Expanding rights and freedoms

IT was International Human Rights Day on Dec 10.

On this day in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, a milestone document that reminds us that all human beings, irrespective of race, religion, or gender, are endowed with some fundamental rights and freedoms that are bestowed upon us, not by the charity or generosity of the sovereign state, but from a superior source.

In the decades since 1948, the concept of human rights has developed new and newer dimensions. The first-generation civil and political rights have been supplemented by second-generation socioeconomic rights and third-generation development rights.

In 1987, the Brundtland Commission refined development rights to refer to sustainable development, which it defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Linked with sustainable development are many other scintillating ideas like the “rights of future generations” and the theory of inter-generational justice propounded by American philosopher John Rawls.

Each generation must pass on to the next a suitable accumulation of intellectual, economic, and educational capital so that the next can have the ability to continue or to establish just institutions as well as support a reasonable standard of living. Rawls calls this a “just savings principle.”

Other thinkers invoke the religious idea that the human relationship with Mother Earth is that of a steward or trustee. In the realm of morality, the concept of “ecological sins” has gained recognition.

It is apparent that human rights today are like a mighty stream whose waters are nourished by many fresh tributaries.

In recognition of the expanding horizons of human rights, Human Rights Commission of Malaysia (Suhakam) chairman Datuk Rahmat Mohamad has proposed that the government include the right to a healthy, clean and sustainable environment in the Constitution’s chapter on fundamental liberties.

This commendable proposal is in line with a number of international instruments, among them:

> The Stockholm Declaration of 1972;

> The UN General Assembly resolutions relating to the protection of the global climate for present and future generations adopted in 1990;

> The UN Framework Conven-tion on Climate Change and the Convention on Biological Diversity, adopted in Rio de Janeiro on June 5, 1992;

> The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on June 25, 1993; and

> The UN General Assembly Resolution of July 28, 2022, which states that access to a healthy environment is a universal human right.

The ideas of “sustainable development” and the “rights of future generations” are now part of the international law lexicon.

However, these rights have not yet been converted into hard law and are not binding on sovereign states for the following reasons.

First, due to the dualistic theory of international law, most legal systems do not recognise international law as part of their law unless the international instrument has been adopted and given the kiss of life by national legislation. For instance, Article 160(2) of Malaysia’s Federal Constitution provides a definition of law that does not incorporate international law as part of the law enforceable in Malaysian courts unless incorporated in the Constitution or national legislation.

Second, during the drafting of the Federal Constitution from 1956 to 1957, environmental protection was not regarded as a pressing matter. Hence, it was not protected as a right available to the citizens.

Third, Article 92(3) empowers the Federal Government to give effect to “development plans”.

These were defined broadly to include a plan for the development, improvement or conservation of natural resources, the exploitation of such resources or the increase of means of employment in the area.

Article 92 is a double-edged sword. It can be used by the Federal Government to conserve natural resources but also to exploit resources in a predatory, environmentally irresponsible way.

Fourth, elsewhere in the Constitution, the power over mineral resources, mines, oils and oilfields, shipping, fisheries, roads, bridges, aerodromes, water supplies, rivers and canals, ports and harbours, land, soil conservation, agriculture and forests is allocated either to the federal or state governments. There is nothing about the right of citizens to a healthy and sustainable environment, to fresh water, clean air, and preservation of ancestral lands.

Some judges have tried to mitigate the flaws in the law by interpreting the concepts of “life” and “property” prismatically to read into them unenumerated, implied rights.

But the overall situation is that the Federal Constitution does not address the need for environmental protection.

Fifth, the rule of locus standi (or the competence of a plaintiff to commence a legal action in court) has relaxed somewhat after the commendable judicial decision in Malaysian Trades Union Congress v Menteri Tenaga. But unlike countries like India, where environmental irresponsibility cases are generally brought to court by civic-minded citizens on behalf of those unable to approach the court for reasons of poverty or other socioeconomic disadvantages, in Malaysia public interest litigation is still in its infancy.

Sixth, in some Latin American countries, if environmental disputes are involved, the law confers legal personality on inanimate objects like nature!

Seventh, our legal system does not confer an adequate right to obtain official information. There is no Freedom of Information Act.

Instead, we have an Official Secrets Act. Public participation in the environmental impact assessment process is more a facade than a substantive reality.

Planning permissions and development orders generally go unscrutinised. This has hindered the enforcement of environmental responsibility. Instead, state and local authorities often adopt predatory policies that result in deforestation, pollution of rivers and the environment, the disappearance of green lungs and the near extinction of flora and fauna in some areas.

So, what can be done? Our Parliament, courts, and citizens’ groups should be open to learning from the example of other countries.

In line with the Suhakam proposal, Article 5(1) on the right to life must be amended to include environmental rights as part of the right to life. The principle of sustainability in the development and management of natural resources is found in as many as 77 Constitutions including those of Cuba, Dominican Republic, Libya, Mexico, South Africa, Sudan, Thailand, Tunisia, Yemen, and Zimbabwe. Malaysia must follow suit.

In some exceptional cases like in Algeria, Bhutan, Bolivia, Brazil, Ecuador, Japan, Norway and Sweden, the rights of the future generation are consecrated in the country’s supreme Constitution.

Existing legislation on environmental issues should be amended to supplement state rights with state responsibilities to protect the environment and conserve the country’s natural resources. Legislation must incorporate internationally recognised principles like “inter-generational equity”, “the precautionary principle” and the “polluter pays principle”. There should be a specialised parliamentary committee to oversee this new direction.

Rights require remedies. Perhaps, a committee/ council/ ombudsman should be established with legal standing to commence legal proceedings. Our superior courts must learn from the example of judges in many other countries who try to balance development with ecology. Perhaps we need to set up environmental courts or green tribunals to provide specialised justice in this area. Public Interest Litigation (the “Jurisprudence of the Masses”) must be facilitated.

Above all, citizens’ groups must share the responsibility of speaking up when hills, forests, lakes, rivers, and wildlife are in danger of falling prey to unregulated industrialisation, pollution and damage to the Earth’s ecology.

Emeritus Prof Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya. The views expressed here are the writer’s own.

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