Proposed Transboundary Haze Act should have extraterritorial application: Expert

21 Sep 2019 / 22:03 H.

KUALA LUMPUR: An environmental law expert has proposed for the government to study the United States’ extraterritorial legislation known as Foreign Corrupt Practices Act (FCPA) 1977, in drafting the proposed Transboundary Haze Act.

Dr Hanim Kamaruddin of Universiti Kebangsaan Malaysia said the FCPA was the first to introduce corporate liability, responsibility for third parties and extraterritoriality for corruption offences, meaning that any US-based companies and persons can be held criminally and civilly responsible for corruption offences committed abroad.

“Hence, the proposed Transboundary Haze Act should also have provisions with a similar concept in order to tackle transboundary haze pollution crime.

“This is to enable the Attorney-General’s Chambers to take legal action against any Malaysian companies if they or their subsidiaries abroad were found to be involved in causing transboundary haze pollution,” she told Bernama.

She said the extraterritorial legislation would be easier as the subsidiaries have a direct connection with their holding companies in Malaysia.

On Sept 19, Minister of Energy, Science, Technology, Environment and Climate Change Yeo Bee Yin was reported as saying that the ministry is awaiting green light from the Cabinet to draft the Transboundary Haze Act.

She said the Act was to enable action to be taken against Malaysian companies that caused transboundary haze and also for Malaysian-owned plantations that cause fires overseas to be tried in Malaysian courts.

According to Hanim, such concept had already been implemented in the country.

For example, she said Section 66 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 enables action to be taken against Malaysian nationals who commit corruption offences abroad.

Elaborating, Hanim said the government could also study Singapore’s Transboundary Haze Pollution Act 2014 that criminalise conduct which causes or contributes to haze pollution in the country.

However, she said if the Act were to be copied in total without any amendment, Malaysia would face the same problem in getting the cooperation from the haze-causing country, especially to disclose the list of entities or companies involved in causing the transboundary haze.

“This is because such a move can be deemed as jeopardising the sovereignty of the haze-causing country and can bring about negative implications, both at the domestic and international levels. It will also hamper the implementation and efficient enforcement of the Act,” she said.

In this regard, Hanim said cooperation between Asean member countries was vital in ensuring the smooth implementation of the law and, hence, the efficient enforcement of a proposed Transboundary Haze Act in Malaysia.

Malaysia currently has only domestic law, namely the Environmental Quality Act 1974 with one specific provision prohibiting open burning, which was enacted following the haze in 1997-1998.

Hanim said the proposed Act could probably provide several types of punishments, such as higher fine, imprisonment or whipping, while in terms of administration, it would be more on payments for cleaning works, firefighting operations and land rehabilitation, apart from civil punishment such as compensatory and punitive damages.

Meanwhile, Professor Dr Ahmad Martadha Mohamed of Universiti Utara Malaysia’s College of Law, Government and International Studies, said if the Act was aimed merely at taking action against Malaysian companies that cause haze overseas, it might be difficult to be implemented.

“Imagine if Indonesia were to take legal action, how can Malaysia take the same action? All evidence are there and the burden of proof will be very heavy on us as we have to get Indonesia’s cooperation and call all the witnesses there,” he said.

He said the most effective method was for Malaysia and Indonesia to sit down and discuss the suitable punishments for the offences, with Malaysia to give full cooperation when needed.

“For example, if it occurred in Indonesia and the culprits (causing the haze) were Malaysian companies, heavier punishment can be imposed in accordance with the Indonesian laws. Let them decide,” he said.

Chairman of Senate Reform Working Committee, Senator Mohd Yusmadi Mohd Yusoff, on the other hand, proposed for the establishment of a caucus among Asean members of Parliament, especially of countries involved in haze issues such as Malaysia, Indonesia and Singapore, to resolve the issue.

He said this was because the issue did not only involve government-to-government (G2G) but also the people and it could no longer be viewed as an environmental issue as it also involved national security and human rights.

”So, it should involve the parliamentarians elected by the people as they also represent their respective constituencies which were affected by the haze. I am sure that this approach will give new inspiration and level of commitment,” he added. — Bernama

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