Analysis: ASEAN urged to enact laws for clearer skies, as member-states bicker again over transboundary haze

KUALA LUMPUR: In response to the latest haze crisis that has hit several parts of the region, environmentalists have urged all Association of Southeast Asian Nations (ASEAN) members to enact their own domestic transboundary haze laws. 

They believe these laws would allow member-states to act against companies that violate environmental laws in other jurisdictions and thus reduce episodes of the haze. 

The haze – an almost annual event in the region during the dry season between June and September – is often attributed to fires that are often started to clear land for agriculture in Indonesia, usually for palm oil and pulp and paper plantations. 

Transboundary haze has become an occasional flashpoint for ASEAN countries in recent years, which flared up again of late with Malaysia, Singapore and Brunei experiencing unhealthy levels of air pollution. 

It has caused Kuala Lumpur and Jakarta to trade barbs over the issue, after air quality in Malaysia deteriorated in recent weeks before improving considerably over the past few days.

As of 7pm on Friday, one air quality monitoring station in Malaysia recorded “unhealthy” readings, 57 recorded “moderate” readings while another 10 were considered to be “good” readings. 
   
Malaysia’s Minister of Natural Resources, Environment and Climate Change Nik Nazmi Nik Ahmad said on Oct 4 that he had asked his Indonesian counterpart to address the haze as air quality worsens.

In response, Indonesia’s Environment and Forestry Minister Siti Nurbaya said that forest fires in some parts of Indonesia have declined and no haze had been detected moving to Malaysia. 

"I do not know what basis that Malaysia used in giving those statements. We are working not based upon Malaysia's request," she was quoted as saying by Reuters.

Mr Nik Nazmi also said the Malaysian government has sent letters to Malaysian-owned plantation companies that operate in Indonesia to ensure they comply with laws and prevent burning.

He called for joint action by ASEAN either through legislation or agreement to prevent the yearly haze.

"I hope that every country will be able to be open in order to find a solution because the damage to the economy, to tourism, but especially to health, is immense from the haze," he added.

NO EXCUSE 

Likewise, Environmental group Greenpeace has demanded ASEAN states to enact domestic transboundary haze laws in their respective countries, saying that regional diplomatic cooperation should not be used as an excuse.

Greenpeace Southeast Asia’s campaign strategist Heng Kiah Chun said the legislation was important to ensure that companies did not contribute to the haze locally and abroad. 

"Enacting a domestic Transboundary Haze Act is necessary to act as a deterrent, especially as there are bad apples in the industry. 

“It can provide legal grounds for each country to institutionalise checks and balances to ensure their own companies operate responsibly," he said in a statement on Oct 4 that was posted on the organisation’s website.

He told CNA that the Malaysian version of the act the group is proposing would only focus on monitoring Malaysian-owned companies in Indonesia. 

Singapore for one enacted the Transboundary Haze Pollution Act in 2014, making it an offence to cause or contribute to any haze pollution in Singapore. 

The law empowers individuals and organisations in Singapore to sue those who are responsible for the pollution and who cause them to suffer economic loss.

No other country in the region has enacted a similar law. 

Former Malaysian environment minister Yeo Bee Yin said in a statement on Oct 5 that the Pakatan Harapan (PH) government had agreed in principle to introduce the law in February 2020, but the progress of this was shelved after the change of governments. 
 
She acknowledged arguments that such a law might just be a cosmetic move because the evidence of open burning had to be collected in Indonesia. Also, extra-territorial prosecution would be very challenging and require collaboration with Indonesian authorities, which may not be forthcoming. 

Madam Yeo, however, said that any law could incorporate preventive clauses that compel Malaysian companies at risk of causing haze in Malaysia from abroad to make available satellite data for all their premises, such as plantations and to declare new land purchases in high-risk areas. 

“Greater transparency will serve as a deterrent against Malaysian plantation companies misbehaving in other countries,” said the Puchong member of parliament.  

WHAT MORE CAN BE DONE?

Sustainable development lawyer and climate change activist Kiu Jia Yaw told CNA that ASEAN needed to build on the 2002 Transboundary Haze Pollution Agreement which is a framework for cooperation and sharing resources in relation to the haze.

Like Greenpeace, he suggested that ASEAN member states hold their own businesses to account for their operation overseas and hoped for Malaysia to enact its own law and for this to be then reciprocated by other countries. 

He pointed out that Indonesia for example recently revealed 203 companies have received warnings, and 20 companies have been ordered to shut due to their involvement in the fires, including subsidiaries of Malaysian companies.

“If any of those subsidiaries are indeed related to Malaysian companies, the Malaysian government could summon them to explain about allegations of fires on their concession lands,” he said. 

He stressed that any such law should only deal with Malaysian companies, unlike Singapore’s law which purports to have authority over entities outside of the Republic.      

“Each country will regulate their own companies so that they don’t meddle with another country’s companies and avoid any issues of sovereignty,” he said, pointing out that Indonesia had taken offence with Singapore’s Transboundary Haze Pollution Act and did not cooperate with the Republic in 2015.

Singapore had then investigated four Indonesian companies in relation to causing or condoning fires that resulted in unhealthy levels of haze in the city-state.

Mr Kiu said that ultimately in the longer term, more stringent business practices would make agricultural commodities from ASEAN more competitive in the global markets because they would perform better in the area of business and human rights.

“They would have less issues exporting into other markets because they would have a higher environmental, social and governance (ESG) performance. From a financing and investors perspective, they would be able to meet more and more ESG due diligence processes,” he said.     

Dr Helena Varkkey, an Associate Professor of Environmental Politics at the Department of International and Strategic Studies, told CNA that ASEAN has its framework in regard to the haze in place, but the challenge was to operationalise all the things stated in the framework.  

She said a priority would be having a coordinating centre to deal with the haze and for uniformity in the data that is used to solve the problem such as the data on air quality.   

“You have a situation where there are different readings for the Air Pollution Index (API) in Johor and the Pollution Standards Index (PSI) in Singapore. All these things need to be worked out,” she said.