Why a transboundary haze law won't ignite

 In light of recent developments that garnered the attention of environmentalists and policymakers, Malaysia is contemplating a review of its transboundary haze law by emphasising engagement with stakeholders.

This decision, led by Natural Resources, Environment and Climate Change Minister Nik Nazmi Nik Ahmad, has sparked discussions among civil society and politicians, warranting closer examination.

Drawing from my experience negotiating for Malaysia in the Asean Agreement on Transboundary Haze Pollution (AATHP), Ministerial Steering Committee (MSC) to the AATHP, and Asean Ministerial Meeting on Environment (AMME) between 2013 and 2020, allow me to delve deeper into this move and outline the reasons behind my support for it.

Persistent haze problem

Haze pollution is an ongoing environmental concern in the Southeast Asian region. It predominantly stems from forest and peatland fires, primarily in Indonesia and is further exacerbated by weather conditions.

The ramifications of the haze are extensive as it affects air quality, public health and the environment. Historically, attempts to combat this issue have centred on holding those responsible accountable through legislative means.

Challenges of transboundary haze law

The concept of a transboundary haze law is not new within Asean; Singapore first introduced its Transboundary Haze Pollution Act in 2014.

This legislation aimed to prosecute entities and individuals responsible for the transboundary haze.

While it may seem like a practical approach from a public perspective, implementing such a law is fraught with challenges.

In the past seven years, even Singapore could prosecute a small number of perpetrators, roughly two to three, revealing the intricacies involved.

The primary hurdle lies in obtaining precise, on-the-ground information beyond satellite imagery to pinpoint those responsible for the fires.

To legally hold any entity accountable, authorities would require access to data such as land use and concession maps, which fall under the sovereignty of the respective country - in this case, Indonesia.

Furthermore, this information extends beyond fire incidents, encompassing sensitive land details, rendering it highly classified.

This challenge was evident during the AATHP meetings in 2016 when Indonesia declined to provide land use and concession maps for foreign entities.

Malaysia faced a similar challenge to other Asean member states when Singapore requested similar classified information to implement an operational system called the Haze Monitoring System (HMS) in 2011.

The HMS, which was then pursued diligently by Singapore, failed to produce substantial output due to limited access to land use and concession maps from Asean member states.

Consequently, the demand for land information of any country in Asean remains an unresolved decade-old issue.

Unique challenge in Southeast Asia

It’s vital to appreciate that the transboundary haze issue in Southeast Asia is unique compared to other regions, including the USA and Canada.

In Southeast Asia, particularly Indonesia, the transboundary haze’s unique nature necessitates a distinct approach.

Unlike other forms of pollution in other regions, verifying the man-made origin of the haze, primarily stemming from forest and peatland fires, presents an imposing challenge.

These fires often result from land-clearing practices, underscoring the need to focus on fire mitigation and land management strategies through diplomacy or Asean spirit instead of toothless punitive legislation, such as a proposed transboundary act.

Malaysia’s prudent choice

Malaysia’s decision to abstain from tabling the transboundary haze law due to foreseeable implementation issues is wise, preserving time and resources.

Natural Resources, Environment and Climate Change Minister Nik Nazmi Nik Ahmad

It acknowledges the practical impediments in prosecuting entities without concrete evidence and access to sensitive information held by other nations. It would be futile if it failed to quell the fires or effectively lead to successful prosecutions.

The present government decision builds upon the ministry’s policy desk advice to reject a similar political proposal in 2018-2019 in Malaysia by the then-environment minister.

At that time, I concurred with the rationale, understanding that while enacting a new law may captivate politicians and the public, the ultimate objective is to prevent and effectively combat the fires responsible for the haze.

If a law cannot fulfil these aims or provide the essential evidence for prosecution, it risks not serving its intended purpose.

In 2018 and 2019, and suggested by some MPs currently, the suggestion to follow Singapore’s footsteps in gazetting such a law is baseless with inadequate factual representation of its implications.

A toothless punitive legislation is a legal framework that, while ostensibly designed to impose penalties or sanctions for specific actions or violations, lacks the necessary enforcement mechanisms, effectiveness, or deterrent power to address the issue at hand effectively.

In other words, it may have strict-sounding rules and punishments on paper, but in practice, it fails to hold wrongdoers accountable or discourage the undesirable behaviour it seeks to address.

By not proceeding with the transboundary haze law, the government actually would recognise this distinction and could aim to address the haze issue more effectively through a nuanced and science-based approach.

Forest fire being put out in Indonesia

Practical solutions

Rather than solely concentrating on legislative measures, which can be time-consuming and demanding in terms of engagement, gazetting, and ambitious promises to halt the fires originating from Indonesia, two immediate suggestions warrant consideration:

1. Domestically: Concentrate on researching Malaysian entities operating within Indonesian land (particularly on peatlands) and evaluating their efforts to mitigate the impact of fires in their operating areas through sustainable land management.

   This pragmatic approach could be achieved by assessing the land area investments of Malaysian companies in hot spot fire regions in Indonesia.

   Additionally, since Malaysia introduced mandatory Environmental, Social, and Governance (ESG) reporting for companies listed on Bursa Malaysia in 2016, it has provided opportunities to exert pressure on shareholders of Malaysian companies to contribute more towards fire mitigation, land management, and fire control in the areas where they operate.

   This approach is pragmatic and represents a “low-hanging fruit” solution.

2. Regionally: Rather than concentrating on domestic legislation, Malaysia should redirect its efforts to propose a revamp of AATHP meetings.

   An advantageous addition could be a scientific committee responsible for presenting evidence of burning areas, encompassing forward and backward trajectory modelling, and the impact of CO2 emissions from these fires on various land types.

   This scientific approach should involve an atmospheric scientific team from Asean member states and may consider including members from other regions worldwide to share their scientific knowledge.

   This addition of a scientific committee is absent within the current framework of AATHP and AMME.

   The present structure, featuring the Technical Working Group (TWG) at AATHP, comprises Environment Department officials who share the bureaucratic mindset of their respective ministries but may lack the ability to substantiate their decisions with sound scientific facts.

With this compelling evidence, technical and policy working groups within AATHP and the Ministerial Steering Committee of AATHP could collaborate more effectively.

Together, they could garner support for addressing fires in areas that predominantly contribute to the haze, such as peatland regions, which are known to be highly susceptible to ignition and challenging to control.

Forgo the law

The transboundary haze issue is a complex and multifaceted problem requiring a nuanced response.

Instead of becoming entangled in legislative processes that are notoriously difficult to implement effectively, Malaysia is prudently opting for strategies that can yield tangible results.

By focusing on scientific evidence and leveraging existing reporting mechanisms, the country can play a more constructive role in mitigating the impact of haze pollution and ensuring a healthier and cleaner environment for all.

In conclusion, Malaysia should forgo the transboundary haze law, and doing so should be considered a step in the right direction.

Forgoing it is a choice that prioritises practicality and effectiveness over grand gestures.

By reorienting its efforts toward data-driven, evidence-based solutions, Malaysia can significantly contribute to the region’s battle against haze pollution, safeguarding the health and well-being of its citizens and the environment. - Mkini

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JAYAPRAKASH MURULITHARAN is a PhD researcher (atmospheric science) at the University of Cambridge, UK.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.