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ELI Supports Judiciary of Indonesia in Sound Adjudication of Environmental Cases

Wednesday, May 9, 2018
Christina Libre

Christina Libre

Research Associate

Alejandra Rabasa

Alejandra Rabasa

Senior Attorney; Director, Judicial Education Program

This summer, ELI’s Judicial Program, in collaboration with the Indonesian Center for Environmental Law (ICEL) and experts from other corners of the globe, will host a week-long, capacity-building workshop to support members of the Indonesian judiciary in soundly adjudicating cases related to the degradation of natural resources. The project is funded by the Swedish Postcode Foundation, an innovative organization dedicated to seeking long-term solutions to local and global challenges.

Indonesian Communities and Biodiversity under Threat

Peatland forest in RMU concession, Central Kalimantan, Indonesia (Nanang Sujana/CIFOR)

Indonesia is home to incredible biodiversity. Though the country covers only 1.3% of the planet’s surface, it is home to approximately 12% of the globe’s mammal species, 17% of bird species, 15.5% of total world flora, and 4% of the world’s most ecologically undisturbed forests. Indonesia also possesses about 50% of the world’s total tropical peatlands, which serve as a sink for a great deal of carbon.

Yet, these natural resources are increasingly under threat from the pressures of a growing population and expanding, often unlawful, economic activity. Illegal logging, reckless conversion of lands to palm oil plantations, and disastrous oil spills, among other things, are diminishing Indonesia’s rich biodiversity, threatening the health and livelihoods of communities and releasing enormous amounts of carbon into the atmosphere.

In Indonesia, this environmental degradation most acutely impacts poor and indigenous communities that are unlikely to receive the economic benefits of the activities impairing the landscape. Impacts are not relegated solely to Indonesia, though. Neighboring Singapore, for example, has been grappling with air pollution from forest and land fires in Indonesia. Moreover, as carbon from Indonesia’s forests and peatlands enters the atmosphere, it aggravates anthropogenic climate change, an inherently global challenge. 

A Legal Framework for Effective Protection of People and the Environment

Despite these alarming trends, Indonesia has a reasonably robust legal framework in place for environmental protection. The country’s constitution provides every person a right to “a good and healthy environment” and states that the development of a national economy should include consideration of the environment. Implementing these constitutional provisions is an expansive suite of laws and regulations at the federal, provincial, and local levels.

These laws and regulations provide some relatively new legal tools that can help bring degradation of natural resources into the courtroom. Law No. 32 on Environmental Protection and Management allows civil society organizations and the Indonesian government to sue or seek settlement with parties allegedly responsible for environmental harms. Moreover, “everybody” is allowed to file suits against the government on grounds that an administrative decision did not align with procedural duties.  

These tools were exploited in the 2015 government prosecution of palm oil company PT Kallista Alam. The company had been deliberately burning large swaths of peatland, resulting in air pollution that was injurious to human health and causing the destruction of almost 2,500 acres of protected Sumatran forest that provided critical habitat for endangered species like the orangutan. The government brought a suit against the company, and the Supreme Court ultimately found PT Kallista Alam liable for US $25.6 million in compensation to the government, along with additional fines for each day that the company failed to comply with court orders. This was the largest fine that had ever been ordered of an offender in an Indonesian environmental case. 

Persistent Challenges to Effective Environmental Protection 

Though the above legal frameworks and tools are in place, ongoing trends in resource degradation illustrate persistent gaps in effective protection of the environment and communities. Much of the legal action related to environmental degradation in Indonesia still does not result in verdicts holding alleged perpetrators liable, and cases that do happen to be successful in this regard often face other persistent challenges. Judicial decisions may not hold responsible parties liable for the full value of losses to impaired resources. Furthermore, it has been difficult to ensure that fines are enforced and that funds for restoration are ultimately put to use for that purpose.

Recent developments illuminate another distressing obstacle to legal protection of a healthy environment: defendants who have been held liable for environmental harms are now taking legal action to challenge the validity of the scientific evidence that was presented against them in the courts.

Satellite image of the island of Borneo on 19 August 2002, showing smoke from burning peat swamp forests. (NASA/GSFC)

Basuki Wasis, an environmental expert from the Indonesian Bogor Institute of Agriculture, had testified against a provincial governor who was later successfully charged with abuse of power in issuing mining licenses. In March 2018, Basuki was sued by that same defendant. The lawsuit challenges the academic’s credibility and scientific accuracy. Similarly, PT Kallista Alam—the company that had been successfully found liable for the destruction of protected peatlands by the Supreme Court in 2015—has since filed a lawsuit against the Indonesian Ministry of Environment and Forestry, alleging that the agency provided inaccurate scientific evidence during the proceedings.

Should these suits proceed, they may threaten the critically necessary roles of scientific evidence and public participation in natural resource damage cases in Indonesia.

The Indonesian Judicial Certification Program on the Environment

The Indonesian Judicial Certification Program on the Environment presents an opportunity to mitigate some of these challenges to effective protection of natural resources. In 2011, mounting threats to Indonesia’s unique resources and ecosystems spurred the Chief Justice of the Supreme Court to establish by decree the Working Group (WG) for Judicial Certification on the Environment.

The WG, composed of various members of the Indonesian judiciary, representatives of the Ministry of Environment and Forestry, and NGOs like the ICEL, is tasked with preparing and executing the certification program. The initiative bolsters the ability of judges to soundly adjudicate environmental cases by providing them additional training on statutory rules and court decisions, as well as on principles of environmental science and economics.

Certification programs like this one are somewhat unique. For Indonesia, establishing a certification program instead of a specialized environmental court or tribunal (ECT), as other jurisdictions around the world have done, was a strategic and practical decision. It has enabled the judiciary to more soundly rule on environmental matters without having to enter into the political process, which the establishment of an ECT would have required. The certification program also allows a large number of judges to be trained in environmental matters rather than only a small, specialized group.

Capacity-Building Workshop for the Judiciary

In response to requests from the WG for support in its efforts to certify judges, ELI’s Judicial Program and its collaborators have been preparing to host a capacity-building workshop this summer. The week-long workshop will bring together approximately 40 judges from different levels of the Indonesian court system.

The curriculum draws on the expertise of partners at the ICEL and responds to needs expressed by the Indonesian judiciary. Judge Merideth Wright, a Distinguished Judicial Scholar with ELI and a former environmental judge for the state of Vermont, and Judge Anders Bengtsson of the Växjö Land and Environment Court in Sweden bring to the project their experience as members of the judiciary. Collaborators and presenters also include environmental economists, scientists, and legal experts from Indonesia and elsewhere around the globe.

The content of the workshop will emphasize the role the environment plays in human well-being and economic prosperity, as well as limitations to ecosystem resilience in the face of degradation. Sessions will address, among other things, principles of environmental science, valuation of natural resources in the context of compensation and restoration, scientific evidence and uncertainty in the courts, and mechanisms for ensuring judicial decisions are carried out. The curriculum will illustrate a diversity of approaches to effective adjudication while remaining firmly rooted in a commitment to sound environmental protection. 

Supporting the Judiciary, Advancing Sustainable Development Goals

ELI’s Judicial Program is committed to advancing the UN Sustainable Development Goals (SDGs), and supporting the judiciary of Indonesia squarely aligns with this endeavor. SDG 16 enumerates the objective of “[providing] access to justice for all and [building] effective, accountable and inclusive institutions at all levels.” Supporting the cultivation of an independent and informed judiciary is critical to the enforcement of environmental rule of law and the provision of environmental justice. Moreover, it goes hand-in-hand with advancing other SDGs that strive to eliminate poverty, protect natural resources, promote sustainable economies, and foster healthy, resilient communities.