Apex court grants leave for two NGOs to challenge Bukit Cherakah development

• The two NGOs seeking the judicial review claimed that it was illegal for the Selangor government to backdate a gazette, saying the degazettement decision was made on Nov 20, 2000, while the gazette was published on May 5, 2022.

PUTRAJAYA (Sept 9): A three-member Federal Court bench has, on Monday, granted leave (permission) to two people representing two non-governmental organisations (NGOs) to challenge the degazettement of Bukit Cherakah as a forest reserve for development.

The two are Damien Thanam Divean of Pertubuhan Pelindung Khazanah Alam and Lim Teck Wyn of Persatuan Rimba Komuniti Shah Alam.

Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, who led the bench, said the apex court recognised the importance of the nine questions of law for determination.

The other Federal Court judges who were part of the unanimous decision were Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.

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.

In civil cases, leave has to be gained first before the merits of a judicial review application is heard. With the appeal by the NGOs granted, the merits of the judicial review will be heard at the High Court.

The two NGOs seeking the judicial review claimed that it was illegal for the Selangor government to backdate a gazette, saying the degazettement decision was made on Nov 20, 2000, while the gazette was published on May 5, 2022.

Among the nine questions they posed were:

• Whether the National Forestry Act 1984 (NFA) allows for retrospective legislation?
   
• Whether the Selangor National Forestry Act (Adoption) Enactment 1985 allows for retrospective legislation despite there being no specific provision for retrospective legislation under the Selangor National Forestry Act (Adoption) Enactment 1985 or NFA 1984?
   
• Does the decision by the Selangor exco to excise the Bukit Cherakah forest reserve take effect from the date of the exco meeting on Nov 20, 2000, or when the degazettement took place on May 5, 2022?
   
• Whether Order 53 rule 3(6) of the Rules of Court 2012 (for judicial review), applies to decisions of a public body that were not communicated to the public?
   
• Whether the decision by the Selangor exco in retrospectively legitimising the excision of the Bukit Cherakah forest reserve on May 5, 2022, is a decision that cannot be reviewed on the general ground of ‘policy reasons’?
   
• Whether the requirement to hold a public inquiry prior to the degazettement of the Bukit Cherakah forest reserve can be dispensed with via the Selangor exco retrospective degazettement?
   

The two NGOs were represented by counsel Rajesh Nagarajan while Selangor state legal assistant adviser Khairul Nizam Abu Bakar represented the Selangor government.

The Malaysian Bar, represented by New Sin Yew and Abhilaash Subramaniam, appeared as amicus curiae, or impartial adviser to the court.

Rajesh, when contacted by The Edge, confirmed the outcome of Monday’s proceedings and the questions posed.

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