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Activists challenge Indonesia deregulation bill that threatens environment

  • Environmental and legal activists are challenging a deregulation bill submitted by the Indonesian government to parliament that threatens to dismantle environmental protections in favor of facilitating business.
  • The plaintiffs say that both the drafting and deliberation processes have excluded the public while embracing the business lobby, including adopting talking points from the palm oil and paper lobbies.
  • The activists say that in its rush to have the bill passed, the government has submitted a product so riddled with loopholes that it won’t even serve its stated purpose of streamlining business processes.
  • The sweeping deregulation would, among other points, prescribe lighter penalties for environmental violations; scrap a requirement for environmental impact assessments; vastly deregulate the mining industry; and make it easier to rezone coastal areas for development

JAKARTA — Activists in Indonesia have filed a legal challenge to stop legislation that would dismantle environmental protections in favor of facilitating business.

A coalition of civil society groups filed their lawsuit April 30 with a court in Jakarta in a bid to halt parliamentary deliberations of the so-called omnibus bill, which the government wants parliament to pass this month. The bill contains more than 1,000 proposed amendments to at least 79 existing laws that, among other points, prescribe lighter penalties for environmental violations; scrap a requirement for environmental impact assessments; vastly deregulate the mining industry; and make it easier to rezone coastal areas for development.

The subject of the activists’ lawsuit is a letter sent by President Joko Widodo to parliament on Feb. 12, serving as notification of the government’s submission of the bill to parliament. If the court finds in favor of the plaintiffs and annuls the letter, the deliberation of the bill will have to be stopped, according to Arif Maulana, the director of the Jakarta chapter of Indonesian Legal Aid Institute (YLBHI), one of the groups in the coalition.

“The public should have been involved since the drafting process,” Arif said. “The information has to be open and easily accessible.”

Instead, he said, the government largely limited its discussions of the bill with industry representatives. The task force it established to draw up the draft is dominated by businesspeople and led by the chair of the Indonesian Chambers of Commerce and Industry (Kadin).

“The people affected by this bill aren’t heard at all, and they’re not even involved,” Arif said. “This bill is very discriminatory. It only involves certain groups of people: businesspeople.”

Drained, cleared, and burned peat forest in Indonesian Borneo. Photo by Rhett A. Butler

The government also failed to make a copy of the draft publicly available. It wasn’t until Feb. 15, three days after submitting the bill to parliament, that the government published an official draft to the public.

“That’s why there are many protests and demonstrations to reject the bill,” Arif said. “And that’s how it’s supposed to be because a law has to represent the public interest, the interest of groups like laborers, fishermen, indigenous peoples, migrant workers and other marginalized groups.”

In response to the lawsuit, the head of the legislative committee in parliament, Supratman Andi Agtas, said the civil society groups had a right to challenge the bill, but questioned their grounds for doing so.

“Whether the presidential letter comes under the jurisdiction of the state administrative court or not, we’ll wait for the court’s verdict,” he said as quoted by local media.

List of contentious provisions on environment in Indonesia’s omnibus bill. Image courtesy of The Jakarta Post.

Industry talking points

The lack of public participation in drawing up the bill, during both the government’s drafting process and the ongoing parliamentary deliberations, has allowed the bill to be tailored for business interests, experts say.

This is most evident in the weakening of the “strict liability” concept in the bill, according to University of Indonesia environmental law expert Andri Gunawan Wibisana.

Under the concept, concession holders are responsible for any fires that occur on their land, regardless of whether or not they can be proven to have started the fires. The concept has been employed successfully to prosecute a number of companies since 2015, when fires razed 2.6 million hectares (6.4 million acres) of land — an area larger than the U.S. state of Vermont.

The bill, however, scales back this measure of liability by stipulating that companies can only be prosecuted if they can be shown to have started the fires. This would allow companies to evade responsibility for fires on their concessions.

Andri said the argument the government used to justify the proposed change to the strict liability concept in the bill was exactly the same as that used by palm oil and paper lobby groups when they challenged the concept at Indonesia’s highest court in 2017.

Their rationale at the time was that should be responsible only for their negligence, otherwise they must not be held accountable. However, they subsequently dropped their lawsuit, saying they needed more time to study the rule.

Sungai Utik river in West Kalimantan. Photo by Rhett A. Butler.

The academic paper that the government attached to its submitted bill to parliament makes that same argument.

“I’m confused why the argument that appears in the bill’s academic paper is the same with the one used by the lobby groups that tried to get this concept struck down at the Constitutional Court,” Andri said. “Even the judges themselves had to advise the lawyers [against going that route]. So how can this argument appear in the bill?”

The same lobby groups that filed the 2017 legal challenge are represented on the government’s omnibus bill task force.

“We, the public, can’t enter [the discussion of the bill], while I’m sure that there are other interests [accommodated in the bill], especially on strict liability,” Andri said. “This is not fair because the public can’t participate [in the discussion], while interests like that [scrapping strict liability] can enter [the bill].”

Besides the bill being compromised by shutting out public participation, its quality has also come into question. The rush to submit and pass it means it has been drawn up hastily and sloppily, said Reynaldo Sembiring, the executive director of the Indonesian Center for Environmental Law (ICEL).

That leaves it with loopholes that could create more problems in the future, rather than simplifying the regulatory climate like it aims to do, Andri said. He cited as an example a provision in the bill that scraps environmental permits, ostensibly to streamline business processes. But it doesn’t address an article in the 2009 Environmental Protection and Management Law that requires environment-related permits to be integrated into the environmental permits currently issued by the Ministry of Environment and Forestry.

“So the integration [of various permits] into environmental permits still exists, but the environmental permit no longer exists,” Andri said.

Deforestation in Borneo. Photo by Rhett A. Butler.

The bill also fails to consider a raft of rulings by the Constitutional Court on a range of issues, either by ignoring the rulings or else reviving provisions that the court has struck down. As it stands, the bill violates 31 rulings by the country’s highest court, according to an analysis by the judicial watchdog KoDe Inisiatif.

“The Constitutional Court is not merely a court — it interprets the constitution,” said YLBHI chairwoman Asfinawati. “So by defying the interpreter of the constitution, the president is saying that ‘I am above the constitution. I don’t want to be regulated by the constitution.’”

Banner image: Sungai Utik river in West Kalimantan. Image by Rhett A. Butler/Mongabay.

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