by Radzuan Halim

The Sun, June 24 2005

KUALA LUMPUR residents were justifiably shocked to discover that the Federal Territory Ministry had decided that 39ha of Bukit Gasing would be made available for development.

This forms slightly more than 40% of the Kuala Lumpur Territory side of Bukit Gasing, which is one of Kuala Lumpur Territory’s few remaining green lung. Why the shock?
The ink from the profusion of complaints over the Bukit Cerakah debacle is hardly dry, the prosecution process over it is still underway and now we have this disappointing decision.

At the outset let me declare my interest. I live on the edge of the Bukit Gasing green lung on the Petaling Jaya side. But believe me, this rare urban reserve is enjoyed not only by its close residents but by numerous regulars from all over the Klang Valley, some coming as far as 30km.

Everyday and on particular weekends you can expect walkers, joggers, students and hashers to make their way into Bukit Gasing. Make no mistake, we have a valuable heritage here which is in danger of being irretrievably lost.

The Kuala Lumpur and Petaling Jaya parts of Bukit Gasing are a contiguous, integrated piece of green reserve. Its total size is not large by any means. By taking such a large chunk on the Kuala Lumpur side the remainder’s ecosystem, flora and fauna, its water retention capability, its green canopy will be severely damaged.

As it is the wild animals there are already having a hard time with the space available.
A neighbour remarked that the monkeys of Bukit Gasing do not know which part of their abode is Kuala Lumpur and which is Petaling Jaya territory. What they will discover is that there will be much less ground.

When one considers how carefully and jealously park territories are preserved, protected and enhanced in other countries, one must really feel sorry for the Malaysians.

We do not seem to appreciate what we have. Bukit Gasing had been able to survive under four prime ministers, from Tunku Abdul Rahman up to Tun Dr Mahathir Mohamad. It is sad to lose so much of Bukit Gasing during Pak Lah’s watch.
The public had been much impressed by the importance and sense of urgency which the prime minister had displayed when the abuse of Bukit Cerakah’s surrounding areas was highlighted.

The celebrated helicopter ride which the prime minister took in order to see the damage for himself made a favourable impact on the Malaysian public. (Strangely enough some public officials on the same trip could not find any worrying damage done). I would urge the prime minister to take another helicopter ride to survey Bukit Gasing and its surroundings. To enable him to see for himself the integrated nature of this Kuala Lumpur/Petaling Jaya reserve and the benefit which this green lung provides to our already overbuilt, overdeveloped valley.

This proposed Bukit Gasing helicopter trip, however, will be somewhat different from the earlier Bukit Cerakah one. First, in the Bukit Gasing case, the damage to the property had still not been committed, so it would still be possible to avoid any damage.
Second, the Kuala Lumpur side of Bukit Gasing, being part of Federal Territory, comes directly under the federal government’s purview and responsibility.

Third, any decision to allow the destruction of Bukit Gasing by the federal authorities would send a highly unwholesome, yet most welcome signal to the state authorities.
Not only would the Selangor state government start considering the Petaling Jaya side of Bukit Gasing as fair game, in the other states too the knives would be out to carve out similar previously untouched urban greenery. After all, as the saying goes, it is leadership by example. Thus far in the history of federal-state relations, in respect of land use, logging and the environment, the federal government had shown far more concern for the environment, in particular overlogging and protection of water catchment areas.

Now we have a reversal.

There is something very odd, something very wrong, when a major land use decision can be made willy nilly - without any proper technical study undertaken or published, without public inquiry and without any real debate. A land use decision like this would affect thousands of people, large territories around it and with serious environmental implications.

In developed countries, a decision such as this would take up to 10 years or more before final approval could be granted. After all, we are a democratic country subject to the rule of law. In making this decision to allow development of Bukit Gasing the public is told that the remaining area will be “gazetted” as a green lung. It is as if those disagreeing with the decision are being rewarded with the gazetting. But what is the concession to the environment?

The reality is that we used to have 97.3ha of green reserve (KL side) and we will now be left with only 58.3ha. The public had over the decades assumed that all the 97.3ha would remain a green lung reserve. Just look at the maps of the area, all showing green.
What is the benefit from such gazetting. After all gazetted land can be degazetted. The point to be made is that, irrespective of whatever gazetting, the public has a “legitimate expectation”, given its long uninterrupted usage of Bukit Gasing as a green lung, that its rights to continue enjoying it would not be taken away just like that.

“Legitimate expectation”, as developed by the common law, is a right enjoyed by all Malaysians. The principle of “legitimate expectation” is explained as follows ” … even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review as a matter of public law.”

Given Bukit Gasing’s long uninterrupted status as a green lung and the application of the “legitimate expectation” principle there are strong legal grounds for a judicial review of the matter.

However, let us hope that the matter does not have to be resolved in the courts. We are a practising democracy. Let the proper technical studies be carried out and revealed, let the rules and regulations be complied with, let us conduct the public inquiries as provided for.

Let not the lessons of Bukit Cerakah be so easily forgotten and let us take the helicopter for a spin.

Radzuan Halim is a former merchant banker who teaches MBA and law students.

From the Press, gasing meridien, Green Development, In The News, JACBG, save bukit gasing, Section 5 The Forest Community