Drag plantations to court: CJ
Published on: Saturday, April 18, 2015

Kota Kinabalu: The best way to get plantation bosses and others to ensure they respect riparian areas is to sue them for growing oil palm or other crops illegally right to the river bank, thus affecting wildlife movement and river quality."Encroachment of riparian reserves is subject to challenge in court especially if the evidence is good now that the Environment Court has been set up since January 2015.

"If only anybody such as NGOs take an action in court and say 'look we want this to be declared a wrong action, get a judicial review or declaration in court, it's there," said Chief Justice of Sabah and Sarawak, Tan Sri Richard Malanjum.

Malanjum said this when asked to clarify on Land Ordinance Sabah (Cap 68) Section 26 (1)(2) which specifies riparian reserves along all rivers , even small rivers must be kept.

He spoke at a joint press conference, Thursday, with State Culture, Tourism and Environment Minister Datuk Seri Masidi Manjun, in conjunction with the Workshop on Environment organised by the Judiciary-initated Sabah Working Group on Environment, at UMS.

The challenge can go from Session to Magistrate all the way to the High Court, Malanjum noted, adding nobody has been filing an action in court.

On the possibility of winning such cases, Malanum said: "Of course we cannot guarantee. You must come with evidence and actually the issue was discussed at a recent international meeting how riparian reserve is a concern in Sabah.

"We hope the public is more interested in this. In fact, I'll be very happy if the public start filing cases," Malanjum said.

The issue has festered for years and the result is bare river banks devoid of grass, loss of food, shelter, spawning grounds, loss of natural filter against soil erosion, agro-chemical runoffs and disconnected forest corridors essential for free gene flow and ranging for large wildlife

Under River and Reserves, and ridges of hills, Land Ordinance Section 26 (1) reads: Unless otherwise expressly provided in title, the entire property in and control of all rivers, creeks streams and water courses shall be vested solely in the Government.

In other words, the Government is the sole owner of riparian reserves.

Subsection (2) reads: The Government also has the power to reserve such portion of land as may be deemed advisable along the bank of rivers, streams and creeks and along the seashore above high water mark and along ridges of hills and such reserves shall be shown on all documents.

Sections 41 and 42 of the Sabah Water Resources Enactment 1998 affirms the legal position of riparian reserves in this basic land law of Sabah, with punitive clauses.

On frequent complaints of river sand mining which are often left unaddressed, Malanjum said : "One thing I have noticed in our jurisdiction over here especially, the lawyers are not active in this type of work.

"They don't have what we call public interest litigation. I have been forcing them to do but so far only two are doing it, besides the fact that NGOs like Sepa are not coming to court and the judges are nor well versed in it.

"So there is a paper on Judicial Review on the second day (Friday) of this workshop and I think that will be very interesting," he added.

"In the Philippines, even the dolphins can be heard in court and even Manila Bay has a standing in court. So we have to improve on this, especially if there is enough public pressure, we have to act," said Malanjum and as such , the media is very important.

"So far the media is not doing much with all due respect, everything is very mild , there is no public awareness".

Malanjum also called for mandatory jail on wildlife offenders as well as on those despoiling the environment crucial to flora and fauna in East Malaysia.

"In Indonesia, many company directors, including some Malaysians, are in jail for offences like open burning. We must move forward in that direction to protect our wildlife and environment. In Sabah, an offending company charged for pollution merely was fined. There is a need to study existing legislation especially for punishment."

Besides the usual petty monetary fines imposed which Malanjum wants increased with amendment to up-date laws, he mulls caning offenders as a deterrent to protect the state's iconic animals.

Malanjum wants to change the perception of the courts and to impress upon members of the judiciary and officials that they need to realise the gravity of the situation and act accordingly. 

Decrying the imposition of a mere fine for wildlife offences, he called for a mindset change to prioritise custodial penalty on offenders to put them behind bars.

"Until and unless we send a message that we mean business, if caught and convicted you will go to prison, illegal wildlife trades like those for pangolins said to be worth $50,000 each in China, will never end."

He cited a wildlife offence case which was heard before him, where he did not hesitate to impose the maximum sentence provided for under the law which he deemed too lenient. 

"I am not here to direct judges. I respect the independence of the judiciary, but we must be aware and do our part to send a strong message to offenders for the sake of our future generations who may not know what a rhinoceros, Orang Utan or Probosis monkey look like," he said of the dire situation in Sabah where iconic animals like the rhinoceros (only three left at Tapin Wildlife Centre), elephants, primates are facing extinction due to uncontrolled poaching, hunting and environment degradation.

"Consider the impact. In Malaysia, if you drive a car and killed somebody, you would be imprisoned. So it should be for wilfully killing protected animals. Such awareness is important."

"Every protected animal killed is one less." 

Laws where necessary, he said, should be amended by the legislature to provide for heavier penalties to enable members of the judiciary to impose in order to send a severe deterrent message to halt the growing illegal lucrative wildlife trade.

On the newly established Environment Court, Malanjum said he had instructed all the judges and officers that all environment cases are to be disposed maximum four weeks from the day it's charged.

"We are fast tracking the clearing of environment cases together with two other offences: Snatch theft and offences against tourists because they are going off, some of them we give three days for disposal. So that's fast." he said.

"All environment cases are to be fast tracked and that's the purpose of this workshop – to get us tuned in," Malanjum said.

Meanwhile, Masidi said the fact that the Judiciary is throwing its weight on the environment "shows that everybody is concerned about what is happening , I am very thankful and I am sure it can create a lot of difference in the mindset of the people especially illegal hunters and illegal doers. They don't tolerate nonsense. "

"It's up to the court but obviously the fact that they are with us show that they (Judiciary) feel they have a duty to ensure that the law are respected," Masidi said.

Malanjum credited the recent Jakarta Vision when all the Chief Justices of Asian countries met together to look at the environment.

"It's a big meeting and this is part of the result of that vision and this is going to be a sustained action. After this, there will be a few more , we'll make sure there is result," he added.

Asked what he meant by "result", he said : " When things improve, " he said, citing Sembulan, when there will be no more rubbish floating around and these are things we need to do more."

"You go to many countries, their rivers are very clean but why can't we do it ? We are also human beings like them," Malanjum said.


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