- 2 months 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 Zairil Khir Johari, Penang State Government Exco Member for Infrastructure, Transport & Digital.
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00:10Hi, welcome back to Consider This, I'm Melissa Idris. Let's continue our discussion about the
00:14recent Court of Appeal ruling on the Penang South Reclamation Project, which has sparked a much
00:21bigger legal debate than the project itself. Although the court dismissed a challenge against
00:26the reclamation because it had been filed too late, it had also inadvertently answered a
00:32question that had never been clearly settled before. Who has the legal authority over an area
00:38of sea before it becomes land? Joining me on the show now, I have with me Zairal Kirjohari, who is
00:45the Penang State Government Executive Member for Infrastructure, Digital and Transport. Thank you
00:49so much, Zairal, for being on the show with me today. I'm going to start by asking you to tell
00:55me how the Penang State Government is accepting this ruling because the court appears to say
01:00that planning authorities have no jurisdiction over territorial sea. Does the state of Penang
01:08accept that the proposition in principle? Thanks, Melissa. Good to see you again after quite a while.
01:17Okay, first of all, it must be said that the state government fully respects the role and independence
01:25of the judiciary. And in fact, our immediate priority is to study the written grounds of judgment so that
01:32all implications can be properly understood. But that said, I think I should highlight that the Court of
01:39Appeal in dismissing the appellant's case found that, and I quote, the High Court's decision should be
01:46upheld. Now, this is a very clear statement that actually validates the legality of the project.
01:52Because if we dive back into the High Court's judgment, they actually went very detailed into
01:59the merits of the case, including the processes that were complied with, for example, the Penang
02:04Structure Plan 2030, as well as the tabling and necessary advice from the National Physical Planning Council,
02:11and PPC, which we obtained on 2019, April. Now, in other words, all of those processes are not disputed.
02:20And this proves that all legal requirements have been followed. Now, I understand you did mention the
02:26so-called controversial findings with regards to planning permission, specifically that the director of
02:32the Town and Country Planning Department is unable or has no power to approve planning permission.
02:41Now, actually, there are two obvious inferences here. Firstly, planning permission is not strictly required
02:49because the land has not been formed, and thus does not yet constitute an area over which the local authority
02:55has jurisdiction, which in a way you can say is quite logical. And secondly, planning permission is also not required
03:03because the reclamation project had already been approved via the State Structure Plan, as well as the National
03:10Physical Planning Council. In other words, what you can read from the court's decision is that sufficient approvals
03:18have already been complied with. So, strictly speaking, you do not need planning permission to do the reclamation
03:25because it had already gone through the required approvals.
03:30All right. Okay. So, I understand that you've gone back to the High Court decision, but when we look at
03:37the
03:37Court of Appeal ruling that has just happened recently, the focus has been on jurisdiction, that planning
03:43authorities' approval, while the process was done correctly, according to the Penang State government,
03:48that that approval actually was issued without jurisdiction. So, if planning authorities don't have jurisdiction,
03:55then should federal authorities be the one to expressly give the state government's approval for reclamation
04:03before the work begins, before the land is made in the territorial sea?
04:09I think the Court of Appeal's decision, well, at least in our reading of it, seems to be that they
04:18are talking
04:19about planning permission over land, because if you read the exact wording, you need to have land or an area
04:26over which the local authority has jurisdiction. And because the land has not been formed, you know, then basically,
04:34that area, you don't need planning permission, strictly speaking. You see what I mean?
04:42Yeah, but you would need permission for the sea, right?
04:45You need to do two things, which we did for reclamation. Firstly, you need to put it in the state
04:52structure plan,
04:52which we did, validated by the High Court. And then, you tabled it to the National Physical Planning Council, which
05:00we did,
05:00and we got the advice, necessary advice, as per the law. And having done that, you then can proceed with
05:10reclamation.
05:12Planning permission then comes for the topside development. So, for example, right now, we already have about 400 acres up.
05:19There will be construction taking place. For example, the LRT depot is about to be built there.
05:26There needs to be planning permission for that, for example. So, I think that is basically quite clear.
05:36Respectfully, I feel like the Court of Appeals concern appears to be around jurisdiction. So, whether or not
05:44the authorities had given approval is clear. They have given approval.
05:50But whether they had the jurisdiction to give that approval seems to be what the Court of Appeal is focusing
05:58on.
05:59Are you saying that the Court of Appeals interpretation of jurisdiction is wrong?
06:03We don't disagree there. Okay. We are saying that the Director of the Town and Country Planning Department,
06:11as well as the local authority, has no power to approve planning permission. So, the corollary from there
06:20is that that is because it is not, you don't need planning permission.
06:25Okay. So, what legal instrument gives the government people to reclaim that?
06:31I did explain. It's a plan as well as the National Physical Planning Council. These two
06:36are the highest planning authorities in the country. We did get the approvals from those two.
06:42Is that at the federal level?
06:44Yeah. National Physical Planning Council chaired by the Prime Minister. Okay.
06:48And state structure plan is obviously at the state level. So, at both state level and federal level. So,
06:54what we are saying is, and actually, all this is in the High Court decision which was upheld by the
06:58Court of Appeal.
06:59That's why, in upholding the decision of the judge, of the judgment of the High Court,
07:06you have to look at the High Court decision. The High Court decision actually goes into very minute detail.
07:11So, it actually went through all these procedures and said they were all valid and they were all done,
07:17complied with, properly done, and there's a whole chronology. So, I think you cannot look at the
07:23Court of Appeal's decision separately because it does quote the High Court. You have to look at both.
07:30So, when you said that you are still studying the written grounds, what exactly are you studying?
07:36What areas are still uncertain for the Penang State Government?
07:40Well, we just want to make sure because right now, well, as you say, you know, the questions are being
07:47asked,
07:48just like today you're asking questions, right? So, we just want to make sure that we understand everything
07:53and that, you know, whether all implications have been properly understood.
07:58So, right now, based on our legal advice from the state legal advisor and so on and so forth,
08:06our inferences, as what I've told you, is that our understanding is that planning permission is not
08:13strictly required. And we sort of, you know, feel that the logic behind that is that because the land has
08:19not been constituted. But our second inference is that you don't actually need planning permission because we
08:25had already done the requisite compliances, which is State Structure Plan and National Physical Planning Council,
08:31which is federal government.
08:33Zaryl, what are the immediate implications for the project itself? What happens now?
08:38What are the next steps that the Penang State Government is following, is doing following this ruling?
08:44Just continuing with the project. As I said, we have got about 400 over acres up. We have got a
08:49few timelines to meet.
08:51Uh, we have to finish the first 100 acres of the, uh, industrial park by end of next year.
08:57Uh, no, by, by next year. We hope to have the first factory up by 2028. So, all works are
09:03ongoing.
09:04Um, and is that, is that prudent given the, um, ambiguity or the questions, the legal questions that still
09:11There is zero ambiguity. Uh, if, uh, the fact that the appellant's case was dismissed means that the
09:18project can go ahead. Uh, and, and again, because I quote, you know, this is not something I'm making
09:24up. I'm quoting the Court of Appeal decision. It says we uphold the High Court's decision. Uh, and if you
09:30look at the High Court's judgment, uh, it's clearly stated that, uh, the entire project was done legally, uh, and
09:37validly.
09:38Are you can, are you worried or concerned that if there are questions that you, you admitted yourself
09:43that there could be questions surrounding, um, the process, if the approval process or there's
09:49questions around the legal foundations, the legal certainty of it, are you concerned that this could
09:55affect, um, public or even investor confidence in such a major infrastructure project?
10:03No, not at all. I think the state, uh, in all our discussions, uh, have, uh, uh, no concerns on
10:10that. Uh, we believe in the legal, uh, validity of the project. The High Court decision was very clear.
10:15I've said that a few times. Uh, and I think, uh, the fact is that state government has been extremely
10:21transparent about the entire process, more so than any other state government in Malaysia. Uh, by the way,
10:27we are the first state government in Malaysia to present the project, uh, a reclamation project to
10:32the National Physical Planning Council for your information. Uh, uh, and, uh, so we have done
10:37everything transparently, uh, all regulatory compliances, federal and state. Uh, and, uh, I think this is what,
10:45uh, you know, we want to make sure that investor confidence will remain, uh, based on the fact that, uh,
10:50we are completely transparent. Um, and I, I began this, this conversation by stating that the, um,
10:58the ruling of the court of appeal had inadvertently uncovered a question that, you know, that had not
11:03been answered before. Do you think that there is this, um, that this could set the ball rolling for
11:10other states, other reclamation projects in terms of how Malay, the approval process for Malaysia's land
11:17reclamation projects in the future? It's an interesting question. Uh, and, um, I, I cannot comment on
11:25other states or, or, or whether other people will, will, will make challenges, similar challenges as to
11:31what they're doing in Penang. Um, but what I can say is that as far as all existing, uh, legalities
11:38are
11:39concerned, so for example, the National Physical Planning Council, uh, tabling to it and getting advice to it,
11:44that's actually stated, uh, in the law, uh, that you, that you are required to do it and we have
11:49done it.
11:49So, I think, uh, as far as all existing, uh, legal, uh, avenues are concerned, we have followed them
11:56all, uh, and I think that's very important. Uh, again, uh, transparency is very important for us. Uh,
12:02we have been extremely diligent, uh, about complying to whatever laws are existing. Uh, but if you know,
12:08but, you know, there are always, uh, avenues for improving laws, uh, things can always be, uh, you know,
12:16uh, done better and, uh, you know, uh, I think that subject is always up for debate. Uh, yeah.
12:25Zahril, thank you so much for coming on the show and sharing the, uh, perspective of the Penang State Government.
12:30I appreciate your time. Zahril Kirjohari there, wrapping up this episode of Consider This. I'm Melissa Idris,
12:35signing off for the evening. Thank you so much for watching. Good night.
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