NGOs fail in Bukit Cherakah degazetting lawsuit

 Federal Court says residents in the area will be left in limbo if the environmental groups succeed.

The Selangor government’s decision to degazette 406.22ha in Bukit Cherakah was made on Nov 20, 2000, but the official gazette notification was completed 22 years later by its publication on May 5, 2022.

PUTRAJAYA:

 In a split decision, the Federal Court has ruled that two environmental NGOs lack the legal standing to challenge the Selangor government’s decision to degazette Bukit Cherakah more than 25 years ago.

Delivering the majority decision, Court of Appeal president Justice Abu Bakar Jais said the appellants – the Shah Alam Community Forest Society, and Khazanah Alam Malaysia (Peka) – had no legal rights or interest in the subject land.

“The appellants had no interest to protect when the decision to degazette was made,” he said in dismissing the NGOs’ appeal today.

Justice Rhodzariah Bujang concurred with Abu Bakar, while Justice Lee Swee Seng dissented.

The panel made no order on costs.

Abu Bakar noted that both groups were established after 2010, some 10 years after the state government’s impugned decision.

He also pointed out that parts of Bukit Cherakah had been developed into housing and commercial areas over the past two decades, and were now occupied.

“A group of so-called ‘nature conservationists’ cannot simply claim locus standi in the face of a much larger group of people running into the thousands.

“They came in and now genuinely have an interest as, among others, residents in the housing area.

“It is most difficult to fathom how this larger group of people, as residents, could have their priority of interest displaced by a smaller group that did not even exist when the decision (to degazette) was made,” he said.

Residents in ‘limbo’ if suit succeeds, says judge

Abu Bakar said the court should be cautious, as its decision would affect those residing in the area.

“It should not be granted if such redress affects the greater good or interest of too large a group of people,” he said, adding that it would not be practical to restore the land to its original use since a large part has already been developed.

He also dismissed the NGOs’ contention that the state government failed to hold a public inquiry before proceeding with its decision to degazette.

“The requirement for a public inquiry (under the Selangor Forestry Enactment) only came into effect in 2011.

“It is wrong to say the decision to degazette the land then must be preceded by a public inquiry. It was permissible to proceed to degazette the land without a public inquiry as there was no such requirement in the 2000s,” he said.

NGOs’ case should go to trial, says dissenting judge

In his dissenting judgment, Lee said the NGOs should be granted leave to commence judicial review before the High Court.

He said the leave application was filed within the stipulated three-month period, calculated from its date of publication.

“The fact that the impugned decision may involve matters of policy does not place it beyond the reach of judicial review.

“Where the policy or action of the executive is inconsistent with the law, or is arbitrary, irrational or tainted by mala fides or abuse of power, courts are duty-bound to intervene,” he said.

The Selangor government’s decision to degazette 406.22ha in Bukit Cherakah was made on Nov 20, 2000, but the official gazette notification was completed 22 years later by its publication on May 5, 2022.

The NGOs sought judicial review of the state’s decision, claiming that it was illegal for the Selangor government to backdate the impugned gazette.

In 2022, the Shah Alam High Court dismissed the NGOs’ bid for leave to challenge the state government’s decision by way of judicial review.

The ruling was affirmed by the Court of Appeal two years later, giving rise to the present appeal. - FMT