This unhealthy haze affecting some member countries of ASEAN is primarily made up of the dissipated smoke from fires on Sumatra, resulting from human activities via the cutting down of trees, open burning of peatland and other factors.

When haze in Southeast Asia is caused by human activities, it immediately calls to mind the alarming statement made by James Hansen, a former NASA scientist, who told a United States congressional hearing that he could declare "with 99 percent confidence" that the sharp rise in global temperature was due to human activities.

The ASEAN population could breathe a sigh of relief when its leaders became fully aware of this air hazard and agreed to sign a regional multilateral agreement known as the ASEAN Agreement on Transboundary Pollution (AATHP) on June 10, 2002, in Kuala Lumpur. Malaysia became the first country to ratify the AATHP in December 2002, followed by Singapore in January 2003 and Brunei Darussalam in February 2003. Later in 2003, Myanmar, Vietnam and Thailand ratified the AATHP, making it formal after six ASEAN member states ratified it. Indonesia became the last country to ratify it in 2014.

The Trail Smelter case is often referred to whenever the issue of transboundary pollution under international law crops up in discussion. The case involved transboundary pollution between the federal governments of both Canada and the US, which eventually contributed to establishing the “no harm” principle in the environmental law of transboundary pollution.

This important doctrine of no harm was subsequently adopted by ASEAN when its members decided to ink the AATHP. Its raison d'etre is to create a framework that will allow parties to reduce transboundary pollution and its associated harm.

Article 3 of the AATHP is a clear commitment to the fundamental principle of “no harm”. This cornerstone principle of international environmental law stipulates that states are under an obligation not to cause harm to the environment of other states, or to areas beyond their national jurisdiction.

By virtue of Article 4 of the AATHP, all ASEAN countries have duly agreed to undertake and carry out certain statutory obligations under the agreement. One such obligation is to take legislative, administrative and/or other measures to implement their obligations under this agreement.

The fact that the word “shall” is employed in Article 4 of the AATHP shows beyond doubt that all the parties to the agreement are fully aware of the legal implications of the article. Such a vital article is not only binding upon countries like Malaysia and Indonesia but also carries some element of mandatory-ness.

However, despite almost 21 years since the AATHP was duly signed, countries like Indonesia and Malaysia, being the direct victims of transboundary haze pollution, still have failed to enact and pass a domestic transboundary haze pollution law. Only Singapore has one, duly enacted in 2014.

As far as Malaysia is concerned, it was reported that the plan to table such a transboundary haze bill in 2019 was in the pipeline then but it was abruptly halted in 2020 following a change in government.

And the present minister of natural resources, environment and climate change is reported to have said that plans for the Transboundary Haze Act are still under review. The minister also told the media that his ministry needed to consider the challenges of obtaining evidence for prosecution purposes, which involves data related to security, and the sovereignty of the country responsible for the haze pollution. He has also cited Singapore’s challenges in implementing its Transboundary Haze Pollution Act, which cannot be enforced against entities governed by other countries.

Pessimists may have to take his words with a pinch of salt and in turn take the government to task as to why it has taken so long for the government to even undertake to review the plan of tabling the proposed legislation, having signed and ratified the AATHP so many years ago.

What is badly required now is for Malaysia to enact a law on transboundary haze pollution given that the scourge of transboundary pollution may hit the country at any time. The implementation of any law has to undergo the necessary process of the usual trial and error. That is the true nature of any law-making process.

The Malaysian government should not accept such challenges as cited by the minister as a stumbling block for the government to produce much-awaited special legislation on transboundary haze. After all, such important legislation is long overdue.

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The writer is a former deputy minister of law of Malaysia, former member of Parliament and former practicing lawyer for almost 25 years.