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The Singapore Law Review Blog Archive ASEAN: In a Daze Over the Haze?

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Home Articles, Juris Illuminae

ASEAN: In a Daze Over the Haze?


25 December 2013 Posted by: Singapore Law Review 2 Comments
by Ryan Nicholas Hong

The countries of Singapore, Malaysia and Thailand experienced one of the worst transboundary haze pollution
crisis in June 2013, with the Pollutant Standards Index in Singapore reaching a record of 401, and Malaysia
declaring a state of emergency in some areas. This annual haze season has indeed plagued the region for
decades, prompting calls for regional unity in the face of this perennial problem. The protracted nature of the
issue can be attributed to it being multifaceted; involving many different stakeholders who have conflicting
interests and influence. This essay will thus examine the complex interplay of regional and local forces, with a
special emphasis on the Association of Southeast Asian Nations (ASEAN), and the way forward in forging a
stronger regional architecture.
The Blame Game Ensues: Jaccuse!
The haze crisis resulted in severe losses to the economies of the aforementioned Southeast Asian countries,
with tourism and productivity suffering the most. Its aftermath also saw the usual finger pointing, with many of
them pointing at the Indonesian government. Much ink has been spilled over the lack of political will on the
part of the Indonesian government. After all, domestic laws have existed for some time: any individual found
guilty of starting a forest fire can face a jail term of up to 10 years, and fines of up to 10 billion rupiah. Firms
found guilty of the offence can also have their profits seized, operations shut down, and be sued for damages.
[1] Yet, enforcement of laws remains difficult. According to a Riau Provincial Police spokesman, most fires are
started at night in remote locations, making it difficult for the culprits to be tracked down.[2] Rampant
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The Singapore Law Review Blog Archive ASEAN: In a Daze Over the Haze?

24/05/2015 8:37 pm

corruption also remains a big issue in Indonesia, with rent-seeking local leaders and corporations taking
advantage of lax law enforcement and murky regulations to continue clearing forests at an increasingly rapid
rate.[3]
However, what stoked tempers more was Indonesias response and reactions to the crisis. Many felt that the
response by the Indonesian government was far too slow, and the magnitude of the response, too small. Cloudseeding operations (with two aircraft) only commenced when the haze reached critical levels in the countries of
Singapore and Malaysia, and only three helicopters were used to put out the fires on hundreds of hectares of
peatland.
Even more troubling was the reactions of some in the Indonesian government. While the government purported
to shift some of the blame on Malaysian and Singapore-based palm oil companies, the minister coordinating
Jakartas response to the crisis, Agung Laksono, accused Singapore of acting like children in a tizzy.
Indonesian Foreign Minister Marty Natalegawa also remarked that Indonesia would not apologise for the haze.
It should however, be heartening to note that the Indonesian Government has taken, and continues to take
action. In October 2013, the Riau police charged 29 people, including plantation owners and field workers, for
their alleged role in starting forest fires. One company that was thought to be a possible culprit behind the fire
is PT Adei Plantation and Industry. According to a Wall Street Journal Report, investigations are currently
ongoing, with senior employees of Adei Plantation, including one Danesuwaran K. Singham, and one Tan Kei
Yoong currently assisting with the investigations.[4]
Ultimately, it still remains to be seen if the government will impose harsh penalties on any persons convicted,
to ensure deterrence. The government must also resolve to stamp out corruption if it wants to ensure
compliance with and enforcement of the law. Yet, this may be a simplification of a complex issue. Burning of
peatland remains the cheapest and fastest way to clear large swathes of land, and farmers are used to this
system. Unless a viable alternative is proposed, the problem is likely to remain persistent.
Other Actors
Given the difficulties faced by the Indonesian government, what then can other countries and the international
community do?
Firstly, governments could ban the import of products by companies responsible for the fires. However, this is
not an easy solution given the difficulties in identifying the culprits behind the fires, especially since
investigations are still ongoing (as aforementioned), months after the crisis. Further, such actions may well
affect bilateral ties and trade relations between countries.
A second alternative is a boycott by an active citizenry of the same products. However, this is not a viable
solution given that not all consumers make environmentally-conscious choices when it comes to their
shopping. There is also no guarantee that such a boycott would be effective, if it is even initiated in the first
place, given that there would always be a segment of the population that would be apathetic to such a cause
(think pragmatic Singaporeans). Palm oil, from the plantations in Indonesia, is also seemingly ubiquitous, and
can be found in many products that we use daily, such as toothpaste, shaving cream, soaps, and it is even used
as an ingredient in foods. The geopolitical realities of Southeast Asia must also be considered. Can a boycott in
our tiny red dot affect the large and powerful behemoth that is Indonesia?
A third recourse is to be found in International Law. As Professors Tommy Koh and Michael Ewing-Chow
note, international law allows for extraterritorial jurisdiction if the actions affect the state asserting such a
jurisdiction. With such laws, governments can prosecute the culprits for activities carried outside their territory.
[5] Yet, once again, this proves tricky if the culprits cannot be identified in the first place.
Lastly, cooperation is required from industry and corporations. A good example is Sime Darby, which gave the
Indonesian government permission to re-take its fire prone lands to prevent wildfires, and also gave an
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assurance that it would educate farmers on their land about the dangers of open burning[6]. More work has to
be done towards making sustainable farming the new norm. This will eradicate slash-and-burn techniques.
The Asean Way
Given the challenges faced by the Indonesian government and a lack of viable options through international
law, perhaps we can look to ASEAN for a solution. The ASEAN summit in Brunei saw the adoption of the
joint haze monitoring system, marking a small, but important milestone in anti-haze efforts. The system will
employ high-resolution satellite images together with land use and concession maps to identify the culprits
behind future forest fires. This unprecedented move, garnering the backing of all 10 ASEAN leaders,
underscores the cooperation and resolve by the regional group in tackling this problem. Singapores Prime
Minister Lee Hsien Loong also welcomed the move as a concrete example of cooperation[7]. However,
problems remain. While Singapore had pushed for official land use and concession maps that show where
companies are allowed to conduct their economic activities, to be made publicly available, Indonesia and
Malaysia registered their disapproval, citing legal concerns.
Although ASEAN has long been noted for the so-called Asean Way, which prioritises consensus over
conflict, perhaps ASEAN is not quite the paper tiger it is so often made out to be. As much as ASEAN is
powerless as long as Indonesia does not ratify the 2002 Asean Agreement on Transboundary Haze Pollution
(and indeed, powerless even if Indonesia does ratify the agreement[8]), it should be noted that the five
environment ministers of Singapore, Malaysia, Indonesia, Brunei, and Thailand did reach a compromise that
the maps be shared on a case-by-case basis between governments. Indonesias Presidential advisor on climate
change Agus Purnomo has also come out in support of the release of maps that show the burnt areas.
In the aftermath of the crisis, leaders from the affected countries, including Singapores Environment Minister
Vivian Balakrishnan made numerous trips to Indonesia, placing pressure on the Indonesian government. It is
submitted that ASEAN is highly relevant as a forum for small countries like Singapore, especially in light of
the geopolitical realities of Southeast Asia, where Indonesia has the largest economy. As Singapores Law
Minister K Shanmugam noted, ASEAN and international organisations prove useful and important platforms
for issues to be raised and countries have to then account for their actions. That by itself has had, in the past,
impact on the conduct of countries[9].
Conclusion
It has now been about half a year since the regions worst air pollution crisis in 16 years. The embers are long
gone, and the smog has subsided. But let us not forget that the problem remains perennial (and an annual
issue), and addressing it would require the concerted efforts of industry, government, and citizenry.
Southeast Asian regionalism may well be a driving force for change and it shall be interesting to observe the
evolving role that ASEAN will play in the near future, especially with the ASEAN Economic Community due
in 2015. By then, Indonesia ought to have ratified the Asean Agreement on Transboundary Haze Pollution if
the undertaking by its Environment Minister is followed through. Indonesia constitutes about 40 per cent of the
ASEAN economy[10] and it shall have to demonstrate more resolve and sincerity in dealing with the haze
problem if it wants to assume a leadership role in Southeast Asia.
Singapores national broadsheet pessimistically noted that we, like others in the region, ought to learn to be
better prepared when the haze inevitably returns again.[11] Hopefully, there can be a day when that statement
shall no longer hold water.
[1] Two Malaysian plantation managers in haze probe, banned from leaving Indonesia online: MSN
Malaysia <http://news.malaysia.msn.com/malaysia-news/two-malaysian-plantation-managers-in-haze-probebanned-from-leaving-indonesia-1>

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The Singapore Law Review Blog Archive ASEAN: In a Daze Over the Haze?

[2] Arlina Arshad, Indonesia begins cloud-seeding to fight haze online:


<http://sg.news.yahoo.com/indonesia-begins-cloud-seeding-fight-haze-051337093.html>

24/05/2015 8:37 pm

Yahoo

News

[3] Sara Schonhardt, How corruption is fuelling the haze, The Straits Times (25 June 2013) online: The
Straits Times <http://www.straitstimes.com/the-big-story/asia-report/opinion/story/how-corruption-fuellingthe-haze-20130625>
[4] Supra note 1
[5] Tommy Koh and Michael Ewing-Chow, The transboundary haze and the international law, The Jakarta
Post, (27 June 2013) online: http://lkyspp.nus.edu.sg/ips/wp-content/uploads/sites/2/2013/07/pa_TK_JakartaPost_The-transboundary-haze-and-the-international-law_270613.pdf>
[6] Supra note 1.
[7] S Ramesh, PM Lee welcomes adoption of ASEAN haze monitoring system, online: Channel News Asia
<http://www.channelnewsasia.com/news/asiapacific/pm-lee-welcomes-adoption/841538.html>
[8] See Koh Kheng Lian, A Breakthrough in Solving the Indonesian Haze, online: http://data.iucn.org/dbtwwpd/html/EPLP-072/section12.html
[9]Ministry of Foreign Affairs, Press Release, Transcript Of Minister For Foreign Affairs And Minister For
Law K Shanmugams Press Conference On The Haze Issue ( 22 June 2013) online:
<http://www.mfa.gov.sg/content/mfa/media_centre/press_room/pr/2013/201306/mfa-press-releasetranscriptof-minister-for-foreign-affairs-an.html>
[10]Indonesia will be strong in ASEAN Economic Community 2015, The Jakarta Post (08 September 2013)
online: Asia News Network <http://news.asiaone.com/news/asia/indonesia-will-be-strong-asean-economiccommunity-2015>
[11] Joyce Lim, For Riaus farmers, livelihood trumps haze, The Straits Times (30 June 2013) online: The
Straits Times <http://www.straitstimes.com/the-big-story/asia-report/indonesia/story/riaus-farmers-livelihoodtrumps-haze-20130630>

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