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Session 7: Court Annexed Alternative Dispute Resolution

Session 7: Court Annexed Alternative Dispute Resolution. Presented By: The Rt. Hon. YAA Tan Sri Richard Malanjum Chief Judge of Sabah & Sarawak . Court Annexed Alternative Dispute Resolution (ADR). Civil cases ADR in the form of mediation is part of the Malaysian Civil Justice system.

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Session 7: Court Annexed Alternative Dispute Resolution

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  1. Session 7: Court Annexed Alternative Dispute Resolution Presented By: The Rt. Hon. YAA Tan Sri Richard Malanjum Chief Judge of Sabah & Sarawak

  2. Court Annexed Alternative Dispute Resolution (ADR) Civil cases • ADR in the form of mediation is part of the Malaysian Civil Justice system. • Order 34 rule 2(2) of the Rules of Court 2012 – empowers the court to order mediation to secure the just, expeditious and economical disposal of an action • Practice Direction No. 5 of 2010 envisages two types of mediation: Judge-led mediation (court assisted mediation) and mediation by private mediators appointed and agreed by the parties themselves • Mediation is now compulsory in Subordinate Court for personal injury cases (Practice Direction No. 2 of 2013) Criminal cases • Plea bargaining – to increase pleas and reduce the backlogs • Section 172C of the Criminal Procedure Code

  3. Court Annexed Alternative Dispute Resolution (ADR) • No specific legislation on the use of ADR for environmental cases • The ADR (mediation) in general civil cases will apply for environmental cases • Compounding of offences in lieu of prosecution • Appeal process before other authorities • Role of Non Governmental Organizations (NGOs)

  4. Symbiotic relationship?

  5. Challenges on the use of ADR for environmental cases • Distrust due to David and Goliath situation • With the relevant authorities • With the large corporations • Limited resources for public education on ADR • Need for special knowledge on environment for mediators

  6. Death by poisoning

  7. Official stand • Livelihood of the directly affected communities by contributing to their economic development, education and poverty reduction. The focus on improving standards of living through resettlement aligns with the IHA Protocol and, in many areas, has exceeded relevant international standards. • As for the Murum hydro electric project, initial consultations commenced in 1994 without coercion. Formal engagement with the affected indigenous communities began in 2008. By 2010, all 7 of the directly affected communities had chosen their respective resettlement locations, and by late 2011, they had chosen the sites for, and were actively involved in designing, their new longhouses. • Implementation of the Murum Resettlement Action Plan disclosed publicly in May 2013, and the compensation package for affected Penan and Kenyah communities, is a manifestation of the State’s policy commitment to fair compensation. The State has provided these communities with a comprehensive compensation package including 19,500 hectares within the nearby Danum and Linau Protected Forests for them to access for food, wildlife and forest produce. • These arrangements represent an immediate and substantial improvement in the standard of living for the affected communities at Murum, compared to their previous situation where they lived in a remote area with limited access to State-supported health, welfare and social services. Further, they have gained better access to basic human rights to education, health care, better social amenities and economic and employment opportunities whilst preserving their cultural identities and traditions.

  8. On Lynas MALAYSIA Radiation within permitted levels, says Lynas – Bernama November 01, 2013 The radiation levels at the rare earth Lynas Advanced Materials Plant (LAMP) in Gebeng have been verified as being within local and international standards, 11 months after it first began operation. LynasMalaysia SdnBhd vice-president and managing director DatukMashal Ahmad said the radiation readings at the plant and its surroundings were displayed at the plant and online. "We also welcome the public to visit our facility to observe and obtain accurate information that LAMP is safe for our employees, the people and the environment," he said after a visit by 80 health officials to the plant yesterday. Mashalsaid the plant also operated under atmospheric pressure, while the raw materials used had a very low radioactive level.

  9. The future? • The relevant authorities must take serious roles in environmental protection • More resources provided • Subject on environment be introduced in schools • Pubic education • Independent tribunals instead of appeals process within the Government departments

  10. Court Annexed Alternative Dispute Resolution (ADR) Thank you

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