MALAYSIA'S transboundary haze law comes and goes just like the smog it tries to tackle. On Monday, Natural Resources, Environment and Climate Minister Nik Nazmi Nik Ahmad said Putrajaya had decided against tabling the bill, only to say on Wednesday that the ministry isn't giving up on it.
The hither and thither legal dance is understandable. In a world made up of 198 sovereign nations, extraterritorial jurisdiction is as unwelcome as the haze. But that doesn't mean Malaysia should hold back.
Only that the transboundary haze law alone won't put an end to it. There are three reasons for this. Firstly, cross-border laws such as the transboundary haze law can only target multinational corporations, which aren't the only source of the fires that cause haze.
In one study by the Centre for International Forestry Research (CIFOR), it was found that multinationals represented 21 per cent of the culprits, though many were incorporated in Malaysia and Singapore. Seventy-nine per cent of the fires had their origins in land owned or leased by small landholders.
Secondly, enforcement will be an issue. This must be overcome. Our Parliament, being an institution of a sovereign nation, can pass any laws it wants. It can pass a law, if it so desires, that prohibits smoking in the streets of France, but what good is it when it can't be enforced? More importantly, it will be an infringement of the sovereignty of France.
Thirdly, Singapore took the transboundary haze law route nine years ago and yet is finding it hard to put out the fires in Indonesia. But the island state's Transboundary Haze Pollution Act 2014 (THPA) has some clever ways to go after big commercial entities, Singaporean and non-Singaporean alike.
Regulators tasked with enforcing the THPA seek data from these companies to use as evidence should they be prosecuted in court. It goes without saying that the THPA won't be enforceable in Indonesia, but it will be in Singapore. Once the corporate types given to causing forest fires in Indonesia land on Singapore soil, the THPA will kick in.
Still, nine years of work there has not done much to end the haze. The fact that Singapore passed the THPA as long ago as 2014 and the fact that Malaysia is compelled to take a similar route is telling of the failure of the Asean Agreement on Transboundary Haze Pollution signed in 2002. Here we are 21 years later still battling the smoke pall. Even a treaty ratified by all 10 nations is too much for Asean.
Must everything — well, almost everything — Asean touches fail? The Asean treaty was our best hope, but it appears our best isn't good enough.
This leaves us with only one solution. Get to the source of the fires. If the culprits are multinationals then Indonesia, Malaysia and Thailand, the three countries that are said to be the source of fires, must prosecute them.
As for the small landholders, they must be taught an alternative to slash-and-burn farming. The Australian Institute of International Affairs, quoting CIFOR, says the burning method costs about US$180 per hectare, while the non-burning method costs US$800 per hectare.
This is no incentive for a switch. Indonesia alone may not be able to fund the change. Nine others in Asean must chip in. But dare we say that?