JAKARTA, BINADESA.ORG – The Indonesian Association of Forest Entrepreneurs (APHI) and Indonesian Palm Oil Entrepreneurs Association (GAPKI) are known to appeal a judicial review to the Constitutional Court on article 69 paragraph (2), article 88 and article 99 of Law Number 32 of 2009 on Environmental Protection and Management.
According to the petitioners, the existence of article 69 paragraph 1 is inconsistent and counterproductive with article 69 paragraph 2 and its explanation. It permits the burning of forest or land with a maximum land area of two hectares per head of household to be planted with local varieties and surrounded by fire breaks as a deterrent to the propagation of fire to the surrounding area. The petitioners also object to the absolute liability for damages incurred without the need to prove the element of error in article 88. Applicants assume that large corporations are always the party to be blamed and are subject to strict liability due to forest and land fires.
Meanwhile, the petitioners considered the phrase “negligence” in article 99 paragraph 1 has a broad coverage and does not reflect the principle of legal certainty and the principle of criminal law “no penalty without error.” Therefore, the petitioners felt that their constitutional rights were violated.
Indonesian Human Rights Committee for Social Justice (IHCS) Ready to Intervene
Responding to the petition for judicial review of Law Number 32 of 2009, Ridwan Darmawan, Executive Chairman of the Indonesian Human Rights Committee for Social Justice (IHCS) stated its readiness to immediately conduct an intervention suit with the Civil Society Coalition which has been consistent in preventing environmental crimes.
Ridwan Darmawan considers that Law Number 32 of 2009 needs to be strengthened because the law has been by the Constitution and is very progressive and has been referring to the principles of universal environmental law. The law has also accommodated the rights of smallholders and indigenous peoples, particularly concerning local wisdom in managing forests for life and livelihoods.
Ridwan said, “The law does have to take sides with small communities and indigenous peoples, not in the interests of large corporations and investors. Since local wisdom is our culture, so the petition for judicial review is an attempt to eliminate the universal communal rights.”
Ridwan added, “Moreover, this law is a law that regulates particular things namely environmental crime, which the principle is ´lex specialis derogat legi generali´. Because of its peculiar nature, there are exceptions from the general framework of criminal regulation as complained by the applicant.”
Meanwhile, Executive Director of WALHI National Nurhidayati confirmed that in addition to the judicial review, the corporations also continue to maneuver against the regulations of Peat Ecosystem Protection and Management. Even politically, the company also encourages the palm oil-related bill, while continuing to influence public opinion and shifting the forest and peatland fires to indigenous and tribal peoples, claiming that large-scale oil palm and timber plantations are not the cause of deforestation.
Ridwan Darmawan also said that shortly will soon mobilize the Civil Society Coalition with the peasant union and indigenous peoples to immediately discuss the follow-up submission of the request for intervention as a related party to the judicial review submitted by the joint large-scale plantation companies. (bd018)