Since August, Malaysians and Singaporeans have been breathing smoke from fires burning hundreds of kilometres away in Indonesia. The haze has incurred additional cost in doctors’ bills, N95 masks, air purifiers and cancelled plans. The question now being asked across the region is whether anyone can be held liable to pay them back.
In Indonesia, the debate has focused on criminal enforcement. The authorities have named at least 223 suspects, including nine palm oil companies, while others are demanding that the state itself be held accountable. In Malaysia, academics such as Associate Professor Dr Haliza Abdul Rahman have called for compensation for the damage the haze has caused.
The usual routes to legal accountability for haze offer shortcomings. The Asean Agreement on Transboundary Haze Pollution has no compensation mechanism and no dispute settlement clause, and Indonesia has not accepted the compulsory jurisdiction of the International Court of Justice. Singapore’s Transboundary Haze Pollution Act of 2014 allows claims to be brought in Singapore, but it depends on evidence from Indonesian authorities, and damages are hard to collect from companies with no presence in Singapore.
A recent report in The Star noted that Malaysians and Singaporeans could instead sue the companies in Indonesian courts but concluded that proving a causal link between a company’s fires and a victim’s losses would be almost impossible. Yet recent changes in Indonesian civil procedure have made that hurdle much lower than it looks, giving affected foreign nationals – Malaysians, Singaporeans and Filipinos among them – solid grounds to seek redress from the companies in Indonesian courts.
Indonesian law permits foreigners to sue. Courts must hear cases without discriminating between persons (Article 4(1) of Law No. 48 of 2009 on Judicial Power). Under Article 118 of the Herzien Inlandsch Reglement (HIR), Indonesia’s civil procedure code, a claim is filed in the district court where the defendant is domiciled. Because most fires start on concessions held by Indonesian companies, the proper forum is an Indonesian district court.
Suing in Indonesia also has a practical advantage. An Indonesian judgment can be enforced directly against the company’s assets in Indonesia, whereas Indonesian courts generally do not enforce foreign judgments.
Under Indonesian civil law, victims can claim two kinds of loss. Pecuniary losses are the costs that can be documented, such as treatment for acute respiratory infections, N95 masks, air purifiers, and income lost when businesses or activities had to stop. Non-pecuniary losses include the suffering caused by illness, anxiety about children’s health and the disruption of daily life.
Claimants can also rely on the strict liability rule. Under Article 88 of the 2009 Environmental Law, companies that engage in abnormally dangerous activities or activities posing a serious threat to the environment are strictly liable for the losses they cause. Draining peatland, which sharply raises the risk of fire, is arguably one such activity. Courts have accepted this reasoning several times in peat fire cases brought by the government.
Solving the causation problem
The insurmountable task to solve in haze pollution litigation is causation. Haze comes from many fires on many concessions at once, and no victim can say whose smoke made them ill. Under ordinary procedure, a claim that does not name every responsible party can be declared inadmissible.
Supreme Court Regulation No. 1 of 2023 on environmental cases addresses this through what is known as pollution share liability. Under Article 46, claimants do not have to identify every company that contributed to the haze.
Instead, the burden shifts to the defendant, which must bring in the other companies that share responsibility, or prove that its own concession was not burning.
The rule has yet to deliver a win. No civil claim in Indonesia has yet won compensation for haze. Past fire cases were predominantly brought by the Ministry of Environment to restore environmental damage, not to recover victims’ losses.
In 2024, eleven residents of Palembang and Ogan Komering Ilir became the first to try, suing three pulpwood companies under the pollution share liability rule (PSL). In July 2025, the Palembang District Court declared the claim inadmissible, partly because it did not seek environmental restoration – a requirement without solid legal basis. The appellate court upheld that ruling, and the case is now before the Supreme Court on a cassation appeal.
Its outcome will be significant far beyond South Sumatra. If the Supreme Court confirms that pollution share liability applies, Malaysians and Singaporeans could bring similar claims, ideally as a class action under Supreme Court Regulation No. 1 of 2002, which allows a few representatives to sue on behalf of thousands of victims whose individual losses are small.
Making haze expensive
Compensation carries an important contribution beyond the victims themselves. As law and economics scholars such as Steven Shavell have long argued, civil liability changes corporate behaviour because it forces companies to bear the costs they impose on others. This reflects one of the core principles of environmental law: the polluter pays.
Knowing that a fire on their concession could trigger claims from thousands of people in Malaysia, Singapore and the Philippines, companies now have a strong reason to abolish peat drainage, restore their land and invest in fire prevention.
For almost three decades, the haze has been treated as a matter for diplomats. Opening Indonesian courts to the people who breathe it would make it a matter for corporate accounts. Strict liability, the defendant’s domicile rule and the PSL rule already give victims in Malaysia and Singapore the legal toolbox to try. Once companies bear the cost of their fires, they will have every reason to stop them.
Zefanya Albrena Sembiring is a lecturer in environmental law and a researcher at the Center for Environmental Law and Climate Justice, Faculty of Law, Universitas Indonesia.
