66 PROTECTING WILDLIFE IN PROTECTED AREAS IN PENINSULAR MALAYSIA:
TOWARDS CONSTITUTIONAL SAFEGUARD FOR CONSERVATION Arif Fahmi Md Yusof*, Izawati Wook
Faculty of Syariah and Law, Universiti Sains Islam Malaysia, Nilai
*(Corresponding author) email: [email protected]
ABSTRACT
Malaysia is one of the countries in the world which currently possesses a very significant number of biological diversities in its terrestrial and marine zones. To protect and safeguard these biological diversities, including wildlife, Malaysia has established a network of protected areas in its national development plan. These protected areas are managed by different federal and state authorities. There are many laws which are enacted by the federal and the states which aims to protect and safeguard the wildlife at these protected areas for conservation. The power to enact the relevant laws is conferred to the federal and respective states by the Malaysian Federal Constitution. However, there are various issues impacting the conservation efforts. This paper argues that a constitutional safeguard is necessary as a greater measure to protect the environment including wildlife in the protected area. A constitutional measure provides greater protection status than other legislative provisions.
Keywords: Wildlife protection, protected area, conservation, constitution, Malaysia
INTRODUCTION
The reconciliation of human–animal conflict in early 1900 in the Malay states marked the beginning of wildlife protection and conservation. The concept of the protected areas such as national and state park was promoted to limit the tension between the interests of agriculture and those of nature preservation (Kathirithamby-Wells, 2005). The excessive killing of wildlife because it was a perceived threat to human crops led to a system of rewards for the killing of certain types of wildlife. This action affected the wildlife due to illegal hunting, trapping, and baiting to claim for rewards. This resulted in the establishment of various protected areas by the federal and state government to protect the wildlife from exploitation and extinction.
67 Protected area in Peninsular Malaysia
Protected area is a “clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values” (Dudley, 2008; Stolton, 2013). These areas can be in the form of the national parks, wilderness areas, community conserved areas, nature reserves that focussing on biodiversity conservation as well as people’s livelihoods. It provides for food, clean water supply, medicines, and protection from the impacts of natural disasters. It also helps to mitigate and adapt to climate change where it has been estimated that the global network of protected areas stores at least 15% of terrestrial carbon (Dudley, 2008; Stolton, 2013). These protected areas include National and State Parks, Permanent Reserve Forests and RAMSAR sites.
Laws regulating wildlife protection in the protected area
There are several laws enacted for wildlife protection in Malaysia. Generally, the purpose of protecting wildlife can be seen from two important reasons: animal interests and human interest. For animal or wildlife interests, it aims at protecting and saving wildlife from extinction by ensuring that their habitat is preserved. At the same time, for human interests, it aims at protecting human aesthetic interests and entertainment, such as nature education, wildlife exhibits for future generations, zoo operations, and recreational environment. Other human interests include commercial and economic benefits especially to various businesses involving dealing, taxidermy, breeding, bird nest collection, and wildlife research.
National Park Act 1980 (Act 226)
The purpose of the establishment of National Parks is to preserve and protect wildlife, plant life and objects of geological, archaeological, historical, and ethnological and other scientific and scenic interest. By preserving and protecting the wildlife and plant life, it further promotes the education, health, aesthetic values, and recreation of the people (section 4).
Taman Negara Enactments (Pahang, Kelantan and Terengganu)
The British Colonial Office's Theodore Hubback since 1920 investigated and lobbied for the possibility of establishing a national park to safeguard biological resources for scientific, recreational, and educational purposes. The lobby was successful, and in 1938, His Highness the Sultans of Pahang, Kelantan, and Terengganu expressed their wish to mark the silver jubilee of His Majesty King George V's ascension to the throne of the United Kingdom by dedicating specified territory in each of the three States to form a National Park. The National Park was established and named as the The King George V National Park (Pakhriazad et al: 2009).
National Parks (Johor) Corporation Enactment 1989
The National Parks (Johor) Corporation Enactment was enacted in 1989 to develop, manage and supervise the management of the national parks in the state of Johor. The enactment also established a state corporation ie Johor National Parks Corporation to manage the State Park. At present there are six National Parks including Endau Rompin-Peta, Endau Rompin-Selai, Tanjung Piai, Pulau Kukup, Gunung Ledang and Taman Laut Sultan Iskandar.
Perak State Parks Corporation Enactment 2001
In 2001, the State of Perak enacted the Perak State Park Corporation Enactment. The enactment established a corporation which responsible to control the state parks including the preservation and
68 management of natural resources and wildlife (section 6). Currently, there are two national Parks in Perak namely Royal Belum and Pulau Sembilan.
Wildlife Conservation Act of 2010 (WCA)
The Wildlife Conservation Act of 2010 (WCA) outlines all protection and conservation approaches.
The WCA continues to allow wildlife exploitation for human purposes, such as dealing, taxidermy, commercial breeding, bird nest collection, wildlife exhibits, and recreational hunting.
Environmental Quality Act 1974 (EQA)
The Environmental Quality Act 1974 (EQA) provides for legal measures to control activities that may cause pollution and, as a result, be harmful to the ecosystems of various animals, birds, wildlife, fish, or aquatic plant life to provide safe environments and wildlife habitats. By requiring a report titled the Environmental Impact Assessment, the EQA empowers the Minister to limit or restrict any prescribed activity that could have major environmental impacts (EIA).
International Trade in Endangered Species Act 2008
The International Trade in Endangered Species Act 2008 (Malaysia), which seeks to enforce the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), has complemented wildlife conservation efforts by restricting practises that can result in animal extinction and habitat destruction as a result of endangered species trade.
Issues impacting conservation efforts
Changes in land use have resulted in fragmentation and isolation.
Some forests have been converted to agricultural plantations as a result of government and private land development programmes pushed by Federal and State agricultural development policies, without accounting for the externalities of forest loss (UNDP, 2012).
Encroachment and illegal logging
Illegal logging on a large scale and in a systematic manner is not now a big issue in Peninsular Malaysia, although it is becoming more prevalent, particularly in remote forest areas. When boundary demarcation is unclear, monitoring and enforcement are lacking, and physical conditions within and outside the PA, like as access roads, adjacent land use, and natural obstacles, allow for illicit logging, PAs are particularly vulnerable. (UNDP, 2012).
Poaching and illegal wildlife trade
Illegal hunting in Malaysia include all sorts of unlicensed hunting, including poaching for illegal trade, sport hunting, and subsistence hunting by local populations in PAs with no legal hunting rights.
Poaching has been documented in areas where the pressure and dangers are classified as mild, moderate, or high, depending on the PA. (UNDP, 2012).
Towards constitutional safeguard for protection of wildlife
At the moment, there are three countries which have expressly provided for the protection of animals in their respective state constitutions, namely India, Switzerland and Germany.
The Indian Constitution, for instance, requires the state to endeavour to organise animal husbandry on modern and scientific lines, prohibits the slaughter of cattle and dairy animals for religious reasons,
69 and pronounces the duty of every Indian citizen to have compassion for living creatures (Art 48, 51(A) (g) of Indian Constitution 1950).
The Federal Constitution of the Swiss Confederation regards animals as ‘sentient creatures’ and requires the state to legislate for the protection of animals (Art 80, Federal Constitution of Swiss Confederation). The Basic Law for the Federal Republic of Germany also proclaims the responsibility of the state to protect the natural foundations of life and animals by legislation (Section 20 (a) of Basic Law for the Federal Republic of Germany).
What is the status of animals in the Malaysian Constitution?
The Malaysian Constitution does not establish animal welfare principles. It only provides avenues for the legislature to enact laws relating to animals. As discussed in Chapter 4, List III of the Ninth Schedule of the Malaysian Federal Constitution provides a power to both the federal and state legislatures to pass statutes relating to the protection of wild animals and wild birds, animal husbandry, prevention of cruelty to animals, veterinary services and animal quarantine.
The Federal Constitution itself does not establish constitutional safeguard to protect the wildlife in the protected area. Therefore, this paper argues that, as the law has developed rapidly to protect the wildlife through the national development plan, it is timely for Malaysian government to establish a specific constitutional safeguard towards nature including wildlife in the protected area.
Conclusion
In short, the establishment of protected areas such as national and state parks, permanent reserves and RAMSAR sites aims to provide areas or reserves for flora and fauna including wildlife. It serves as habitat for various wildlife species. This article highlights selected laws which protect and safeguard the wildlife from exploitation and extinction in the protected areas. The law operates to conserve the wildlife by ensuring their habitat is preserved, and at the same time regulating the act which can harm and affect them. This is to ensure the wildlife interest from extinction, and human interests for various benefits of nature education and wildlife exhibit for future generation. However, while the law, policy and development plans outline nation’s efforts in protecting and conserving the wildlife in the protected areas, there are issues impacting the conservation efforts. This paper therefore suggests that a specific constitutional safeguard to be introduced in the Malaysian constitution to show the seriousness of the government in protecting the nature including wildlife as provided by other countries in the world.
Acknowledgement
The authors would like to express gratitude to Universiti Sains Islam Malaysia which commissioned the work under Grant Code: PPPI/UGC_0119/FSU/051000/13619.
70 References
Act/Enactment Federal Constitution
Environmental Quality Act 1974
International Trade in Endangered Species Act 2008 National Park Act 1980 (Act 226)
National Parks (Johor) Corporation Enactment 1989 Perak State Parks Corporation Enactment 2001 Taman Negara Enactment (Kelantan) 1938 Taman Negara Enactment (Pahang) 1939 Taman Negara Enactment (Terengganu) 1939 Wildlife Conservation Act of 2010
Books/Articles
Dudley, N. (Editor) (2008). Guidelines for Applying Protected Area Management Categories. Gland, Switzerland: IUCN
Irini Ibrahim (2009). Wetland in Malaysia: A look into the Applicable Conservation Laws. Selangor:
MALAHA PLT.
Jeyamalar Kathirithamby-Wells (2005) Nature and Nation: Forests and Development in Peninsular Malaysia.
Hawai: University of Hawai'i Press.
Stolton, S., P. Shadie and N. Dudley (2013). IUCN WCPA Best Practice Guidance on Recognising Protected Areas and Assigning Management Categories and Governance Types, Best Practice Protected Area Guidelines Series No. 21. Gland, Switzerland: IUCN
UNDP (2012) Enhancing effectiveness and financial sustainability of Protected Areas in Malaysia. UNDP Project Document.
