Malaysia is at high risk from the effects of climate change. Flooding has become an almost-yearly natural disaster, with the frequency and severity of flood events increasing in recent decades. Research suggests that for every 1°C rise in temperature, rice yields decline between 4.6 and 6.1%, with net revenue falling by MYR 442.42 (~USD 99.52) per ha. Additionally, sea levels around Malaysia are projected to rise by a maximum of 3 to 10 mm by 2030 and 11 to 21 mm by 2050.
Malaysia regularly experiences high temperatures. During the 2015-2016 El Niño cycle, it reported 200 cases of heat-related illnesses, including 2 fatalities. The subsequent 2023-2024 El Niño event proved even deadlier, with 5 fatalities out of 127 reported cases of heat-related illnesses. Between 1970 and 2013, Peninsular Malaysia, Sabah, and Sarawak experienced surface mean temperature increases of 0.14°C–0.25°C per decade.
To tackle the effects of climate change, the Malaysian Ministry of Natural Resources and Environmental Sustainability (NRES) released a consultation paper in October 2024, proposing a Climate Change Act (Rang Undang-Undang Perubahan Iklim Negara, or RUUPIN). The public was given one month to submit comments on the consultation paper.
Although the consultation paper provided only a tentative outline of what the Act will establish, provisions to significantly limit the Act’s scope for legal challenge were already clearly present. While no provision prohibits litigation related to the Act, it does create obstacles to using litigation as a means of government accountability. A more robust framework that allows for litigation is essential to ensure governments are held accountable for their climate commitments and actions. Non-governmental actors often use litigation to confront legislative inaction or guard against executive overreach. Climate litigation follows a similar path of accountability objectives, urging governments to fulfill their international climate law pledges, among other commitments. Since 2015, at least 37 systemic cases have been successfully filed against states to strengthen commitments to mitigate or adapt to climate change.
This blog post draws attention to flaws in the proposed Act and their impacts on climate litigation, namely: (i) the omission of climate-related rights, (ii) the lack of a binding carbon target, and (iii) the inclusion of an ouster clause.
The Proposed Act Does Not Advance Climate Rights
The proposed Act does not extend beyond the rights established in the Malaysian Federal Constitution (FC) and misses the opportunity to include a provision that clarifies that the right to life under Article 5 of the FC encompasses the right to a clean and healthy environment.
The FC does not expressly refer to the right to a clean and healthy environment. To-date, no case law, barring passing references in a few decisions of the Malaysian courts, has clarified the link between Article 5 and this right. While constitutional interpretation remains within the judiciary’s remit and constitutional amendments cannot be made by ordinary legislation, including such a provision in the new climate law could guide judicial interpretation by affirming the inextricable link between the right to a clean environment and the fundamental rights enshrined in the FC.
The Act’s failure to include a right to a clean and healthy environment, or to reference Article 5 of the FC – thereby recognizing the former as part of the latter – is a regrettable missed opportunity. Such recognition could have strengthened standing in climate cases and helped establish a litigant’s interest in seeking remedies like declarations and acts of mandamus. Linking legislation addressing climate change with a state’s constitution is possible. In the Philippines, the Climate Accountability (CLIMA) Bill, as currently being deliberated on in the Philippines Congress, features the declaration of the state to ‘protect and advance the right of people to a balanced and healthy ecology… and promote the right to health, dignified life…’, proclamations which are in parallel to its own constitution.
Additionally, the proposed Act fails to address or codify fundamental human rights of those most affected by climate change, including the rights of Indigenous communities, women, children, and other vulnerable groups. Climate change disproportionately affects marginalized communities, yet the consultation paper provides no indication that the government intends to integrate these intersectional issues into its framework. The omission of such considerations weakens the Act’s potential impact, leaving critical social dimensions of climate resilience unaddressed. Two suggestions, with specific respect to Indigenous peoples, are briefly offered in this regard.
First, a robust Climate Change Act should incorporate the principle of free, prior, and informed consent (FPIC), especially in projects affecting Indigenous communities. Papua New Guinea’s Climate Change (Management) Act 2015 serves as an exemplary model: section 87 requires that FPIC is obtained for all climate-related projects on customary land; section 93(2) gives all affected landholders the right to participate and benefit from the incentives of such projects.
Second, the Act should include provisions addressing Indigenous peoples’ cultural concerns and specific needs. For example, Finland’s Climate Change Act 609/2015 requires forming a Sámi Climate Council to guide the incorporation of Sámi cultural needs into climate policies (section 21). This body works alongside the Finnish Climate Change Panel to ensure that policies respect Indigenous rights and account for the unique impacts of climate change on Sámi culture. By establishing a similar mechanism for Malaysia’s Indigenous communities, the Act could ensure that Indigenous voices are not only heard but also shape policy decisions.
The Proposed Act Lacks Binding Carbon Targets
The proposed Act states that the Minister of Natural Resources and Environmental Sustainability (NRES) ‘may set targets at the National level, with approval from Malaysia Cabinet.’ This vague language fails to compel the Minister to set a carbon budget for a budgetary period. Yet, it prescribes that the Minister ‘shall monitor the implementation of the activities… set at the national level for the purpose of meeting the targets and objectives of the Act’.
A holistic reading of the consultation paper suggests that the decision not to include a binding national carbon budget was driven by a desire to ensure that the Act remained flexible. This conclusion is supported by RUUPIN’s emphasis on flexibility, evident in the Minister’s discretion to set and/or amend national targets (Part 2), the hybrid regulatory approach that balances structure and adaptability (Guiding Principles of RUUPIN), and the establishment of a dynamic National Climate Fund (Part 6) instead of a predetermined budget. These elements indicate that the drafters were eager to ensure the Act remains responsive to emerging challenges and future developments. There seems to have been concern that establishing binding targets would hinder the government’s ability to adapt its targets to meet changing conditions. This view is flawed for three reasons, as explored below.
First, the Act could incorporate provisions to amend a target as most climate framework laws do (see, for instance, section 2 of the UK Climate Change Act). RUUPIN, as currently proposed, already allows for adjustments to targets when necessary. Other laws around the world do the same. For example, inspiration may be sought from Mexico’s General Law on Climate Change, which prescribes that ‘under no circumstances shall the reviews and updates undermine the goals, projections, and objectives previously proposed’ (Article 61). In other words, this suggests changes to targets must maintain or increase the level of ambition, not reduce it. Mexico’s law also specifies the factors that must be evaluated when reviewing these laws (Article 101 and 102), including reducing human vulnerability to climate change. Achieving a balance, as suggested, would enable accountability redress through climate litigation while providing the necessary flexibility for the executive government.
Second, a binding target does not constrain the government from exceeding its commitments; it merely sets a minimum baseline that must be met. If circumstances call for more ambitious action, a binding target would not prevent the government from surpassing it. The only scenario in which binding targets might be perceived as restrictive is if the government seems to weaken its commitments by allowing more emissions. This suggests an unsettling implication: that the government’s reluctance to impose binding targets may stem not from a desire for flexibility to strengthen climate action, but from a preference to avoid accountability and sidestep the political cost of failing to meet commitments. In light of this, the government’s concern about ‘losing flexibility’ appears less about enabling stronger action and more about preserving the ability to delay progress without facing scrutiny. Yet, laws are meant to address the short-termism of politics, i.e., by ensuring credible climate commitments that endure beyond election cycles. By resisting binding targets, the government risks undermining both the Act’s credibility and its own reputation as a serious actor in climate policy.
Third, what the Act gains in marginal flexibility is wholly outweighed by its loss of any practical utility. Without a binding target, there is no mechanism to ensure that the government takes substantial action. The absence of enforceable commitments renders the Act toothless, leaving little means to hold the government accountable for achieving real progress in reducing emissions.
The Proposed Act Includes an Ouster Clause
The Consultation Paper details that the proposed Act will provide ‘legal protection and immunity’ to ‘designated enforcement units’ and towards ‘actions taken to implement RUUPIN.’ It appears then that the Act will not be designed to accommodate lawsuits seeking government accountability. In fact, the Act seems designed to avoid binding legal obligations altogether.
These types of “ouster clauses,” which shield public bodies assigned specific functions under legislation from judicial oversight and scrutiny, are unconstitutional in Malaysia. The apex court has conclusively held, on multiple occasions, that an attempt to preclude legislation and/or the decisions of public authorities from judicial scrutiny is unconstitutional. Putting aside the fact that an ouster clause as proposed is likely to be voided for being in contravention of trite law, it is nonetheless a clear violation of fundamental legal norms as expressed in Malaysia’s Federal Constitution.
Judicial scrutiny ensures government accountability and can improve public policy. As maintained above, giving governments the flexibility to achieve their carbon goals does not need to come at the cost of having zero accountability.
Conclusion
An Act needs to be enforceable: there is no point in having legislation enacted by a democratically elected body if there is no effective mechanism for ensuring public bodies faithfully comply with it. This is particularly true in the context of climate change, where legal challenges in other countries (such as the UK and Ireland) have seen governments update their plans, proving litigation’s utility in acting as another string in the bow where action fails elsewhere.
A truly litigable Climate Change Act empowers the public with enforceable rights and remedies (e.g., injunctions, mandamus, declarations) as supported by an overarching constitution, ensuring that the government remains accountable for its climate commitments. The proposed Act’s lack of binding targets, inclusion of an ouster clause, and failure to enshrine climate rights collectively diminish its potential as an Act that drives true change. While the Act could still be made sufficiently litigable with the right amendments, the current structure unjustifiably complicates accountability, weakening Malaysia’s efforts to address climate change. The government’s apparent attempt to evade responsibility harms not only the public but also the collective fight against the global climate crisis.
* Research funded by RimbaWatch
Claudia Nyon
Claudia Nyon, Project Manager (Corporate Accountability) at RimbaWatch. Former Advocate & Solicitor of the High Court of Malaysia.
Kuberan Hansrajh Kumaresan
Kuberan Hansrajh Kumaresan is the Sabin Center's Global Network's rapporteur for Timor and Papua New Guinea.
