Damien Thaman Divean & Anor v Majlis Eksekutif Negeri Selangor & Ors

Appellant(s):

• Damien Thaman Divean
• Lim Teck Wyn

Respondent(s):

• Majlis Eksekutif Negeri Selangor Darul Ehsan (Exco)
• Pengarah Jabatan Perhutanan Negara Cawangan Negeri Selangor
• Pengarah Jabatan Tanah Dan Galian Selangor Petaling
• Kerajaan Negeri Selangor
• Ych Development Sdn. Bhd.
• Perbadanan Kemajuan Negeri Selangor (PKNS)
• Restu Mantap Sdn. Bhd.

Amicus Curie:

• Bar Malaysia
• World Wide Fund for Nature Malaysia

• YAA Datuk Seri Abu Bakar Bin Jais
• YA Dato Rhodzariah binti Bujang
• YA Dato' Lee Swee Seng

• The first respondent made a decision in 2000 to excise land from a permanent forest reserve, but this decision was only officially published in the Gazette in May 2022, approximately 22 years later.
• The 2022 Gazette notification attempted to backdate the effective date of the forest excision to November 2000, which the respondents argued exempted them from a 2011 statutory amendment requiring a mandatory public inquiry.
• The appellants, representing environmental organizations, sought leave for judicial review to challenge the excision, but the lower courts dismissed the application primarily on the grounds of a 20-year delay and lack of locus standi.

• Whether the three-month limitation period under Order 53 rule 3(6) of the Rules of Court 2012 commences from the date of an internal executive decision or from the date it is officially communicated to the public via a statutory Gazette.
• Whether an executive body can retrospectively degazette a forest reserve to bypass mandatory procedural requirements, such as a public inquiry, introduced by subsequent legislation.
• Whether a decision by the State Authority to excise forest land constitutes a "policy decision" that is immune from judicial review and the traditional tests of legality and irrationality.

• The Court held that where a statute mandates a Gazette notification, the limitation period for judicial review only begins to run from the date of publication, as the public cannot be expected to challenge a decision shrouded in secrecy.
• The Court ruled that "policy reasons" do not immunize executive actions from judicial scrutiny; all such decisions must comply with statutory requirements, transparency, and the fundamental right of access to justice.
• The appeal was allowed as the appellants demonstrated an arguable case that the retrospective gazetting was a "fait accompli" designed to circumvent statutory duties, meeting the low threshold required for the grant of leave.