DURING monsoon season, the Southeast Asian mainland and Borneo normally face the prospect of haze originating from the Indonesian archipelago. The spectre of haze often hangs over Malaysia and Singapore for weeks and even months like a sword of Damocles.
This unhealthy haze is primarily made of the dissipated smoke from fires on Sumatra – one of the islands in Indonesia – resulting from human activities via the cutting down of trees and open burning of peatlands.
When haze in Southeast Asia is said to have been caused by human activities, it immediately jogs one’s memory of the alarming statement made by James Hansen, a former Nasa scientist, who told a United States congressional hearing that he could declare “with 99% confidence” that the sharp rise in global temperature was due to human activity.
The Asean population can breathe a sigh of relief when its leaders are fully aware of this air hazard and agreed to sign a regional multilateral agreement known as the Asean Agreement on Transboundary Pollution (AATHP) on June 10, 2002, in Kuala Lumpur.
As far as the issue of transboundary harm arising from polluting activities, either within states or transcending states is concerned, the spectre of this environmental mishap has been lingering in the minds of the international community. International environmental law is equally preoccupied by it.
The Trail Smelter case is often referred to as an oft-quoted case whenever the issue of transboundary pollution under international law crops up in the discussion.
The case involved transboundary pollution between the federal governments of both Canada and the United States, which eventually contributed to establishing the doctrine of harm principle in the environmental law of transboundary pollution.
Apparently, this important doctrine of harm principle was subsequently adopted by Asean when its members decided to sign the AATHP.
Though the AATHP was signed in June 2002, it was only entered into force in 2003. Its raison d’etre is to create a framework that will allow parties to reduce transboundary pollution and its associated harm.
Being a typical international legal instrument – just like other international treaties – sweet words are often embodied in such documents. Unfortunately, what matters is the implementation of such lofty promises.
Article 3 of AATHP is a clear commitment to the fundamental principle of “no harm”.
This cornerstone principle of international environmental law pronounces that states are under an obligation not to cause harm to the environment of other states or to areas beyond their national jurisdiction.
Having signed and duly ratified the AATHP, there are several obligations being imposed on a country such as Malaysia, which is a party to the agreement.
By virtue of Article 4 of the AATHP, all the Asean countries, Malaysia included, have duly agreed to undertake and carry out certain statutory obligations under the agreement.
One of such obligations is to take legislative, administrative, and/or other measures to implement their obligations under this agreement.
The fact that the word “shall” is employed in Article 4 of the AATHP shows beyond doubt that all the parties to the agreement are fully aware of the legal implications of Art 4.
Such a vital article is not only binding upon a country like Malaysia, but it also carries some elements of mandatoriness.
Having agreed to sign and ratify the AATHP, Malaysia owes its international obligation to the world and to the Asean countries, at the very least, to take all the necessary and mandatory steps in legislating a law on transboundary haze pollution.
Though the AATHP was duly signed on June 10, 2002, in order to “prevent, monitor, and mitigate land and forest fires to control transboundary haze pollution through concerted national efforts and regional and international cooperation”, and through Article 4(3) of the agreement, which obligates the state parties to the agreement, including Malaysia, to take legislative, administrative, and/or other measures to implement their obligations under this agreement, hitherto only Singapore has a domestic Transboundary Haze Pollution Act, duly enacted in 2014.
It is not really clear why, after almost 21 years since the AATHP was duly signed, countries like Indonesia and Malaysia, being the direct victims of transboundary haze pollution, have still failed to enact and pass a domestic Transboundary Haze Pollution Act.
As far as Malaysia is concerned, it was reported that the plan to table such a transboundary haze bill in 2019 was in the pipeline then, but it was abruptly halted in 2020 following a change in government.
And the present natural resources, environment and climate change minister was reported to have said that plans for the transboundary haze act are still under review.
The minister also told the media that his ministry needs to take into account the challenges of obtaining evidence for prosecution purposes, which involves data related to security, and the sovereignty of the country responsible for the haze pollution.
He has also cited Singapore’s challenges in implementing its Transboundary Haze Pollution Act, which cannot be enforced against entities governed by other countries.
With the greatest respect for the minister, pessimists may have to take his words with a pinch of salt and, in turn, put the government to task as to why it has taken extremely long for the government to even undertake to review the plan of tabling the proposed legislation, having signed and ratified the AATHP for so many years.
While it is quite reasonable for the relevant ministry to “take into account the challenges of obtaining evidence for prosecution purposes, which involve data related to security and the sovereignty of the country responsible for the haze pollution”, as rightly pointed out by the minister, such challenges, with the greatest respect, however, should not be taken as a stumbling block for the government to legislate the much-awaited special legislation on transboundary haze. After all, such important legislation has been long overdue.
If at all there are challenges, for instance, in obtaining evidence for prosecution purposes, which involves data related to security and the sovereignty of the country responsible for the haze pollution, such challenges would be at the implementation level, namely for the purposes of effectively executing the law.
Unfortunately, the country has not yet reached that level because the necessary laws do not exist.
Be that as it may, I am afraid such an excuse may not be easily accepted by many as a justification for not legislating such a law after Malaysia has duly signed and ratified the AATHP for two decades.
In implementing any law, any government should not expect such a new law to be absolutely perfect before it decides to enact it.
While it is good to carry out an in-depth review before legislating any new law, we believe that review should be an ongoing process.
What is badly needed now is for Malaysia to enact a law on transboundary haze pollution, as the scourge of transboundary pollution may come and hit the country at any time.
The implementation of any law has to undergo the usual trials and errors. That is the true nature of any law-making process.
Should the new law face any deficiencies or weaknesses in its execution, such a law can always be brought to the review process by way of amendment. There is not a single man-made law, not even the constitution, which is not subject to amendment.
Be that as it may, it is high time for the government to expeditiously enact and table the transboundary haze pollution bill in Parliament. – July 26, 2023
Mohamed Hanipa Maidin is a former deputy minister of law, an ex-MP, and a former practising lawyer for nearly 25 years