While several parties have expressed interest in taking legal action against those responsible for the haze that has been plaguing Malaysia since last month, the Bar Council Human Rights Committee says a hearing in the International Court of Justice (ICJ) is not likely to materialise.

However, depending on the parties being sued and the basis of the lawsuit, a legal action in the Indonesian or Malaysian courts may still be possible, the committee's co-chairperson Andrew Khoo said.

In order to have a hearing in the ICJ, both Malaysia and Indonesia would have to agree to it. However, Indonesia is not likely to cooperate in this matter, Khoo told Malaysiakini .

“These are the kinds of issues that the ICJ was set up for – countries having problems with another country.

“The problem is that you need consent. You can’t just drag one country to the ICJ. Both countries must agree to bring an issue to a hearing in the ICJ.

“Can we persuade Indonesia that this is something that should be done? If there is a finding against Indonesia, Indonesia would have to pay reparations or damages. They may not be prepared to do that,” Khoo ( photo ) said.

He spoke to Malaysiakini on this matter after attending a panel discussion on the UN’s Sustainable Development Goals (SDG) in Kuala Lumpur yesterday.

As for the Malaysian and Indonesian courts, Khoo said, there was an issue of deciding which was the 'most convenient forum' for the lawsuit to take place.

On the one hand, it can be argued that the forest fires are taking place in Indonesia and it is Indonesian companies that are involved, hence the lawsuit should be filed in the Indonesian courts.

On the other, it can be argued that although the forest fires are in Indonesia, its effects are being felt in Malaysia and that can be the basis for a lawsuit here.

It may also be the case that the parent company of those responsible for the fires are based in Malaysia, which can be a basis for a lawsuit in Malaysia.

“The courts would have to weigh which is the most appropriate forum. This is always an issue when it comes to trans-boundary matters," Khoo said.

Malaysian companies involved

As for the quantum of damages, he said neither the Malaysian nor Indonesian courts have developed a system to estimate damages to be paid.

Although the plaintiffs in the case may show their medical bills to the court, for example, there is a question of how much of the damages are a direct consequence of the haze.

This year’s haze season started in early September and is still continuing, with the Air Pollutant Index (API) even crossing the 300 mark, which is considered 'very unhealthy'.

The haze is caused by forest fires from land-clearing operations in Sumatra and Kalimantan, with the smog being blown across the border.

Indonesia had previously claimed that Malaysian companies are among those responsible.

Several groups and individuals have threatened to sue those responsible for the haze or even the Indonesian government itself.

Among others, Solidariti Anak Muda Malaysia said it was gathering the names of those affected by the haze for the purpose of initiating legal action against any companies or individuals thought to be responsible.

Similarly, several Muslim NGOs, such as the Muslim Consumers Association of Malaysia and Pertubuhan Tarekat Muktabar Malaysia, have reportedly announced last week that they are in the process of gathering information in the hope of lodging a class action suit next month.

A Kepala Batas man also lodged a police report stating that he wants to sue the Indonesian government for US$100 million (RM428 million) in damages.

Asean agreements toothless

Earlier, during yesterday’s panel discussion, Khoo told a small audience of activists that Asean already has several frameworks to tackle common issues, such as migrant workers and trans-boundary haze.

However, none of these are legally binding and have no legal repercussions if the rules are not adhered to.

The question, therefore, is whether Asean member states are willing to commit to binding rules, as they have already done with trade agreements.

Responding to a question, Alizan Mahadi of the think-tank Institute of Strategic and International Studies (Isis) said the United Nations SGD cannot be used to compel Indonesia to act on the haze.

Although its 19 goals and hundreds of targets have also touched on issues related to haze, the document is not legally binding.

However, Alizan said, the document endorsed by the UN General Assembly on Sept 25, 2015, can still be used to start fresh dialogues with Indonesia on the issue.