The Bar Council's International Malaysia Law Conference 2016 ("IMLC 2016") was held at The Royale Chulan Kuala Lumpur from 21 to 23 Sept 2016.
by Sarah–Ann Yong Jenlee
Environmentalists, academics and concerned netizens filled the conference hall for the IMLC 2016 session entitled “Hazy Days Ahead: Legal Rights under International and Domestic Law”, as it revolved around the recurring disastrous haze episodes in Malaysia, Singapore and Indonesia.
This session was moderated by Roger Chan Weng Keng, Member of the Bar Council and Co–Chairperson of the Bar Council Environment and Climate Change Committee, who introduced the three eminent speakers — The Honourable Justice Tan Sri Azahar Mohamed, Judge of the Federal Court of Malaysia; Dr Azmi Sharom, Associate Professor at the University of Malaya; and Etelle Higonnet, Campaign and Legal Director of Waxman Strategies, Washington, and former Regional Research Manager of Greenpeace Southeast Asia.
Justice Tan Sri Azahar highlighted his concerns over the fact that Malaysians have had to deal with the annual migration of haze from Indonesia to its neighbouring countries for the past 20 years or so. He discussed the possible remedies that citizens and State authorities could take via both criminal and civil route, in seeking remedies against the wrongdoers who carry out and/or promote open burning both inside and outside our jurisdiction.
While the ASEAN Agreement on Transboundary Haze Pollution 2002 has been in force since November 2003, the question which arises is how effective this Agreement has been in resolving the haze problem.
The second speaker — the pony–tailed lecturer Dr Azmi — who is the first–ever academic to be charged under the Sedition Act 1948 in Malaysia, began his speech by thanking the organisers for giving him a topic to speak on that would not get him into trouble, inviting chuckles from the already amused crowd.
On the principle of extra–territoriality, Dr Azmi bluntly pointed out that he had written an article 11 years ago entitled “Untying the Gordian Knot: Extending Jurisdiction to Combat Transboundary Haze Pollution”, addressing the issues of extraterritorial legislation to combat this environmental calamity, yet his article was never taken seriously until the Singaporeans decided to legislate the Transboundary Haze Pollution Act 2014!
Dr Azmi pointed out the difficulty in bringing another country, such as Indonesia, to the international courts for its inability to control and/or for even encouraging large–scale land clearance through open burning, because of the issue of State responsibility, exhaustion of domestic measures, and the voluntary nature of the International Court of Justice (“ICJ”). Dr Azmi also drew attention to the ASEAN Coordinating Centre for Transboundary Haze Pollution Control, which has the primary duty of gathering and disseminating data to facilitate the exchange of information required by Malaysia about fires in Indonesia, if action against the companies involved is to be taken in the domestic courts.
Etelle Higonnet spoke on the delicate dance between collection of evidence and the legal initiatives to take, as well as the negative health consequences that we suffer as a result of the haze crisis. She also provided staggering World Bank statistics on the percentage of premature deaths in Malaysia, attributable to haze — an
estimated 131,315 in 2006 and 151,655 in 2015. Ms Higonnet further expounded on one of the most toxic elements of haze, which is the particulate matter of 2.5 micrometres or less. Also known as PM2.5, these are particles so minute that they can pass through our lungs and into our bloodstreams, causing heart, lung and chronic respiratory diseases, and even death.
In concluding, the “ASEAN way” of resolving disputes about the haze amicably, by being non–confrontational and invoking principles of politeness, has been said to be ineffective thus far. Instead, the political will of countries and governmental cooperation with State authorities and the people to push for public accountability in resolving the haze issue, are necessary as part of the way forward.
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