Transboundary Haze Polluters and Accountability: The Legal Landscape in Indonesia and Malaysia

In the second last quarter of 1997, the haze experience affected many countries in South East Asia (SEA) particularly Indonesia and Malaysia. These countries became unwilling victims of slash and burn or burning activities for land clearing purposes carried out in their own forestlands, mostly by foreign vested agricultural companies and local farmers. The impacts of severe haze caused by manmade burning activities in these neighbouring countries at that particular time transcended both borders into other parts of SEA and resulted into economic losses and damages, loss of biodiversity and impacts on human health. It was alleged that agricultural companies that were mostly oil palm concessionaires had used fire as a tool to clear forests including peatland areas to transform the areas into readily planted areas despite the fact that Indonesia and Malaysia were well aware of the need for strict law enforcement. Implementation and changes in domestic laws of Indonesia and Malaysia since the 1997 haze occurrence had proved to be quite challenging in dealing with issues of local burning and prevention thereof. The enforcement to penalise foreign based companies in Indonesia and Malaysia is slow and plagued with issues related to alleged cronyism and corruption, lack of awareness and education, weaknesses in institutional framework and lack of political will. In addition, the penalties imposed are too low that it is insufficient to deter further acts of environmental pollution by these companies. Whilst these limitations hinders effective enforcement in both countries, incidences of forest fires leading to transboundary haze pollution becomes more imminent particularly between March to October each year. Hence, it is suffice to conclude that domestic laws have been insufficient to control and prevent transboundary haze from activities by foreign vested agricultural companies in Indonesia or Malaysia. As these companies have Indonesian or Malaysian interests that carry out agricultural activities in either countries, an external regulation should be explored to complement and support internal regulation in each country to ensure that the activities of these transnational companies are undertaken within the confines of environmental standards and ASEAN notion of cooperation. Thus, a legitimate legislative framework to impose and enforce internationally environmental standards recognised under human rights obligations upon the overseas activities of the plantation corporations incorporate within the host state?s territory may be feasible to imposing accountability to haze polluters in Indonesia and Malaysia.