- A palm oil company convicted and fined for negligence over fires in its concession is now suing one of the expert witnesses who testified against it in court.
- Bambang Hero Saharjo, an expert in fire forensics, is the second witness hit with a lawsuit by the company, JJP, which is seeking hefty damages on an apparently trivial technicality.
- The company dropped an earlier lawsuit against another expert who testified against it, but its latest move has sparked concerns among activists about a rising tide of litigation to silence environmental defenders.
- Indonesia has regulations in place to protect environmental defenders and witnesses giving testimony, but critics say there is little awareness among law enforcers about these protections.
JAKARTA — A prominent environmental expert in Indonesia faces a lawsuit by a palm oil company after testifying against its practices, in the second case of its kind this year.
The move has stoked fear among activists, who say it’s part of an escalating campaign to silence environmental defenders.
The lawsuit was filed by palm oil firm PT Jatim Jaya Perkasa (JJP) against Bambang Hero Saharjo, a forestry expert from the Bogor Institute of Agriculture (IPB), on Sept. 17 with a court in Cibinong, in West Java province.
Bambang had testified in 2015 as a witness for the prosecution in a government lawsuit against JJP for negligence leading to fires in its concession in Sumatra. A key part of his testimony was his financial assessment of the environmental damage done as a result of the fires. His expertise was seen as instrumental in the guilty verdict subsequently handed down to JJP.
The court also fined the company 119.8 billion rupiah ($7.9 million) and ordered it to pay for the restoration of 10 square kilometers (3.9 square miles) of burned plantation, estimated at 371.1 billion rupiah ($24.4 million).
JJP appealed, but the ruling was upheld by the country’s highest court earlier this year.
The company has now turned its attention to Bambang, suing him not over the substance of his testimony, but on a mere technicality: In its lawsuit, JJP says the evidence presented by Bambang was inadmissible because it used both the IPB logo and the letterhead of the Ministry of Environment and Forestry. (The ministry, which brought the lawsuit against JJP, had commissioned Bambang to carry out the environmental damage assessment.)
Because of this, the company is seeking a total of 510 billion rupiah ($33.5 million) in damages from Bambang.
Bambang said the lawsuit was an attempt by JJP to shirk its responsibility.
“I’m disappointed and worried with attempts like this,” he told Mongabay. “They want to wash their hands clean of the fires that truly happened and destroyed the environment and emitted greenhouse gases — something that shouldn’t have happened.”
JJP could not be reached for comment.
Bambang also said the lawsuit wouldn’t deter him from continuing to testify against environmental violators.
“I won’t back off, not even one step, because there are already many cases waiting for me,” he said. “I will keep fighting for the people’s constitutional right to a healthy environment. We can’t afford to be afraid in the face of lawsuit threats like those from JJP.”
Worrying trend
The lawsuit against Bambang is the second filed this year by JJP against a witness over their testimony. Earlier this year, Basuki Wasis, also an environmental expert from IPB, was hit with a lawsuit on similarly frivolous grounds. In his case, the company said his testimony was inadmissible because of a typo in one of the documents he’d presented as evidence. JJP sought 610 billion rupiah ($44 million) in damages from Basuki, before dropping its demands upon mediation.
For Basuki, it was just the latest pushback to his testimonies in a litany of environmental cases. In March, Nur Alam, the governor of Southeast Sulawesi province at the time, sued Basuki after the expert testified that illegal mining activities permitted by Alam had caused extensive damage to the environment.
Alam was sentenced to 12 years in prison and ordered to pay fines and damages totaling 3.7 billion rupiah ($243,000). But his lawsuit against Basuki continues.
Khalisah Khalid, from the Indonesian Forum for the Environment (Walhi), says the cases against Basuki and Bambang highlight a worrying trend toward the criminalization of environmental defenders from all sorts of background, including highly regarded academics.
In the past, she said, companies typically targeted grassroots activists, such as farmers. Now, though, anyone questioning a company’s environmental conduct is fair game, thanks to increasingly aggressive litigation under the practice known as Strategic Lawsuit Against Public Participation (SLAPP).
SLAPP typically describes any kind of litigation brought with the aim of censoring, intimidating or silencing critics speaking out against those in power or on issues of the public interest.
“Until now, we’ve always thought that it’s only local people who are criminalized,” Khalisah said at a recent event in Jakarta. “But now everyone, including experts who are actually protected by the law when they voice their opinions in court in accordance to their expertise, are also criminalized.”
Khalisah said this trend could seriously harm Indonesia’s efforts to bring to justice environmental violators, including corrupt politicians and scofflaw companies, given that experts like Bambang and Basuki were key to prosecution efforts.
Rasio Ridho Sani, head of law enforcement at the Ministry of Environment and Forestry, agreed that these lawsuits appeared to be baseless and aimed at intimidating witnesses.
“The basis for JJP’s lawsuit is weak and appears to be forced to silence experts who fight for the environment,” he said. He added that Bambang’s case was a part of a larger trend of companies fighting back against their prosecution.
“Our consistency in enforcing the law has drawn opposition,” Rasio said. “There are 24 pretrial motions that we’re currently facing. We also face two civil lawsuits, three administrative lawsuits, one judicial review and three case reviews.”
Rasio said there were a number of anti-SLAPP regulations in place to protect environmental defenders like Bambang against criminalization.
An article in the 2006 Environmental Protection Law states that no individual may be sued for seeking to exercise their right to a healthy environment. Similarly, an article in the 2013 Forest Degradation Prevention and Mitigation Law says no one can be sued for submitting a report or information relevant to the scope of the law.
“Experts’ testimonies in court are protected by the law,” Rasio said.
Protections ‘not enforced’
But the fact that experts continue to face a backlash for their testimonies highlights the need for additional regulations empowering police and prosecutors to act against SLAPP litigation, activists say.
“We’re waiting for a regulation to be issued that can guarantee the protection of everyone [from being criminalized], including experts,” Walhi’s Khalisah said.
Rasio said the environment ministry was finalizing a draft of a regulation on enforcement of the existing anti-SLAPP articles.
“It’s our priority to issue the ministerial regulation soon,” he said. “While the existing laws are already clear and can be followed, we still need the ministerial regulation to make it easier for law enforcers to implement them.”
Khalisah said that while she appreciated the ministry’s decision to issue the regulation, she was concerned that it still wouldn’t compel law enforcers outside the ministry, such as the police, to enforce the anti-SLAPP articles. She said many law enforcers, especially the police, still didn’t understand that anti-SLAPP rules applied to everyone.
“The police consider the anti-SLAPP articles to only apply to people who have [formally complained about them] to the police,” Khalisah said.
“We’re actually pushing for a stronger regulation in the form of a presidential regulation on the protection of human rights defenders,” she added. “We’re trying to put the issue of environmental defenders there. Why a presidential regulation instead of a ministerial regulation? Because would a ministerial regulation be strong enough?”
Rasio said the soon-to-be-issued ministerial regulation would suffice as a first step. He added the ministry had spoken with law enforcers from other institutions, including from the courts, the Attorney General’s Office, the police and the Judicial Commission — the government’s court watchdog — to ensure they were aware of the anti-SLAPP regulations.
Khalisah urged the ministry to speed up the process.
“Our energy is depleted and our focus is divided to handle all these criminalization attempts,” she said. “At the same time, there are still many environmental cases waiting to be resolved. The government should be aware of this.”
‘Our hero’
For Bambang, the lawsuit brought by JJP has spurred an outpouring of public support. An online petition at Change.org calling for the lawsuit to be dropped had garnered more than 52,000 signatures as of Oct. 10.
On Oct. 8, the Ministry of Environment and Forestry held a press conference in Jakarta to show its support for Bambang. Rasio said at the conference that Bambang had helped the government in its efforts to prosecute environmentally destructive companies, such as plantation firms that use fire to clear land.
According to the ministry, Bambang has testified as an expert witness in 24 environmental cases, including some high-profile forest fire cases. Chief among them is the landmark case that saw a palm oil company fined millions of dollars for burning carbon-rich peatlands in Sumatra’s Aceh province.
“Bambang Hero is our hero, just like his name,” Rasio said. “He has been fighting alongside the ministry for almost 20 years to make sure that people can enjoy a healthy environment. He plays an enormous role in helping us tackle forestry crimes. So we have to save Bambang Hero because he’s our hero.”
Riko Kurniawan, head of the Walhi chapter in Sumatra’s Riau province, where JJP’s concession is located, said the people of Riau owed a lot to Bambang because his testimonies had brought many land-burning companies there to justice.
“Millions of people in Riau have been spared from a haze disaster in the past two years partly because of Bambang’s involvement in prosecuting forest fire perpetrators,” he said. “From 1997 to 2015, the people of Riau were exposed to haze almost every year because of how difficult it was to punish forest fire perpetrators.”
While Indonesia has no shortage of forestry experts, few are willing to testify publicly in court against environmentally destructive companies. Bambang, according to those close to him, is known for his courage and dogged determination to get to the bottom of each case.
“Only a few have the courage to provide us with scientific evidence that incriminates forest-burning companies,” said Nazir Foead, the head of the government’s peatland restoration agency, BRG. “Prosecutors are always having difficulty finding experts willing to testify.”
Bambang said that throughout his career, he often received threats whenever investigating a forest fire case. But, he added, he had never been sued before over his testimony — until the JJP case.
“It never crossed my mind that I would be sued, because I did everything in accordance wih procedure and based on science,” he said. “And the fire [in JJP’s concession] truly happened and it’s already proven because I went to the site, I took samples and I analyzed the fire using satellite imagery.”
Fire forensics
Proving that a fire occurred in a remote patch of land is one thing; proving that it was deliberately set by the concession holder is exceedingly difficult. So what Bambang looks for is evidence that setting the fire works to the concession holder’s benefit.
Armed with a laboratory at IPB dedicated to researching forest fires, he can determine when a fire starts, the size of the affected area, and the age of any crops in the area.
“At first I didn’t know what truly happened,” Bambang said of seeing his first forest fire. “But with science and technology, we can unravel [what’s happening]. We can even tell whether the fire is new or happened in previous years.”
In the JJP case, Bambang concluded after his visit to the concession in Riau that the fire was deliberately set in areas with low productivity.
In his testimony in October 2015, he told the court that the practice of open burning benefited the company because the ashes would increase the acidity of the soil and make it more suitable for planting oil palms.
He also noted that fires had ravaged the same concession in 2012. In 2013, the executive board of the Roundtable on Sustainable Palm Oil (RSPO), the world’s leading palm oil certification body, filed a complaint against JJP after finding 74 fire hotspots within the company’s concession.
In September 2014, the RSPO decided to officially close the case after JJP carried out corrective measures, including implementing water management and fire prevention systems.
Shortly after that, JJP filed for its resignation from the RSPO, citing its preference to focus on achieving Indonesian Sustainable Palm Oil (ISPO) certification. The ISPO, administered by the Indonesian government, has been widely panned as the weakest of the existing certification schemes for sustainable palm oil, as it provides very little protection for human rights and community livelihoods, among other points.
Also in 2014, an audit conducted by a government-sanctioned team on companies operating in Riau showed that JJP was among 14 firms found in violation of agroforestry regulations, Bambang testified.
After analyzing the fire in JJP’s concession, Bambang concluded that the blaze had damaged peatland down to a depth of 10 to 15 centimeters (4 to 6 inches), and released more than 3,000 tons of carbon dioxide, among other greenhouse gases and toxic pollutants.
For Bambang, though, it was the harm wrought to innocent people that resonated most deeply.
“I still remember being devastated when I saw on the news a father carrying his child who had died from the haze in 2015,” he said. “He asked what did he do wrong that he had to sacrifice his child…
“Do we want a repeat of such a tragedy by my revoking my court statement and saying that the fire never happened?”
Banner image: Bambang Hero Saharjo, a forestry expert from the Bogor Institute of Agriculture (IPB), speaks during a press conference in Jakarta, Indonesia. Image by the Ministry of Environment and Forestry.