Legal experts say the state has limited avenue through the justice system, and negotiations can be difficult because Indonesia cannot be assumed to be automatically responsible for the pollution.
They point out that Sarawak could sue for compensation or take the less confrontational route — negotiations.
Both present challenges.
Hazmi Rusli of Universiti Sains Islam Malaysia told FMT that Sarawak does not have the locus standi to file a suit at the International Court of Justice (ICJ), given that it is not a sovereign country.
“Only a sovereign state can take legal action against another sovereign state,” Hazmi, who lectures on international law, said.
Any suit of this nature would have to be brought by the federal government, he added. Given this condition, Sarawak will have to seek Putrajaya’s help to file the suit.
Even then, there would have to be legal grounds for Malaysia to pursue this course of action, and Indonesia would have to agree to accept the ICJ’s jurisdiction.
There is yet another obstacle, if not a roadblock, in the way.
Hazmi said that under the Asean Agreement on Transboundary Haze Pollution, there is no provision for a legal route for member states to sue one another. Malaysia is a signatory to the agreement.
Instead, it promotes negotiation and consultation over legal action.
This puts the issue of legal action in a grey area.
Sarawak activist Peter John Jaban recently urged the state government to take legal action against Indonesia over the recurring haze and seek compensation for damage to public health, as well as environmental degradation, economic setbacks and disruptions to education.
There is yet another avenue through the justice system — and this is in Indonesia.
Prischa Listiningrum of Universitas Brawijaya said individuals, including Malaysians, who are aggrieved by the haze problem have the option to file suits in Indonesian courts against parties allegedly responsible for the pollution.
She told FMT that Indonesian environmental laws allow individuals to seek compensation for losses caused by pollution or environmental damage.
“In principle, Malaysians can bring such a claim against any company in Indonesia, although a cross-border haze case involving Malaysian victims has not yet been tested in an Indonesian court,” she said.
That aside, it can also be an uphill battle. The plaintiffs would have to show that they suffered losses and link those losses to the company they are suing.
“Furnishing the evidence would probably be the hardest,” Listiningrum, who lectures on environmental law, said.
“Victims would have to identify the company responsible and show that fires linked to it caused the haze that led to losses in Malaysia.”
She said Indonesian courts will consider scientific evidence such as satellite images, hotspot data, air-quality readings and medical records.
Furthermore, she said, Indonesian courts had previously dealt with domestic haze-related cases and had also awarded compensation in other environmental cases, but successful claims by haze victims remained rare.
When legal action fails, negotiation and consultation are the only options still available.
Indonesian international law professor Arie Afriansyah said Malaysia could seek compensation directly from Indonesia through negotiations.
However, he said Malaysia would need strong evidence linking the haze to Indonesia to make a convincing case for compensation.
Arie said Indonesia could not automatically be held responsible simply because fires were started by individuals or companies on the republic’s soil.
The question, he said, is whether Indonesian authorities have done enough to prevent and control the fires and act against those responsible.
“Private responsibility does not remove the government’s duty to act,” he added. - FMT
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