Recently, the Natural Resources, Environment and Climate Change Minister, Nik Nazmi Nik Ahmad, indicated that Malaysian companies operating overseas, including in Indonesia, may be contributing to transboundary haze, which all in Malaysia now suffer from.
“We have reminded plantation companies operating in neighbouring countries that we will not defend them if they are involved in open burning (especially) in Indonesia,” the [minister] said during ministers’ question time in the House of Representatives on Thursday, 12 October.
Health and environmental toll
In a 2014 study that “assessed the economic value of health impacts of transboundary smoke haze pollution in Kuala Lumpur and adjacent areas in the state of Selangor, Malaysia. Daily inpatient data from 2005, 2006, 2008, and 2009 for 14 haze-related illnesses were collected from four hospitals. …A smoke haze occurrence was associated with an increase in inpatient cases by 2.4 per 10,000 populations each year, representing an increase of 31 percent from normal days. The average annual economic loss due to the inpatient health impact of haze was valued at MYR273,000 ($91,000 USD)” – Abstract from research by Jamal Othmen and three others
Today, in 2023 we are still faced with the haze problem, and possibly the economic loss suffered is much greater. Then, there is also the health issues suffered by individuals and their families. This loss is yet to be computed, as it could also include loss of personal income, cost of healthcare and even unnecessary impacts to person’s health which could be long term too. Then, there is an impact to the environment.
No legal action?
It is good that Malaysia will not defend Malaysian companies responsible for the haze Malaysians are suffering from, but the question is why is Malaysia not taking legal action against these companies, which, their action or omission is affecting people’s health, the environment and even our right of quiet enjoyment of our land.
Tort of nuisance
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The Malaysian government can sue on behalf of all in Malaysia for public nuisance or assist private persons to sue. One possible cause of action is the tort of nuisance, be it a public nuisance or a private nuisance
A public nuisance arises when the action or activities by the perpetrators interfere with the comfort and convenience of the public within a particular community. It is sufficient to show that there is a class of people from that community who have suffered the consequences of the nuisance.
A private nuisance is “doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by:
(1) causing an encroachment on his neighbour’s land, when it closely resembles trespass;
(2) causing physical damage to his neighbour’s land or building or works or vegetation upon it; or
(3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.” – as stated by then Court of Appeal Judge Mary Lim.
Here, in the case of private nuisance, it does not matter whether if what the preparator is doing is legal or not – but the fact that the consequence of what he is doing is spilling over and affecting lives of people in other lands, just like haze or smoke from burnings.
Use courts against perpetrators
There is a remedy in law against the actual perpetrators that have affected our air quality by their actions or omissions, which have affected the health and even the environment of the people of Malaysia.
We can commence legal action even if the perpetrators do it in a neighbouring country, like Indonesia.
As such, Malaysia must immediately sue the companies responsible, its directors, relevant officers and maybe also majority shareholders, without even having to commence any legal action against Indonesia. Are any of these government-linked companies?
Indonesia’s unwillingness to cooperate irrelevant
It is ignorant for Minister Nik Nazmi to say, “As it involves the sovereignty of a neighbouring country and if they are not willing to cooperate, we will not be able to enforce the law.”
There are ways of taking action against any other sovereign nation.
With or without a transboundary act in place, Malaysia directly or through persons in Malaysia can already commence the required legal action against companies responsible for the fires in Indonesia that are causing the haze problem.
The legal action can be commenced in Malaysia or even in Indonesia. It is not necessary to even add the Indonesian government as a party as you can just sue the companies or persons responsible.
Malaysian or Indonesian courts
After all, we are suffering the consequences of the poor air quality that is also causing health issues in Malaysia. It is absurd to even suggest that Malaysia or Malaysians cannot take action because the companies or their actions that result in fires that causes haze are in Indonesia.
Legal action can be commenced in the Malaysian courts and, if needed, also in the Indonesian courts.
Besides tort actions, other actions even criminal proceedings are also possible options, especially when the perpetrators are Malaysian companies, Malaysian directors or shareholders. The ultimate responsibility for the actions or omissions of any company lies with the shareholders.
Government resources needed
The Malaysian government has the needed resources for investigation and evidence-gathering even overseas. It can use these resources to identify companies that caused the fire or burnings that may also have spread, causing forest fires in Indonesia.
Malaysia can find the evidence needed to show that the haze we suffer in Malaysia is linked to a company’s actions or omissions. The government also can get evidence to show the link between haze and diseases or medical conditions or even the environment.
For an individual alone to do this, it may be onerous but with the government’s assistance, including the Ministry of Natural Resources, Environment and Climate Change, it becomes a possibility for Malaysia (representing the people) or private individuals (with the assistance of the government) to be able to take legal action to get justice.
Besides compensation, an important remedy in a court action could be an injunction to get these companies, usually plantation companies, to stop open burning or even to impose conditions to prevent haze, if burning is to be done.
Sue the directors, managers, shareholders
When action is taken against companies, including Malaysian companies, the directors, manager, officers and even shareholders ought to be made parties and sued. It should not matter if they are government-linked entities/persons.
Prioritise pople over profits
Malaysia must prioritise the wellbeing of all in Malaysia over the profits of income of corporations, even if they are Malaysian companies.
Blaming Indonesia or other countries has so far sadly been the approach generally taken by Malaysia, but Malaysia really must act now against the companies or persons that caused the fires by their actions or omissions which may have even caused forest fires that caused this haze.
Malaysians Against Death Penalty and Torture (Madpet) calls for action now against all who caused this haze and air quality problem that is also affecting our health and the environment.
Our comfort, our right to good health and the right to enjoy a clean and safe environment has been affected.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)