Forest fires in Ogan Ilir, Indonesia's South Sumatra province / photo: phys.org.

Haze: Repeated discussions with Indonesia’s central govt ineffective, S’pore should deal directly with provincial administrations, says PVP chief

In order to effectively tackle the haze problem that plagues Singapore annually, the government should target its efforts at Indonesia’s provincial administrations instead of continuing to engage the Central government, said People’s Voice Party (PVP) chief Lim Tean last Sun (15 Sep).

In his rebuttal of claims from “many netizens” suggesting that there is nothing that Singapore can do about the issue, Lim said that such a view is “a cop-out” and “total rubbish”, and that the reoccurrence of the haze problem is actually a sign of the ruling People’s Action Party (PAP) Ministers’ alleged “incompetence” as well as “the feebleness of our foreign policy”.

“As someone who spent many years in Indonesia, getting his hands dirty, let me tell them how Indonesia works.

“The problem with these Ministers is that they love to hobnob with their counterparts from the Central Government and they think that they can solve problems by going through the various Ministries and the office of the Indonesian President.

“People who know Indonesia well will tell them they are wasting their time and taxpayers’ money with repeated visits to the capital Jakarta.

“After the downfall of President Suharto in 1998, power devolved substantially from The Central Government to the provinces. Sumatra alone has 8 provinces. Each province has about 10-12 districts or what the Indonesians call Kabupaten.

“It is with these regional authorities that our government needs to work with, communicate with and liaise constantly if we are to ensure that the fires are quickly brought under control,” Lim argued.

Lim also said that he would have “Singapore representatives stationed in each and every important province of Sumatra and Borneo where the haze may emanate from”, and ensure that said representatives would “monitor the haze situation 24/7”.

“An important part of their job would be to establish good relations with the district heads (bupati) and the provincial and district administrations so that information can be gathered quickly of peatland or forest fires,” he added.

“The way our Foreign Minister and Environment Minister perform their jobs reminds one of the Indonesian phrase – pepesan kosong! It means there is no rice under the banana leaves, i.e. all show and no substance!

“Three years ago, these Ministers were jetting around having grand discussions and giving the impression that they were serious about solving the problem.

“They even threatened to sue the palm oil and paper and pulp companies for clearing land by burning,” Lim charged.

He also argued that only less than S$5million to S$10 million is needed annually to combat Indonesia’s haze issue instead of the S$100 billion proposed by the current government to “prevent climate disasters”.

“Singapore has the money and the equipment to help Indonesia bring these fires under control rapidly, and I know the Indonesians would welcome any assistance,” added Lim.

Minister for the Environment and Water Resources Masagos Zulkifli said yesterday (18 Sep) that the Singapore government has been in contact with the Indonesian Ministry of Environment and Forestry regarding Singapore’s willingness to offer assistance in putting out the fires in Indonesia.

“We have offered technical firefighting assistance to Indonesia and stand ready to deploy help if requested by Indonesia, just as we did in 2015,” said Masagos.

AFP reported on Tue (17 Sep) that Indonesia had warned owners of plantations — including Malaysia and Singapore-based firms —  that they could be prosecuted should evidence of illegal burning in connection with them be discovered by its authorities.

The day prior, authorities announced the arrest of some 185 people who were suspected of being involved in activities that led to fires spreading across certain areas in the archipelagic nation.

National Police spokesman Dedi Prasetyo told reporters in Jakarta that “Indonesian Police will enforce the law against anyone who is proven to have carried out forest and land burning, whether it was done intentionally or through negligence”.

Does the recurrent haze issue demonstrate the possible ineffectiveness of Singapore’s Transboundary Haze Pollution Act?

Despite the enactment of the Transboundary Haze Pollution Act (THPA) in 2014 and its subsequent enforcement in Sep 2017, no legal action was taken against a pulp and paper company or its suppliers, as the National Environment Agency (NEA) did not succeed in obtaining information from the firm.

Jakarta-based Asia Pulp and Paper (APP) was served a legal notice under Section 10 of the Act in Sep 2015, in which NEA requested information from the firm on four of its suppliers, as fires had been detected on their lands.

NEA said in Mar 2017 that APP had been opaque with its information. Investigations remained inconclusive as a result.

The Straits Times reported Indonesia’s Environment and Forestry Minister Siti Nurbaya Bakar as saying at a climate change event in Jakarta three years ago that THPA is a hotly debated and “controversial” law among officials from Asean states, particularly those affected by the haze such as Singapore, Malaysia, Brunei and even Indonesia itself.

Thus, Singapore’s legal action under THPA against firms found guilty in causing the haze was thus an act that goes against “mutual respect” towards Indonesia.

Singapore, added Siti, should not step into Indonesia’s legal domain on the issue of forest fires as “there was never a bilateral agreement between Indonesia and Singapore”, adding that the Asean agreement on transboundary haze pollution is a “multilateral” one.

Then-Minister for the Environment and Water Resources Vivian Balakrishnan told Parliament in Aug 2014 – two months after Siti’s comments – that while “States have a sovereign right to exploit their own natural resources pursuant to their own policies” under the principles of international law, they “also have a responsibility to ensure that the activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction”.

“For the lawyers in this House, you will also be aware of this principle called the Objective Territorial Principle, which basically gives us the right to take action against people whose irresponsible actions elsewhere have caused harm within Singapore.

“There were also questions on how exactly we are going to apply the extraterritorial provisions. Maybe it might be best explained by me citing a hypothetical example. For instance, this Bill allows us to act against errant foreign entities, and it gives us the legal power to serve notices on these entities – and this is an important point – including those with no assets in Singapore and no presence in Singapore.

“The notice will be served personally on an officer of the entity when the officer or the partner of that entity is within Singapore. The National Environment Agency (NEA) will work closely with the Immigration and Checkpoints Authority (ICA), so that we will know when such a person is in Singapore.

“We will serve the notice to him or her when he or she enters Singapore. Where necessary, the Public Prosecutor could apply for a court order to require the person to remain in Singapore to assist in investigations.

“Failure of the entity or of the officers of that entity to furnish information and the documents which we require for investigations – if they fail to furnish information and documents without a reasonable excuse – would be an offence, and the officers of such companies who come into Singapore may be charged in court and be liable on conviction to a fine or imprisonment, or both,” said Balakrishnan.

Balakrishnan maintained that THPA is not aimed at substituting “the laws and enforcement actions of other countries, but it is to complement the efforts of other countries to hold companies to account”.

He added: “We, in Singapore, cannot simply wait and wishfully hope that the problem will be resolved on its own. The Singapore Government would want to send a strong signal that we will not tolerate the actions of errant companies that harm our environment and put at risk the health of our citizens”.

Under THPA, companies involved in activities – such as open burning – outside Singapore that result in haze spreading to the Republic can be fined up to S$100,000 per day of haze pollution linked to said activities, or to a total maximum aggregate of S$2 million.

In addition to criminal liability, the Act also creates statutory duties and civil liabilities that companies must abide by, failing which the companies may face lawsuits for any death, injury, physical damage or economic loss of any individual in Singapore “whether or not that conduct is also actionable in the foreign jurisdiction where that conduct occurred”, as stated in Section 6(4) of THPA.

It can be theorised that the problems in applying THPA are largely due to the principle of extra-territoriality and the Asean agreement taking precedence, given that THPA is still, in essence, a domestic law that was drafted and passed by the Singapore Parliament alone, and not a bilateral agreement as the Indonesian Environment Minister had argued.

Given the case, one would question the role and purpose of enacting THPA in the first place, given that Singapore is still unable to take companies such as APP to task for contributing to – or even creating – the haze problem, despite Balakrishnan’s explanation regarding the scope of the Act.