AN environmental law expert has proposed the government study the United States’ extraterritorial legislation, the Foreign Corrupt Practices Act (FCPA) 1977, in drafting the proposed Transboundary Haze Act.

Dr Hanim Kamaruddin of Universiti Kebangsaan Malaysia said the FCPA was the first to introduce corporate liability, responsibility for third parties and extraterritoriality for corruption offences, meaning that any US-based companies and persons can be held criminally and civilly responsible for corruption offences committed abroad.

“Hence, the proposed Transboundary Haze Act should also have provisions with a similar concept in order to tackle transboundary crime.

“This is to enable the Attorney-General’s Chambers to take legal action against any Malaysian companies if they or their subsidiaries abroad were found to be involved in causing transboundary smoke pollution,” she told Bernama.

She said the extraterritorial legislation would make life easier for prosecutors as the subsidiaries have a direct connection with their holding companies in Malaysia.

On September 19, Minister of Energy, Science, Technology, Environment and Climate Change Yeo Bee Yin was reported as saying that the ministry was awaiting green light from the cabinet to draft the Transboundary Haze Act.

She said the act was to enable action to be taken against Malaysian companies that caused transboundary smoke and also for Malaysian-owned plantations that cause fires overseas to be tried in Malaysian courts.

According to Hanim, this concept had already been implemented in the country.

For example, she said Section 66 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 enables action to be taken against Malaysian nationals who commit corruption offences abroad.

Hanim said the government could also study Singapore’s Transboundary Haze Pollution Act 2014, which criminalises conduct causing or contributing to smoke pollution in the republic.

However, she said if the act were to be copied in total without any amendment, Malaysia would face the same problem in obtaining the co-operation from the originating country, especially to disclose the list of entities or companies involved.

“This is because such a move can be deemed as jeopardising the sovereignty of the originating country and can bring about negative implications, at domestic and international level.

“It will also hamper the implementation and efficient enforcement of the act,” she said.

In this regard, Hanim said co-operation between Asean member countries was vital in ensuring the smooth implementation of the law and, hence, the efficient enforcement of a proposed Transboundary Haze Act in Malaysia.

Malaysia currently has only a domestic law, the Environmental Quality Act 1974, with one specific provision prohibiting open burning, which was enacted following the same incident in 1997-1998.

Hanim said the proposed act could probably provide several types of punishments, such as higher fines, imprisonment or whipping, while in terms of administration, it would be more on payments for clean-up, firefighting and land rehabilitation, apart from civil punishment such as compensatory and punitive damages.

Meanwhile, Prof Dr Ahmad Martadha Mohamed of Universiti Utara Malaysia’s College of Law, Government and International Studies, said if the act was aimed merely at taking action against Malaysian companies that cause smoke overseas, it might be difficult to implement.

“Imagine if Indonesia were to take legal action, how can Malaysia take the same action? All the evidence is there and the burden of proof on us will be heavy because we have to get Indonesia’s co-operation and call all the witnesses there,” he said.

According to Martadha, the most effective method was for Malaysia and Indonesia to sit down and discuss the suitable punishments for the offences, with Malaysia to give full co-operation when needed.

“For example, if it occurred in Indonesia and the culprits were Malaysian companies, heavier punishment can be imposed in accordance with the Indonesian laws. Let them decide,” he said.

Chairman of Senate Reform Working Committee, Senator Mohd Yusmadi Mohd Yusoff, on the other hand, proposed for the establishment of a caucus among Asean members of Parliament, especially of countries involved in smoke issues such as Malaysia, Indonesia and Singapore, to resolve the issue.

He said this was because the issue involved government-to-government and the people, and it could no longer be viewed as an environmental issue because it also involved national security and human rights.

“So, it should involve the parliamentarians elected by the people, as they also represent their respective constituencies affected by the haze.

“I am sure that this approach will give new inspiration and level of commitment,” he added. – Bernama, September 21, 2019.