Tuesday, 25 June 2013

Tackling a burning issue

Brave New World (The Star)
26 June 2013

If we make a move to punish Malaysian companies responsible for the haze with our fiery domestic laws against open burning, the Indonesians may be persuaded to ratify the Asean Transboundary Haze Pollution Agreement.


IN 2007, I wrote two lengthy articles in this column about the haze. Five years on, the problem still persists. As tempted as I am to just cut and paste those earlier works (like the editors will remember what I wrote five years ago), what I will do instead is just summarise the salient points and make some suggestions.
Is Indonesia breaking any international law?
Yes it is. I would argue that causing damage to your neighbour’s territory via activity on your own is clearly against customary international law. The Stockholm Declara­tion has this to say: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”
This principle found its basis in the Trail Smelter Arbitration of the 1930s where it was held that Canada was liable for damage done to American crops due to the pollution from a smelting operation within its own borders. In the Gabcikovo dam case of 1997, the International Court of Justice (ICJ) decided that this principle is now customary international law. This means that all countries are bound by it.
So, Indonesia is in breach of international custom; the thing is, what can we do about it? We can try to bring them to the ICJ but the reality is, due to the voluntary nature of international law, if they don’t want to go, we can’t force them to go.
What about Asean?
There is the Asean Transboundary Haze Pollution Agreement (ATHPA), but there are two problems with this law.
Firstly, Indonesia has not ratified it, therefore they are not legally bound by it. They have however signed it, and according to the Vienna Convention on the Law of Treaties, there is a general obligation for them not to do anything that goes against the principles and objectives of the treaty. Perhaps they can be reminded of this.
But even if they do ratify the ATHPA, the second problem is that in its current form it does not provide for any process to determine liability and compensation.
In other words, there is nothing in there to punish a country that conducts or allows open burning which damages their neighbours. It is, after all, an Asean law and the Asean way is to avoid any sort of confrontation or nastiness, even if it means their citizens choke.
Does this mean the ATHPA is useless? Not necessarily. The most important international measure to be taken now is to pressure Indonesia to ratify.
After all, what are they frightened of? The treaty is not a fearsome one, quite the opposite actually, it’s a cuddly treaty.
Why, even the provisions for fire-fighting aid from neighbouring countries come with the proviso that we can only help if we are asked to help. But if Indonesia ratifies it, then there are provisions for cooperation between countries in the field of data sharing. And this is where we can all show our seriousness in handling the crisis.
The Indonesian government is fond of saying that it is foreign companies who are doing the burning, and by foreign they mean Malaysian and Singaporean. Now it would take a leap of logic of illogical proportions to suggest all the companies doing open burning are foreign. Surely there are Indonesian companies in there too.
But it would be fair to say that in all likelihood there are Malaysian companies doing the deed over the Straits of Malacca. Well, if this is so, why don’t we prosecute them here? Why depend on the Indonesian justice system? After all, if Malaysians are harming Malaysians, then it is jurisprudentially possible to extend the reach of our domestic laws onto them; and we have some pretty fiery domestic laws against open burning.
If we make the necessary legislative changes to allow for this, we can remind our friends in Jakarta that we can only make this work if they cooperate with us, in particular with regard to sharing data. And the best way for them to do so is by ratifying the ATHPA which already provides for such cooperation.
If Malaysia does this, Indonesia will not have their high horse to clamber upon. We will show them we mean business and that we will punish our citizens who commit this despicable act. And if we mean business, then they jolly well should too.

Wednesday, 12 June 2013

Respect is a two-way street

Brave New World (The Star)
12 June 2013

To earn the respect and trust of the people, the police should act as professional defenders of the law with the confidence to be monitored by an independent body.


ACCORDING to Section 3 of the Police Act, the Malaysian police are there for the “maintenance of law and order, the preservation of the peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence”.
There is nothing in the Act to suggest that the duties of the PDRM are listed in order of importance, but surely it was not chance that has “the maintenance of law and order” as first on the list.
It is only by upholding the law that the police obtain their moral authority to do what they do.
Policemen, both men and women are citizens like us, but they have powers beyond any one of us.
If I wondered around town carrying a gun, apprehending people, locking them up and interrogating them, then I am likely to get done in for possession of a dangerous weapon, kidnapping, false imprisonment and assault.
Not so our men and women in blue.
And the distinction between them and me is that they are authorised by the law to do what they are doing and they are, supposedly, bound by the rules of the law when they do these things.
If there is no respect for the law on their part, then there is absolutely no difference between them and any other ordinary gun-totting criminal or kidnapper.
All the duties that they have, as covered under the Police Act, therefore, must be carried out in accordance with the law.
We are not living in a cheap movie world where the cops have some sort of divine authority to do whatever they want to fight crime.
But sometimes one has to wonder whether the police themselves are actually aware and have knowledge of this.
There have been too many incidents recently, some more horrific than others, which raises the question as to whether our police understand that they are not above the law and are actually subject to it.
What makes it all the more frustrating is that there is no independent body such as the proposed In­de­pendent Police Complaints and Mis­conduct Commission (IPCMC) to help us answer these questions.
Sure, action has been taken against some police officers who are suspected of having broken the law and committed heinous acts.
As an example, the charging for murder of the three policemen in­volved in the Dhamendran death while in custody case.
However, this is merely a reaction to a single such incident when surely the sheer number of such cases proves that the problem is already systemic.
As the old saying goes “who wat­ches the watchmen?”
The need for an IPCMC is now so very urgent, not only to ensure the good behaviour of the errant individuals who are supposed to be the upholders of the law, but also to ensure that the police – men and women who do their jobs professionally and well are not tarred with the same brush.
We have reached a stage where if the police want the respect and trust of the people, then they have to stop being belligerent and defensive.
Instead of acting like lawless cowboys, they should act as professional defenders of the law and with confidence.
They must allow themselves to be monitored by an independent body.
As they are so fond of telling us, “If you have done nothing wrong, you have nothing to fear”.
But apart from having a change in the system to make the police more accountable, there must also be a more wide spread change in the mind-set.
The law is meant to embody certain ideals of the society.
Ideals such as: a person is innocent until proven guilty; that there is a due process in order to avoid the wrong person being convicted; that there are certain civil liberties that citizens have so that they may live with dignity in peace and that everyone has the right to be free from fear (from criminals and from the authorities).
If the police do not respect these ideals, ideals which are from the society that they are meant to serve, then just what is it that they are doing their jobs for?
If it is only a crime-free society we want, we can always have the police armed to the teeth, going around as judge, jury and executioner, killing anyone they suspect as being a law breaker, but truly, is that the society we want to live in?
Is that the society our fellow citizens, the men and women of the PDRM, want to live in? I fervently hope not.