In a small but meaningful win for forest protection in Malaysia, the country’s highest court ruled that two civil society organisations can appeal against the degazettement of a forest reserve by the Selangor state government, which appears to have been backdated by 20 years without public knowledge or consent.
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The two non-governmental organisations (NGOs), namely the Shah Alam Community Forest (SACF) society and Pertubuhan Pelindung Khazanah Alam Malaysia (PEKA), have argued that the state government acted illegally in deciding to degazette 9,642 hectares of the Bukit Cherakah forest reserve. It also sought to stop ongoing property and infrastructure development that has caused further deforestation.
A three-person panel at Malaysia’s Federal Court decided on Monday that the legal concerns raised by the NGOs merited a judicial review.
“We are of the unanimous view that the proposed questions [by the appellants] raise questions of importance on which further argument and a decision of this court will be to the public advantage,” said the Federal Court’s Justice Abdul Rahman Sebli, who is also chief judge of Sabah and Sarawak. Also on the panel of judges were Justices Abu Bakar Jais and Abdul Karim Abdul Jalil.
Importantly, the court will decide on whether Malaysia’s National Forestry Act 1984 and subsequent state forestry laws allow for retrospective legislation. In the case of Bukit Cherakah, the Selangor government had only issued a public gazette about the removal of the land’s forest reserve status in May 2022, even though its state executive committee had decided on the matter in November 2000.
Over those two decades, nearly 87 per cent of the Bukit Cherakah area has been cleared for the construction of large roads, commercial and residential areas and even a public university, said Nagarajan. Only 1,300 hectares of forest remain standing.
Satellite images from February and April 2024 show that new roads have been constructed for proposed developments by PKNS and MBSA, entities under the Selangor state government. The image on the far right maps the proposed developments. Image: Shah Alam Community Forest Society
PEKA and the SACF Society argue that this backdating of the gazette is illegal and sets a dangerous precedent for other protected forests in Malaysia. More than 40 other environmental advocacy groups in Malaysia have backed this case.
“Our win indicates that the [Federal Court] judges think the timing of a gazette matters,” said Alicia Teoh, honorary secretary of the SACF Society.
The case is also significant because the Federal Court typically agrees to hear only 10 per cent of all appeals, SACF Society and PEKA lawyer Rajesh Nagarajan told Eco-Business. The first hearing will happen in four to six months, he said.
Deforestation continues
Studies by SACF Society and its partners have shown that as of January 2024, the remainder of Bukit Cherakah’s forest was home to 40 species of wildlife on the International Union for Conservation of Nature’s (IUCN) Red List. This includes the critically endangered Sunda pangolin and endangered tapir, among many other mammals, birds, amphibians and reptiles.
Fifteen tapirs have been killed on one of the main roads cutting through this forest, Persiaran Mokhtar Dahari, since 2003, Teoh shared.
An image from a camera trap shows a tapir in the Shah Alam Community Forest, which forms part of the Bukit Cherakah forest reserve. Image: Shah Alam Community Forest Society
The forest, which has been classified as a “regenerating ancient forest” is also home 354 species of flora, including several types of endangered dipterocarp trees.
In a blow to PEKA and SACF Society’s fight against further deforestation, however, the court denied their application to issue stop work orders against current legal owners of land in the Bukit Cherakah area. These include state development corporation Perbadanan Kemajuan Negeri Selangor (PKNS) and private developers Restu Mantap and YCH Development.
The developers argued in court on Monday that a separate legal document, known as a writ, should be issued if the NGOs seek to halt their development. On top of that, their lawyers pointed out that thousands of people already live in these areas as houses had already been built and sold. PKNS has signed agreements with third-party contractors and fourth-party buyers for the ongoing developments, said lawyer Ganapathi Ramasamy.
SACF Society and PEKA had previously secured a temporary stop work order against PKNS between August and November 2022 when they had first filed their suit at the Shah Alam High Court. However, they are not seeking for existing residents to be displaced, said Nagarajan.
“What we are really interested in is the areas that are still forested and which [the development companies] are now seeking to develop,” his colleague Sachpreetraj Singh Sohanpal told the judges.
As recently as this year, SACF Society has recorded incidents of continued deforestation in the contested Bukit Cerakah Area. This was due to the planned construction of a new road by the Shah Alam City Council (MBSA), which answers to the Selangor government, and an ongoing mixed development project for the Siera Alam township development by PKNS.
SACF Society in a statement today appealed to both developers to cease work as it continues to pursue legal action. “We hope that PKNS and MBSA [the Shah Alam city council] will respect the public’s interest and stop deforesting while this legal case is still ongoing,” said the SACF Society.
Members of the public walk along tracts of land deforested by the Shah Alam City Council (MBSA) for the construction of a new road. Image: Shah Alam Community Forest Society
