JOURNAL OF LAND USE [Vol. 24:2            Spring, 2009] BIODIVERSITY LAW 237




Malaysia is one of twelve “megadiversity” countries that collectively

contain nearly sixty percent of the world’s species,168 though

much of the nation’s biodiversity remains unknown. The country is

divided into two parts: Peninsular Malaysia, which occupies the

Malay Peninsula down to the city-state of Singapore; and East Ma-

168. See M.T. Abdullah, Andrew Alek Tuen & Faisal Ali Anwarali Khan, Universiti

Malaysia Sarawak Contributions Towards Biodiversity and Protected Area Management, in



laysia, which consists of the states of Sabah and Sarawak on the

northern side of the island of Borneo.169 The nation gained its independence

from Great Britain in 1957, and for two years, until it

became an independent city-state, it included Singapore at the

southern tip of the Malaysian peninsula. About twenty-three million

people live in Malaysia, and approximately a third of those

people reside in or near the capital city of Kuala Lampur in the

middle of the Malaysian peninsula.170

Nearly twenty million acres of forests cover sixty percent of

Malaysia’s land.171 Malaysia’s mangrove forests support a broad

variety of flora and fauna. There are 1.54 million hectacres of peat

swamp forests, most of which are in Sarawak, that comprise seventy-

five percent of Malaysia’s wetlands and host such rare species

as the orangutan, probiscus monkey, and Sumatran rhinoceros.

172 But this biodiversity faces several serious threats. Malaysia

quickly evolved from a nation with no manufacturing industry at

the time of its independence in 1957, to a leading provider of petroleum,

palm oil, forest products, and rubber by the beginning of the

twenty-first century.173 Unsustainable timber extraction, along

with the conversion of forests and other lands to agricultural and

industrial uses, are probably the greatest threats. Hunting, forest

fires as a land use tool, expanded tourism, marine pollution, destructive

fishing techniques, and the lowering of groundwater

tables affect biodiversity as well. Attitudes toward biodiversity are

changing in light of these threats. Malaysia’s mangrove forests

were considered “a wasteland” as recently as the 1980s; now they

are regarded as ecologically valuable.174 The famed naturalist Alfred

Russell Wallace shot seventeen orangutans in Sarawak in

1855; now the primates are the subject of determined protection.175



170. KEONG, supra 169 note, at 1.




AND SUSTAINABLE USE 9-10 (2006); see also Alexander K. Sayok et al., Management of Peat

Swamp Forest: Case Study of Loagan Bunut National Park, Sarawak, Malaysia, in



studies of other species appear in PROCEEDINGS OF THE EIGHTH HORNBILLWORKSHOP



173. See KEONG, supra note 169, at 1.

174. Paul Chai P.K., Management of the Mangrove Forests of Sarawak, in SEVENTH

HORNBILLWORKSHOP, supra note 172, at 89.

175. See Paul Sing Tyan, History of Orangutan Research in Sarawak, in EIGHTH

HORNBILLWORKSHOP, supra note 172, at 170-74.

Malaysia’s goal is to become a world leader in conservation, research,

and sustainable utilization of tropical biodiversity by

2020.176 Toward that end, the country has enacted a spectrum of

legislation aimed at protecting biodiversity, a trend that began

when the country was still under British rule. The first administration

to govern Malaysian environmental law was the British enacted

Federal Land Development Agency, which was replaced by

the National Land Council when Malaysia became independent.

Both agencies were initially concerned more with administration,

rural development, and poverty alleviation than ecological conservation,

but Malaysia’s biodiversity and conservation laws have

evolved from them.177 The National Forestry Policy and the National

Wildlife Act were passed in 1972.178 The National Wildlife

Act allows states to designate forests protected by the National

Forest Policy as either wildlife reserves or wildlife sanctuaries.179

Reserves offer more general environmental protection, while

sanctuaries target biodiversity more specifically by defending individual

species in addition to offering the general protections.180 In

1980, the National Parks Act amended the National Wildlife Act to

establish national parks for the protection of wildlife and areas of

historical and cultural importance.181 The Act has never been applied

in West Malaysia, which has only one national park that was

established by the British in 1939.182 Adding to this wildlife protection,

Malaysia passed the Wildlife Protection Ordinance in 1958,

which banned the commercial sale of wildlife and wildlife products.

183 The law contains exceptions that allow aboriginals and rural

communities to continue to rely on wildlife meat for their own

sustenance. The law also fails to regulate the destruction of the

habitat of endangered species.184

The National Forestry Policy regulates “replanting, enrichment

planting, extraction methods, and proper planning schedules for

concessions.”185 It also outlines plans for local communities to “obtain

control of exploitation rights, and to restrict trade in non-



177. See Robert M. Hardaway, Karen D. Dacres & Judy Swearingen, Tropical Forest

Conservation Legislation and Policy: A Global Perspective, 15 WHITTIER L. REV. 919,

935 (1994).

178. Id.

179. Id.

180. See id.

181. See National Parks Act, 1980 (Malay.).

182. See Hardaway, Dacres & Swearingen, supra note 177, at 937.

183. See MALAYSIAN NATIONAL POLICY, supra note 176, at 15.

184. See id. at 14 (“[S]pecies endangered due to habitat destruction are not protected

by way of a national law for endangered species.”).

185. Hardaway, Dacres & Swearingen, supra note 177, at 935-36.

timber forest produce.”186 At the same time, the policy tries to regulate

land use and its environmental impact by balancing the

rights of aboriginal forest dwellers on the one hand and the need

for stronger protection on the other. Stronger protection has come

in the form of regulating urban expansion policy, establishing national

parks, and greater conservation of water courses.187 But

many of the states oppose what they perceive as an encroachment

on their territory, and as of 1994, Sarawak refused to be a signatory

to the policy.188

The National Forestry Act was passed in 1984 to bolster the

Forestry Policy, setting aside funds for the Forest Development

Fund and classifying forests into major categories: production, protection,

recreation, wildlife, research, and federal.189 One of the

problems with this system has been that Malaysia assumes unclassified

forests to be in the “production” category, and thus open

for timber exploitation.190 Because the logging and timber industry

is very profitable, the government has little incentive to re-classify

production forests as protection forests when new endangered species

or environmental threats appear.191 At present, the law provides

an excellent framework for ecological conservation, but because

of the profit of the timber industry, the classification system

lacks the power to effectively adapt to the forests’ changing

environmental needs.

Malaysia has also enacted several other laws and policies targeted

toward protecting biodiversity. The Environmental Quality

Act of 1974 provides an extensive framework for Malaysia’s environmental

law.192 Other laws and policies include the Fisheries Act

of 1985, a National Policy on Biological Diversity, and the Sarawak

Biodiversity Ordinance of 1997.193 The biodiversity policies outline

goals for preserving various ecosystems, providing funding and research,

and tying Malaysia’s biodiversity to its unique culture and

heritage.194 The 1998 National Policy on Biological Diversity listed

twenty-six federal and state laws that are relevant to the protection

of Malaysia’s biodiversity.195 Yet that same policy lamented

the lack of “single comprehensive legislation in Malaysia which

186. Id. at 936.

187. Id.

188. Id.

189. Id. at 937.

190. Id.

191. Id.

192. Azmi Sharom, Ten Years After Rio: Implementing Sustainable Development, 6

SING. J. INT’L&COMP. L. 855, 863 (2002).

193. Id. at 875.

194. MALAYSIAN NATIONAL POLICY, supra note 176, at 3.

195. Id. at 15.

relates to biological diversity conservation and management as

a whole.”196

Malaysia’s unique federal system affects biodiversity protection

too. The two states of Malaysian Borneo, Sabah and Sarawak, enjoy

significant autonomy, including autonomy over natural resources.

The Sarawak Biodiversity Regulations promulgated in

2004 focus on biodiversity in protected areas.197 One regulation, for

example, makes it illegal to “enter and collect or take away any

biological resources from a State land forest, forest reserve, protected

forest, national park, nature reserve, or Wild Life Sanctuary

without a permit issued” to facilitate research.198 Sarawak relies

upon the Sarawak Forestry Corporation, created by the state legislature

in 1995, to manage and conserve its forests. The idea of a

separate corporation arose

when the International Tropical Timber Organisation

(ITTO) mission to Sarawak identified a number of weaknesses

that must be identified if the State is to sustainably

manage its forests. The ITTO recommended a new model,

independent of the civil service be given this task, as the

Department of Forests has many constraints and limits to

effectively achieve sustainable forest management.199

The corporation is also responsible for managing Sarawak’s eighteen

national parks, four wildlife sanctuaries, and five nature reserves,

totaling over 500,000 hectacres.200

One of those parks, Bako National Park was established in

1957 and is located just west of Sarawak’s capital city of Kuching.

Bako is small but “probably the best place in Sarawak for wildlife

experience.”201 The park contains seven different ecosystems, ranging

from mangrove forests, to grasslands, to a peat swamp forest.

It also contains a number of remarkable species of animals and

plants, such as the Borneo bearded pig, and six types carnivorous

pitcher plants. Bako is most famous for its population of 150 probiscus

monkeys, extremely odd-looking creatures that live only on

196. Id. at 14.

197. See Sarawak Biodiversity Center Ordinance, 1997, LVIX SARAWAK GOV’T GAZ. 97

(2004), available at

198. Id. at 103.

199. Sarawak Forestry Corp., About Us: FAQ,

aboutus-faq.asp (last visited June 13, 2009).

200. Sarawak Forestry Corp., National Park,

snp.asp (last visited June 13, 2009).

201. See Bako National Park,

(last visited June 13, 2009) (“The park has been a protected area since 1957, so the animals

are less wary of humans.”).

Borneo.202 A guide to the park boasts that “[t]otal and effective protection

of these attractive animals in the park means that they no

longer feel threatened by people and are readily visible along trails

near the Park Headquarters.”203 Bako was Malaysia’s first “totally

protected area,” which means that conservation is the primary

management objective, while secondary objectives include

recreation, research, education, and monitoring of visitor activities.

204 Yet park officials cite inadequate information, insufficiently

trained personnel, dying mangrove stands, a lack of research funding,

and even the possibility of poaching as threats to the management

of the unknown number of probiscus monkeys living in

Bako.205 More ominously, in other parts of Sarawak, probiscus

monkeys are vulnerable to habitat loss and illegal hunting; the

state created a buffer zone of other protected areas to protect the

monkeys in Bako since the park is too small to sustain a viable

population.206 Altogether, Malaysia has protected almost thirty-one

percent of its land as national parks, nature reserves, or wilderness

areas, far more than the world average of roughly eleven percent.207


BAKO NATIONAL PARK: SARAWAK, MALAYSIAN BORNEO 1 (2006) (“An encounter with longnosed

Prosbiscus monkeys in their natural habitat is for many people the highlight of their

trip to Sarawak.”); id. at 31-32 (describing the monkey as “one of the world’s most wonderful

primates” and “one of the most unusual animals in the world”); Bako National Park, supra

note 201 (”A jungle encounter with a group of probiscus is likely to be the highlight of your

trip to Bako.”); see also Simon Elegant, Sarawak: A Kingdom in the Jungle, N.Y. TIMES,

July 13, 1986, at p. 19. (reporting that “some of nature’s most unusual and flamboyant creations”

flourish in Bako).

203. HAZEBROEK & MORSHIDI, supra note 202, at 5. My visit to Bako confirmed this

claim: I saw dozens of prosbiscus monkeys, silvered-leaf monkeys, long-tailed macaques, a

cluster of Nepenthes rafflesiana pitcher plants, a venomous Wagler’s pit viper, and a green

vine snake during two days in March 2008.

204. See Desmond Dick Cotter, Wetlands Management in Sarawak, in SEVENTH

HORNBILL WORKSHOP, supra note 172, at 73 (noting that Bako’s status as the first Totally

Protected Area); Jin anak Iman Nelson, Protection of Totally Protected Areas in Sarawak, in

SEVENTH HORNBILL WORKSHOP, supra note 172, at 230; see also Charles Leh M.U., Biodiversity

of Mangrove Forests, in SEVENTH HORNBILL WORKSHOP, supra note 172, at 168 (citing

Bako as the best example in Sarawak of efforts to develop mangrove forests as a tourist

attraction); A. Manap Ahmad, The Bako National Park Customer Service Excellence Initiative,

in SEVENTH HORNBILL WORKSHOP, supra note 172, at 308; Cynthia L.M. Chin, Susan

A. Moore & Tabatha J. Wallington, Ecotourism in Bako National Park, Borneo: Visitors’

Perspectives on Environmental Impacts and Their Management, 8 J. SUSTAINABLE TOURISM

20, 22 (2000) (citing L. GOOD, BAKO NATIONAL PARK: AMANAGEMENT PLAN (1988)) (indicating

that seventy-nine percent of the visitors to the park support more conservation education

and sixty percent would limit the number of visitors).

205. See Mohammad Kasyfullah bin Zaini & Siali anak Aban, Study on Proboscis Monkeys

at Bako National Park (Past, Present and Future) and Its Implications for Park Management,

in SEVENTH HORNBILL WORKSHOP, supra note 172, at 225. The estimates of the

proboscis monkey population in Bako range from 106 to 275. See id. at 223.

206. See HAZEBROEK&MORSHIDI, supra note 202, at 36-37.

207. See World Resources Institute,

country-profile-114.html (last visited June 13, 2009).

Commercial exploitation is a key component of Malaysia’s approach

to biodiversity. According to one commentator, “[t]he genetic

material contained in Malaysia’s abundant tropical plant species

is a potential source of commercially valuable pharmaceutical

products, and the richness of Malaysia’s forest and marine environments

offers some of the finest nature-based tourism opportunities

in the world.”208 Malaysia’s National Policy on Biological Diversity

adds that “[w]ith the right strategy, Malaysia could capture

a large slice” of the lucrative floriculture industry, thanks to the

“great potential for promoting indigenous flowers from our forests.”

209 Ecotourism also features prominently in Malaysia’s efforts

to conserve its biodiversity.210

The enforcement of laws governing biodiversity remains a challenge.

On the positive side, the designation of forest reserves has

halted commercial logging in many protected areas.211 The Deramakot

Forest Reserve in Sabah has been especially successful,

thanks to fifty-four field personnel responsible for implementing a

management plan that combines sustainability and multiple-use

principles.212 A 2007 study of that reserve credited the forest’s

management for yielding denser population of endangered large

animals, such as Asian elephants, while also emphasizing the importance

of “political commitment from state leaders.”213 But enforcement

lags in other contexts. The National Policy on Biological

Diversity admitted that “most development plans relegate the notion

of conservation to a low priority status.”214 Budgets for government

enforcement of the laws are limited.215 Marine parks suffer

water pollution from unregulated activities that occur on the

208. Peter W. Kennedy, Managing Biodiversity: Policy Issues and Challenges 1 (Oct.

1999) (unpublished manuscript), available at


209. MALAYSIAN NATIONAL POLICY, supra note 176, at 5.

210. See Victor Luna Amin, Park Guiding: The Way Forward, in SEVENTH HORNBILL

WORKSHOP, supra note 172, at 254-65 (describing how park guides can interpret biodiversity

for visitors); Oswald Braken Tisen, Conservation and Tourism: A Case Study of Longhouses

Communities In and Adjacent to Batang Ai National Park, Sarawak, Malaysia, in

SEVENTH HORNBILLWORKSHOP, supra note 172, at 296-307.

211. See U.N. DEV. PROGRAMME, supra note 172, at 22 (“No commercial logging has taken

place within the Klias peat swamp boundaries since its designation as a forest reserve.”).

212. See Peter Lagan, Sam Mannan & Hisashi Matsubayashi, Sustainable Use of Tropical

Forests by Reduced-impact Logging in Deramakot Forest Reserve, Sabah, Malaysia, 22

ECOLOGICAL RES. 414, 415 (2007).

213. Id. at 420.

214. MALAYSIAN NATIONAL POLICY, supra note 176, at 10.

215. See Melvin Gumal, Keynote Address, TPA Management and Communities: Conserving

Totally Protected Areas With Rural Communities Living in and Around Those Areas,

in EIGHTH HORNBILL WORKSHOP, supra note 172, at 229 (noting that the number of Totally

Protected Areas grew by ninety-two percent between 1992 and 2000, but the management

budget increased by only fifty-nine percent); Wildred S. Landong & Oswald Braken Tisen,

Keynote Address, Biodiversity Conservation—The Way Forward, in EIGHTH HORNBILL

WORKSHOP, supra note 172, at 329 (citing funding constraints).

adjacent shore.216 TRAFFIC complains that Malaysia’s forest departments

lack the legal authority and the training to combat the

illegal timber trade.217 Sarawak Forestry itself admits that it is

incapable of arresting the “element of organized crime whereby

local gangsters are employed to extract timber illegally from Park

areas.”218 A 2006 report prepared by the Department of Wildlife

and National Parks in Peninsular Malaysia identified “[a] worrying

trend” involving the discovery of “vast quantities” of clouded

monitors, “presumably for smuggling activities.”219 The same report

noted that the number of wildlife cases prosecuted in court (as

opposed to administratively) jumped from twenty-five to sixty in

one year, though “there were no high penalties imposed on any of

the offenders brought to the court.”220 Possession of 2,390 clouded

monitors resulted in a fine of $429, while possession of six birds of

paradise earned six months in prison.221

Malaysia struggles with the relationship between biodiversity

and the needs of indigenous communities. Its National Policy on

Biological Diversity proclaims that “[t]he role of local communities

in the conservation, management and utilisation of biological diversity

must be recognized and their rightful share of benefits

should be ensured.”222 Nonetheless, one scholar has argued that

government officials, both during colonial times and since independence,

view local uses of natural resources as “unacceptable

and in need of state intervention, while extra-local uses and

abuses of natural resources have been protected.”223 For example,

while local uses of the forest are strictly regulated, forestry department

officials “plan to introduce rabbits into the [Similiu] forest

reserve so that the forest officers [can] hunt while on retreat.”

224 Even when the law protects them, indigenous communities

and local biodiversity are harmed by unregulated develop-

216. See Sharom, supra note 192, at 876.




18 (2002).

218. Nelson, supra note 204, at 236.


REPORT 55 (2006) [hereinafter 2006 ANNUAL REPORT].

220. Id. at 57.

221. Id. at 174-75.

222. MALAYSIAN NATIONAL POLICY, supra note 176, at 2.

223. Amity A. Doolittle, Powerful Persuasions: The Language of Property and Politics

in Sabah, Malaysia (North Borneo), 1881-1996, 38 MODERN ASIAN STUDIES 821, 844 (2004);

accord EDA GREEN, BORNEO: THE LAND OF RIVER AND PALM 43 (1909) (“Fruit, bamboo and

other trees belong to individuals, but there are frequent disputes about fruit-tree rights, and

fallen fruit is common property. It has been said that the Dyaks are so honest that they

never think of gathering the fruit of a tree belonging to some one else.”).

224. Doolittle, supra note 223, at 840.

ment. The law governing Loagan Bunut National Park in central

Sarawak gives designated indigenous groups the right to fish,

hunt, or gather only within the park.225 But the combination of the

pressure on the land caused by the increasing population in surrounding

villages, and an absence of enforcement has “resulted in

expansion of farming in the park and encroachment into additional

high forest areas.”226 Perhaps it is not surprising that one-third of

the residents near one important biodiversity area in Sarawak

were not willing to surrender their customary land rights in exchange

for conservation measures.227 Malaysia is aware of the

problem, and it is taking numerous actions to involve indigenous

communities in biodiversity conservation. In Sarawak, for example,

the government has appointed 4,500 community leaders as

Honorary Wild Life Rangers “to act as ‘ears and eyes’ of the government”

and “to report illegal activities to the wildlife authorities

or police.”228              

The EIA process also complicates matters. Allowing states to

have such a significant influence on forestry law is problematic,

since focus has been “on administration [rather] than conservation.”

229 There are frequent conflicts over whether the process is

within the jurisdiction of the Malaysian national government or

state governments.230 Furthermore, when the EIA falls under state

control, there are wide disparities among the standards used. In

fact, several sites have already fallen victim to poor state EIA

planning, and now the federal government has been left to clean

up the environmental fallout.231 On a brighter note, however, the

federal government is attempting to remedy these issues by

amending the 1960 Land Conservation Act and the 1965 National

Land Code and by making states more accountable for

their mismanagement.232

Malaysia is actively involved in international ecological efforts.

Malaysia is a party to the Convention on Biological Diversity,

CITES, the Association of Southeast Asian Nations, the International

Timber Organization, and a signatory to the International

Timber Agreement of 1994 and the Ramsar Wetlands Conven-

225. See U.N. DEV. PROGRAMME, supra note 172, at 19-20; see also Sayok, supra note

172, at 95-99 (discussing the management of Logan Bunut National Park).

226. Id. at 20.

227. See Reuben Clements et al., Limestone Karsts of Southeast Asia: Imperiled Arks of

Biodiversity, 56 BIOSCIENCE 733, 739 (2006).

228. Engkamat Lading, Local Community Participation in the Management of Lanjak

Entimau Wildlife Sanctuary, in EIGHTH HORNBILLWORKSHOP, supra note 172, at 270.

229. See Hardaway, Dacres & Swearingen, supra note 177, at 935.

230. See id.

231. See Sharom, supra note 192, at 886-87.

232. MALAYSIAN NATIONAL POLICY, supra note 176, at 15.

tion.233 Additionally, Malaysia relies upon partnerships with foreign

governments and non-governmental organizations (NGOs)

around the world. The United Nations Development Programme

and the Danish government, for example, jointly donated more

than $8.3 million to efforts designed to improve management of

Malaysia’s peat swamp forests.234 At the same time, Malaysia has

opposed the expansion of some international environmental protections,

such as the listing of certain timber species under

CITES.235 More generally, some Malaysian officials resist pressure

from developed countries to further protect the country’s forests. A

former prime minister once remarked that

while the developed countries had destroyed their forests, it

was ‘not fair for them to ask us to earn less from our forests.

Malaysians and local non-governmental organizations

should not get carried away with the so-called environmental

consciousness of the foreigners until we are forced to sacrifice

our forests’ economic importance for their comfort.’236

On a more local level, Borneo has established so-called “peace

parks,” most of which are contiguous to other protected areas.237

Among them are “[t]he Lanjak-Entimau Wildlife Sanctuary in Sarawak[,

which] is contiguous to Batang Ai National Park[,] and the

Gunung Bentuang and Karimun reserves in Kalimantan.”238 Unfortunately,

despite this extra layer of protection, the forests are

still threatened by deforestation and subsequent loss of biodiversity.

233. Malaysia Biodiversity Profiles,

(last visited June 13, 2009).

234. See U.N. DEV. PROGRAMME, supra note 172, at 16.

235. See KEONG&PERUMAL, supra note 217, at 12.

236. KEONG, supra note 169, at 4 (quoting Yang Amat Berbahagia Tun Dr Mahathir

Mohamad’s remarks at the launching of the Science, Technology and Environment

Ministry’s Silver Jubilee celebrations at Putra World Trade Center).

237. John Charles Kunich, Fiddling Around While the Hotspots Burn Out, 14 GEO.

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