Anti-haze law must extend beyond borders, says expert

More than 1,000 marched in Kuala Lumpur today to protest against climate change and air pollution from transboundary haze, with placards calling for action against companies responsible.

KUALA LUMPUR: An environmental law expert says the government can provide for extraterritorial powers in the proposed law on transboundary haze, using a US anti-corruption law and a Singapore transboundary haze law as models.

Dr Hanim Kamaruddin of Universiti Kebangsaan Malaysia said the Foreign Corrupt Practices Act of the United States was the first to introduce corporate liability, responsibility for third parties and extraterritoriality for corruption offences.

“The proposed Transboundary Haze Act should also have similar provisions so that the Attorney-General’s Chambers can take legal action against any Malaysian companies if they or their subsidiaries abroad were found to be involved in causing transboundary haze pollution,” she said.

Environment minister Yeo Bee Yin said on Thursday that her ministry is awaiting the green light from the Cabinet to draft a Transboundary Haze Act, allowing action to be taken against Malaysian companies and Malaysian-owned plantations to be tried in Malaysian courts for haze offences abroad.

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

However, Malaysia would face problems 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.

Cooperation between Asean members would be vital for efficient enforcement of action on transboundary haze.

Malaysia’s only domestic law is 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.

Another expert, Dr Ahmad Martadha Mohamed of Universiti Utara Malaysia, foresees difficulty in implementing action against Malaysian companies that cause haze overseas.

“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.

The chairman of the Senate reform working committee, Senator Mohd Yusmadi Mohd Yusoff, proposed a caucus among Asean members of Parliament, especially of countries involved in haze issues.