00:10hello and good evening i'm melissa idris welcome to consider this this is the show where we want
00:15you to consider and then we consider what you know of the news of the day the northeast monsoon
00:20has begun bringing with it the prospect of prolonged heavy rainfall flooding landslides
00:27and other extreme weather hazards but when climate related disasters strike how much of that damage
00:34is considered unavoidable and how much of it is a result of poor land planning and development
00:40or environmental mismanagement so what then does public accountability look like joining me on the
00:47show today to discuss this further i have riza zakaria who is a senior lecturer at university
00:52layers faculty of law who he's also the head of the maritime policy and governance unit at um
01:00maritime law policy and governance unit at um's institute of ocean and earth sciences riza
01:06good to have you back on the show with us um i'd like to begin our conversation by looking at
01:11the
01:12recent high court ruling on the uh 2021 tamansuri muda floods and i thought that was quite interesting
01:19because the courts found the federal government and other um public agencies liable for that disaster
01:26can we talk a little bit about that talk to me about the significance of that ruling as especially
01:32in establishing the accountability of public authorities for disaster related losses okay uh thank you for
01:41having me um so on this uh 2021 uh floods that happened it tamansuri muda lang and the decision was
01:51actually
01:51recently was delivered by the judicial commissioner of the high court and um the ruling is actually such
01:58an important uh ruling because it establishes a legal precedent especially on the environment uh accountability
02:07in malaysia jurisdiction it shifts um the first one is actually it shifts um sort of a immunity to
02:14accountability from the state to the federal um or perhaps as well as both now parties in terms of state
02:22and federal have to be uh responsible so in that sense the federal or public agencies mainly federal
02:30authorities are no longer hide uh you know behind the standard administrative discretion uh when they
02:38actually manage with regards to infrastructure and they must have early warnings and given emergency
02:46response plan uh in place and the second one is actually is a precedent uh with regards to climate change
02:53and
02:53we all know that climate change is something that is ongoing but whether it is a climate change
03:00or climate change or non-state policy so basically when it is under the certainty and the
03:01current and the state of the federal authority is established by the state of the federal authority
03:05or a very much affirmative duty of care to protect the citizens at the first with regards to climate
03:13inducement but it's something that um federal and state must foresee so they can't just say that oh
03:19it is an unforeseeable or i.e. an act of god and the second and the third one is actually
03:25empowering
03:27impacted communities so this landmark decision actually shows that public authority i mean
03:34public in general communities in general at tamansri muda in klang has a clear authority
03:41has a clear sound um you know voice and it shows that any anyone can actually bring a matter to
03:48the court saying that okay floods happen every single year this must be stopped and who actually
03:54should be blamed so this actually empowering the communities at large this decision itself
04:01wow okay all right so let's let's unpack that further what are the implications then of this
04:06ruling when you talk about um a duty of care what does that look like uh and using the phrase
04:14you
04:14know i i think we've all heard um authorities attributing extreme weather and the losses
04:20um from that as an act of god as you said as um an entirely unavoidable situation how do we
04:28think
04:28about duty of care in this case okay um so first thing first i want to just get it um
04:35straight in
04:35terms of saying that flood uh i mean the flood occurs due to extreme weather or climate change
04:42would not be 100 uh accurate because um we also have to look at it from other aspects like for
04:50example lack of regular maintenance that actually contributes to floods and with regards to duty
04:57of care like under certain act like street drainage and buildings act and certain other enactments in
05:05the state legislation actually requires every uh authorities that empowers them to conduct maintenance to conduct
05:14like checks to the drainage um to the floods mitigation process everything is in place and even when comes to
05:23approval of development uh order or in in other words kebenaran merancang when that actually comes in place
05:32whether there is a check and balance to ensure that um every single project that is actually approved
05:39must actually go through all this process and then that brought us to the environmental impact assessment
05:45so all of this that we actually i mean as public needs to see a bit of an accountability from
05:55both federal and the states
05:56so in in this aspect it's actually a duty of care with regards to uh under the act under the
06:03state enactments
06:05that provided and then also to go into that part where i mean the act of god itself i mean
06:11it's a huge defense
06:13in under the law i mean when you actually say that an act of god is something that it is
06:19unforeseeable it's
06:20uncontrollable like something like earthquake that you know malaysia we all know that we are protected from
06:26you know the the scales of earthquake but if it happens then perhaps an act of god can be can
06:33be used but
06:34question is whether they are all the measures or duties that actually been given to the state given to
06:41the federal and that is where they actually need to take into the aspects like maintenance and whether the
06:47action plan also has been taken in place whether also the study that has been conducted with regards to
06:54floods that happen every single year during monsoon so yeah those are the implications that i would say
07:00that you know extreme weather cannot just be the main cause it could be something
07:05you you mentioned um environmental impact assessments the eia can we talk about that because um eias
07:13are meant to identify mitigate some of the environmental risks associated with planning and development
07:20do you think existing eia requirements are sufficient okay so an eia is actually pursuance to section 34
07:32capital a of the environmental qualities act is a very specific section that classifies with regards to the
07:41duty of every project proponents if they wanted to come up with a development i.e. say for example
07:49land reclamation or even like you know building a project a development a new development requires
07:55an eia to show that whether there is an impact to the environment and this eia would also talks about
08:02every single aspects with regards to floods and even if there is any movement changes to the soil and
08:09land and the the problem about this eia because the post eia is also a big huge question mark that
08:17whether
08:17uh of course you know eqa or environmental qualities act is preview under the department of environment
08:23whether they also have to look at the process of the post eia itself so whether eia post eia whether
08:33the
08:33mitigation plan that done in the eia was actually followed whether actually 100 accurate that there's no
08:42floods that will happen and also another one point that we also have to take into account where the
08:48public consultation was actually done in the eia process in the proper way so that at least like
08:55taman sri muda if there is a development at that area then perhaps you know the public is aware with
09:01regards to the public consultation in the eia process and it must be you know in terms of transparency it
09:08must be actually shown to the public so that at least they know that okay new development is coming
09:13in so there's so many developments in clang valley that you know requires this public consultation
09:19especially with regards to eia and and just to add one more i mean in 2024 you know the the
09:25government
09:26actually amended the eqa that so now uh in terms of if you are actually violates the eia pursuance to
09:33section 34 the fines are actually it's a huge amount of money that now they need to pay so right
09:41now i think you know take into account the post eia what happened after the eia process and the eia
09:47report itself whether they followed and adhered to the mitigation plans yeah okay well so speaking
09:53about the kind of legal framework that governs this um i read that nadma is proposing a disaster risk
10:01reduction act so a new piece of legislation what do we add what do we know about that and what
10:07would
10:07you like to see included in this law if it is proposed and passed so this this um disaster risk
10:14reduction act would be something like an emergency uh planning uh respond planning uh erp call it um and
10:23it's a it's a form of uh another uh sort of a plan but it can't be just a document
10:30it has to be something
10:31that is an action plan that um in the future it will have to be uh um taken in place
10:38and another one thing
10:39that i also think that this um this disaster risk reduction must be imposed is to differentiate what would
10:47could be natural and non-natural uh disaster man-made disaster for example and the responsibility is
10:55among uh the agencies like for example the drainage in uh drainage act a drainage department uh did or
11:03jps uh is tasked to implement the flood but they do not have the power to enact um so the
11:11mitigation
11:11plan can be done by the did but the in terms of uh enforcement it could be actually by the
11:18state
11:18so in terms of preventive action rather than uh you know in terms of looking at just it on the
11:25paper
11:26how can we actually take this uh to the effect management so the erp itself it's not just on the
11:33document so i i'm just concerned that if this could be something that on the surface not rather
11:40something that it is actionable um so we already have too many uh you know acts and statutes that
11:47it could be something but this is a good start but it should started like maybe you know 10 or
11:5320 years
11:54ago because now because of climate change because of the monsoon season that is very very much occurring
12:00very soon right now so we need to do it as soon as possible yeah reza thank you so much
12:07for being on
12:08the show with us sharing your insights on this reza zakaria from university malaya's
12:12faculty of law we're going to take a quick break here and consider this we'll be back with more
12:16stay tuned we'll be right back
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