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Haze Impacting The Neighborhood: What Actually is the Law Regulating It?

October 2, 2015

Again, the haze caused by Indonesian forest fires in Kalimantan and Sumatera has been impacting the neighbouring countries. The impact is perceived not only in Indonesia, but also in Singapore, Malaysia and Brunei Darussalam.

Singapore Haze Law 2014

Last year, Singapore reacted to the haze by issuing the Singapore Transboundary Haze Pollution Act 2014 (“Singapore Haze Law”). The Singapore Haze Law is a good attempt to prevent air pollution in Singapore by individuals or entities especially air pollution caused by fire. The Singapore Haze Law was issued to provide for criminal and civil liability for conduct which causes or contributes to haze pollution in Singapore. The law sets out the possibility of fines for entities that cause air pollution in Singapore.

Singapore’s concern in preventing haze pollution that is caused inside or outside Singaporean territory will be very helpful for neighbouring countries such as Indonesia. It is well known that air pollution is a common problem between Singapore and Indonesia. The issuance of the Singapore Haze Law will of course help Indonesia in investigating, enforcing, and preventing air pollution caused by fire which is intentionally caused by individuals or entities.

Criminal and civil liability of entities which cause air pollution under the Singapore Haze Law may be able to decrease the level of air pollution or forest fires causing air pollution. We also note the article concerning the power in the Singapore Haze Law to obtain information, as follows:

10. (1) Director General or an authorized officer may give notice in writing to any person (whether within or outside Singapore) requiring the person to furnish, within a reasonable period specified in the notice, and in such form and manner as may be specified in the notice, all documents and information:

  • which relate to any matter which the Agency considers necessary to carry out the functions or duties of or assigned to the Agency by or under any provision of this Act; and
  • which are within the knowledge of that person or in that person’s custody under that person’s control.”

The question which arises under the above provision is what if an entity outside Singapore refuses to furnish such documents and information?

The Singapore Haze Law only provides that any person within the limits of Singapore who fails to comply with the above provision without a reasonable excuse shall be liable on conviction to a fine not exceeding S$5,000. However, Singapore Haze Law says that if a person outside Singapore fails to comply with a notice, then the Singapore court may make such order as the court thinks fit to secure compliance with that notice.

We believe that the above provisions of the Singapore Haze Law will not have a significant impact on the sustainability of agriculture business in Indonesia. We appreciate the Singaporean government’s sincerity in attempting to prevent air pollution. However, our view is that the Singapore Haze Law can only be enforced for individuals or entities having domicile in or being subject to the jurisdiction of the Singaporean courts.

In addition, it is also tough to determine and prove which individual or entity caused air pollution. Even if a fire spot is within the area of a company’s concession, it is still possible that the fires were caused by the surrounding communities or natural events. We also observe that the Singapore Haze Law reverses the burden of proof in cases of air pollution. The government of Singapore only has to provide initial evidence (prima facie evidence) and the defendant will then have to prove that he/she/it is not guilty.

Indonesian Law Concerning Environmental Protection

Haze or air pollution in general has been Indonesia’s concern for many years. Regarding this issue, the Indonesian government has issued regulations concerned with pollution protection, among others:

  1. Law No. 41 of 1999 concerning Forestry

Article 50 paragraph (3)

No one shall:

  1. …;
  2. …;
  3. …;
  4. Burn forest;
  5. …;

Article 78 paragraph (3)

Anyone whomsoever intentionally violates Article 50 paragraph (3) item d shall be subject to a term of imprisonment of a maximum of 5 (five) years and a fine in a maximum amount of Rp 1,500,000,000 (one billion five hundred million Rupiah).

  1. Law No. 32 of 2009 concerning Environmental Protection and Management

Article 69 paragraph (1)

Everybody shall be prohibited from:

  1. committing actions causing environmental pollution;
  2. …;
  3. …;

…;

  1. clearing land by means of burning;
  2. …;

The sanction under Law No. 32 of 2009 is varied. Anybody causing the quality standard for ambient of air to be exceeded because of his/her negligence shall be subject to imprisonment for a maximum of 3 years and Rp 3,000,000,000 (three billion Rupiah). If the action is harming people and/or endangering human health, the sanction will be doubled. Moreover, if the action is causing serious injury or death to people, the sanction is tripled. Article 108 of Law No. 32 of 2009 also provides the sanction for anybody who burning land. The sanction will be an imprisonment for 10 (ten) years at the maximum and a fine amounting to Rp 10,000,000,000 (ten billion Rupiah) at the maximum.

Besides the penalty referred to in Law No. 32 of 2009, according to Article 119 business entities shall be liable to additional penalties as disciplinary measures in the form of:

  1. seizure of profits earned from the crime;
  2. closure of business and/or activity place wholly or partly;
  3. improvement of impact of the crime;
  4. requirement of performing what is neglected without right; and/or
  5. placement of companies under custody for 3 (three) years at the maximum.

We can see that Indonesia government has detailed provisions that regulate environmental protection. The sanction to the violation of environmental protection under Indonesian regulation is quite heavy. If the legal enforcement was done well, perhaps there would be minimum or even no air pollution due to forest fire. However, legal enforcement in Indonesia seems to be not yet optimal. The legal processes involving forest fires have not reached the expected level where the environmental law enforcement must be prioritized and generalized not only to lower class people but also to the big companies in Indonesia.

However, during this time, Indonesia has faced the problem of enforcement of the environmental regulations. Further, it is also hard to prove whether the haze is caused by human negligence or natural events. Even if it is human negligence, proof is also hard to obtain because there are no documents or anything that can be used as evidence. The hope is, environmental regulation is not only be enforced by legal enforcer only, but the community must also give their active role to report and prevent the violation of environmental law.

Further, by the issuance of the Singapore Haze Law, the government of Singapore can support Indonesia to prevent air pollution caused by fire, by at least of controlling Singaporean entities or Indonesian companies owned by Singaporean entities. Let the government of Indonesia also do the same thing to the local companies or individuals.

Extra-territorial Reach to Solve the Problem

The common matters which are precedents laws in Indonesia with extra-territorial reach concern among others electronic information and transactions and terrorism. Indonesia has no precedent for environmental laws with extra-territorial reach, especially with regard to air pollution.

To solve the extra-territorial pollution problem, we should consider international law, especially international customary law, one principle of which is “good neighbourliness”. This principle is implied in the Declaration of Stockholm 1972. In this context the principle states that every country has the sovereignty to exploit its natural resources without harming other countries.

Under international law, the liability of a country arises if one country harms another country and it is limited to acts which violate international law. If further evidenced, there must be recovery in the form of satisfaction, i.e., a formal apology, or in the form of pecuniary reparation, i.e., material compensation.

We believe that extra-territorial principal as adopted in the Singapore Haze Law will be hard to enforce as well due to the jurisdiction issue. The enforcement of this extra-territorial law can only be done if the government of Indonesia, Singapore, and Malaysia are bound in cooperation with each other. The cooperation between the neighbourhood countries can ease the prevention of haze in the future.

To show that the government of Indonesia, Singapore, and Malaysia and have the same concern and really want to solve the air pollution problem, they should enter into an international agreement concerning mechanisms for prevention and enforcement of haze between countries. International customary law must be put into effect by Indonesia, Singapore, and Malaysia. It is advisable for the countries to make an international agreement.

Indonesia and Singapore also have their own forum, called the Indonesia-Singapore Environmental Partnership (ISEP). This forum should be used by the parties to solve the haze problem in the future. Further, the forum between Indonesia and Malaysia and even between Indonesia, Malaysia and Singapore can also be made and used to solve the problem together in preventing and enforcing the regulation regarding haze problem. Hopefully, the forum can produce an international agreement between Indonesia, Malaysia and Singapore concerning haze in the future.

 

The article was prepared by Muhamad Reza Alfiandri, S.H. (Associate) and Bobby Noer Rahman, S.H., LL.M. (Senior Associate).

This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this publication to specific issues or transactions or matters. For more information, please contact us at hplaw@hplaw.co.id. No part of this publication may be reproduced by any process whatsoever without prior written permission from Hanafiah Ponggawa & Partners.