We refer to the ongoing controversy regarding the status of the Bukit Cherakah Forest Reserve in Section U10, Shah Alam, Selangor.
Various NGOs and civil society groups are protesting plans to develop parts of the forest reserve.
Selangor state executive councillor Hee Loy Sian commented on the matter on 23 October 2021, emphasising that the forest reserve has been excised (colloquially referred to as ‘degazetted’), with land titles issued to private developers, and that the forest reserve had been ‘degazetted’ without any notice being published.
He is reported to have said, “If the said plots of land had not been degazetted, land titles could not be issued” and “The NGOs should ask the previous state government about the move to degazette the land and why a notice was not published”.
The law relating to forest reserves is the National Forestry Act 1984 and the respective state enactments.
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Section 13(1) of the act stipulates that whenever any land is excised from a permanent reserved forest, the state authority shall cause to be published in the gazette a notification setting out the details of such land and declaring a fixed date when it shall cease to be a permanent reserved forest.
Section 13(2) follows up with the provision that the land shall cease to be a permanent reserved forest from the fixed date.
It is not disputed that there is no such publication of the purported excision of the forest in the Government Gazette. Hence, as long as a permanent reserved forest has not been excised through the publication of a notice in the Government Gazette, the subject land — in this case, the Bukit Cherakah Forest Reserve in Section U10 — continues to be a permanent reserved forest.
The Malaysian Bar is therefore deeply concerned with the Selangor state government’s position as expressed by Hee.
This case highlights fundamental legal issues. The state government must demonstrate its commitment to the rule of law. It cannot refer to the de facto position (that land titles have been issued to private developers) as a determination of the de jure position, ie the legal status of the land. It is of no answer to concerned members of the public that the purported excision was carried out by the previous administration.
Besides the issues of good governance, accountability and transparency, it also relates to the sustainable management of our natural environment. On 8 October 2021, the UN Human Rights Council recognised for the first time, that having a clean, healthy and sustainable environment is a human right.
Further, Malaysia has recently been elected to the Human Right Council for the 2022–24 term, with the prime minister announcing that “Malaysia will work closely with UN member states to advance the global human rights agenda, as enshrined in the Universal Declaration of Human Rights”. It is therefore imperative that we lead by example.
The Malaysian Bar calls on the Selangor government, and indeed all state governments, to approach any excision of permanent reserved forests conscientiously and vigilantly, in order to protect the human rights of present and future generations.
State governments must act as the protector and custodian of nature and not be a facilitator of its destruction. Where the due process of excision of any permanent reserved forests has not been followed, the state must take the position that the status of the land remains protected.
AG Kalidas is president of the Malaysian Bar
This piece is reproduced from here and has been edited for style only.