PETALING JAYA: Lawyers are divided on whether a proposed amendment to the National Forestry Act, which seeks to better protect forest reserves in Malaysia, would be binding on states.

       “The amendment to the National Forestry Act is not applicable to the states unless relevant legislation is enacted to adopt the federal law into state law,” said Lawyers for Environmental Rights.

       The group said this in response to a proposed amendment to Section 11 of the Act, which stipulated that state authorities must conduct a public inquiry before they degazette a forest reserve.

       Another proposed amendment seeks to ensure that state authorities replace forest reserves that have been degazetted with a new area which is of the same size or larger.

       These amendments, which also include proposals for heavier fines and longer jail terms for those who damage forest reserves or start fires to them, were tabled at the Dewan Rakyat last week.

       However, Lawyers for Environmental Rights pointed out that Section 11(2) does not define “public inquiry” which meant that states are given full latitude to conduct one as they deem fit.

       “This is a recipe for disaster and carte blanche for the states to have an inquiry that barely passes muster and would not be an effective avenue for the public to voice their concerns.

       “Even if we were to give the benefit of the doubt to the states, even if the ‘public inquiry’ is done in a proper manner, will the states be bound by the findings of the inquiry?

       “The legal answer is a resounding no. The states have the constitutional right to deal with forests as they deem fit and are not bound by the findings of any ‘public inquiry’, unless the states are voluntarily willing to curtail themselves to be bound by the outcome of the inquiry,” the group said.

       It proposed that the process, rules and regulations of said “public inquiry” be set out in the law.

       Furthermore, it pointed out that the proposed amendments do not “prevent” a state government from proceeding to excise a piece of land even if the results of the public inquiry were clear that the proposed excise is not welcome.

       As for the proposed amendment to Section 12 which stipulates that state authorities must replace a forest reserve that has been degazetted with a new area which is of the same size or larger, the group said:

       “The proposal to gazette another plot of land equal to or bigger in size to the degazetted forest is an exercise in futility.

       “The net effect is that we would have nonetheless lost another swathe of forest to logging,” it noted.

       The group said the proposal fails to take into account that any forest reserve area that is logged may have biodiversity that is unique to only that area.

       “The new proposed forest would not necessarily have the same quality of flora, fauna and biodiversity of the forest that has been subjected to destruction,” it added.

       However, senior lawyer Mohamed Haniff Khatri Abdulla said forests are one of the items under a list which sets out matters that the Parliament and state assemblies can make laws on.

       This, he said, is one of the reasons why the Federal Government can legislate this matter.

       “There may be appear to be an intertwining of jurisdiction which comes under the concurrent list. In any event, under Article 76 of the (Federal Constitution), Parliament can still make laws,” he said.

       Article 76 states that Parliament may make laws with respect to any matter enumerated in the list for purposes such as to promote uniformity of the laws of two or more states, and if requested by a state assembly.

       “If there is a contradiction between federal law and state law, federal law will prevail so long as the Federal Government has the power to legislate,” he said.