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PUTRAJAYA (April 1): The Federal Court has closed the door on a judicial review application brought by civil society to challenge the removal of Bukit Cherakah’s protected status by the Selangor state government.
In a split 2-1 decision from the apex court, Pertubuhan Pelindung Khazanah Alam Malaysia (Peka) and Shah Alam Community Forest Society’s (SACF) application for leave (permission) to initiate a judicial review against the Selangor government’s decision to degazette 406.22 hectares of the forest reserve was quashed on Wednesday.
Presiding over the bench, Court of Appeal president Datuk Abu Bakar Jais, alongside Federal Court judge Datuk Rhodzariah Bujang, formed the majority. They ruled against granting leave.
However, Federal Court judge Datuk Lee Swee Seng, who was the dissenting judge, suggested that the non-governmental organisations (NGOs) had issues that needed to be ventilated at the judicial review stage.
The judges then made no order as to costs.
The two NGOs had sought for the judicial review to quash a 2022 measure that will open up more than 400 hectares of the forest reserve for development, claiming that it was illegal for the Selangor government to backdate a gazette.
The state government had decided to de-gazette the area on Nov 20, 2000, while the gazette was published on May 5, 2022. The delay in publication meant that the public, including the NGOs, was likely not informed until 2022.
The Bukit Cherakah forest reserve is home to a group of indigenous people, as well as a popular spot for hikers.
In their submissions, lawyers for the NGOs argued that the Selangor state government’s move was illegal and procedurally flawed.
Meanwhile, lawyers for the Selangor state argued that the state was well within its rights to backdate the gazette and that their actions were lawful.
A 2022 gazette going back 22 years
The Selangor government published the degazettement notice in 2022. However, the government backdated it to November 2000. Therefore, legally, the state argues, it will be treated as if it were de-gazetted in 2000. Lawyers for the Selangor state argued that this was within the right of the government as it has the authority to gazette and de-gazette land.
They said that development approvals were already granted on the land before 2022.
The backdated degazettement notice also blocked public objections.
The decision on Wednesday directly affects a contentious road project cutting through the SACF, which has faced strong opposition from residents and environmental groups.
However, NGO lawyers claim that no public inquiry was done (required after 2011 law changes), no replacement forest land was provided by the government, and the backdating bypassed legalities and public objections.
They claim this violates the National Forestry Act 1984 and proper procedure.
Prior to this, the two NGOs had failed to obtain leave at the High Court and the Court of Appeal for their judicial review application to be heard.
The NGOs were jointly represented by counsels Rajesh Nagarajan, Datuk Dr Gurdial Singh Nijar, Abraham Au, Amanda Sonia Matthew, and Ambbi Balakrishnan.
Lawyers for the Selangor government and other respondents were Hani Aziza Ismail Aziz, Mary Phoon, Ng Ka Choon, Low Jiah Yee, Ganapathi Ramasamy, Al-Sabri Ahmad Kabri, Marla Mohd Aaron, Sarah Low, and John Wong.
Restu Mantap Sdn Bhd, which acquired the title to a 20-hectare parcel for a mixed development project in Bukit Cherakah, and its contractor YCH Construction Sdn Bhd, were also named as respondents.
The Malaysian Bar, represented by New Sin Yew and Abhilaash Subramaniam, appeared as amicus curiae or impartial advisers to the court. The World Wildlife Fund (WWF) also appeared as amicus curiae, represented by Malik Imtiaz Sarwar and Kelviin Manuel Pillay.
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