- 5 weeks ago
- #considerthis
A Court of Appeal ruling on the Penang South Reclamation project has sparked a fascinating tension. While the Court dismissed a challenge against the project on procedural grounds, it also answered a question that had never been clearly settled before: Who has authority over an area of sea before it becomes land? Has this ruling exposed a gap in how our laws govern land reclamation? On this episode of #ConsiderThis Melisa Idris speaks with Meena Raman, President of Sahabat Alam Malaysia, which was one of the parties who brought the suit to the Courts.
Category
🗞
NewsTranscript
00:10Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:15where we want you to consider and then we consider what you know of the news of the day.
00:19A court of appeal ruling on the Penang South reclamation project has sparked a fascinating
00:24tension. While the court had dismissed a challenge against the reclamation project on procedural
00:31grounds, it had also answered a question that had never been clearly settled by the courts before.
00:37The question was, who has authority over an area of sea before it becomes land? Now this ruling has
00:46exposed a gap in how our laws govern land reclamation. Is that the question? We are going
00:52to ask this tonight. Joining me on the show to unpack this question is Meena Rahman, who is the
00:57president of Sabat Ala Malaysia, which was one of the parties that brought the legal suit to the courts.
01:03Meena, thank you so much for being on the show with me today. Now this, at first glance, could look
01:09like
01:09a very technical court ruling about one reclamation project in Penang. But why do you think that this
01:15is a more significant ruling? Why should people outside of Penang care about this? Talk to us
01:21about the significance of the bigger question that the court has now raised.
01:26Thank you, Melissa, for having me. Yeah, the case actually is pretty significant, as you had pointed
01:32out. The question was about who has jurisdiction to actually decide over reclamation, not only in
01:41Penang, but the whole country, although the case is about the Penang South reclamation project, which, as you
01:50know, is supposed to involve three islands. And in this particular case, was one particular island called
01:55the Silicon Island, and it's 2,500 acres. It's massive. We have been having this battle with the state government,
02:04along with the fishing community, ever since it was even conceived. Now, the question,
02:12as you said, was a question that was not put forward to the court at all, by either the
02:18appellants, that is us in the case, and the fishing community, and another environmental NGO, or nor even the state
02:25government or the state planning authority, or even the developers. No one posed this question. So, and we were not
02:33even...
02:33Well, I was one of the lawyers, by the way, involved in the court case as well. None of us
02:39were even called to answer the question. So, we were very taken aback by the decision, taken aback in the
02:47sense that the judge himself said, in this case, that it was a normal question to be answered.
02:53So, this is why it's very significant. So, this is why it's very significant. And I'm sure this is also
02:58having huge issues for other state governments, and also for the federal planning authorities as well, and the federal government
03:05as well.
03:06Because how the court answered the question is that it's the federal that has the jurisdiction over territorial seas. Now,
03:17this is where it becomes problematic. Because what the decision clearly says that the state authorities had no jurisdiction, they
03:29could not issue or approve planning approval.
03:32Because this whole case, because this whole case was about whether the grant or planning permission was valid or not.
03:38The court said that that's not the question. The question is whether the reclamation in the first place was even
03:46allowed, because they said that the correct authority to deal with this is actually the federal authority.
03:54So, in other words, it's jurisdiction. Jurisdiction in legal terms means who has the power to decide. So, the court
04:01clearly said that the state has no power. That it's the federal that has the power. So, this is significant.
04:06Because if this is the case, then all reclamation projects, including in Johor, in Malacca, in wherever, in any part
04:15of the peninsula, this is going to be the big question. Can they continue or can't they continue?
04:22Okay. Well, if I may come back to the Penang case specifically. So, the courts, if I understand correctly what
04:30you're saying, the courts are saying that there is actually no...
04:36Help me understand this correctly. The courts are saying that because the area is still sea, it's not yet land,
04:42that the planning authority of the state had no authority to grant planning permission for the project to proceed.
04:50Now, where it gets tricky or where it gets interesting is that the Penang state government says actually planning permission
04:56wasn't what authorised the reclamation in the first place.
05:01They said that because it was still territorial sea within the three nautical miles of the state's jurisdiction, that planning
05:10permission wasn't actually required.
05:12Is that how you would lay out the facts of this case specifically for Penang reclamation project?
05:18I think it's not the way the state government looks at it.
05:22Okay.
05:22Because if you look at the decision itself, the judge came to the conclusion here, and I say judge because
05:28one judge let and the other two agreed with him.
05:30The judge said that the definition of territorial sea is the Territorial Seas Act of 2012, he said.
05:38So, he said all those issues relating to planning, which was under the Town and Country Planning Act, were all
05:45before.
05:46So, the Territorial Seas Act is an act that supersedes every other definition.
05:53So, he came to the conclusion that the 12 nautical miles is territorial sea, 12 nautical miles.
06:00The question of the three nautical miles never arose.
06:03He never said that the 12 nautical miles should be looked at in the context of the three nautical miles.
06:15Because this question was not explicitly addressed.
06:19Because most states argue that the three nautical miles from your coast, from your low tide to your, you know,
06:26is jurisdiction of the state.
06:29And this is what they used to rely on the National Land Code and everything.
06:33But this case has thrown this away.
06:37The court basically said 12 nautical miles and they looked at the baseline.
06:44There's another law that they looked at and how you measure the baseline of the territory.
06:49And they said this includes the 12 nautical miles from the coast.
06:55So, essentially, what it's saying is the state, no matter whether the state planning authority, the state government, basically has
07:05no business in relation to territorial sea to do anything in terms of reclamation without federal government actually approving it.
07:16Because it's it's a question of jurisdiction.
07:18That's why I keep coming back to the jurisdictional in legal terms means that can you can the state even
07:25look at it, you know, approve it.
07:28And the court said, no, it's the jurisdiction of the federal.
07:32In fact, they say the Yangtiparatuan Agung.
07:34So it's federal because of the Territorial Seize Act.
07:38And so I think what the state is trying to do is to give some interpretation, which actually is not
07:45in the decision.
07:46Anybody can read the decision.
07:47Okay.
07:48But what was perplexing for us, Melissa, despite this finding by the court, the court did not go one step
07:55further to quash the planning permission.
07:58Quash means because we said planning permission wrongly granted.
08:02You should dismiss the planning permission.
08:05You should not.
08:06The planning permission is no longer valid.
08:09So what the court did did do is said that the planning permission is not valid in the sense that
08:15if the state authority had no power in relation to giving any kind of approval.
08:22But it did not go one step further to say, therefore, the planning permission is no longer valid.
08:29It didn't say it in so many words and it didn't quash the decision.
08:33It didn't say no more.
08:36I mean, actually, by right, if you look at the logic, we should have won.
08:41We should have won.
08:43Well, so so now what happens?
08:45So if it's what is the legal consequence of having this kind of gap in the interpretation of the ruling?
08:53Well, the legal consequence is that at the moment, actually, by right, the state should not proceed by right because
09:01the state should respect the court decision.
09:04If the court decision says that the state planning director or the state government of Penang had no authority to
09:13approve anything because this is in the powers of the federal.
09:18Then the state by right should stop and should seek its further approvals or it should actually get in, you
09:31know, in touch with the federal government and see how to respond.
09:35But what the state is doing is, oh, we don't care.
09:39Basically, that's what the chief minister said.
09:41We don't have any injunction.
09:44Injunction means any prohibition.
09:46There's no prohibition on the state to proceed.
09:52But he cannot interpret it that way.
09:54The court itself said that the state has no authority to do this.
09:59So if the state had no authority to do this, how can the federal?
10:03I mean, the state government say, I don't care.
10:06We want to proceed anyway.
10:08So this is this is really a problem for us.
10:12So so what is Sam going to do next?
10:15If the court did not give that injunction, then is Sam going to be seeking for an injunction?
10:20What do you think was the actual proper process?
10:24Where do we take this now if you're arguing that federal approval is needed for the project to continue?
10:30Well, we are supposed to have one month to consider whether we want to appeal or not.
10:35I mean, we are weighing all our options.
10:38But I think fundamentally, at the end of the day, that's why we were very surprised by the outcome of
10:44the decision,
10:44because basically what we were saying is the state cannot proceed.
10:50The decision of planning should be cancelled.
10:53Here the court comes and says, yes, the state has no power to proceed.
10:58So in the in other words, we actually they cannot go forward.
11:02So you see the limbo that we are in.
11:05So our by right, if the state wants this answered, they should actually take it up either through the court
11:13process,
11:13or it should actually also abide by the court ruling and take it up with the federal government.
11:21So the it's not easy to go up against the state in the federal court.
11:25So we're weighing our options.
11:27And at the moment in the court of appeal, the court did say that this is a public interest case.
11:33There's no cost awarded to you.
11:35But, you know, you're leading dealing with fishing communities and environmental groups.
11:38We don't know how the federal court will decide.
11:41We don't know if costs will be awarded.
11:44So there are many risks to actually go on further appeal.
11:46So we are weighing all the options.
11:48We have 30 days to decide.
11:50By the 30th of July, that's the final time whether we will appeal or not.
11:55So I just want you to maybe wrap it up for us in terms of the significance of this ruling.
12:02Do you think that this case has really exposed a gap in Malaysian law?
12:08And is there something that needs to be needs to happen after this to maybe address that gap?
12:15Yes, this case has totally, I would say that it's really opened a huge issue, which no one had ever
12:23foreseen before.
12:24It's a very significant gap.
12:27Actually, the federal, the attorney general himself has to actually look at the case itself.
12:34The federal authorities, I'm sure there must be rumblings within the federal government.
12:39Also, I don't think the states have realized what has landed on them.
12:44This is actually, I don't like to use the word time bomb.
12:47But it's actually a huge bomb which has been thrown into what reclamation projects, who can do what and so
12:54on.
12:54Because we all were just clued in on the planning law.
12:57Suddenly, we are landed with the Territorial Seize Act.
13:00So I think if I were the attorney general, I will really take this seriously, look at what the court
13:07said,
13:07and then decide what to do, how to advise the federal government, how to advise state governments.
13:13And they'll probably have to, you know, have a huge discussion about it.
13:18They can't close their eyes.
13:20They can't just keep quiet.
13:21And they can't ignore this.
13:23And the state government, most of all of Penang, cannot just pretend as this is not significant.
13:29They can't say, oh, they approve the structure plan, the master plan.
13:35And this is not that.
13:37This is totally different.
13:38I hope that the Penang state government representative that you are interviewing will really take this seriously.
13:46Because you can't just say, I'm going to carry on.
13:48When the Court of Appeal clearly said that what you have done, you cannot do because you don't have jurisdiction.
13:56Okay, Meena, thank you so much for being on the show with me today.
13:58Meena Rahman, President of Sahabat Alam Malaysia.
14:01We're going to take a quick break here on Consider This.
14:03We'll be back with more with a Penang state government representative on this topic.
14:08Stay tuned to Consider This.
Comments