Friday, October 13, 2023

Not Defending Malaysian Companies that cause haze - Malaysia should SUE companies responsible for the Haze we suffer (MADPET)

Media Statement – 13/10/2023

Malaysia must SUE, not protect, Malaysian companies overseas that is responsible for hazardous haze people in Malaysia suffers

Tort of Nuisance and other legal means already there – no need to wait for any new laws

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 neighboring countries that we will not defend them if they are involved in open burning (especially) in Indonesia,” the Natural Resources, Environment and Climate Change Minister said during Ministers' Question Time in the Dewan Rakyat on Thursday (Oct 12).(Star)

Haze Affects Health/Environment And Cost The Government

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 3 Ors.

Today, in 2023 we are still faced with the haze problem, and possibly the economic loss suffered is much greater. Then, there is also to health issues suffered by individuals and their family, and 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.

Why is Malaysia not taking legal action against companies? Will Not Defend Position Inadequate

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 who by their action/omission is affecting Malaysian peoples’ health, environment and even our right of quiet enjoyment of our land.

Tort Of Nuisance Is Possible Cause Of Action Against Companies  

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 public nuisance or private nuisance

Public nuisance arises when the action or activities by the perpetrators  interfere with the comfort and convenience of 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 said nuisance

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[i].

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 the Courts Against Perpetrators – Companies/Individuals

There is remedy in law against the actual perpetrators that have affected our air quality by their actions/ommission, 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(GLCs)?

Indonesia Not Willing To Cooperate Irrelevant For Legal Action Against Perpetrators

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,”(Star, 11/10/2023). There are ways of taking action against any other sovereign nation.

With or without a Transboundary Act in place, Malaysia directly and/or through persons in Malaysia can already commence required legal action against companies who are responsible for the fires in Indonesia that is causing the haze problems.

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.

Commence Action in Malaysian Courts or Indonesian Courts

After all, we are suffering the consequence, being 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 fire 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 actions/omissions of any company lies with the shareholders.

Malaysian Government Resources Needed for Anti-Haze Legal Actions

Malaysian government has the needed resources for investigation and evidence gathering even overseas, and they can use it to identify companies that caused the fire or burnings that may also have spread causing forest fires in Indonesia. Malaysia can find needed evidence to show that the haze we suffer in Malaysia is linked to a company’s action/omission. The government also can get evidence to show the link between haze and diseases/medical conditions or even to 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 injunctions 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 Not Just the Company

When actions are 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.

Prioritize People over Profits

Malaysia must prioritize the well being of all in Malaysia over profits/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 action/omission, which may have even caused forest fires that caused this haze.

MADPET (Malaysians Against Death Penalty and Torture) 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

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)




[i] CIVIL APPEAL NO: B-02(NCVC)(W)-1163-06/2017]10 JULY 2019

Govt will not defend Malaysian companies contributing to the haze

Thursday, 12 Oct 2023 12:18 PM MYT
KUALA LUMPUR: The government will not defend Malaysian companies operating overseas which contribute to transboundary haze, says Nik Nazmi Nik Ahmad.

“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 Natural Resources, Environment and Climate Change Minister said during Ministers' Question Time in the Dewan Rakyat on Thursday (Oct 12).

Nik Nazmi said his ministry and the Foreign Ministry had submitted a diplomatic note to the Indonesian government informing Jakarta of the haze situation in Malaysia and the intention to work together on operations to put out fires at affected areas. 

Nik Nazmi said the transboundary haze issue cannot be resolved solely through the enactment of laws or by pointing fingers.

“We have to admit that aside from Malaysia, Indonesia too had taken steps to address the issue of burning at plantations and peat fires in the past few years, through a presidential decree and other measures,” he said.

He said there were several impediments to enacting transboundary laws such as coordinates, location, and the details of landowners and companies operating in the affected areas.
“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,” he said.

He said while Singapore has a Transboundary Act in place, it has not been successful when it comes to mounting legal charges.

ALSO READ: Indonesia minister says no transboundary haze to Malaysia, fires on decline

“We will adopt the diplomatic approach and also (seek) technical and scientific cooperation under the Asean Agreement on Transboundary Haze Pollution (AATHP).

“This agreement (has) existed since 2002 and Malaysia was among the first nations to sign,” he said.

Moving forward, Nik Nazmi said Asean member states must work towards improving the AATHP to combat the cross-boundary haze situation affecting the region.

He said under the current Asean agreement there are no provisions for punitive action to be initiated against companies or countries which induce haze.

“This is a constraint we have under the current framework,” he said.

Nik Nazmi was responding to a question from Datuk Idris Ahmad (PN-Bagan Serai) on whether or not existing Acts suffice in terms of enforcement against neighbouring countries.

ALSO READ: Haze hits Johoreans’ respiratory systems

The annual haze which results from forest fires in Indonesia has been a bone of contention in the region for several years.

Every dry season, the region is covered in smog due to smoke from fires in Indonesia. These fires are usually from land clearing for oil palm and other plantations.

Indonesian Environment and Forestry Minister Siti Nurbaya Bakar said on Oct 6 that forest fires in some parts of Sumatra and Kalimantan had declined with no haze detected moving to Malaysia.

Her remarks came after Nik Nazmi said in a recent interview with Reuters that he had asked his Indonesian counterpart to address the haze as air quality in the country was worsening, saying haze should not be a new normal. - Star, 12/10/2023

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