Hans Nicholas Jong The Jakarta Post 18 Jun 16;
A lack of understanding among judges in environmental cases has led to companies and individuals, allegedly responsible for the annual land and forest fires in Indonesia, escaping serious sanction.
Recently, the North Jakarta District Court found palm oil company PT Jatim Jaya Perkasa (JJP), affiliated with agribusiness giant Wilmar Group, responsible for slash-and-burn activities on its concession in 2013.
The Environment and Forestry Ministry, the plaintiff in the case, believed that the total burned area was 1,000 hectares, while the panel of judges believed that only 120 ha had been burned.
Therefore, the court ordered PT JJP to pay only Rp 7.2 billion (US$540,000) in damages as well as Rp 22.2 billion in recovery costs, less than the Rp 491 billion demanded by the ministry.
The ministry plans to appeal the case, as the fine was far lower than that demanded and given the fact that the company had been planting oil palm trees on the burned concession.
PT JJP lawyer Efrizal H. Sharief said his client was not guilty of causing the fire as it was a result of slash-and-burn activities carried out by local people. This argument led to the panel of judges only ruling on the 120 ha, since they believed that the rest of the burned concession was caused by locals.
Efrizal also argued that the company should not have been required to pay any fines given that the concession could still be cultivated and thus there must have been no environmental damage.
The same reasoning was used by Parlas Nababan, the chair of a three-judge panel in Palembang district court, South Sumatra, in his controversial ruling on pulpwood plantation company PT Bumi Mekar Hijau (BMH).
He declared the company was not guilty of causing fires on a 20,000-ha plot in Ogan Komering Ilir, South Sumatra in 2014, saying that there was no evidence of environmental damage as the burned land could still be planted.
The controversial verdict caused public uproar, with many saying that Parlas’ reasoning was not logical.
Nonetheless, Parlas was appointed as the head of the Palangkaraya High Court in Central Kalimantan earlier this month.
“There’s a problem with the Supreme Court, which doesn’t have any awareness in cases like this. Parlas had a bad reputation in environmental cases because his judgement was so bad, and yet he was transferred to Palangkaraya, which handles more complex environmental cases,” Indonesian Center for Environmental Law (ICEL) deputy director Reynaldo Sembiring told The Jakarta Post.
The cases of PT BMH and PT JJP are among a recent series of cases where the government decided to appeal because the results were not satisfactory.
“Starting from 2015 to early 2016, many environmental cases were not being presided over by judges with environmental certificates, such as those of PT BMH and PT LIH,” Reynaldo said.
He was referring to the case of PT Langgam Inti Hibrindo (LIH), whose manager, Frans Katihotang, was declared not guilty on all charges by the Pangkalan Kerinci District Court.
At an earlier court hearing, prosecutors charged the defendant with negligence for an act that eventually caused fires on PT LIH’s concession in 2015, but the panel of judges said witness testimony did not support the charges.
Reynaldo believed that the presiding judge delivered the not-guilty verdict because he was not certified. The same applied to the PT BMH case.
“His reasoning was not satisfactory because he’s clearly not a judge specializing in environmental cases. From these two cases, we can see that environmental cases need special handling by certified judges,” he said.
Last year, the number of judges with environmental certification stood at 219, with the government planning to increase this number by working with the Supreme Court.
A certified judge has greater understanding of environmental laws and cases and thus is more likely to use the concept of strict liability, which experts believe is the key in upholding justice in environmental cases.
