Illegal Forest Acticvities In Malaysia Environmental Sciences Essay

Malaysia is a tropical country which consists of three regions: Peninsular Malaysia and the two Borneo states of Sabah and Sarawak. According to Forest Statistic Information for the Year 2009 from Official Website Forestry Department Peninsular Malaysia, the forested area in Peninsular Malaysia is 5.89 million hectares from overall Peninsular Malaysia Area which is 13.18 million hectares.

McMorrow & Talip (2001: 217, citing Wood 1990) have pointed out that, based on its performance up till the end of the 1980s; Malaysia is one of the 14 major countries with over 250,000 hectares deforested annually. They added that by the late 1980s half of the forest area in Peninsular Malaysia and a fifth in Borneo had gone. A variety of factors contribute to this state of affairs. When deforestation and forest degradation became critical issues, shifting cultivation was singled out by the governments, and particularly by the Sarawak government, as the main cause of forest loss. Yet, it has since been established that forest degradation due to shifting cultivators is ‘minor’ (Cramb 1989; Jomo et.al. 2004; Nicholas 2003). The major causes of the decline in forest area and quality include commercial logging, agricultural development, dams and resettlement.

To look deeply into the matter of the role of authority from land office and forest department to prevent illegal occupation in the forest, the author will give some definitions about forest, illegal forest activities which include illegal occupation of forestlands, illegal logging, etc. The laws such as National Land Code1965 and National Forestry Act 1984 that involve illegal occupation in forest have to be defined. Forest management or sustainable forest management also has to be defined to find out overview of forest law enforcement and system monitoring in Malaysia. Since the respondents of study are authorities from land office and forestry department, hence the functions, roles or responsibilities also need to be defined.

2.2 Definition

2.2.1 Forest

According to Oxford Advanced Learner’s Dictionary, forest is a large area of land that is thickly covered with trees. While in Cambridge Advance Learner’s Dictionary, forest is defined as a large area of land covered with trees and plants, usually larger than a wood, or the trees and plants themselves. Forest is a problematic and hybrid category. As defined in FRA2000, it is a combination of a land-cover class and a land-use class: it relates not only to the presence of trees of over 5m and 10% canopy cover, but also to the absence of other land uses such as agriculture. It includes ”areas normally forming part of the forest area which are temporarily unstocked but which are expected to revert to forest” (FAO Forestry Department, 1998, p. 3).

Further complications stem from changes in minimum size of area included (0.5 ha in FRA2000, compared with 100 ha in FRA1990). Rubber plantations were included as plantations in FRA2000 but not in FRA1990. And while a uniform definition was employed in FRA2000, it has not become a global standard: discussion continued thereafter (FAO, 2002), and a different one has been agreed for reporting on the Kyoto Protocol (UNFCCC, 2002). Even if a single definition is agreed, as in FRA2000, problems remain and indeed may become even more insidious because they are less obvious. At the country level, data are collected according to national definitions, and have to be adjusted to the international one Food and Agriculture Organization of the United Nations (FAO), Global Forest Resources Assessment 2010 showed that forests cover 31 percent of total land area.

The world’s total forest area is just over 4 billion hectares, which corresponds to an average of 0.6 ha per capita.

The five most forest-rich countries (the Russian Federation, Brazil, Canada, the United States of America and China) account for more than half of the total forest area. Ten countries or areas have no forest at all and an additional 54 have forest on less than 10 percent of their total land area.

Carol Yong (2006) revealed that the official definition of a forest used in Malaysia differs from the Food and Agriculture Organization (FAO) definition, which excludes areas under agricultural crops (e.g. oil palm). In Malaysia, however, the areas under oil palm, rubber and tree crops are frequently regarded as forest. The question of the definition of forests is particularly significant in the Malaysian context where the Malaysian forests are rapidly disappearing and, conversely, “forest” plantations areas are expanding.

Malaysian Timber Council (2008) draws our attention that in the year 2006, Malaysia has 32.95 million hectares of land area, of which 24.60 million hectares or 74.7 percent of total land area are classified as total area under tree cover. Of these, 18.5 million hectares are forested area and 6.25 million hectares are other tree cops. Of the total area under tree cover, 8.96 million hectares (36.42 per cent) are found in Sarawak, 11.23 million hectares (45.65 per cent) are found in Peninsular Malaysia and 4.41 million hectares (17.93 per cent) in Sabah. Sabah claims it has the least area under tree cover.

S. Mather (1990) in Zalinda Binti Muhammad (2003) and Norisah Binti Kasim (2006) stated that forest is one spectrum which has natural elements like product of the forest, flora and fauna, etc. Area of all the forest that has been identified at the middle of decade 1980 is more than 4000 million hectare or 31 percent of surface of the earth.

According to S.M. Mohd Idris who is the director of Sahabat Alam Malaysia (SAM) or Friends of the Earth Malaysia (1987) in Norisah Binti Kasim (2006), he stated that “… forests offer protective roles against environmental changes. The complex role played by forest in the heat and water balance of the earth is undeniable. At the local level, the forest cover breaks the impact of heavy rainstorms on the soil, reduces and slows down surface run off, and minimizes soil erosion as well as situation of the drainage systems. Flash floods and prolonged floods in many areas of the topical world are increasingly attributable to extensive clearance of forested areas.”

2.2.2 Unlawful Occupation

According to Oxford Advanced Learner’s Dictionary, the meaning of occupation is the act of living in or using a building, room, piece of land, etc. Meanwhile the meaning of unlawful is not allowed by the law or synonym with illegal. Therefore unlawful occupation can be defined as the act of living in or using a building, room, piece of land, etc which is against the law.

2.2.3 Illegal Forest Activities

“Illegal forest activities” is a broad term that includes illegal logging; it is used to refer to activities broader than just harvesting, which is, transport, processing and trade (Smith, 2002). Brack and Hayman (2001) also mention that illegalities may also occur “during transport, including illegal processing and export, misdeclaration to customs, and avoidance of taxes and other monies.”

Illegal forest activities include all illegal acts related to forest ecosystems, forest industries, and timber and non-timber forest products. They include acts related to the establishment of rights to the land and corrupt activities used to acquire forest concessions.

Illegal acts include unauthorized occupation of public and private forestlands, logging in protected or environmentally sensitive areas, harvesting protected species of trees, woodland arson, wildlife poaching, unlawful transport of wood and other forest products, smuggling, transfer pricing and other fraudulent accounting practices, unauthorized processing of forest products, violation of environmental regulations, and bribing government officials (Contreras-Hermosilla 2002a)

“There are many types of illegal forest practices like public servants may approve illegal contracts with private enterprise. Private commercial corporations may harvest trees of species that are protected by law from timber exploitation. Individuals and communities may enter public forest and illegally take products that are public property. Illegal activities do not stop at the forest. They travel down the line to operations in transportation, processing and trade of forest products. Individuals or corporations may smuggle forest products across international borders or process raw forest materials without a license. Corporations with strong international links may artificially inflate the price of imported inputs or deflate the volume and prices of their exports to reduce their tax liability and to facilitate the illegal transfer of capital abroad” (FAO 2001).

Contreras-Hermosilla presents examples of illegal activities in the forestry sector, grouped into six categories: illegal occupation of forestlands; illegal logging; arson; illegal timber trade and transport, and timber smuggling; transfer pricing and other illegal accounting practices; and illegal forest processing that shown in Table 1 below.

Illegal occupation of forestlands

•Invasion of public forested lands by either rural families,

communities or private corporations to convert them to agriculture

or cattle ranching

• Practice of slash-and-burn agriculture on invaded lands

•Landless peasants illegally occupying forested areas to force governments to grant land ownership rights to them and these governments buying lands from peasants.

Illegal logging

• Logging protected species

• Duplication of felling licenses

• Girdling or ring-barking, to kill trees so that they can be legally logged

• Contracting with local entrepreneurs to buy logs from protected areas

• Logging in protected areas

• Logging outside concession boundaries

• Logging in prohibited areas such as steep slopes, riverbanks and water catchments

• Removing under-/over-sized trees from public forests

• Extracting more timber than authorized

• Reporting high volume extracted in forest concessions

to mask the fact that part of the volume

declared is extracted from non-authorized boundaries

• Logging without authorization

• Obtaining logging concessions through bribes.

Woodlands arson

•Setting woodlands on fire to convert them to commercial uses.

Illegal timber transport, trade and timber smuggling

• Transporting logs without authorization

• Transporting illegally harvested timber

• Smuggling timber

• Exporting and importing tree species banned under international

law, such as CITES

• Exporting and importing timber in contravention of national bans.

Transfer pricing and other illegal accounting practices

• Declaring lower values and volumes exported

• Declaring purchase prices higher than the prevailing market prices as equipment or services from related companies

• Manipulating debt cash flows to transfer money to a subsidiary or parent company, such as inflating debt repayment to avoid taxes on profits

•Under-grading, under-valuing, under-measuring and misclassification of species exported or for the local market.

Illegal forest processing

• Operating without a processing license

• Ignoring environmental and social and labour laws and regulations

• Using illegally obtained wood in industrial processing.

Table 3: Examples of illegal practices in the forestry sector

The World Bank estimates that loss of revenue caused by illegal forest activities throughout the world is worth US$5 billion annually. Illegal forest activities occur in tropical, temperate and boreal forests.

Illegal forest activities abound in many countries, for example:

* In Indonesia, as much as 50 million cubic meters of timber are estimated to be illegally cut-down each year.

* At least one-fifth of Russia’s annual timber harvest is taken illegally, and illegal harvesting may account for as much as 50 percent of the total in East Asia.

* In Cambodia in 1997, the volume of illegally harvested logs was ten times that of the legal harvest.

* In Cameroon and Mozambique about half of the total annual timber harvest is illegal.

* In Brazil, an estimated 80 percent of timber extracted each year in the Amazon is removed illegally.

2.2.4 Illegal Logging

Illegal logging has no single definition. It is not a legal term derived from treaties, statutes, or court opinions. Neither is it a technical term that professionals use in a consistent way. In a general sense, “illegal logging takes place when timber is harvested, transported, bought or sold in violation of national laws” (Black and Hayman 2001). This broad definition includes almost any illegal act that may occur between the growing of the tree and the arrival of the forest-based product in the hands of the consumer”(Rosenbaum 2003)

There are usually no explicit definitions for illegal logging. In practice, the definition can be derived from the legal violations that are reported on in the national statistics concerning illegal logging. This does not necessarily mean that other types of violations would be ignored; they may simply be recorded under different headings. In broad terms, the various legal violations associated with illegal logging can be divided into eight groups: (i) theft, (ii) unauthorized harvesting, (iii) non-compliance with regulations related to timber harvesting, (iv) non-compliance with the procedure of timber sales/concession award, (v) manipulation of timber data, (vi) evasion of taxes and fees, (vii) non-compliance with regulations concerning transport or export of timber, and (vii) noncompliance with labor laws Typically, the statistics on illegal logging in the countries involved in the study refer to violations which involve physical removal of trees i.e. theft, unauthorized harvesting and noncompliance with cutting regulations.

Corruption in connection with timber harvesting is not recorded under illegal logging unless it involves physical removal of trees. All types of violations in the above list except theft could involve corruption. Based on interviews with various stakeholders in the countries involved in the study, noncompliance with labor laws is perceived to be only weakly linked to illegal logging. Sector-specific records are not maintained and forest administration is not involved in enforcement activities.

The illegal logging phenomenon is neither new nor uncontested by the government. It started in the years prior to the social economic reform; it reached the peak in 1997 and continues to date. From this point of view, the “illness” has not infected only one sector but has extended its roots into other sectors of the economy, and the “cure” for this “illness” requires the intersectoral cooperation of public administration, not denying here the interested community and the work of the economic and environmental NGOs.

2.3 Forest Management

Forest management is the branch of forestry concerned with the overall administrative, economic, legal, and social aspects and with the essentially scientific and technical aspects, especially silviculture, protection, and forest regulation. This includes management for aesthetics, fish, recreation, urban values, water, wilderness, wildlife, wood products, forest genetic resources and other forest resource values. Management can be based on conservation, economics, or a mixture of the two. Techniques include timber extraction, planting and replanting of various species, cutting roads and pathways through forests, and preventing fire.

Formal forest management in Malaysia was introduced in 1901 by the British colonial administration with the creation of a forest department. The department was involved in forestry botany, silvicultural practice, policy formulation and forest preservation. Forestry policies formulated by the British in the 1920s and 1930s were consolidated as the National Forestry Policy (NFP) in 1978 to ensure orderly implementation of forest management, conservation and development across all states. This is because land and forest in Malaysia are strictly state matters. The ad hoc forest management policy practiced by each state makes monitoring and control of forest resources at the federal level difficult. The National Forestry Act (NFA) of 1984 provides for orderly harvesting, renewal and conservation of trees at the sustainable yield level.

2.3.1 Significance of Forest Management

2.3.2 Sustainable Forest Management

Sustainable Forest Management (SFM) is the way of management in which growth exceeds timber harvest, now also encompasses economics, environmental and social qualities that contribute to the sustainability of forest dependent communities and ecosystems as well as the forest itself. Malaysia has a plan more environmentally-friendly and responsible business practices. This will help reduce operating costs in the long-run and is a wise investment in the future, safeguarding the natural resources depending on corporations and communities. For example, local corporations in forest industries are joining WWF’s Global Forest and Trade Network. They are targeting European and US markets, where consumers are increasingly demanding wood products from sustainably managed forests (WWF-Malaysia, 2008).

According to International Tropical Timber Organization (ITTO, 1992), sustainable forest management is the process of managing forests to achieve one or more clearly specified objectives of management with regard to the production of a continuous flow of desired forest products and services, without undue reduction of its inherent value and future productivity, and without undue undesirable effects on the physical and social environments.

FAO (1993) defines it as one which ensures that the values derived from forest meet present day needs while at the same time ensuring their continued availability and utilization to long-term development needs.

Sustainable Forest Management (SFM) is impossible to achieve if a country does not have a management system. In this regard, the use of more systematic approach in managing the forests in Peninsular Malaysia began in 1901 when the first forest officer was appointed (Ismail, 1996). Since then, forest management practices in Peninsular Malaysia had been subjected to constant review and refinement so as to ensure their suitability in achieving forest renewal and sustained yield.

Global Forest Resources Assessment 2010 report has provides a comprehensive overview of the results of FRA 2010 grouped according to seven themes, covering key aspects of sustainable forest management:

• Extent of forest resources

• Forest biological diversity

• Forest health and vitality

• Protective functions of forest resources

• Productive functions of forest resources

• Socio-economic functions of forests

• Legal, policy and institutional framework

2.4 Legal Framework

The forestry policies are implemented primarily through the provisions in the forest laws enacted for the three regions: National Forestry Act 1984 for Peninsular Malaysia, Forest Ordinance 1958 for Sarawak and Forest Enactment 1968 for Sabah, and the various amendments by the States. The other related regulations that affect forestry for Peninsular Malaysia include the Land Conservation Act 1960, Environmental Quality Act 1974, National Parks Act 1980, Protection of Wildlife Act 1972, National Land Code 1965, Aboriginal Peoples Act 1954, Occupational Safety and Health Act 1994 and Forest Rules 1985. For Sabah, the relevant regulations include Forest Rules 1969, Wildlife Conservation Enactment 1977, Land Ordinance 1930, Cultural Heritage (Conservation) 1997, Sabah Parks Enactment 1984, Biodiversity Enactment 2000, Conservation of Environment Enactment 1996, Water Resource Enactment 1998, and Environmental Quality Act 1974. Sarawak has the Natural Resources and Environment Ordinance 1997, Forest Rules 1962, Wildlife Protection Ordinance and Rules 1998, The Forests (Planted Forest) Rules 1997, Sarawak Biodiversity Centre Ordinance 1997, Sarawak Biodiversity (Access, Collection & Research Regulations) 1998, Land Code 1958, Natural Resource and Environmental Ordinance, Water Ordinance 1994, Occupational Safety and Health Act 1994, Land Ordinance 1952, Native Code 1992, Native Code Rules 1996, and Native Custom Declaration 1996.

2.4.1 The laws

2.4.1.1 Malaysian Constitution

Forests are under the responsibility of the states as enshrined in the Malaysian Federal Constitution. Under Article 74(12) of the Federal Constitution, land and forest ownership and management is the responsibility of the State governments. Each state has control over how they use and protect their forest resources then come up with their own policies. For example, Sarawak governs under the Sarawak Forest Ordinance of 1954 while Sabah operates under the Sabah Forest Enactment of 1968. The executive authority of the Federal Government only extends to the provision of advice and technical assistance to the States includes help with forest management, training of personnel, conduct of research and demonstration or experimental stations unless the State agrees to delegate some of their authority to the Federal Government. However, the Federal Government is responsible for trade policies, import and export controls and international cooperation among others.

Under the provision of Article 74 Clause (2) of the Malaysian Constitution, land and forest are defined as state matters and are thus within the jurisdiction of the respective State Governments. Clause (3) of Article 76 of the Malaysian Constitution ensures that all Acts related to land and forest shall not come into force in a State unless it has been adopted by a law made by the legislature of the State. As such each State is empowered to enact laws on forestry and to formulate forest policy independently. The executive authority of the Federal Government only extends to the provision of advice and technical assistance to the States, training and the conduct of research, and in the maintenance of experimental and demonstration stations.

2.4.1.2 National Forest Policy

Upon independence from the British in 1957, the Colonial Office returned the forests to Malaysia. In 1958, with provisions under the Federal Constitution, the National Land Council (NLC) was formed ‘for coordinating State and Federal policies and objectives covering land use, mining, forestry and agriculture to formulate from time to time in consultation with the Federal Government, the State Governments and the National Finance Council a national policy for the promotion and control of the utilisation of land throughout the Federation the development of natural resources was therefore perceived piecemeal, rather than holistically’ (Kathirithamby-Wells 2005: 267). The first step to protecting the forest resources in Malaysia was the formation of the National Forestry Council (NFC) in December 1971. The goal of the NFC was to create coordinated plans and effectively manage Malaysians forests. The NFC is made up of the Chief Ministers from all 13 states.

Later, this body created the groundwork for the formation of the National Forestry Policy (NFP). This policy was officially adopted by the Malaysian government in 1978. This policy recognizes the importance of forests for the welfare of both individual communities and that nation itself. Malaysia has dedicated itself to sustainable timber yield practices.

The National Forest Policy for Peninsular Malaysia of 1978 was revised in 1992 to incorporate several new elements, one of which is on the importance of forest law enforcement. In this revised policy statements, it was emphasized that the State Governments through their respective State Director Forestry must judicially implement the National Forest Act 1984 (Revised 1993) to ensure sustainable forest resource management and conservation.

2.4.1.3 National Forestry Act 1984

An Act to provide for the administration, management and conservation of forests and forestry development within the States of Malaysia and for connected purposes. There is the amendment to National Forestry Act 1984 in 1993 to provide for stiffer penalties for illegal logging and enlisting the Police and Armed Forces to assist the Forestry Departments in carrying out enforcement to curb illegal logging, timber theft and encroachments.

The key measure taken by the Government to prevent forest crime was by amending the National Forestry Act, 1984 to incorporate new provisions to deter the occurrence of forest offenses. The Act was enacted to update and harmonize forest law in the Peninsula. Prior to the Act, the various State governments depend on the State Forest Enactment’s, which were formulated in 1930’s, for legal guidelines on forest management and conservation. The Act also enables the effective implementation of the National Forestry Policy passed in 1978. It was amended in 1993 to further strengthen its provisions to curb illegal encroachment of forests and theft of timber. The Act has been adopted by all the states in Peninsular Malaysia.

The main objectives of amending the Act are as follows:

i) To increase the penalties and tighten the procedures in compounding forest offences

ii) To transfer burden of proof from the prosecutor to the defense in the court

iii) To delegate power in writing by State Director of Forestry under section 88, 89, 90, 92 or 93 to any member of the armed forces not below the rank of Lance Corporal as empowered to the police but shall not include the power of investigation

iv) To add new sections 100A and 100B for rewards and protection of informers respectively, section 101A for power of court to order revocation and disqualification, section 110A for offenses committed by licensee or holder of permit, and New Sixth Schedule for list of machines, equipment and conveyance”.

v) To make general amendments in the national language text, change of name in the national language text and substitute sections 5, 69, 101 and 104

2.4.1.4 National Land Code

According to section 425 unlawful occupation, etc., of state Land, reserved land or mining land National Land Code (Act 56 of 1965) and regulations,

Section 425(1) stated that any person who, without lawful authority –

Occupies, or erects any building on, any State land, reserved land or mining land or

Clears, ploughs, digs, encloses or cultivates any such land or part thereof; or

Cuts or removes any timber or produce on or from such land,

shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand Ringgit, or imprisonment for a term not exceeding one year.

(1A) Any person who abets the commission of an offence under sub-section (1) shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand ringgit, or imprisonment for a term not exceeding one year, or to both.

(2) For the purpose of this section, State Land shall include all land held by or on behalf of Federal or State Government a local authority or a statutory authority exercising power vested in it by Federal or State law.

Section 426 also stated that unlawful extraction or removal of rock material also show that any person who without lawful authority, extracts removes, or, transports or permits the extraction, removal or transportation of rock material from any land shall be guilty of an offence, and liable on conviction to a fine not exceeding fifty thousand ringgit, or imprisonment for a term not exceeding five years, or to both.

Section 426A show that any police officer not below the rank of Inspector, Registrar, Land Administrator, Settlement Officer or other officer duly authorized by the State Authority (hereafter in this part referred to as “authorized officer” may without warrant-

Arrest any person found committing or attempting to commit or abetting the commission of an offence under section 425 or 426

Seize any vehicle, tractor, agricultural implement or other thing whatsoever which he has reason to believe was used or is being used in the commission of an offence under that section

Demolish, destroy or remove any building, or take possession in the name of the State Authority of any crop, erected or cultivated on any land land in contravention thereof.

2.4.1.5 List of unlawful activities under each Law

Violations of the protective provisions (damage of forest reserve through fire, prohibited acts in a forest reserve, illegal logging and removal from other areas, cutting of undersized trees) are punished by fine and imprisonment in the case of unauthorized entry for interference with fences or notice boards, by a fine alone [id. Section 20(1)(C) and 33(1)]. Various offences of fraud, concealment of evidence and receiving forest produce are also punished by fine and imprisonment (Section 30).

In addition to fines and imprisonment, the Forest Enactment authorizes the court to order the cancellation of licences, the payment of any fees that would have been payable in the case of unlicensed acts that could have been licensed, and compensation of ten times the value of forest produce removed or damaged (Enactment No. 2 of 1968, Section 34). There is also provision for compounding of certain offences [entering closed area, practising shifting cultivation (Section 20(C)], subject to the payment of an amount based on the fine provided for the offence (Section 35).

The Forest Enactment contains a number of presumptions that shift the burden of proof to the defendant charged with a forest offence. In prosecutions against licensees, if there is an extraction route from an area of alleged illegal removal to the licensed area, or if the volume of timber claimed to be covered by a licence exceeds the production of the licensed area, the elements of illegal removal or of possession of produce in respect of which an offence has been committed are presumed. In any case in which the existence of a licence, payment of any royalty, ownership of livestock or forest produce, or the provenance of forest produce is in issue, the burden of proof lies on the accused (id. Section 38) .

2.4.2 The Agencies Involved

2.4.2.1 Forestry Department Peninsular Malaysia

Forestry Department Peninsular Malaysia (JPSM) is one of the departments under the Ministry of Natural Resources and Environment, Malaysia and consists of Peninsular Malaysia Forestry Headquarters, 11 State Forestry Department and 33 District Forest Office in all of the Peninsular Malaysia. The department is headed by Director General of Forestry and assisted by two Deputy Director of Forestry. At the end of 2009, the number of employees is about 5.432 people.

Forestry Department is responsible for the management, planning, protection and development of the Permanent Forest Reserve (HSK) in accordance with the National Forestry Policy (NDP) 1992 and National Forestry Act (APN) 1984.

Peninsular Malaysia Forestry Headquarters responsible for the formulation of forestry policies, providing advice and technical services to State Forestry Department in the planning, management and development of forests, forest harvesting and wood-based industries, forest operations research, and training and human resource development. At the Head Office of Forestry, there ar

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