The Malaysian Bar is concerned to learn from a 3 August 2020 news report in the New Straits Times that the Government has decided to shelve the tabling of the Transboundary Haze Pollution Act.1
Annually, including last year, the ASEAN region has been confronted with the threat of toxic haze caused by large-scale fires in Indonesia. Numerous studies have shown that these recurrent fires are largely man-made and linked to land-clearing activities of local and foreign commercial oil palm plantations.2
A solution to the annual toxic haze has been discussed among ASEAN member states for decades. The severe haze in 1997 and 1998 accelerated this process and led to the ASEAN Agreement on Transboundary Haze Pollution 2002 (“ATHP”). The ATHP provides for a legal framework to prevent and monitor transboundary haze pollution through national and regional efforts. Its implementation requires, among others, that each member state enact appropriate domestic legislation.3
While Malaysia was the first country to ratify the ATHP in 2002, 18 years on, it has yet to enact its domestic Transboundary Haze Pollution Act.4
This legislation would be important in achieving Goal 16 of the United Nations’ Sustainable Development Goals: Peace, Justice and Strong Institutions. A suitably drafted law on transboundary haze pollution will help to provide access to justice, improve safety and wellbeing, and promote human rights for sustainable development.5
It was reported in the New Straits Times article that the Environment and Water Minister, YB Dato’ Tuan Ibrahim Tuan Man, had informed the Dewan Rakyat that instead of enacting a law on transboundary haze, “the Government believes that the best step is to enhance cooperation with neighbouring countries and ASEAN.”
The ineffectiveness of diplomatic efforts to curb the toxic haze has already been pointed out in numerous studies on this issue.6
The Malaysian Bar is of the view that diplomatic cooperation with our neighbours can take place simultaneously with the enactment of domestic laws to hold wrongdoing parties to account.
The urgency for a legal framework against the haze is now heightened by the COVID-19 pandemic. The Malaysian Public Health Physicians’ Association and the Department of Environment have expressed concern that a recurrence of the “seasonal” haze will exacerbate the risks posed by the virus.7
The Malaysian Bar therefore urges the Government to follow through with its obligations under the ATHP, as well as its commitment towards achieving the Sustainable Development Goals, and continue with the efforts to develop our domestic Transboundary Haze Pollution Act.
The Malaysian Bar stands ready to assist the Government in this regard.
Roger Chan Weng Keng
Chairperson
Bar Council Environment and Climate Change Committee
7 August 2020
1 “Tabling of Transboundary Haze Act shelved”, New Straits Times, 3 August 2020.
2 Varkkey, H. (2014) “Regional cooperation, patronage and the ASEAN Agreement on transboundary haze pollution", International Environmental Agreements: Politics Law and Economics, 14(1), 65-81.
3 Article 4(3) of the ASEAN Agreement on Transboundary Haze Pollution states that member states are supposed to take legislative measures to implement their obligations under the Agreement.
4 Date of ratification: http://haze.asean.org/asean-agreement-on-transboundary-haze-pollution-2/.
5 “Sustainable Development Goal 16”.
6 Examples:
(i) Listiningrum P., “Transboundary Civil Litigation for Victims of Southeast Asian Haze Pollution: Access to Justice and the Non-Discrimination Principle”, Transnational Environmental Law (2018), Volume 8, Issue 1, pp 122–125.
(ii) Varkkey, H. “Regional cooperation, patronage and the ASEAN Agreement on transboundary haze pollution”, International Environmental Agreements (2014): Politics Law and Economics, 14(1), pp 65–81.
7 “Dreaded annual haze may return”, The Star Online, 10 July 2020.
