Smoking out errant companies

The Star, 27 Sep 2013

ONLINE EXCLUSIVE: PETALING JAYA: Every year, regular as clockwork it seems, the haze descends upon us with its entourage of respiratory ailments, visual impairment and economic slack. Every year, we respond with complaints. But for how long? And to what end?

Perhaps the answer lies in extraterritorial jurisdiction laws, giving the Malaysian government the power to prosecute Malaysian companies for wrongdoings in other countries.

For between Malaysia, Singapore and Indonesia’s three-way tussle incorporating national sensitivities, jurisdiction disputes, enforcement issues and legal complications, the haze problem is far from ever being solved.

Sometimes seeing ourselves as ‘victims’, Malaysia and Singapore have criticised Indonesia over what is is perceived to be a lack of initiative in curbing widespread slash-and-burn agricultural practices within its own borders.

Indonesia, for its part, named a number of large Malaysian and Singaporean-linked companies as culprits behind the haze.

All Malaysian companies named have denied any wrongdoing, many claiming to practice zero-burning policies.

With the authorities at a loss over finding a permanent solution, those responsible continue to burn and pollute. Year after year with impunity.

Reactive steps such as cloud seeding and water bombing only stop fires once they happen, but do not do anything for future occurrences of haze. It is time proactive and preventive measures are implemented.

While one Malaysian firm is being brought up to Indonesian court, a definitive answer over other culprits cannot be given due to inadequate mapping systems in Indonesia.

“Clear and official maps, outlining who owns (and is responsible for) what land is not available. Often, publicly available maps do not match up with government maps,” said Dr Helena Varkkey of the Department of International and Strategic Studies, Universiti Malaya.

Efforts are underway to fix the problem through Indonesia’s development of a ‘One Map Initiative’, which can be used to determine the actual perpetrators of the haze, she added.

At a recent meeting of representatives of all three nations, a government-to-government sharing of concession maps was agreed upon, said Dr Varkkey.

The result is that home governments will be better equipped to investigate and draw conclusions on the activities of their companies in Indonesia.

The drawback of the meeting was that Malaysia and Indonesia both agreed that only governments would have access to the maps and on a case-by-case basis.

“Reluctance to support the public availability of these maps will only give rise to doubts by international agencies, NGOs and researchers not privy to these maps,” said Dr Varkkey.

But what if Malaysian corporations are found to be involved? What next?

If allegations ring true, then companies are not making enough effort to ensure their zero-burning policies are followed through on the ground. Home governments should pressure the companies to implement their policies on all levels, said Dr Varkkey.

“The governments of Malaysia and Singapore play an important role in facilitating the entry of companies into the Indonesian plantation sector through MOUs and trade missions. Home governments should take advantage of these healthy pre-existing relationships to place pressure on corporate boardrooms at home,” she added.

On whether Malaysia should introduce any preventive legislation against companies responsible for haze, Dr Varkkey said that they are difficult to implement since most of the burning occurs outside Malaysian jurisdiction.

Because the acts were committed in Indonesia, the legal power to prosecute those guilty also falls on the Indonesian government.

“Recently, Singapore has been discussing extraterritorial jurisdiction, which is the ability for Singapore to prosecute Singaporean companies for wrongdoings in other countries,” said Dr Varkkey, who proposed that Malaysia consider similar actions.

She said that implementing extra-territorial jurisdiction would send a strong message that the government is serious about ensuring companies behave in accordance with burning laws.

“Before anything else is done, we will have to amend our Environmental Quality Act,” said Dr Azmi Sharom, from Universiti Malaya’s Faculty of Law, who also suggested a provision to allow for prosecution of Malaysians who commit crimes, namely environmental crimes, overseas.

Professor Mohammad Naqib Ishan Jan of IIUM’s Ahmad Ibrahim Kuliyyah of Laws added, “The responsibility to exercise due diligence rests with Indonesia because the crime operates there.”

However, he also agreed that Malaysia can implement laws to take action against Malaysian-owned companies who commit open burning in Indonesia.

“It would be a more forceful step,” he said

Professor Ishan also highlighted a United States law, which enables the prosecution of any company or individual who has committed a crime that affects the nation, even though the offence was committed overseas.