact remains that it is the state governments who have power over their forests and they are the enforcers of the law.

The Federal Government, via its National Forestry Department, has always advised states to establish protected forests, but at the end of the day there is no compulsion for this advice to be followed. States will always be tempted to exploit their forest resources as it is a major source of income. This could lead to poor practices and poor enforcement of existing laws.

Is there anything that can be done by the Federal Government? Theoretically, yes.

The Constitution allows Parliament to make laws even if the topic falls under state jurisdiction, if the reason for making those laws is in order to implement international obligations. There are a few international laws that are relevant to the forests that Malaysia is party to.

There is the Tropical Timber Agreement, but in my opinion this is not a very strong law and it does not impose any serious obligations, as it is more of a guideline. A more useful international treaty to explore will be the Convention on Biodiversity.

According to this treaty, there is an obligation for member countries to protect biological diversity by having what is known as in situ conservation. In situ conservation means that one protects the ecosystem in order to protect the biodiversity in it.

It is not inconceivable, then, for Parliament to make forest protection laws in order to fulfil this obligation, even if it means overriding state wishes. I doubt it will happen, though. We need only look at another international treaty to see why I say so.

The Ramsar Wetlands treaty is another international law meant to protect an ecosystem (in this case, wetlands). Malaysia is a party and our obligation is to establish as many protected wetland areas as possible. We have done so, with Ramsar sites in Pahang, Johor, Sabah and Sarawak.

But, although this is an international obligation and the Federal Government is perfectly within its rights to either make a new federal law or use an existing one to create and protect those sites, it has instead chosen to allow the states to use their own laws. In other words, the Federal Government is not willing to tread on state government toes with regard to land and forest, even if it is in order to live up to its international duties. Instead, a path of co-operation is chosen.

This is all well and good, but what about situations where the states’ practice is causing great harm, not only to the environment but also to their people? Shouldn’t the Federal Government play hardball then?

Ah, now we enter into the realm of politics. There will always be concern that if the Federal Government does do this, then will they do it impartially, or will they aim to control states held by the opposition and not by the ruling coalition?

Furthermore, because the sources of income of the states are relatively few, such a move would cause outrage. Thus, to conclude this rather bleak (and let’s be frank, deadly dull) article, to properly deal with our forest situations would require some really heavy-duty research and work involving not just the forest laws but also issues such as state income as well.

Azmi Sharom (azmi.sharom@gmail.com) is a law teacher. The views expressed here are entirely the writer’s own.

Tags / Keywords: Azmi Sharom, columnist

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