WHEN the haze problem reached severe levels in 2012 and then re-emerged in 2015 the authorities promised swift action. Declaring a “haze emergency”; and promising the establishment of a “haze free region”. Now it has returned with a vengeance.
In my Law Speak column of Oct 19, 2015, I had outlined possible options to staunch this scourge.
One was to give “bite” to the 2002 Asean Agreement on Transboundary Haze Pollution – enacted in response to the severe land and forest fires in 1997-1998. Member countries had agreed to cooperate to tackle the resulting transboundary haze pollution. They agreed to develop measures to prevent, monitor and mitigate any such pollution. This also included setting up early warning systems, exchange of information and technology and mutual assistance. And even a centre to coordinate the management of the land and forest fires.
Conspicuously missing in the agreement, however, were effective enforcement measures and sanctions. No enforcement measures or instruments for dispute resolution, lamented Sahabat Alam Malaysia’s (SAM) head, Meenakshi Raman. So the problem persists, growing graver each time.
At last month’s meeting in Brunei, Malaysia submitted reports on the measures taken to avoid open burning and haze. The Energy, Science, Technology, Environment and Climate Change Ministry said Malaysia wanted concerted efforts taken in accordance with the Asean Agreement. So far nothing concrete has emerged. Sans effective implementation measures, the agreement remains a largely empty rhetorical gesture!
The other measure proposed in my article was for countries to take national legal and administrative measures to implement the obligations in the agreement. True to form Singapore enacted a law in 2014 – the Transboundary Haze Pollution Act 2014. By which it can institute criminal or civil action for any conduct done outside Singapore which causes or contributes to any haze pollution. A law bestowing extra-territorial powers is not without precedent.
In 2006, a US court made an award against a Canadian company for discharging hazardous untreated effluents into the Canadian part of a river that flowed into the US State of Washington.
Our prime minister has also now embraced the possibility of enacting a similar extra-territorial law. But first, he says the government would call on the Malaysian companies to put out the fires.
“But of course, if we find that they are unwilling to take action, we may have to pass a law which will make them responsible for fires in their property, even if it’s outside of Malaysia.” Some see this as foot-dragging; others as a firm warning from on-high preceding firm enforcement action.
Presently, as in the past, Malaysian plantation companies have been fingered as the culprits.
Singapore in the past sued five Indonesian companies under their law. Around then too, Indonesia hauled up an Indonesian and a Malaysian palm oil company. The former was fined RM107 million; and the latter’s manager was jailed for a year.
The big companies shift the blame to smallholders and communities living in the vicinity or within their plantation lands. This, says SAM, is a false narrative that needs to be debunked.
Identifying the source can’t be that difficult in this age of smart technology. The coordinates of any activity can be tracked with precision by satellite imaging. Indonesia has said it can’t really proceed until its national mapping project is completed to pinpoint the source of the delinquent activity. To many this sounds lame. Especially since this idea – mooted years ago – has yet to come to fruition.
Last week, Indonesia sealed off dozens of plantations where smog-belching fires were blazing, and warned that owners – including Malaysia and Singapore-based firms – could face criminal charges if there was evidence of illegal burning.
Some of the most serious fires occur in peatlands, which are highly combustible when drained of water to be converted into agricultural plantations.
Indonesia has an elaborate panoply of national laws against open burning especially in peat areas. But it is plagued by lax enforcement. Attributed to corruption as well as a lack of adequate mustering of manpower to investigate and prosecute. There is also the institutional tensions, with local authorities issuing concession licences in defiance of central regulations.
Finally, under international customary law, a country can be held liable for failing to control the fires causing harm to neighbouring countries. A country must act diligently to prevent any such harm. Its only defence: despite doing all that was necessary and possible, the activity could not be prevented. The matter can be referred to an international tribunal such as the International Court of Justice for adjudication. But for this both countries must consent to bring the action. Like the Batu Puteh case brought by the agreement of both Singapore and Malaysia.
Ultimately what is urgently required is for the government to proactively once and for all initiate a solution to this perennial problem. As is said – burying your head in the sand does not make you invisible. It leads to haze suffocation.
Gurdial is a former law professor. Comments: letters@thesundaily.com
