Green law lacks international credibility

Green law lacks international credibility

By Stefanus Haryanto

BANDUNG, West Java (JP): When an angry mob attacked a company
in the East Java town of Pasuruan last year for allegedly
polluting the environment, many were surprised since the company
was given a "green" rating by the government.

The government says the riot was masterminded by university
students. However, before the riot, the media reported that local
authorities had not responded to local grievances about pollution
in the area. If local people were suffering economic losses due
to the pollution, it is not surprising that they took it out on
the company.

In a democratic and law-abiding country, all disputes,
including environmental ones, should be settled in court. It is
not acceptable to take the law into one's hands. However, recent
court decisions in Indonesia indicate that justice is nearly
impossible in pollution-related cases.

The latest case involves the Indonesian Forum for the
Environment (Walhi), which sued three private companies for
polluting the Surabaya River. After hearing several witnesses,
including experts, the Surabaya District Court ruled in favor of
the defendants by arguing that the case was premature and
unacceptable.

The court argued that according to article 20 paragraph 2 of
the Environmental Management Act of 1982, procedures for the
submission of complaints by victims, procedures for the
investigation by a team of the type, kind, and extent of damages,
and procedures for claiming compensation for pollution-related
damages shall be established by legislation. Because there is no
such legislation, the court came to the conclusion that the suit
was unacceptable.

The verdict was promptly criticized by lawyers and
environmental groups as evidence that Indonesian courts are not
"environmentally-friendly" when rendering their verdicts.
Furthermore, lawyers have come to question the ability of
Indonesian judges to understand and interpret legislative
provisions.

From article 20 paragraph 2 of the Environmental Management
Act, it can be inferred that the provision is intended to
introduce mediation as a means of settling environmental
disputes. Therefore, the procedures set forth are only relevant
if the disputing parties choose mediation in settling their
dispute.

However, as long as it remains unclear how to implement
article 20 paragraph 2, courts should resort to the existing
Civil Procedure Law in settling environmental suits, such as the
one filed by Walhi. If the court truly believed that Walhi's case
was unacceptable due to the non-existence of implementing
legislation, why did it bother to hear the lengthy arguments of
both parties and witness testimonies?

Recent court decisions rejecting citizen suits
on the same grounds make it impossible for law-abiding citizens
to settle environmental disputes by legal means.

Indonesian judges should learn from the Supreme Court of the
Philippines. In the case of Oposa vs. Factoran (1993), 44 minors,
represented by their parents and supported by the Philippine
Ecological Network, filed a suit against the Secretary of the
Department of Environmental and Natural Resources. The dispute
was related to the plaintiffs' allegation that the defendant
gravely abused his power in issuing Timber License Agreements to
loggers.

The plaintiffs argued that they filed the suit on their behalf
and on behalf of future generations.

At first, Branch 66 of the Regional Trial Court in Makati
Metro Manila dismissed the case for lacking a "cause of action",
for being politically sensitive, and for violating a contractual
obligation. However, the dismissal turned out to be more of an
opportunity than a loss. A special civil action for certiorari (a
writ to call up the records of a lower court) was subsequently
filed with the Supreme Court.

In its historical verdict, the Supreme Court of the
Philippines not only admitted that there was a "cause of action"
in the children's suit, but also recognized the
intergenerational-rights of future generations to a healthy
environment. By adopting the intergenerational-equity theory, the
Supreme Court of the Philippines has shown its stance in
protection of the environment.

It is only in Indonesia that environmental suits are rejected
because there are no regulations for implementing environmental
legislation. Ironically, article 14 of the Law on the Basic
Provisions of Judicial Power clearly states that courts may not
reject a case because they lack clear legislation.

If Indonesia wants to be acknowledged as one of the world's
civilized nations, it must demonstrate its commitment to
protecting the environment. "Think globally, act locally" is a
strategy that must be followed. Indonesian courts must adopt the
principle of intergenerational-equity and prove their competence
in upholding justice. Failing this, Indonesia's chances of a
healthy environment for future generations are slim at best.

Stefanus Haryanto is a lecturer at Parahyangan Catholic
University's School of Law, Bandung.