Malaysians are pushing for the right to a clean environment. What could this mean?

The Human Rights Commission of Malaysia (Suhakam) is among the primary advocates for this legislative change, alongside legal professionals and environmental groups. Last month, Suhakam chairman Mohd Hishamudin Md Yunus called for the “right to a clean and safe environment” to be included in Article 5 of the country’s federal constitution, which protects the right to life and liberty.

“Suhakam believes that by having the right to a clean environment as an explicitly protected right in the federal constitution, victims adversely affected by climate change would be empowered to seek justice and uphold their rights to secure and healthy living conditions,” said Hishamudin at the inaugural Human Rights and Environmental Rights Dialogue hosted by Malaysia’s foreign ministry and the Asean Intergovernmental Commission on Human Rights (AICHR).

“It would also ensure that the government and other stakeholders are held accountable for maintaining a clean and safe environment,” he said.

While Suhakam’s recommendation is not new – it told Eco-Business that environmental rights has been a recurring topic at its events and in its official reports, where the proposed constitutional amendment is “consistently highlighted as a recommendation for constitutional reform” – the proposal has resurfaced in light of Malaysia’s chairmanship of the Association of Southeast Asian Nations (Asean) this year.

Advancing environmental rights is among the main priorities of AICHR, which is meeting for the first time under Malaysia’s chairmanship this week in Langkawi, Kedah. Among the commission’s priorities are environmental rights, inclusive growth and sustainable development, AICHR said in a recent statement. All 10 Asean member states will be represented at the meeting with Timor-Leste as an observer.

A key document being discussed is the proposed Asean declaration on environmental rights, which was first mooted in 2021 and a draft of which was published in March last year. Malaysia aims to steer fellow Asean members towards signing the declaration this year, said the country’s minister for natural resources and environmental sustainability Nik Nazmi Nik Ahmad last week. He said that there has been “good progress so far” on the declaration and that Asean countries are working towards a consensus to sign the declaration this year.

However, environmental advocates previously expressed concern that the document is watered down and would not sufficiently protect the region’s at-risk environmental human rights defenders, especially as the declaration will not be legally binding.

Strengthened protections

Many believe that an amendment to national constitutions could improve access to justice, as all Asean member states except Cambodia voted in favour of the right to a clean, healthy and sustainable environment at the United Nations General Assembly in 2022. Suhakam and other environmental advocates have used the resolution as a basis to call for constitutional amendments in their home countries.

By introducing the right to a clean and healthy environment in national constitutions, Asean countries could elevate the right to a clean and healthy environment “from the realm of administrative discretion to…an institutional right,” said Kiu Jia Yaw, a sustainability lawyer and co-chair of the Malaysian CSO-SDG Alliance, a coalition of non-profit organisations championing sustainable development.

“It’s crucial for Asean to take leadership in the direction of what the community articulates as our idea of the good life, our idea of sustainable development,” he said at the AICHR dialogue.

Edmund Bon, Malaysia’s representative to AICHR, also expressed support for a constitutional amendment, stating that jurisprudence or legal theory on environmental rights is useful, but not enough to protect environmental rights.

According to Suhakam, a constitutional right to a clean environment would strengthen protections for environmental defenders against threats such as strategic lawsuits against public participation (SLAPP). The amendment would offer stronger legal grounds to dismiss lawsuits targeting environmental activists.

Mohd Hishamudin Md Yunus, chairman of the Human Rights Commission of Malaysia (Suhakam). Suhakam is among the primary advocates for a constitutional amendment for the right to a clean environment. Image: Ministry of Foreign Affairs, Malaysia

“The right would form a foundational basis for stronger environmental laws, improved enforcement, and greater accountability from corporations and polluters,” it told Eco-Business.

Constitutional recognition of environmental rights would also empower Suhakam and law enforcement agencies to address violations more effectively. As a human rights commission, Suhakam currently has powers only to investigate complaints and to advise relevant governement agencies on potential remedies.

Other legal reforms needed

Nik Nazmi previously told Eco-Business that a constitutional amendment is “not straightforward”, as it would have to take into account existing federal and state laws and agreements.

The legal affairs division of Malaysia’s prime minister’s department, which is responsible for legislative drafting and constitutional matters, recently stated in a draft of its national action plan on business and human rights that “the government is of the view that any specific provision towards a constitutional and legal right to a clean healthy and sustainable environment, contravenes existing protections under the Environmental Quality Act,” which is currently the main legislation for environmental protection and pollution control in Malaysia.

However, the draft also stressed the need to improve the governance and accountability of environmental rights, with reference to the 2022 UN resolution and other UN frameworks. As such, it recommended other legal frameworks and measures to uphold environmental justice, including new laws protecting Indigenous peoples and their rights, as well as to protect environmental defenders.

Suhakam acknowledged that a constitutional amendment could be challenging, as it typically requires extensive consultations, which could take several years, and a two-thirds majority in parliament. However, it said that while the amendment is not classified as urgent, it is highly advisable given Malaysia’s growing environmental challenges.

Lessons from other Asean countries

Malaysia would not be the first country in Southeast Asia to introduce the right to a clean and safe environment in its constitution. Indonesia, the Philippines and Vietnam have enshrined rights to a healthy and clean environment in their constitutions, according to a report by the United Nations’ special rapporteur on the human right to a healthy environment.

In the Philippines, local residents successfully used a constitutional provision known as the writ of kalikasan or ‘writ of nature’ to stop mining operations in Brooke’s Point, Palawan in 2023.

In Indonesia, citizens in South Sumatra sued three pulpwood companies in September last year for haze pollution that they say were caused by burning on their concessions.

However, Indonesia has only recently seen an increase in climate-related court cases, despite the country having amended its national constitution in 2009 to provide the right to “a good and healthy environment”.

Linda Yanti Sulistiawati, a senior research fellow at the Asia-Pacific Centre for Environmental Law and associate professor of law at Universitas Gadjah Mada, told Eco-Business that the gap between the constitutional amendment and the increase in climate litigation was largely because the government, businesses and people have had different priorities over the years.

“As developing countries, the environment and environmental rights are sometimes less prioritised in comparison, for example, with economic prosperity or development goals,” said Linda, who wrote a 2024 paper on climate change-related litigation in Indonesia.

There is also still limited public awareness about how the environment should be prioritised, said Linda. Based on a brief check of the policy priorities of 548 Indonesian cities and municipalities, she found that environment, waste management and pollution were rarely in the top three. “It’s usually economic development, education and health because of Covid-19,” she said.

Indonesia’s judiciary also requires further expertise in environmental laws to be able to better apply the constitutional provision, she said.

However, she emphasised that the constitutional amendment is still meaningful. “Having environmental rights protected in the Constitution is still a big positive for Indonesia and its people,” she said.