(Sept 14): Wars, disease, famine, pestilence and weather disturbances have marked 6,000 years of man’s recorded history. Yet mankind survived. The dropping of atomic bombs in 1945, followed by the proliferation of nuclear weapons have ironically not made the world less safe in the 80 years after the Second World War. The ravaging impact of climate change, on the other hand, has so far not spared any country or continent. Hence, unlike earlier threats to civilisation which were localised within a country or continent - even the Second World War was essentially a European and Asian conflict - global warming and climate change affect the entire world. It is a global crisis requiring global response. In consequence, climate crisis has emerged as the greatest existential threat, not just to mankind, but to our very Earth.

Litigation is a foreseeable and direct consequence of the climate crisis, and a by-product of climate governance. Climate litigation is itself part of global justice. Regardless of their domestic political structure, all countries across the globe have a responsibility to take dominion over their environment, in the widest sense of the term. Thus, the most totalitarian society on Earth has equal responsibility over its territory as the most democratic. At the international level, all 200 countries and territories are subject to standards and benchmarks developed under public international law. Thus, climate governance in reality means state responsibility over the environment, which includes airspace, seas and oceans.

State responsibility, in turn, brings to play accountability, openness and transparency. Let me begin with legal duties imposed on Malaysia with regard to climate matters. As a Federation, legislative and executive power are distributed under the Federal Constitution between the centre and the 13 states. As one would expect, there is also much overlap, and responsibility straddles between federal and state authorities on many environmental matters. The third level of government, the local authorities, are also integral: Indeed, much of town and country planning devolves to them.

The Attorney General’s Chambers (AGC) is the sole governmental agency entrusted by law to advise the federal and state governments, and to represent these 14 governments in litigation disputes. As the parliamentary draftsman reports to the attorney general, the drafting of federal acts and state enactments too come within the ambit of the AGC. Each state has a legal adviser, and a team of officers advising on legal matters, and they are all members of the AGC. Hence, the attorney general is in a pivotal position to advise and act on state responsibility in environmental matters.

As a proud member of the universal brotherhood of the common law, and as a member of the Commonwealth, Malaysia is richly blessed in the laws that form its corpus of jurisprudence. Of course our laws are not complete, exhaustive or perfect. But they are of sufficient utility to deal with climate disputes. Most significantly, Malaysian common law develops by a step by step approach, incrementally over time: evolution, rather than revolution. Our Constitution is supreme, and fundamental liberties enshrined therein represent its basic structure, thereby ensuring that they cannot be abrogated altogether. Our Constitution is modelled on the Constitution of India. Thus, cases decided by the Supreme Court of India in interpreting their Constitution are often accepted by our courts, thereby becoming the law of Malaysia.

Our courts have ruled that the right to a clean environment and the right to livelihood are part of an individual’s “personal liberty”, that is, a fundamental liberty, under Article 5(1) of the Constitution. Judges have liberated the “locus standi” rule: For instance, in a recent case, allowing residents next to a public park to successfully object to planning permission given by the mayor of Kuala Lumpur to redevelop the park into apartments.

It follows that the AGC is duty bound to advise their 14 governments, and even city councils and local authorities at the lowest level to keep abreast of legal developments in this branch of the law. Thus, when governments are making executive decisions and taking policy positions the AGC must advise them to take into account climate governance matters. By way of illustration:

In each of these cases the business imperative drives the ambitious politicians and the greedy bureaucrats to push for profits on deals. The duty of the humble legal officer in AGC is to advise, and place on record, environmental and climate concerns which will override the profit element. Causality has already been established by science and data.

The climate crisis is borderless, and pollution is no respecter of national borders. In this part of the world, we are accustomed to suffer annually for the past 30 years from dangerous levels of smog, caused by fires deliberately started across the Straits of Malacca. Annually, they are met with lukewarm protests from Malaysia and Singapore, followed by pious platitudes of Asean cooperation. Practical measures are never taken, and the smog pollution continues year after year.

Hence, there is an international dimension to environmental degradation. If pollution is borderless, so must domestic law be. Malaysian law must readily accept the rapid developments in courts across the world, and not just from the traditional jurisprudence of the common law world. The decision of the European Court of Human Rights in April 2024 in Klima Seniorinnen v Switzerland advanced rights-based climate litigation in significant terms. The court held that Switzerland had failed to comply with the positive obligations of ensuring health, well-being and quality of life under Article 8 of the European Convention on Human Rights, which guarantees the right to respect private and family life. The court determined that Switzerland had failed to quantify national greenhouse gas emissions and meet reduction targets; constituting failures by Swiss authorities to mitigate the effect of climate change, particularly global warming in Switzerland.

One can expect counsel in the next climate case in our courts to invite our judges to follow the European ruling in the Klima case as part of the laws of Malaysia. Hence, AGC must be proactive in their advice from henceforth.

The small Pacific island of Vanuatu has asked the International Court of Justice these two questions:

The outcome is awaited with interest.

And what about the Torres Straits Islanders who brought a complaint to the United Nations (UN) Human Rights Committee? In 2022, the committee found that the government of Australia was violating its human rights obligations to the Islanders through climate inaction. The UN decision delivered a number of legal world firsts, including holding that a nation is legally responsible for its green-house gas emissions under international human rights law and opening the door for indigenous communities - who are often on the frontline of the climate crisis - to defend their rights.

Another cohort that is on the frontlines is young people knowingly being left an increasingly unsafe planet by governments ruled by grey-haired men. It’s no wonder then that a spate of cases has been brought by young people against governments, arguing that the latter have a duty of care to protect them from climate harm in European countries and Australia.

Governments should proactively recognise that they owe a duty to current and future generations to reduce their nation’s contributions to global emissions. Strong, ambitious climate policy delivered by governments who recognise the need to place the welfare of the planet and people above short-term profits is the best antidote to litigation brought against governments.

In September 2015, the then governor of the Bank of England, Mark Carney, delivered a seminal speech on climate change and financial stability. He drew attention to the twin tragedies facing the globe: Tragedy of the Commons and Tragedy of the Horizon. What is often overlooked is that a significant portion of Carney’s speech dealt with the response of the insurance industry to losses caused by climate change. The command nature of the Malaysian economic and financial systems is such that the minister of finance and Bank Negara Malaysia have massive legal power to supervise the banking and insurance industries - to the extent of micro-management. Thus, we must prepare for the inevitable climate crisis events by ensuring that our insurance companies - all licensed by Bank Negara - offer sufficient insurance products and cover to Malaysian companies and individuals. Having sufficient insurance cover is powerful protection and mitigation against climate crisis. As part of its state responsibility, Bank Negara must ensure that such insurance cover is made available to all, and at affordable rates.

As for banking, prohibition against granting credit facilities to borrowers who seek financing for anti-climate activities may be problematic. But making the cost of borrowing costly by higher interest rates and shorter tenure of lending is feasible. Again, the state can assert its leadership.

The AGC officers’ duty of care is mirrored by members of the Bar advising their clients in the private sector. Lawyers in the private Bar are duty bound to advise their corporate clients that the sharpened accountability of directors individually and the board collectively means that directors may be personally liable for actions and omissions of their companies. 

Thus, the message is clear and loud: It is incumbent on the legal profession in its widest ambit - judges, barristers, solicitors, law teachers and in-house counsel - to be fully immersed in climate governance issues, and to be ready to play their proper roles in the varied aspects of our profession.

Paraphrasing then US president John F Kennedy’s celebrated challenge in his inaugural address in 1961:

“Ask not what the environment can do for us, but ask what we can do for the environment.”

Lawyers should be in the forefront of protecting, defending and preserving the environment. The Clarion Call has been made: We must rise to it.

Climate litigation is on the increase. According to a survey conducted by the Grantham Research Institute at the London School of Economics, 230 new climate cases were filed worldwide last year. Climate litigation is here to stay. Be vigilant.

Tan Sri Tommy Thomas was the attorney general of Malaysia from 2018 to 2020. He is a barrister. This is an excerpt of his opening remarks at the masterclass titled ‘Unravelling the global climate litigation landscape’ on Sept 11 at the National Climate Governance Summit 2024.

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