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.