The Asian Voice

More punitive decisions needed to stop forest fires: The Jakarta Post

An Indonesian firefighter surveys burning peat land in in the Kapuas district in Central Kalimantan province on Borneo island on Sept 24, 2015.
An Indonesian firefighter surveys burning peat land in in the Kapuas district in Central Kalimantan province on Borneo island on Sept 24, 2015. PHOTO: AFP

Indonesia has already lost S$5.7 billion due to the forest fires this year, according to an estimate

By Windu Kisworo

The Jakarta Post/Asia News Network

The serious air pollution (euphemistically referred to as 'haze') emanating from Indonesian forest fires has continued to result in wide-ranging harm, not only to human health, but also to people's security as well as to local and national economies.

Recent satellite imagery showed that Kalimantan had 1,312 hotspots, of which 508 were in the worst-affected West Kalimantan province. Sumatra had 575 hot spots, 78 per cent of which were in South Sumatra province.

According to the National Disaster Mitigation Agency (BNPB), nearly 15,000 residents in Riau, 22,855 residents in South Sumatra and about 40,000 in South Kalimantan have suffered from upper-respiratory infections due to the severe air pollution from forest fires in the last couple of weeks.

Prof Harry Purnomo of the Centre for International Forestry Research (CIFOR) in Bogor estimates that Indonesia has suffered US$4 billion (S$5.7 billion) in economic losses this year - through agriculture production, forest degradation, health, transportation, tourism and other areas - as a result of forest fires.

Demands for the current administration to address the problem seriously has elicited a firm response from President Jokowi, who ordered law enforcement agencies to bring legal action against all those responsible actors for the forest fires.

This includes a revocation of business licences granted by the government. The major question is: How this going to be different from previous legal actions? Can the existing legal instruments and law enforcement agencies tackle this haze problem?

"In the case of environmental damage, it is very often difficult to point out exactly who caused the damage," Louis J. Kotzé and Alexander P. Paterson say in their book The Role of the Judiciary in Environmental Governance: Comparatives Perspective.

As a result, not many legal suits and prosecutions on forest related crimes brought to court actually find the alleged perpetrator liable.

In Indonesia's context, this situation is due to several factors including the incapacity of plaintiffs to formulate solid legal arguments to establish the causes of pollution and damage, combined with the inadequate provision of evidence.

Advanced legal and scientific knowledge is required by the plaintiff and the plaintiff's advisers to formulate legal arguments based on available evidence; this involves detailed and verifiable scientific evidence.

In addition, forest-related crimes are often accompanied by other crimes such as money laundering, bribery and tax avoidance.

Sometimes these are associated with political and economic powers which cannot only rely on a single legal regime to conduct investigation and formulate strong legal arguments.

The Kalista case demonstrates that the existing legal instruments can be utilised if the law enforcement agencies and the government seriously want to combat forest fires.

The recent landmark decision by the Supreme Court, No. concerning a forest fire case in Aceh, made the perpetrator directly liable. A national company, PT Kalista Alam, was convicted of deliberately burning 1,000 ha of peat land.

The panel of Supreme Court justices rejected the company's appeal and affirmed the decision of the lower courts, which ordered the company to pay a total of Rp 366 billion in compensation to the government.

Further, the Supreme Court imposes an extra fine of Rp 5 million per day that the company failed to comply with the court's order. This sum is the highest fine to have been handed to an offender in an environmental case so far.  

The consistency of decisions at all levels of court seen in this case should be appreciated.

The court ruling can be viewed as a landmark decision due to a number of breakthroughs that is made.

First, the court accepted that government institutions, both state and regional, were mandated to file litigation for compensation and other measures against offending company.

This recognition affirmed the state's responsibility to protect the environment by, among other things, enforcing environmental legislation and monitoring the competence of institutions.

Second, the court accepted a causal connection between unlawful action and the damage done to the environment by linking scientific evidence with legal evidence. For example, the court accepted the use of Nasa hotspot to prove that the fire occurred in the area controlled by the company.

The conclusion was reached after the court verified it with expert witnesses' testimony as well as the result of verification of the evidence by the local judges on the ground.

Third, the court accepted the valuation of environmental damages developed by the plaintiff (the government) in accordance with related government regulations, which provides specific standards and methodology.

The valuation specified the financial cost to ecology (1,000 ha of peatland had lost its capacity as a water reservoir), biodiversity and genetic resources and carbon that was released as well as the losses inflicted on the local economy by the peatland being rendered unusable and the cost of rehabilitating the peatland's ecological functions.

Finally, the court recognised some important environmental management principles such as state's responsibility to protect environment, inter- and intra-generational equity, the polluter-pays principle and "the right to a healthy environment" as being a human right.

While these principles could have been stipulated more clearly in the verdict, the fact that these principles were set out and deemed sufficient basis for convicting polluters will hopefully encourage other judges to follow this precedent in the future.

The Kalista Alam case demonstrates the complexity of environmental cases involving intertwined determining factors. These include, among other things, the incorporation of emerging as well as more established environmental law principles, determination of legal interests, linking of scientific evidence with legal argument, evaluation of environmental damage and the enforcement of adequate and appropriate sanctions.

Clearly more "breakthrough" decisions are needed to curb the incidence of the disastrous forest fires that recur annually.

Apart from the President's commitment, environment advocates have also pushed for immediate action; action including giving governments the authority to immediately suspend and revoke environmental permits and business licences of companies responsible for forest fires, "shifting the burden of the proof" to a companies whose forests are burned, rather than the plaintiff having to prove its allegations, and the suspension of companies' trade in the stock exchange for violating Indonesia's forest protection laws.

These ideas should be strongly supported. The use of these mechanisms, combined with robust court actions, as evinced in the Kalista Alam case, must continue.

The Kalista verdict showed that effective law enforcement in environmental cases is possible if all concerned agencies, both national and regional, carry out their responsibilities and muster a stronger willingness to utilise the instruments of law enforcement.

The writer is associate researcher at the Indonesian Centre for Environmental Law (ICEL), Jakarta.