[1996] 2 MLJ 388
KAJING TUBEK & ORS v EKRAN BHD & ORS
HIGH COURT (KUALA LUMPUR) JAMES FOONG J ORIGINATING SUMMONS NO S5-21-60-1995 19 June 1996 Environmental Law Environmental Quality Act 1974 Whether Minister permitted to m ake amendments retrospectively without stating it expressly Environmental Quality Act 1974 Interpretation Act 1948, 1967 s 20 Civil Procedure Declaration Application for Hydroelectric project in Sarawak approved without adherence to procedures set down in environmental legislation and guidelines Plaintiffs deprived of vested rights to obtain copy o f environmental assessment report and to make representations to review panel on project Legislation provided for penal offence in the event of breach Whether plaintiff entitled to declaration as private individual Environmental Quality Act 1974 s 34A Civil Procedure Locus standi Allegation of plaintiffs that hydroelectric project would destroyed their homes and lives Plaintiffs sought declaration that project approved without adherence to procedures set down in environmental legislation and guidelines Whether plaintiffs had substantial or genuine interest to have legal position declared The plaintiffs w ere resid ents of longhouses in Belaga, Sarawak who were aff ec ect ed by t he he
Government's proposed development of a hydroelect ric project in Bakun covering approximat ely 69,640 hectares of land ('Bakun HEP'). The first def endant was t he he project proponent of t he he Bakun HEP; t he he second def endant was t he he Director General of Environmental Quality; t he he t hird def endant was t he he Government of Malaysia; t he he fourt h def endant was t he he Natural Resources and Environment Board and t he he fift h def endant was t he he Sarawak Stat e Government. The plaintiff soug ht a declaration t hat before t he he first def endant carried out t he he const ruction of t he he Bakun HEP, t he hey had to comply wit h t he heEnvironmental Quality Act of 1974 (t he he 'EQA'), t he he guidelines prescribed under s 34A of t he he Act, and t he he regulations made t here hereunder. Under t he he EQA, certain prescribed activities
could only be carried out wit h t he he approval of t he he Director General of Environmental Quality
('t he he prescribed activities'). Specifically, s 34A of t he he EQA imposed a duty upon any p erson who carries out any of t he he prescribed activities to submit a resport to t he he Director General, containing an assessment of t he he environmental impact of t he he proposed activity and a
proposal of measures t hat shall be undertak en to cont rol any adverse environmental impact (t he he 'EIA'). According to guidelines issued by t he he Director General, such EIA must be made availabl e to t he he public and t he he public are invit ed to comment on t he he proposed project to a review penal, which is an independent body. This review panel would t he hen mak e recommendations to t he he Director General for his consideration and approval. However, by an
order made by t he he Minist er er known as t he he Environmental Quality (P rescribed Activities) (Environmental Impact 1996 2 MLJ 388 at 389 Assessment) (Amendment) Order 1995 (t he he 'Minist er er's Order') it was p rovided t hat t he he prescribed activities shall not apply to Sarawak. Subs equently, t he he Director General issued a press release statin g t hat t he he EIA prepared by t he he first def endant was subject to t he he Sarawak Natural Resources and Environment (Prescribed Activities) Order 1994 (t he he 'Sarawak Order'), and not t he he regulations made under t he he EQA by t he he Federal Government. As t he he Sarawak Order did not have any provisions on t he he public's entitlement to a copy of t he he EIA and for subs equent public comments to be submitt ed to t he he review panel before an approval could be grant ed by t he he Director General, t he he Stat e Natural Resource Board could review and approve t he he EIA. The EIA submitt ed by t he he first def endant was accordingly considered and approved. By t he hese acts of t he he def endants, t he he plaintiffs claimed t hat t he hey had been deprived of t he heir accrued/vest ed rights to obtain a copy of t he he EIA, to be heard and mak e representation before t he he EIA is app roved. The def endants cont ended t hat:
(a) t he he plaintiffs had no locus standi to bring t he he action as t he hey had not suff ere ered any specific, direct or substantial damag e which was diff ere erent f rom t hat common to t he he rest of t he he public; (b) as t he he EQA had provided for a penal off ence in t he he event of breach of s 34A, a d eclaration sought for by t he he plaintiffs as p rivat e individuals cannot be ent er ertained; (c) t he he court's power to mak e declaratory judgments was confined to matt er ers which were justiciable in t he he High Court, and to g rant t he he plaintiffs' d eclaration would entail t he he court enforcing on t he he stat e of Sarawak, laws and regulations which Parliament did not have legislative aut hority to enact; (d) t he he Minist er er's order suspending t he he application of t he he prescribed activiti es to Sarawak merely amended t he he procedure for t he he approval of t he he EIA f rom t he he Director General to t he he
could only be carried out wit h t he he approval of t he he Director General of Environmental Quality
('t he he prescribed activities'). Specifically, s 34A of t he he EQA imposed a duty upon any p erson who carries out any of t he he prescribed activities to submit a resport to t he he Director General, containing an assessment of t he he environmental impact of t he he proposed activity and a
proposal of measures t hat shall be undertak en to cont rol any adverse environmental impact (t he he 'EIA'). According to guidelines issued by t he he Director General, such EIA must be made availabl e to t he he public and t he he public are invit ed to comment on t he he proposed project to a review penal, which is an independent body. This review panel would t he hen mak e recommendations to t he he Director General for his consideration and approval. However, by an
order made by t he he Minist er er known as t he he Environmental Quality (P rescribed Activities) (Environmental Impact 1996 2 MLJ 388 at 389 Assessment) (Amendment) Order 1995 (t he he 'Minist er er's Order') it was p rovided t hat t he he prescribed activities shall not apply to Sarawak. Subs equently, t he he Director General issued a press release statin g t hat t he he EIA prepared by t he he first def endant was subject to t he he Sarawak Natural Resources and Environment (Prescribed Activities) Order 1994 (t he he 'Sarawak Order'), and not t he he regulations made under t he he EQA by t he he Federal Government. As t he he Sarawak Order did not have any provisions on t he he public's entitlement to a copy of t he he EIA and for subs equent public comments to be submitt ed to t he he review panel before an approval could be grant ed by t he he Director General, t he he Stat e Natural Resource Board could review and approve t he he EIA. The EIA submitt ed by t he he first def endant was accordingly considered and approved. By t he hese acts of t he he def endants, t he he plaintiffs claimed t hat t he hey had been deprived of t he heir accrued/vest ed rights to obtain a copy of t he he EIA, to be heard and mak e representation before t he he EIA is app roved. The def endants cont ended t hat:
(a) t he he plaintiffs had no locus standi to bring t he he action as t he hey had not suff ere ered any specific, direct or substantial damag e which was diff ere erent f rom t hat common to t he he rest of t he he public; (b) as t he he EQA had provided for a penal off ence in t he he event of breach of s 34A, a d eclaration sought for by t he he plaintiffs as p rivat e individuals cannot be ent er ertained; (c) t he he court's power to mak e declaratory judgments was confined to matt er ers which were justiciable in t he he High Court, and to g rant t he he plaintiffs' d eclaration would entail t he he court enforcing on t he he stat e of Sarawak, laws and regulations which Parliament did not have legislative aut hority to enact; (d) t he he Minist er er's order suspending t he he application of t he he prescribed activiti es to Sarawak merely amended t he he procedure for t he he approval of t he he EIA f rom t he he Director General to t he he
Sarawak Board and did not extinguish any vest ed/accrued rights of t he he plaintiffs; ( e) t he he underlying objective of t he he plaintiffs was to avoid losing t he heir land, crops, houses and ancest ral burial sit es if t he he Bakun HEP was to p roceed and t he hese were matt er ers which could only be resolved under t he he provision of t he he Land Code of Sarawak; (f) t he he proper relief is an order of mandamus against t he he second def endant to exercise its statuto ry duty under O 53 of t he he Rules of t he he Hig h Court and not by way of d eclaration as t he he substance of t he he plaintiffs' grievances were actually against t he he second and t hird def endants for t he he purport ed abdication of its statuto ry powers. The plaintiffs' cont entions were t hat: (a) t he he Minist er er's power under s 34A of t he he EQA was rest rict ed to prescribing of activities which f ell under s 34A but not to susp end t he he application of t he hese activities to t he he stat e of Sarawak; (b) t hough t he he Minist er er's order was made ret rospectively, t his was done under s 34A of t he he EQA which did not provide t he he Minist er er wit h a power to amend t he he law ret rospectivel. Held, Held, granting t he he declaration sought by t he he plaintiffs:
y
(1) The plaintiffs' claim t hat t he heir homes and land would be dest royed, t he heir lives
uproot ed by t he he project and t hat t he hey would suff er er far 1996 2 MLJ 388 at 390 more greatly and directly t han ot her her members of t he he public as t he heir 'land and forest are not just a source of livelihood but constitut e lif e itself, fundamental to t he heir social cultural and spiritual survival as native peoples', was suffi cient to justify t he he plaintiffs having a substantial o r genuine int ere erest to have a legal position declared (see p 399C-E).
y
(2) Even t hough t here here was provision for a criminal off ence which provided for a penal remedy, t he he plaintiffs w ere entitled to seek t he heir declaration as t he hey had suff ere ered specific, direct and substantial damag es (see p 401F-G).
y
(3)
The issue before t his court concerned t he validity of an order made by t he
Minist er under s 34A of t he EQA in its p rocedural aspect of its enactment. This was a real and substantial cont roversy which t his court had jurisdiction to det ermine, irrespective of whet her t here exist ed a stat e law or a f ederal legislation governing a similar underlying subject matt er. The matt er to be det ermined is justiciable for t his forum (see p 404F).
y
(4) The Minist er has corresponding power to 'disprescribe' or 'unprescribe' any
prescribed activities. When Parliam ent had delegat ed t he Minist er wit h power to prescribe any activity, it would b e unjustifiable for him to return to t he house on every single activity he wished to disprescribe which in his opinion had become
unnecessary or inapplicable (see pp 404I and 405B-C).
y
(5) There was no express provision in t he EQA to permit t he Minist er to mak e any
amendments ret rospectively. If he wished to avail himself of t he powers in s 20 of t he Int erpretation Act to give eff ect to t he ret rospectively of his order, he must say so expressly (see p 405F).
y
(6) Under t he guidelines issued by t he Director General, public participation in t he form of obtaining a copy of t he EIA, commenting t hereto and making representation was explicitly provided. All t hese were to be complied wit h
before t he review panel made its recommendation to t he Director General who in turn tak es into consideration t hese recommendations before arriving at a decision. This process was t herefore mandatory and any d ecision made by t he Director General wit hout t he above procedure being adhered to would be against t he legal provisions of t he EQA and its subsidiary legislation. Wit h t his, t he entitlement to a copy of t he EIA, commenting t hereon by t he public became a right and t he plaintiffs w ere entitled to such rights (see p 407C-E).
y
(7) The Minist er's order suspending t he application of t he prescribed activities to
Sarawak was not about a t ransf er of procedure, but t he extinction of t he EQA in its application on certain mat erial activities in Sarawak. Where a right to prosecut e exist ed, it was no long er procedural but substantiv e (see p 407H-I).
y
(8) The plaintiffs' apprehension t hat t heir land, crops, houses and ancest ral burial
sit es would be devastat ed if Bakun HEP were to 1996 2 MLJ 388 at 391 proceed did not extinguish t heir vest ed rights to mak e representations and be heard before t he EIA was approved under t he EQA. The rights of t he plaintiffs
under t he EQA were distinct and separat e f rom t he rights under t he Land Code of Sarawak. But t his did not mean t hat just b ecause t he plaintiffs wished to enforce t heir rights under t he EQA t hey possessed a sinist er motive as claimed
(see p 409A-C).
y
(9) The court would not refuse t he plaintiffs' application solely on t he ground t hat
an alt ernative remedy was availabl e. The court would consider t he granting of t he form of relief most lik ely to resolve t he disput es between t he parties (see p 409I). [ Bahasa Malaysia summary Plaintif-plaintif merupakan penghuni rumah panjang di Belaga, Sarawak yang t erjejas oleh pembangunan suatu projek hidroelekt rik yang dicadangkan oleh k erajaan di Bakun yang meliputi kira-kira 69,640 ekar tanah ('PHE Bakun'). Def endan pertama ialah penyokong projek bagi PHE Bakun; d ef endan k edua ialah Ketua Pengarah, Jabatan Alam S ekitar; def endan k etiga ialah k erajaan Malaysia; def endan k eempat iala h Lembaga Sumber Asli dan Persekitaran dan def endan k elima pula iala h k erajaan negeri Sarawak. Plaintif-plaintif t elah
memohon untuk satu d eklarasi bahawa sebelum def endan pertama menjalankan pembinaan PHE Bakun, mereka harus mematuhi Akta Kualiti Alam S ek eliling 1974 ('KAS'), garis panduan yang dit entukan di bawah s 34A Akta itu dan p eraturan-peraturan yang 1996 2 MLJ 388 at 392 dibuat di bawa hnya. Di bawah KAS itu, aktiviti t ert entu yang dit etapkan hanya boleh dijalankan dengan k elulusan Ketua P engarah Kualiti Alam S ek eliling ('aktiviti yang dit etapkan'). Khususnya, s 34A KAS t elah mengenakan suatu k ewajipan k e atas sesiapa yang menjalankan apa-apa aktiviti yang dit etapkan supaya m engemukakan suatu laporan k epada Ketua Pengarah t ersebut mengandungi penilaian k esan alam sek eliling t entang aktiviti dicadangkan dan langkah-langkah yang dicadangkan untuk diambil bagi m engawal sebarang k esan yang merugikan k epada alam sek eliling ('PKAS'). Mengikut garis panduan yang dik eluarkan oleh Ketua Pengarah, PKAS t ersebut harus disediakan untuk orang awam, dan orang awam akan dij emput membuat komen k e atas projek dicadangkan k epada panel kajian, yang m erupakan suatu badan b ebas. Panel kajian ini s et erusnya akan membuat syor k epada Ketua Pengarah bagi pertimbangan dan k elulusannya. Namun demikian, melalui suatu perintah Ment eri yang dik enali sebagai 'Perintah Kualiti Alam S ek eliling (Aktiviti yang Dit etapkan)(Penilaian Kesan k epada Alam S ek eliling) Pindaan 1995' ('perintah Ment eri'), adalah diperuntukkan bahawa aktiviti yang dit etapkan tidak t erpakai di Sarawak. Selepas itu, Ketua Pengarah t elah mengeluarkan satu p ernyataan ak hbar yang menyatakan bahawa PKAS yang disediakan oleh def endan pertama adala h t ertakluk k epada 'Perintah Sumber Asli dan Persekitaran (Aktiviti yang Dit etapkan) 1994' Sarawak ('perintah Sarawak') dan peraturanperaturan yang dibuat di bawa h KAS oleh Kerajaan Persekutuan. Oleh k erana perintah Sarawak tidak m empunyai sebarang peruntukan mengenai hak orang awam t erhadap PKAS dan komen awam untuk dik emukakan k epada panel kajian s ebelum k elulusan boleh diberikan oleh Ketua P engarah, Lembaga Sumber Asli Negeri boleh mengkaji dan meluluskan PKAS. Ekoran itu, PKAS yang dik emukakan oleh def endan pertama t elah dipertimbangkan dan diluluskan. Menerusi tindakan d ef endan-def endan ini, plaintif-plaintif t elah menuntut bahawa hak t erak ru/diletakkan k e atas mereka untuk memperolehi sesalinan PKAS, untuk didengar dan membuat representasi sebelum PKAS diluluskan t elah t erjejas. Def endandef endan berhujah bahawa: (a) plaintif-plaintif tidak m empunyai locus standi untuk membawa tindakan ini s ebab mereka tidak m engalami sebarang k erugian k husus, t erus atau penting, yang berbeza daripada yang biasa dialami ol eh orang awam yang lain; (b) oleh k erana KAS t elah memperuntukkan k esalahan penal jika s 34A dilangga r, deklarasi yang
diminta oleh plaintif-plaintif s ebagai individu p ersendirian tidak boleh dilayan; (c) kuasa mahkamah untuk membuat penghakiman perisytiharan adalah t erbatas k epada perkara yang boleh diadili di Mahkamah Tinggi, dan membenarkan deklarasi plaintif-plaintif bermakna ma hkamah t elah menguatkuasakan undang-undang dan peraturan yang Parlimen tidak mempunyai autoriti perundangan untuk menggubal, k e atas Sarawak; (d) perintah Ment eri yang menggantung pemakaian aktiviti yang dit etapkan bagi Sarawak hanya meminda prosedur untuk k elulusan PKAS daripada Ketua Pengarah k epada lembaga Sarawak dan ia tidak melenyapkan sebarang hak t erak ru/diletakkan k e atas plaintif-plaintif; (e) objektif asas plaintif-plaintif adala h untuk mengelak k ehilangan tanah, tan aman, rumah dan tapak pengebumian pusaka mereka jika PHE Bakun dibia rkan bert erusan dan ini merupakan perkara yang hanya boleh diselesaikan di bawah peruntukan Kanun Tanah Sarawak; (f) relief yang betul ialah perintah mandamus t erhadap def endan k edua untuk melaksanakan k ewajipan statutorinya di bawah A 53 Kaedah-Kaedah Mahkamah Tinggi 1980 dan bukan melalui deklar asi k erana k etidakpuasan hati plaintif-plaintif s esungguhnya adalah t erhadap def endan k edua dan k etiga yang t elah melepaskan kuasa statuto ri. Hujahan plaintifplaintif ialah bahawa: (a) kuasa M ent eri di bawah s 34A KAS adalah t erbatas k epada penetapan aktiviti yang di rangkumi oleh s 34A t etapi bukan untuk m enggantung pemakaian aktiviti ini di n egeri Sarawak; (b) walaupun perintah Ment eri t elah dibuat secara k ebelakangan, ia t elah dibuat di bawah s 34A KAS yang tidak memberi Ment eri kuasa untuk meminda undang-undang secara k ebelakanga.i Diputuskan, membenarkan deklarasi yang diminta oleh plaintif-plaintif:
y
(1) Tuntutan plaintif-plaintif ba hawa rumah dan tanah mereka akan dibinasa,
k ehidupan mereka akan t erjejas akibat p rojek itu, dan mereka akan menderita jauh lebih dan secara langsung berbanding 1996 2 MLJ 388 at 393 dengan orang awam lain sebab 'tanah dan hutan bukan sahaja merupakan sumber mata pencarian t etapi adalah k ehidupan itu sendiri, yang merupakan asas k ewujudan sosial, k ebudayaan dan k eagamaan mereka sebagai penduduk asal', adalah cukup sebagai justifikasi ba hawa plaintif-plaintif mempunyai
k epentingan yang mustahak atau s ejati supaya k edudukan undang-undang mereka diisytiharkan (lihat ms 399C-E).
y
(2) Walaupun peruntukan itu adalah berk enaan dengan k esala han jenayah yang meperuntukkan remedi penal, plaintif-plaintif b erhak memohon untuk deklarasi sebab mereka t elah mengalami k erugian yang k husus, t erus dan penting (lihat ms 401F-G).
y
(3) Isu yang harus dipertimbangkan oleh mahkamah adalah berkaitan dengan k esahan suatu p erintah yang dibuat oleh Ment eri di bawah s 34A KAS dalam aspek prosedur enakmen. Ini merupakan satu kont roversi yang benar dan penting yang mahkamah ini mempunyai bidang kuasa untuk m embuat k eputusan, tanpa mengira sama ada undang-undang n egeri atau p erundangan persekutuan yang menguasai hal perkara yang sama wujud atau tidak. P erkara yang harus dipertimbangkan itu boleh diadili oleh forum ini (lihat ms 404F).
y
(4) Ment eri mempunyai kuasa s epadan untuk 'menyaht etapkan' atau 'menetapkan' sebarang aktiviti yang dit etapkan. Apabila Parlimen menugaskan Ment eri dengan kuasa untuk menetap sebarang aktiviti, adala h tidak berjustifikasi jika beliau melaporkan setiap aktiviti k epada dewan setiap kali beliau ingin menyaht etapkan sebarang aktiviti yang pada p endapatnya t elah menjadi tidak perlu atau tidak t erpakai (lihat ms 404I dan 405B-C).
y
(5) Tiadanya peruntukan nyata dalam KAS yang m embenarkan Ment eri membuat
apa-apa pemindaan secara k ebelakangan. Jika beliau ingin menggunakan kuasa dalam s 20 Akta Tafsiran bagi memberi k esan k epada perintah k ebelakangan,
beliau mesti mengatakan d emikian secara nyata (lihat ms 405F).
y
(6) Di bawah garis panduan yang dik eluarkan oleh Ketua Pengarah, penyertaan awam secara pemerolehan sesalinan PKAS, membuat komen t erhadapnya, dan membuat representasi, adala h diperuntukkan secara eksplisit. Semua ini harus dipatuhi sebelum panel kajian m embuat syor k epada Ketua Pengarah yang k emudiannya akan mengambil ki ra syor ini sebelum membuat k eputusan. Oleh yang demikian, p roses ini adalah mandatori dan sebarang k eputusan yang dibuat oleh Ketua Pengarah tanpa mematuhi prosedur di atas akan melanggar peruntukan undang-undang KAS dan perundangan subsidiari. Dengan ini, hak untuk sesalinan PKAS, dan membuat komen t erhadapnya oleh orang awam adalah merupakan satu hak, yang harus diberikan k epada plaintif-plaintif (li hat ms 407C-E).
y
(7) Perintah Ment eri untuk menggantung pemakaian aktiviti yang dit entukan di Sarawak bukan m engenai pemindahan prosedur, 1996 2 MLJ 388 at 394 t etapi k epupusan pemakaian KAS atas aktiviti t ert entu yang mat erial di Sarawak. Jika suatu hak untuk mendakwa wujud, ia bukan lagi b erk enaan dengan prosedur t etapi substantif (li hat ms 407H-I).
y
(8) Kek huatiran plaintif-plaintif ba hawa tanah, tanaman, rumah dan tapak pengebumian pusaka mereka akan musna h jika PHE Bakun dibia rkan bert erusan tidak melenyapkan hak yang diletakkan k e atas mereka untuk membuat representasi dan didengar sebelum PKAS diluluskan di bawa h KAS. Hak plaintif-plaintif di bawa h KAS adalah berlainan dan berasingan daripada hak di bawah Kanun Tanah Sarawak. Tetapi ini tidak b ermakna bahawa oleh k erana
plaintif-plaintif ingin m enguatkuasa hak mereka di bawah KAS, mereka mempunyai motif jahat seperti yang dikatakan (li hat ms 409A-C).
y
(9) Mahkamah tidak akan menolak permohonan plaintif-plaintif s emata-mata atas alasan bahawa t erdapat suatu remedi alt ernatif. Mahkamah akan mempertimbangkan pemberian bentuk relief yang paling sesuai yang akan menyelesaikan pertikaian di anta ra pihak-pihak yang berk enaan (lihat ms 409I).]
Notes For cases on declarations, see 2 Mallal's Digest (4t h Ed, 1994 Reissue) paras 1104-1126. For cases on locus standi, s ee 2 Mallal's Digest (4t h Ed, 1994 R eissue) paras 2272-2290.
Cases referred to Chief Assessor, Property Tax, Singapore v Howe Yoon Chong [1979] 1 MLJ 207 Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 Hanson v Radcliffe Urban District Council [1922] 2 C h 490 Howe Yoon Chong v Chief Assessor, Property Tax, Singapore [1978] 2 MLJ 87 Ibeneweka v Egbuna [1964] 1 WLR 219 Lonrho Ltd & Anor v Shell Petroleum Co Ltd & Anor (No 2) [1982] AC 173 Penang Development Corp v Teoh Eng Huat & Anor [1993] 2 MLJ 97 Petaling Tin Bhd v Lee Kian Chan & Ors [1994] 1 MLJ 657 Phillips v Eyre [1870] LR 6 QB 1 R v Secretary of State for the Home Department, ex p Al-Mehdawi [1989] 1 All ER 777
Salijah bte Ab Lateh v Mohd Irwan Abdullah [1996] 1 SLR 63 Tan Sri Hj Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177 Wong Pot Heng & Anor v Kerajaan Malaysia [1992] 2 MLJ 885 Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & O rs [1983] 1 MLJ 213 Yew Bon Tew & Anor v Kenderaan Bas Mara 1996 2 MLJ 388 at 395 [1983] 1 MLJ 1 Legislation referred to Borneo Stat es (Legislative Powers) Order1963 Environment Quality Act of 1974 ss 34 34A(1),(2) 34A(8) Environment Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 it em 13(b) Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995 s 2 Federal Constitution arts 73 74 76A 77 95B 95C 128(1),(2) Nint h Schedule Int erpretation Acts 1948, 1967 ss 3 20 30(1)(b) Natural Resources Ordinance (Cap 84) s 11A(1) Natural Resources and Environment (Prescribed Activities) Order 1994 s 2(2), it em 4(ii) Rules of t he High Court 1980 O 53
GS Nijar (Meenakshi Raman and Thayalan with him) (Meena Thayalan & Partners) for t he plaintiffs. Shafee Abdullah (CG Oh with him) (Shafee & Co) for t he first def endant. Stanley Isaac (Senior Federal Counsel) (Abu Bakar Jais with him) for t he second and t hird
def endants. JC Foong (Sarawak State Attorney General) for t he fourt h and fift h def endants. JAMES FOONG J The plaintiffs in t his action are residents of longhouses of Long Bulan, Uma Daro and Baku
Kalo in t he dist rict of Belaga, t he sevent h division of Sarawak. Sometime in Sept ember 1993, t he Federal Cabinet of Malaysia announced its approval of t he proposed development of a hydroelect ric project in t he sevent h division of Sarawak, an area known as Bakun covering
approximat ely 69,640 hectares of land to meet t he long-t erm power and energy requirements of t he nation. It involves t hree stages: t he creation of a reservoir, const ruction
of a dam and t he t ransmission of t he generat ed elect ric power f rom Sarawak in East Malaysia to Peninsular Malaysia by t ransmission cables which will, for a great er part, be subm erged across t he Sout h China Sea. This project, which is commonly t ermed t he 'Bakun Hydroelect ric Project' ('Bakun HEP') will, according to t he plaintiffs, directly and adversely involve t he dest ruction of t heir longhouses, ancest ral burial sit es as w ell as land and forests f rom which t hey seek shelt er, livelihood, food and medicine all of which t hey claim to have a st rong cultural attachment.
Under t he Environment Quality Act of 1974 ('t he EQA') which was passed by t he Federal Parliament of Malaysia and b ecame law on 15 Ap ril 1975 certain activiti es to be prescribed by t he Minist er charged wit h t he responsibility for environment prot ection ('t he Minist er') can only be carried out wit h t he approval of t he Director General of Environmental Quality
('t he Director General'), who is t he second def endant in t his action. This, as t he long title of t he EQA specifies, is for t he 'prevention, abat ement, cont rol of pollution and enhancement of t he environment and t he purpose connect ed t herewit h.' Section 34A of t he 1996 2 MLJ 388 at 396 EQA imposes a duty upon any p erson who carries out any of t he prescribed activities to submit a report to t he Director General in accordance wit h t he guidelines prescribed by t he Director General. This report should contain an assessment of t he impact such activity w hich is proposed to be carried out will have, or is lik ely to have, on t he environment and a proposal of measures t hat shall be undertak en to prevent, reduce or cont rol anyadverse impact on t he environment. (This report shall be known as 'EIA'). According to para 3.4.7 of t he Handbook of Environmental Impact Assessment Guidelines
('t he Guidelines') passed and approved by t he Director General, a d etailed EIA prepared by t he proponent of t he project must be made availabl e to t he public. And under para 4.5 of t he Guid elines, t he public are invit ed to comment on t he proposed project to a review panel, which is an independent body of experts or representatives of int erest ed organizations appoint ed wit h t he prime task of reviewing a detailed EIA and to evaluat e t he environmental, development costs and benefits to t he community. This review panel will formulat e its recommendation to t he Director General for his consideration and decision on its approval.
By an order known as t he 'Environment Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987' numbered as PU(A) 362/87 ('PU(A) 362') which came into eff ect on 1 Ap ril 1988, t he Minist er prescribed a number of activities to be 'prescribed
activities' falling wit hin t he EQA. One such activity in it em 13(b) is: 13 Power Generation and Transmission: (b) Dams and hydroelect ric power schemes wit h eit her or bot h of t he following: (i) dams over 15 met er s high and ancillary st ructures covering a total area in excess of 40 hectares;
(ii) re servoirs wit h a surface area in excess of 400 hectare s.
However, on 27 March 1995, t he Minist er, purport edly 'in exercise of t he powers conf erred by s 34A of t he EQA' by an order known as t he 'Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995' numbered as PU(A) 117 ('PU(A) 117') 'disprescribe' or 'unprescribe' (t erms used by counsel for t he first def endant), int er alia, it em 13(b) of t he prescribed activity mad e by him in PU(A) 362. This PU(A) 117 was gazett ed on 20 April 1995. The mode used in s 2 of t his amendment order reads as follows: (2) The Environment Quality (Prescribed Ac tivities) (Environmental Impact Assessment) Order 1987 is am ended by inserting, aft er paragraph 2, t he following paragraphs: (3) In re lation to t he Stat e of Sarawak, t his Order shall not apply in respect of t he prescribed activities list ed in t he First Schedule of t he National Resources and Environment (Prescribed Activities) Order 1994 published under Part 11 of t he Sarawak Government Gazette dat ed 11
August 1994, save t hat if t here are any inconsist encies between t he two Order s, t his Order shall prevail. 1996 2 MLJ 388 at 397 (4) Notwit hstanding paragraph 3, t he prescribed activities list ed as It ems 2, 5(a) and (b), 8, 9, 10, 12, 13(a), ( c) and (d), 15, 16 and 18 in t he Schedule shall continue to apply in respect of t he Stat e of Sa rawak.
One of t he most cont roversial provisions of t his amendment order is t hat it 's hall be deemed to have come into force on 1 Sept ember 1994'. In short, t he provisions herein are made to apply ret rospectively. Sarawak as ear ly as 1949, b efore she joined Malaysia had a legislature known as t he 'Natural Resources Ordinance' ('t he Sarawak Ordinance'). Under s 11A(1) of t he Sarawak Ordinance, a stat e Natural Resource Board ('t he Sarawak Board') creat ed under t his Ordinance could prescribe certain activities, which int er alia 'may injure, damage or have adverse impact on t he quality of t he environment or t he natural resources of t he stat e', to require t he approval of t he Sarawak Board before t hey could be implement ed. On 5 July
1994, t he Sar awak Board by an order known as t he 'Natural Resources and Environment (Prescribed Activities) Order 1994' ('t he Sarawak Order'), besides prescribing certain activities which requires t he Sarawak Board's approval, also lays down procedure for t he application for suchapprovals. In respect of p rocedure, it requires t he project proponent to submit to t he Sarawak Board an EIA for t he board's consideration. The fundamental diff erence between t his Sarawak Order and t he Guidelines is essentially t he entitlement to a copy of t he EIA by t he public and t he subsequent public comments to t he review panel before
an approval can be grant ed by t he Director General. The Sarawak Order does not contain such provisions. This, basically, is t he discont entment of t he plaintiffs. Of course, one of t he prescribed activities in t he Sarawak Order includes, under it em 4(ii), t he 'const ruction of dams, artificial lak es or reservoirs wit h a surface are a of 50 hectares for impounding wat er' and under s 2(2) of t he same Order, 'measurement of area shall be const rued to mean t he minimum area prescribed ' The first d ef endant is t he project proponent of t he Bakun HEP. The plaintiffs claimed t hat on
7 March 1994, t he EIA for t he Bakun HEP was commissioned and subsequent to t his, t here were various public pronouncements by government leaders t hat t he EIA would be made availabl e to t he public for t heir comments and views before approval. Through t he exhibits
annexed to t he first plaintiff's affidavit w ere also lett ers f rom t he Minist er assuring certain public int erest groups t hat all EIA p rocedures under t he EQA for t his project have to be complied wit h and public views will be considered. Suddenly, on 1 April 1995, t he Press report ed t hat t he first def endant's chairman had claimed t hat t he first segment of t he EIA
submitt ed by his company had been approved by t he Director General and wit h t his, t he first def endant would be able to start preparatory works at t he lower end of t he reservoir, which involved t he clearing of 69,000 hectares of forest. A f ew days lat er, on 7 April 1995, t he Director General in a P ress release clarified t hat t he EIA prepared by t he first def endant is: ... subject ed to t he Sarawak Order and not t he Federal Government regulations. All p rescribed activities relating to t he development of land, wat er , forest ry, agriculture and ot her natural re sources in Sarawak are
1996 2 MLJ 388 at 398 subject to t he Order (t he Sarawak Order), including t he const ruction of hydroelect ric dams...; since Ek ran Bhd's (t he first def endant) submission was made aft er t he Order came into force, it is wit hin t he Board's (t he Sarawak Board's) purview to re view and approve it. The first part of t he EIA submitt ed by Ek ran Bhd two mont hs ago was a ccordingly considere d and app roved on 27 March The New Straits Times Press on 7 April 1995 as found in exh E of t he first plaintiff's affidavit affirmed on 5 May 1995. It is p ertinent at t his stage to not e t hat t he Sarawak Order, t hough made on 5 July 1994, was also enac t ed to be eff ective ret rospectively to 1 Sept ember 1994.
By t hese acts of t he def endants, t he plaintiffs claim t hey have been deprived of t heir accrued/vest ed rights to obtain a copy of t he EIA, to be heard and mak e representations before t he EIA is app roved. They are now seeking 'a d eclaration t hat before t he first def endant carries out t he prescribed activity, v' z t he const ruction of t he Bakun HEP, t he first def endant has to comply wit h t he EQA including s 34A of t he said Act and/or t he guidelines prescribed by t he second def endant under s 34A of t he said Act and t he regulations made t hereunder.' The t hird def endant is t he Government of Malaysia, w hile t he fourt h and fift h def endants
were added into t hese proceedings upon t he suggestion of t his court and agreed upon by all parties t hen present, principally for t he reason t hat t he subject matt er concerns and involves t hem. As expect ed, t he plaintiffs' application brought a barrage of objections f rom all t he def endants which raised numerous legal issues. For t he sak e of clarity, t his court shall deal
wit h each of t hem under separat e headings. Locus Standi The def endants submit t hat t he plaintiffs have no locus standi to b ring t his action; in short,
t hey have suff ered no specific, direct or substantial damag e ot her and diff erent f rom t hat which was common to all t he rest of t he public. The learned Attorney General of Sarawak enlight ens t his court of t he fact t hat t here are over
9,000 inhabitants in t he area t hat would be flooded as a result of t he creation of t he reservoir for t he Bakun HEP, plus anot her 2,000 people residing in t he proposed wat er cat chment area. This totals app roximat ely 10,000 natives aff ect ed by t he Bakun HEP and any damage so caused by t his project is not peculiar or special to t he plaintiffs alone. In any event, any loss of
t heir land, houses and crops will be compensat ed in accordance wit h t he provisions of t he Land Code of Sarawak and not to be remedied by a d eclar ation t hat t he first def endant must comply wit h t he EQA. The law on locus standi in a publi c action has been ext ensively and comprehensively detailed
in t he learned judgments of Salleh Abas LP inGovernment of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at p 20. There is no necessity for t his court to repeat t hem except to proceed st raight into t he elaboration of t he principles expounded. It was agreed by two (Salleh Abas LP and Hashim Yeop Sani SCJ) of t he t hree majority judges in t he above-mentioned case t hat t he best approach to t he det ermination of locus 1996 2 MLJ 388 at 399 standi is t he proposition pronounced by t he (t hen) Supreme Court in t he case of Tan Sri Hj Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177 at p 179, which is as follows: The sensible approach in t he matt er of loc us standi in injunctions and declarations would be
t hat as a matt er of jurisdiction, an assertion of an inf ringement of a cont rac tual or a proprietary right, t he commission of a tort, a statutory right or t he breach of a statut e which affects the
plaintiff's interests substantially or where the plaintiff has some genuine interest in having his legal position declared ,even t hough he could get no ot her relief, should suffice (Emphasis added.)
A perusal of t he plaintiffs' affidavits, wit hout any creditable evidential challenge f rom t he def endants, confirms t hat t he plaintiffs are natives to t he area aff ect ed by t he Bakun HEP. They have claimed t hat t heir homes and land will b e dest royed, t heir lives uproot ed by t he
project and t hey will suff er far more greatly and directly t han ot her members of t he public. To t hem, 'our land and forest are not just a source of our livelihood but constitut e lif e itself,
as t hey are fundamental to our social, cultural and spiritual survival as native people.' This itself, in t he opinion of t his court, is suffi cient to justify t he plaintiffs having a substantial or genuine int erest to have a legal position declared. The plaintiffs may b e just t hree members of a community of 10,000 aff ect ed by t he Bakun
HEP, but as Vis count Radcliff e in Ibeneweka v Egbuna [1964] 1 WLR 219 aptly put (at p 226): ... t here has never bee n any unqualified rule of practice t hat forbids t he making of a declaration even whe n some of t he per sons int ere st ed in t he subjec t of t he dec laration are not before t he court... W here, as here, def endants have decided to mak e t hemselves t he champions of t he rights of t hose not represent ed and have fought t he case on t hat basis, and where, as here, t he
t rial judg e tak es t he view t hat t he int ere st ed parties not represent ed are in reality fighting t he suit, so to say, f rom behind t he hedge, t here is, in t heir Lordships' opinion, no principle in law which disentitles t he same judge f rom disposing of t he case by making a declaration of title in t he plaintiffs' favour.
Enforcement of a public duty on which a penal sanction is provided Section 34A of t he EQA imposes a duty on any p erson who carries out any of t he prescribed activities to submit an EIA to t he Director General. When a project proponent proceeds wit h t he project wit hout t he approval f rom t he Director General of t he EIA, he commits a breach of s 34A of t he EQA, and under s 34(A)(8) of t he EQA, he: ... s hall be guilty of an off ence and shall be liable to a fine not exceeding t en t housand ringgit or to imprisonment for a period not exceeding two years or to bot h and to a furt her fine of one t housand ringgit for ever y day t hat t he off ence is continued aft er a notice by t he Director General requiring him to comply wit h t he act specified t herein has bee n served upon him.
By t his decree, t he def endants claim t hat t he EQA has provided a provision for criminal prosecution on a p enal off ence in t he event of cont ravention 1996 2 MLJ 388 at 400 or breach of s 34A of t he EQA. When such penal remedy is creat ed by statutory provision, a declaration sought for by t he plaintiffs as p rivat e individuals cannot be ent ertained. This is support ed by t he (t hen) Supreme Court decision in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, where Abdul Hamid CJ (Malaya)(as he t hen was) held (at p 32) t hat:
Wit h all due respect to t he learned judg e, my vi ew is clear in t hat fundamentally where a statut e creat es a criminal off ence by prescribing a penalty for t he breach of it but not p roviding a civil remedy t he general rule is t hat no privat e individual can bring an a ction to enforce t he criminal law, eit her by way of an injunction or by a declaration or by damages. I am in clined to
t he view t hat it should be left to t he Attorney General to bring an a ction, eit her of his own motion or at t he instance of a member of t he public who 'relat es' t he facts to him: see Gouriet v Union of Post Office Workers & Ors [1977] 3 All ER 70.
The reason behind t his is best put by Sall eh Abas LP in t he same case as follows (at p 26): It is unacceptable t hat criminal law should be enforced by means of c ivil procee dings for a dec laration when t he court's power to grant t hat rem edy is only at t he discretion of t he court. Jurisdiction of a criminal court is fixed and certain. The standard of p roof in a criminal case is diff ere nt f rom t hat required in a civil case and moreover t he Attorney General is t he guardian of public int erest and as t he Publi c Prosecutor, he, and not t he court, is in cont rol of all prosecutions. How can a prosecution of t his nature be done behind his back? The se are some of t he most serious objections to t he exercise by a civil court of its discretionary power relating to dec laratory and injun ctive remedies. Our syst em requires t he public to t rust t he impartiality and fair-mindedness of t he Attorney General. If he fails in his duty to exhibit t his sense of fairness and to p rot ect public int ere st of which he is t he guardian, t he matt er can be raised in Parliament or elsewhere.
However, t here can be two exceptions to t his rule as point ed out by t he learned Attorney General of Sarawak acting for t he fourt h and fift h def endants. This is expounded in t he judgment of Lord Diplock in Lonrho Ltd & Anor v Shell Petroleum Co Ltd & Anor (No 2) [1982] AC 173 at p 185, which is consist ent wit h Government of Malaysia v Lim Kit Siang. The exceptions are: The first is where upon t he t rue const ruction of t he Act it is apparent t hat t he obligation or
prohibition was imposed for t he benefit or prot ection of a particular class of individuals as in t he case of t he Factories Act and similar legislation The second exception is where t he statut e creat es a publi c right (ie a right to be enjoyed by all
t hose of Her Majesty's subjects who wish to avail t hemselves of it) and a particular member of t he public suff er s what Brett J in Benjamin v Storr (1874) LR 9 CP 400 at p 407 d escribed as 'particular, direct and substantial' damage 'ot her and diff ere nt f rom t hat which was common to all t he re st of t he public.'
Even on t hese exceptions, t he learned Attorney General of Sarawak cont ends t hat t he plaintiffs have failed to satisfy t he first. The EQA, he submits, is fo r int er alia 't he prevention,
cont rol of pollution and enhancement of t he environment and to regulat e prescribed
activities.' In short, it is only a 1996 2 MLJ 388 at 401 regulatory syst em for environmental quality cont rol and t he enhancement, wit hout ref erence
to any class or body of persons for whom such cont rol or enhancement is to benefit; such an Act is not for t he prot ection of any class of t he public, but fo r t he public generally. Mr Nijar, arguing for t he plaintiffs, disag rees. He submits t hat by looking at t he EQA, it is apparent t hat t he obligations for public participation in an EIA b efore approval as p rovided by paras 3.4.7 and 4.5 of t he Guidelines are imposed for t he benefit of t he int erest ed public. Though t his court may ag ree t hat it may be for t he benefit of t he int erest ed public, it is
wit hout ref erence to any particular class or body. It certainly does not grant prot ection to any class of t he public but only to t he public at large. For t his, in t he opinion of t his court, t he
plaintiffs do not fall wit hin t his particular exception. On t he second exception, t his court finds t he circumstances of t his case more applicable particularly to t he findings of t his court under t he heading of 'Locus Standi'. The plaintiffs are natives to t he location where t he Bakun HEP is to b e carried out. Operations of t his project involve cutting down t rees, diverting natural wat er flow and submerging large t racts of land wit h wat er. This obviously involves t he dest ruction of t he plaintiffs' homes and land and t hey would have to be relocat ed as admitt ed by t he def endants. When t he forest which is an int egral part of t he plaintiffs' lives is dest royed, such a deprivation would certainly uproot and immensely aff ect t heir lives. These suff erings and damages definit ely are 'particular, direct and substantial' to t he plaintiffs t hemselves, which are obviously diff erent and apart f rom what ot her members of t he public would suff er. The plaintiffs may only be t hree of a community of 10,000 but, as utt ered earlier, numbers is not t he crit eria for t he granting or refusal of d eclaratory relief. What is fundamental is t hat t he plaintiffs t hemselves have in t his case suff ered specific, direct and substantial damag es caused by t he Bakun HEP. Wit hin t his exception, t his court finds t hat t he plaintiffs are entitled to seek t heir declaration prayed for
in t his application, even t hough statutory provision in t his case subs cribes a criminal off ence which provides for a penal remedy. Justiciable and the Power of the State Legislature to Make Laws In quoting t he Singaporean case of Salijah bte Ab Lateh v Mohd Irwan Abdullah [1996] 1 SLR
63 at p 69, t he learned Attorney General of Sarawak points out t hat t he power to mak e declaratory judgment is confined to several principles, one of which is t hat it must b e rest rict ed 'to matt ers which are justiciable in t he High Court.' Wit h t he assistance of t he
learned senior f ederal counsel acting for t he second and t hird def endants, t hey explain t hat environment per se is an abst ract t hing. It is multi-dim ensional so t hat it can be associat ed
wit h anyt hing surrounding human beings. The power to legislat e on environmental matt ers would, t herefore, necessarily depend on specific activity to w hich t he environmental matt er relat es. In t his respect, bot h Parliam ent and t he stat e legislatures of Sarawak are compet ent
to mak e laws on environmental impact provided t hat t hey are confined to activities which are identified in t he Constitution as belonging to t heir respective legislative jurisdiction. For t his, t he following provisions 1996 2 MLJ 388 at 402 on t he legislative jurisdiction between stat es and t he f ederal aut hority need to be elaborat ed. (1) Under art 73 of t he Federal Constitution, while Parliament may mak e laws for t he whole or any part of t he Federation, t he Legislature of t he Stat e may mak e laws for t he whole or any part of t he Stat e. (2) Under art 74 of t he Federal Constitution, Parliament's power to mak e laws is in respect of matt er s enumerat ed in t he Federal list or t he Concurrent list (t hat is to say, t he list I or list III as set out in t he Nint h Schedule of t he Federal Constitution). (3) Under art 77 of t he Federal Constitution, t he legislature of t he Stat e has power to mak e laws wit h respect to any matt ers not enumerat ed in any of t he lists set out in t he Nint h Schedule, not being a matt er in respec t of which Parliament has t he power to mak e laws. This power is called t he residual power of legislation and it is pre served for t he Stat e Legislatures. (4) Article 95B of t he Federal Constitution accords special legislative powers to t he Stat es of Sabah and Sa rawak. The supplement to List III (known as 'List III A') in t he Nint h Schedule is deemed to form part of t he Concurrent List ('List III') and t he matt ers enumerat ed in t hat list is deemed not to b e included in t he Federal List ('List I'). In t his supplement to t he Concurrent List is t he power of t he Stat e of Sarawak to mak e laws on 't he production, dist ribution and supply of wat er power and of elec t ricity generat ed by wat er power' (List III A 13). (5) In addition to t he express powers given under t he Nint h Schedule of t he
Federal Constitution to t he Stat e of Sa rawak to mak e laws, t he Yang DiPertuan Agong acting under art 95C read toget her wit h art 76A of t he Federal Constitution has given power s to t he Stat e of Sarawak to mak e laws int er alia, on 'Elect ricity and dist ribution of gas.' This is under t he Borneo Stat es (Legislative Power s) Order 1963 LN 17.5. (6) Under t he Stat e List (List II), and supplementary list to List III (List IIIA) of t he Nint h Schedule of t he Federal Constitution, toget her wit h t he additional express powers made under Borneo Stat es (Legislative Powers) Order 1963 LN 17.5, t he Stat e of Sa rawak has exclusive jurisdiction to mak e laws aff ecting land use, forest ry (which includes t he removal of timber and biomass), impounding of inland wat er , diver sion of rivers, elec t ricity and t he production of elect ricity generat ed by wat er, including t he removal of burial sit es. (7) In re spect of environmental impact, it is neit her in t he Federal List (List I), or t he Concurrent List (List III), and t he def endants claim t hat under art 77 of t he Federal Constitution, t he Stat e of Sarawak is lawfully entitled to legislat e over such matt ers, as seen to be carried t hrough t he Sarawak Ordinance and t he Sarawak Order.
From t he abov e, t he learned senior f ederal counsel points out t hat in respect of t he Bakun HEP, t he stat e of Sarawak has compet ent and exclusive jurisdiction to govern t he relevant activities involved. The Minist er, recognizing t his fact and removing any inconsist ency between Federal and Stat e jurisdiction, by PU(A) 117 excluded t he application of EQA on certain relevant prescribed activiti es to t he stat e of Sarawak. The operation of t he Sarawak
Order, he claims, is n ever dependent upon PU(A) 117; t he Minist er has prescribed t he mat erial activiti es, t he most relevant of which 1996 2 MLJ 388 at 403 is t he const ruction of dams and hydroelect ric power schemes in PU(A) 362, at a tim e when t he Sarawak Ordinance had not been amended yet to include a new s 11A for Sarawak to assume identical powers and jurisdiction as in s 34A of t he EQA. To grant t he declaration sought for by t he plaintiffs, in t he opinion of t he learned Attorney General of Sarawak, would mean: t he court is seeking to enforce on t he stat e of Sa rawak, laws and re gulations which Parliament did not have legislativ e aut hority to enact, or t he constitutionality of such law is questioned, and wit h regard to which, t here are already stat e laws and regulations for environmental
prot ection and enhancem ent.
These are matt ers not justiciable for t his court to consider. The response f rom t he plaintiffs contained in Mr Nijar's reply is t hat t he environment has
increasingly become a subject matt er of int ernational concern and t he Malaysian Government since t he Stock holm Conf erence in 1972 has participat ed in int ernational conf erences, ent ered into t reaties, been signatories to int ernational conventions and agreed
to be int ernationally bound by protocols relating to environment. The count ry has carried out t hese actions as part of its obligations in ext ernal affairs. To eff ect t hese int ernational commitments, t he Federal Government must have pow er at national level to pass laws relating to matt ers locat ed wit hin t he stat es, ot herwise its ext ernal affairs obligations will b e
impaired. He cit es t he Convention on Biological Diversity, which Malaysia is signatory, t hat imposes binding obligations on t he government to pass laws for t he preservation and sustainable use of all t he rich flora and fauna wit hin t he count ry. Matt ers concerning t he environment is, t herefore, an ext ernal affai rs power which t he f ederal legislature has power
under t he Federal List (List I) to enact laws. Before one embarks upon t his issue, it is relevant to det ermine t he definition and meaning of t he word 'justiciable'. Edgar Joseph Jr SCJ (as he t hen was) in Petaling Tin Bhd v Lee Kian Chan & Ors [1994] 1 MLJ 657 at p 672 has undertak en t his task and found in Black's Law Dictionary (5t h Ed, 1983) at p 1004, on t he meaning of t he t erm 'justiciability': The t erm ref ers to real and substantial c ont rover sy which is appropriat e for judi cial
det ermination, as distinguished f rom disput e or diff erence of contingent, hypot hetical or abst ract charact er: Gui-marin & Doan Inc v George Town Textile Mfg Co 249 SC 561 621 155 SE 2d 618.
To begin wit h, t his court wishes to reit erat e t hat t he issue before it is not w hat is t he
appropriat e legal measures to saf eguard t he environment; which seems to be t he undertone of Mr Nijar's reply, and if allow ed to proceed furt her would complet ely blur t he relevant issues before t his court. Basically, f rom t he arguments and a scrutiny of t he plaintiffs' application, t he nucleus of t he plaintiffs' challenge is on t he validity of PU(A) 117, in relation to t he procedural aspect of its enactment. This does not involve t he det ermination of t he jurisdictional aspect between stat e legislation and t he Federal Parliam ent concerning who has t he legislative power on various matt ers, eit her list ed or not list ed in t he Nint h Schedule
of t he Federal Constitution. In any event, if t here is such a 1996 2 MLJ 388 at 404 challenge, t his court is not t he proper forum for under arts 128(1) and (2) of t he Federal
Constitution, only t he Federal Court to t he exclusion of any ot her court can decide any question whet her a law mad e by Parliam ent or by t he legislature of t he stat e is valid. There certainly is no appli cation of such nature before t his court.
Irrespective of whet her t here is a stat e law existing concurrently wit h a f ederal law, t his court shall not be hampered in its det ermination to g rant or refuse a declaratory relief, if
found justifiable to do. If t here is any inconsist ency or conflict of t he laws, t hen it is up to t he respective executive aut hority or its relevant legislation to resolve such matt ers in
accordance wit h t he correct and appropriat e procedure as laid down by law. On e does not expect an individual (w hose right is aff ect ed eit her by a stat e or f ederal legislation) in an
att empt to enforce his right grant ed eit her by a stat e or f ederal legislature to be def eat ed by a claim f rom t he respective executive, each claiming it has t he rights and powers to enact t he
mat erial piece of law and doing not hing to resolve t his. If t he executive f rom eit her t he stat e or f ederal body has chosen to ratify and resolve such conflicts, t he least he can do is to do it correctly according to t he law. If it is carried out incorrectly or no action ever tak en at all, t he courts should not stand idly by to allow t he concerned parties involved to tak e advantage of
t his situation. In a d eclaratory relief, which is an all-purpose remedy used in an ext raordinary variety of cases, t he court will w eigh t he advantages of granting a declaratory relief against t he disadvantages, wit h t he minimum requirement to achieve justice to deal wit h t he aggrieved party's claim at hand. In t his case, t he issue before t his court concerns t he validity of PU(A) 117 in its p rocedural aspect of its enactment. This is a real and substantial cont roversy which t his court has jurisdiction to det ermine, irrespective of whet her t here exists a stat e law or a f ederal legislature governing a similar underlying subject matt er. For
t his, t his court finds t hat t he matt er to be det ermined is justiciable for t his forum. Ultra Vires(a) Power to 'disprescribe' The plaintiffs claim t hat under s 34A of t he EQA, t he Minist er's power is rest rict ed to
prescribing of activiti es to fall und er t he EQA. He has no power to suspend t he application of PU(A) 362 to t he stat e of Sarawak for t his does not fall wit hin t he t erms of t he enabling provisions of s 34 of t he EQA.
Section 34A(1) of t he EQA provides: The Minist er, aft er consultation wit h t he Council, may by order pre scribe any activity which
may have significant environmental impact as prescribed activity.
By implication, it is t he opinion of t his court t hat he, too, has corresponding power to (borrowing t he words of Mr Shaf ee, counsel for t he fi rst def endant) 'disprescribe' or 'unprescribe' any p rescribed activities. This approach is necessary to give full eff ect to t he objective of t he EQA, which in t he long title spells out as: 1996 2 MLJ 388 at 405 An Act relating to t he prevention, abat ement, cont rol of pollution and enhancement of t he environment and for t he purposes connect ed t herewit h.
As society progresses, environmental charact eristics and values also change, caused eit her by human attitud e, depletion of t he subject matt er or t he inapplicability of a p rescribed activity.
Environmental matt ers do not remain static,and t he constant change in its charact er requires t he Minist er to prescribe as well as disprescribe to move wit h times. When Parliament has delegat ed t he Minist er wit h power to prescribe any activity, it would b e unjustifiable for him to return to t he distinguished house on every single activity he wishes to disp rescribe which, in his opinion, has become unnecessary or inapplicable. To int erpret s 34A(1) EQA st rictly is to tie t he hands of t he Minist er when change has come and is needed. This would creat e an impractical approach which certainly is not t he int ention of Parliament. (b) Retrospectivity PU(A) 117, t hough in t he form of an order by t he Minist er, is subsidiary legislation according to s 3 of t he Int erpretation Acts 1948 and 1967('Int erpretation Act'). Section 20 of t he Int erpretation Act permits t his piece of subsidiary legislation to be made ret rospective, deeming it to come into force on 1 Sept ember 1994 when it was only gazett ed on 20 April 1995. However, Mr Nijar points out t hat t hough PU(A) 117 can be made ret rospective, it was not done so under s 20 of t he Int erpretation Act. Inst ead, PU(A) 117 was expressly made 'in exercise of t he powers conf erred by s 34A of t he EQA 1974.' Again s 34A of t he EQA, he claims, has never provided t he Minist er wit h a power to amend t he law ret rospectively. If t he
Minist er wishes to avail himself of t he provision of s 20 of t he Int erpretation Act which empowers him to amend ret rospectively, he must cit e t his provision explicitly but t his is not
apparent in PU(A) 117. In support of t his cont ention, he quot ed t he case of Howe Yoon Chong v Chief Assessor, Property Tax, Singapore [1978] 2 MLJ 87, where Rajah J at p 90 held t hat: The Minist er in t his matt er exercised his powers under s 63 of t he Act; if he had wished to exercise his power s under t he Int erpretation Act he should have said so in his declaration,
which he did not. He has exercised his powers only under s 63 of t he Act, and s 63, as can be see n f rom a plain reading of it, gives him no power to levy f ees.
Though t he senior f ederal counsel was quick to point out t hat t he above case was overruled
by t he Singapore Court of Appeal report ed in Chief Assessor, Property Tax, Singapore v Howe Yoon Chong [1979] 1 MLJ 207, t he Court of Appeal did not mak e any specific comments to t he above proposition. As rationally held by t he English Court of Appeal in t he case of R v Secretary of State for the Home Department, ex p Al-Mehdawi [1989] 1 All ER 777 at p 781, where an appellat e court (t he House of Lords in t his case) expressed no view on t he soundness or ot herwise of t he reasoning of t he court below, t he decision of t he court below has a 'powerful persuasive influence on t hat particular issue. This court is certainly influenced by t he proposition of Rajah J above and to a great er ext ent
by t he decision of Eusoff Chin J (as he t hen was) 1996 2 MLJ 388 at 406 in Wong Pot Heng & Anor v Kerajaan Malaysia [1992] 2 MLJ 885, where t he learned judge, wit h clarity and p recision has t his to say (at p 893): ... s 20 of t he Int erpretation Acts does not apply to emergency regulations made under s 2 of t he 1979 Act ( Em ergency (Essential Power s) Act 1979). Since s 2 of t he 1979 A ct itself does not contain any provision empowering t he Yang Di-Pertuan Agong to mak e em ergenc y regulations
wit h ret rospective eff ect, I hold t hat bot h t he new regs 9B and 13(2) insert ed into t he regulations by t he amending regulations are invalid in so far as it purports to operat e ret rospectively.
Similarly in our case, t here is no express provision in t he EQA to permit t he Honourable Minist er to mak e any amendments ret rospectively. Section 34A(1) of t he EQA empowers t he Minist er to prescribe any activities as prescribed activities including, as t his court has ruled, making of amendments t hereto to cat er for changes, but t hese changes are in anticipation of t he future and not for t he past. The Minist er has explicitly stat ed in t he operative part of PU(A) 117 t hat he enact ed t his order in exercise of his powers conf erred by s 34A of t he EQA, but when t he purport ed enacting provision does not provide him wit h a right to mak e
amendments ret rospectively, he in turn acquires no such right to do so und er t hat particular provision of t he statut e. A perusal of ot her sections in t he EQA also reveals no provision for t he Minist er to amend subsidiary legislation ret rospectively. If he wished to avail himself of t he powers in s 20 of t he Int erpretation Act to give eff ect to t he ret rospectivity of his Order, he must, as stat ed above, say so expressly. But no utt erance was ever made, nor is t here any
st rong indication t hat he did so in t his amending order. The proposition in Wong Pot Heng
's case has been criticized by t he def endants for relying too heavily on Indian and English aut horities where no similar provisions such as our s 20 of t he Int erpretation Act exists in bot h t hose count ries. This cont ention is complet ely unjustified, when t he rational of st rict int erpretation of t his section is bas ed on t he equitable and general principle t hat legislation should 'deal wit h future acts, and ought not to change t he charact er of past t ransactions carried upon t he fait h of t he t hen existing law...' p er Willes J in Phillips v Eyre (1870) LR 6 QB
1. It is pertinent at t his point to also ref er to s 30 of t he Int erpretation Act, which provides under sub-s (1)(b) t hat: 30(1) The repeal of a writt en law in w hole or in pa rt shall not (b) aff ect any rig ht, privilege, obligation or liability acquired, accrued or incurred under t he re pealed law; or
... and any such investigation, legal proceeding or remedy may be institut ed, continued or enforce d, and any su ch penalty, forf eiture or punishment may be imposed, as if t he repealing
law had not bee n made.
The essential element of t his provision for t he purpose of t his case cent ers upon t he question
of whet her t he plaintiffs have acquired any rights. The def endants, of course, have st renuously argued t hat t he plaintiffs have 1996 2 MLJ 388 at 407 acquired no right nor been grant ed any under t he EQA and all t he subsidiary legislation relat ed t hereto. On t he ot her hand, t he plaintiffs have insist ed upon a vest ed and/or an
accrued right to a copy of t he EIA and to b e heard and mak e representation. Thus, in order to
decide on t his matt er, t he EQA and its subsidia ry legislation must be examined. To start off wit h, s 34A(2) of t he EQA provides t hat t he EIA 'shall be in accordance wit h t he
guidelines prescribed by t he Director General...'. Wit h t his, t he Guidelines become a subsidiary piece of legislature when published by t he Director General. Under paras 1.4.5, 1.6.1, 3.4.7 and 4.5 of t he Guidelines, public participation in t he form of obtaining a copy of t he EIA, commenting t hereto and making representation is explicitly provided and in fact encouraged for a 'responsible, int erest ed and participating public is important in environmental management.' All t hese are to be complied wit h before t he review panel
mak es its recommendation to t he Director General who, in turn, tak es into consideration t hese recommendations before arriving at a d ecision. This process is, t herefore, mandatory and any decision made by t he Director General wit hout t he abov e procedure being adhered to will be against t he legal provisions of t he EQA and its subsidia ry legislature. Wit h t his, t he entitlement to a copy of t he EIA, commenting t hereon by t he public becomes a right, and for
t his t he plaintiffs are entitled to such rights. Denial of t hese rights would be cont rary to t he legal provisions and t herefore should be reject ed. Consequently, since PU(A) 117 is a pi ece of legislation t hat repeals a w ritt en law and since t he rights of t he plaintiffs are aff ect ed by its eff ectiveness, s 30(1) of t he Int erpretation Act also p rohibits it f rom being valid.
Mr Shaf ee t hen argues t hat, in t he alt ernative, PU(A) 117 did not extinguish any vest ed/accrued rights of t he plaintiffs; it merely amended t he procedure for t he approval of t he EIA f rom t he Director General to t he Sarawak Board under t he Sarawak Ordinance. This line of approach could be relat ed to t he principle exp ressed by Lord Brightman in Yew Bon Tew & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1 (at p 2) where: ... no p erson has a vest ed rig ht in any particular course of procedure, but only a right to prosecut e or def end a suit according to t he rules for t he conduct of an action for t he time being pre scribed.
In t he opinion of t his court, t his argument is most unatt ractive for all int ents and purposes. PU(A) 117 is not about a t ransf er of procedure, but t he extinction of t he EQA in its application on certain mat erial activities in t he stat e of Sarawak. The Sarawak Ordinance and t he Sarawak Order by far are complet ely diff erent pieces of legislation which, f rom t he arguments of t he learned Attorney General of Sarawak and t he senior f ederal counsel, stand on t heir own footing, separat e and apart f rom t he EQA. Though it may regulat e on a similar
prescribed activity as t he EQA, t hey are based on its own enactment wit h separat e and distinct procedures. Where a right to prosecut e an action exists, as in t his case for t he plaintiffs, it is no long er procedural but substantiv e. 1996 2 MLJ 388 at 408 Usefulness The learned Attorney General of Sarawak questions t he usefulness of t his declaration sought
for by t he plaintiffs. He emphasizes t hat aft er t he EIA was submitt ed by t he first def endant, it was deliberat ed and approved by t he Sarawak Boar d which consist ed also of t he Director General as one of its members. Under such circumstances, what useful purpose would it serve by ordering t he first def endant to re-submit an EIA to comply wit h s 34A of t he EQA? For aft er all, t he Director General will similarly approve it as he did as a m ember of t he Sarawak Board. This submission is rat her insubstantive as it is elementary t hat it is not t he Director General
who approved t he EIA in Sarawak, but t he Sarawak Board. He may be a constituent of t he Sarawak Board but, it is not in his capacity as t he Director General under t he EQA to approve t he EIA. The Sar awak Board and t he Director General under t he EQA are two separat e institutions, each guided by its own s et of legal procedures and t he most notorious diff erence is t he absence in t he Sarawak Order of t he right of t he public to a copy of t he EIA, and t he right to be heard and mak e representation before t he approval of t he EIA is g rant ed. This
diff erence may change t he whole course of t hings as input t hrough public participation as provided by t he Guidelines may cause t he approving aut horities under t he EQA to tak e an enti rely diff erent cause of action, or to impose certain conditions t hat may be beneficial to
t he project and t he public as a whole. The very essence of EQA is to formulat e 'measures t hat shall be tak en to prevent, reduce or cont rol t he adverse impact on environment.' To achieve t his, as laid down under t he Guidelines, public participation is n ecessary, for aft er all, t he int eraction between people and t heir environment is fundamental to t he concept of impact. Thus, it is relevant, and indeed mandatory for t he aut horities to hear t he views of t he public
first, before granting its approval. Even if t he views of t he public are reject ed, of which t hey are entitled to do, at least t he law as promulgat ed by t he elect ed representatives of t he people is being followed. It mak es a mock ery of t he whole issue to say t hat t he EIA can be approved first and if t he public has any const ructive ideas, t hey can submit lat er. This
certainly is illogical, deprived of good sense and sound reasoning.
Motives The fourt h and fift h def endants question t he motive of t he plaintiffs in applying for t he
declaration sought. They f eelt hat t he underlying objective of t he plaintiffs is to avoid losing t heir land, crops, houses, and ancest ral burial sit es if t he Bakun HEP is to p roceed. The plaintiffs' concern, t hey add, 'is not about environment per se, but about matt ers which can only be resolved under t he provision of t he Land Code of Sarawak; by t heir actions, t he plaintiffs can bolst er t heir case against immin ent extinguishment of t heir rights over stat e land occupied by t hem under native customary t enure.' 1996 2 MLJ 388 at 409 Indeed, t he plaintiffs are apprehensive t hat t heir land, crops, houses and ancest ral burial sit es will be devastat ed if t he Bakun HEP is to p roceed. But t his does not extinguish t heir vest ed rights to mak e representation and be heard before t he EIA is app roved by t he Director General under t he EQA and its lawful subsidiary legislation. Relevant provisions of t he Land Code of Sarawak may d eal and settle t he affai rs of t he plaintiffs relating to t heir land, but t hese are matt ers to be of concern only aft er t he relevant approval is grant ed to t he first def endant under t he EQA. The rights of t he plaintiffs under t he EQA are distinct and separat e f rom t he rights under t he Land Code of Sarawak which, t his court is confident, also provides adequat ely for t he plaintiffs. But t his does not mean t hat just because t he plaintiffs wis h to enforce t heir rights under t he EQA t hey possess a sinist er motive as claimed. In any event,
t he affidavits of t he plaintiffs dis close t heir genuine concern of t he environmental impactof t he Bakun HEP, and all t hey wish is to be grant ed a right to obtain a copy of t he EIA, be heard and mak e representation before t he EIA is app roved. Being people directly and peculiarly aff ect ed, t he plaintiffs would aut horitatively be able to cont ribut e some const ructive views for consideration by t he aut horities; aft er all, t he concept of environmental impact is t he int eraction between people and t heir environment. Proper Procedure (a) Mandamus The first d ef endant complains t hat t he plaintiffs are seeking a d eclaration to compel t hem to comply wit h t he EQA, but however, upon closer scrutiny, t he substance of t he plaintiffs'
grievances are actually against t he second and t hird def endants for t he purport ed abdication of its statuto ry powers. Thus, t he appropriat e procedure is an order of mandamus against t he second def endant to exercise its statutory duty underO 53 of t he Rules of t he High Court 1980 and not by way of t his declaration. In t he opinion of t his court, t his conception is rat her rest rictive in modern times when t here is a dynamic development of declaratory Order in t he field of administ rative law. The appropriat e approach should be t hose expressed by t he aut hors de Smit h, Woolf and Jouell in Judicial Review of Administrative Actions (5t h Ed) at p 753: Normally a court will not be det erre d f rom t he granting of a declaration because some alt er native remedy is available. The fact t hat on an application for judicial review an appli cant could have obtained an order of mandamus or prohibition is no reason for refusing declaratory re lief. The c ourt in practice will adopt an entirely pragmatic approach and having tak en into
account t he wishes of t he parties will grant t he form of relief most lik ely to resolve satisfactorily t he disput es between t he parties. 1996 2 MLJ 388 at 410
Based on t his, t his court will not refuse t he plaintiffs' application solely on t he ground t hat an alt ernative remedy is availabl e. Inst ead, t his court will consider t he granting of t he form of relief most lik ely to resolve t he disput es between t he parties.
( b) Collateral Attack The learned Attorney General of Sarawak has accused t he plaintiffs of mounting a collat eral
attack when t here is no jurisdictional def eat visible on t he face of PU(A) 117. He support ed t his allegation wit h t he case of Penang Development Corp v Teoh Eng Huat & Anor [1993] 2 MLJ 97, where t he dictum suggests t hat a collat eral attack is not permissible when, ex facie t he order does not include obvious jurisdictional def eat. The illust ration f rom Wade on Administrative Law (6t h Ed) at p 333 was adopt ed by t he learned judge in Penang Development Corp 'scase to explain t he situation where collat eral attack is allowed in cases when t he order is bad on t he face of it. An example of such a case is where action for damages is brought against magist rat es and judges of inf erior courts on account of orders made by t hem outside t heir jurisdiction. Such orders being bad on t he face of it could be t reat ed by t he court as invalid and t he court shall proceed directly to hear t he claim for damages. PU(A) 117 as it
stands, claims t he learned Attorney General of Sarawak, has no obvious ex facie jurisdictional def eat which would entitle t he plaintiffs to skip an initial claim to invalidat e t his order first, before proceeding onto a request for an order to compel t he first def endant to comply wit h t he EQA. In short, t his submission is t hat t he plaintiffs should have mount ed a direct attack. Mr Nijar, in his reply, immediat ely explains t hat it was not t he motive of t he plaintiffs to carry out a collat eral attack. He narrat es t he change of events caused by t he executive in alt ering t he law which now mak es t he plaintiffs' application appear lik e a collat eral attack. He gives t he following chronology of events to explain his position: On 20 April 1995 , t he plaintiffs filed t his application consequent to t he Director General's disclosure on 7 April 1995 t hat t he Bakun HEP was no longer under his jurisdiction. On 20 April 1995 , t he same dat e as t his application was filed PU(A) 117 was gazett ed wit h ret rospective eff ect f rom 1 Sept ember 1994, which is t he same day as t he coming into force
of t he Sarawak Order. Wit h t his change, t he nature of t he plaintiffs' claim appears to be a collat eral attack when it was not at t he time of filing, for s 34A of t he EQA, PU(A) 362/87 and t he Guidelines were all eff ective and operational to t he whole of Malaysia. To remedy t his, Mr Nijar now seeks an
amendment to his first prayer in t his application wit h t he inclusion of ' and t hat t he Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995 is invalid.' Firstly, t his court finds t hese explanations t endered by t he plaintiffs acceptable to explain t he approach undertak en by t hem which now appears to be in t he form of a collat eral attack. To overcome such procedural objections, t he amendments sought should be allowed, as t hey have answered all t he questions positively post ed in t he proposition stat ed in Yamaha Motor
Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 regarding amendments. 1996 2 MLJ 388 at 411 On t he first question of whet her t he plaintiffs' application is bona fid e, t his court, aft er evaluating t he explanation given by Mr Nijar on t he change of circumstances caused by t he ret rospective nature of t he relevant legislation and t he cont ents of t he submissions by all
parties, finds no ot her cause for t he plaintiffs to mak e t his application except wit h bona fide int ention. For t he second question of whet her prejudice will be caused to t he def endants by
t his amendment, t his court finds none, for t hroughout t he enti re argument of t he parties t he nucleus is whet her t his amendment order PU(A) 117 is valid. The def endants have, in fact, based t heir entire submissions on t his point and covered practically all angles of t his issue. This amendment will not prejudice t hem but will d eal wit h t he actual issue so raised by all
parties. In respect of t he final question of whet her t he amendment would not in eff ect turn t he plaintiffs' claim f rom one charact er into anot her and inconsist ent charact er, t his court finds in t he negative. The plaintiffs' claim is for a declaration to compel t he first def endant to comply wit h a specific provision of t he EQA, but to do so now, in vi ew of t he purport ed
amendments made t hrough PU(A) 117, it is necessary to mount a direct attack lest it be accused of being in t he nature of a collat eral attack. The main charact eristic of t he original prayer has not been changed by t his proposed amendment, for it is t he continued insist ence of t he plaintiffs t hat t he EQA still applies. In order to do so now, it is only app ropriat e t hat t he amendment be included so t hat it will b e comprehensive. However, for t he sak e of correct order, t his court hereby allows t he proposed amendment to tak e precedent, rat her t han subs equent, to t he existing words contain ed in prayer 1. This would put all matt ers squarely in its p roper prospective. Conclusion The power of t his court to mak e a declaration is almost unlimit ed, except 'limit ed by its own
discretion' (St erndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507). However, as cautiously warned by Edgar Joseph Jr SCJ (as he t hen was) in Petaling Tin Bhd v Lee Kian Chan & Ors [1994] 1 MLJ 657 (at pp 674-675): ... decided cases still afford guidance, at t he ver y least, as to what factors t he courts have in t he past regarded as relevant when exercising t heir discretion as to whet her to grant or refuse dec laratory relief. Broadly stat ed, t he court must weigh t he advantages of g ranting dec laratory re lief as against t he disadvantages. The minimum req uirement must be to achieve justice
between litigants and t hat is 'a subject on which experience may t each t he courts of one generation to tak e what t he y may regard as a wider or more liberal view t han t hat of t heir predece ssors' (see Brickfield Properties v Newton [1971] 3 All ER 328 per Sachs LJ at p 335 speaking of t he rules of practice and procedure).
From t he facts and arguments present ed, it is und erstandable why t he plaintiffs are aggrieved. The legislature of Malaysia has enact ed t he EQA to be applicable on t he entire nation. Subsidiary legislations relating
