Singapore has sent a diplomatic note to Indonesia “over the escalation of hotspots”, in addition to seeking and offering in return assistance in managing said hotspots, said Minister for the Environment and Water Resources Masagos Zulkifli in a Facebook post yesterday evening (26 Sep).
Stating that “stronger action” is needed to prevent the reoccurrence of haze in Southeast Asia, which he calls “a perennial scourge” for “millions of people” in the region, Masagos added that the CEO of the National Environment Agency (NEA) has earlier written to his Indonesian counterpart to seek more information on companies being investigated by the Indonesian government.
Such a measure, said Masagos, was carried out in order for the Singapore government to probe further into said companies, among them being Singapore-linked ones.
He added that NEA will “continue to monitor the haze situation closely”.
Masagos stressed that Singapore “will not tolerate the actions of errant companies that jeopardise the health and lives of people here and in other countries”, and will thus “not hesitate to enforce the THPA if Indonesia is able to provide Singapore with evidence of wrongdoing by any company that has contributed to haze in Singapore”.
“I am also glad that the Indonesian Ministry of the Environment and Forestry is stepping up efforts to pursue action against companies that are culpable for the fires, and subjecting them to the full extent of the law, and pursuing the necessary evidence to do so.
“I hope the investigations by the Indonesian authorities will result in strong and decisive action taken against the companies responsible for the forest fires. This would mark a significant step towards resolving the recurrent episodes of haze pollution,” said Masagos.
“This is the spirit and intent of Singapore’s Transboundary Haze Pollution Act (THPA), which was passed in 2014. The THPA is not meant to undermine the sovereignty of any country and is in line with international law.
“The THPA complements national efforts, such as those by Indonesia, to hold the responsible parties accountable. The Act is needed because there has been inadequate enforcement to deter illegal land clearing. I am pleased that Malaysia is considering similar legislation,” he added.
About a week ago on 18 Sep, Masagos said 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 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.