Amendments to Transboundary Haze Pollution Act will not apply retrospectively to four Indonesian firms linked to 2015 haze

The amended Transboundary Haze Pollution Act (THPA) will not apply retrospectively to past conduct, including that of four Indonesian companies issued preventive measures notices by the National Environment Agency (NEA) over severe transboundary haze in 2015.

Minister for Sustainability and the Environment Grace Fu said amendments to provisions on offences and defences would not have retrospective effect. She was responding to MPs during the debate on amendments to the Transboundary Haze Pollution Act in Parliament on Wednesday (4 November).

She repeatedly stressed that conduct preceding the commencement of the amended Act could be prosecuted only under the original Act and would be subject to existing penalties. The procedural amendments would neither create new offences retrospectively nor increase the penalties applicable to conduct before the amendments take effect.

In response to Lianhe Zaobao's queries on Wednesday, NEA said this was consistent with Article 11 of Singapore's Constitution, which prohibits new laws from retrospectively punishing conduct that was not previously an offence.

However, the authorities may consider a company's or individual's past conduct when appointing examiners under the new framework, placing companies or individuals on a restricted list, or issuing compliance notices. Fu said, “And if we do want to investigate or prosecute existing THPA offences, the improved procedures will remove hurdles that might stand in the way.”

In 2015, Singapore invoked the THPA to require six Indonesian timber and plantation companies to take preventive measures, including putting out fires, preventing their spread and stopping land-clearing by burning. NEA recently said that two of the companies had stated they no longer had any connection to the land concerned before the forest fires broke out in 2015. The authorities accepted their explanations following further investigations and formally closed those cases.

Fu said investigations into the remaining four cases were ongoing despite lengthy procedural delays. Although the information currently available was limited, the authorities would continue seeking evidence. Three of these companies were also under investigation over the latest haze episode, she said, adding that their past conduct would be taken into account.

Government agencies face difficulties conducting investigations overseas because of potential sovereignty issues. The government has therefore set up a transboundary haze investigation panel, with a law firm coordinating its investigative work.

Responding to Workers' Party MP Sylvia Lim's question on why the haze investigation panel was not coordinated by the Attorney-General's Chambers (AGC), Senior Minister and Coordinating Minister for National Security and Minister for Home Affairs K. Shanmugam pointed out that companies served with legal notices must appoint representatives from the panel to conduct examinations. This was because agencies such as NEA would be regarded as Singapore government agencies and would face difficulties exercising investigative powers overseas. The panel provides a framework for companies served with legal notices to appoint private investigation firms, law firms and others to carry out investigations. These private firms are able to operate in foreign jurisdictions.

SM Shanmugam, who also chairs the Homefront Crisis Ministerial Committee, explained that while foreign countries might find reasons to prevent these firms from carrying out certain work, they were less likely to bar representatives of private firms from entering their jurisdictions. A private entity was also needed to coordinate transboundary haze investigations. If AGC carried out this work, other countries might regard it as an infringement of their sovereignty.

However, AGC would examine the reports prepared by the panel's representatives on the companies under investigation, establish the facts and evidence, and decide what further action Singapore should take.