Datuk Seri Gopal Sri Ram, who passed away on 29 January 2023
Lawyers working on strengthening legal recognition for environmental rights within Malaysia’s legal system would invariably be familiar with Datuk Seri Gopal Sri Ram's decision in Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261 where he famously stated that -
"... the expression 'life' appearing in Article 5(1) [of the Constitution] does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. [...] It includes the right to live in a reasonably healthy and pollution free environment."
Justice Sri Ram has left behind a profound body of work during his time at the Bench to bind, persuade and remind those who come after him that the provisions of fundamental liberties in the Federal Constitution must be generously interpreted, with a prismatic approach instead of a literalist one.
Justice Sri Ram's legacy includes an important case that demonstrates the use of the tort of negligence for accountability for environmental harm. He was presiding over the Court of Appeal in Eng Thye Plantations Bhd. v. Lim Heng Hock [2001] 4 MLJ 26, a negligence case brought by a fish breeder against a palm oil plantation business located upstream. The latter released effluents into the river and caused the former’s fish to die. On the issue of causal proximity, the Court of Appeal held that “the defendant was clearly the plaintiff’s neighbour both in terms of physical proximity and consequence of action.”
Justice Sri Ram held that -
“... the law as to environmental protection is not in doubt. So far as it is dependent on common law, the relevant principles that deal with the protection of the environment are to be found in the law of nuisance and negligence.”
“In my judgment people who use the environment in the ordinary course of their business owe a duty of care to other users of the same environment.”
To recall Justice Sri Ram's contributions to the development of our constitutional law, I can do no better than refer to Prof. Datuk Dr. Shad Faruqi's tribute below, which I reproduce below with Prof. Shad's permission. Prof. Shad's tribute is also published in The Star, today.