The Risk of Environmental Protection
The presence of the state in current environmental cases has frequently been problematic.
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Toward the end of 2017, three people were arrested on Dec. 17, 2017 for defending the area where they live. Sawin, Nanto and Sukma, residents of Mekarsari village in Indramayu, West Java, were accused of committing an offense against the national flag.
Even if it is true that the action they committed was illegal, many have expressed doubts that their arrest would have been impossible and would not have become a serious matter if the political accusation had no strategic motivation behind it. It is difficult not to connect the criminal accusation with their activities that opposed the second Indramayu steam-powered electricity plant (PLTU 2) that was being developed in their village.
The action against the Indramayu residents further emboldens efforts to silence protectors of the environment. Earlier in East Java, Heru Budiawan, who opposed the gold mine in Tumpang Pitu, Banyuwangi, was detained for unfurling a banner that contained images resembling communist symbols. In Bali, Made Wijaya, a longtime community figure in Pakraman village, Tanjung Benoa, who also spearheaded the rejection of the Tanjung Benoa reclamation mega project, was recently sentenced to one year in jail by the Denpasar District Court, convicted for damaging conservation areas. In Central Java, Joko Prianto also faced repressive measures from the state through the criminal law mechanism for his activities opposing the construction of a PT Semen Indonesia factory in Rembang.
The abovementioned cases of silencing, which is known as SLAPP (strategic lawsuit against public participation) in environmental law literature, cannot be seen as isolated cases. There is an important illustration that shows how SLAPP is being duplicated from one case to another.
This phenomenon also shows the problems that exist in our environmental law to protect every person who struggles to defend his environment and living space from development projects. It has to be acknowledged that Law No. 32/2009 on Environmental Protection and Management (UU PPLH) indeed assures protection in Article 66. However in reality, in all practical terms, the protection for environmental defenders does not have any significant impact.
Anti-SLAPP and state partiality
A 2007 United Nations report said that environmental defenders are the second most vulnerable group of human rights defenders after women\'s rights defenders. They face corporations that typically have strong resources and networks with state apparatuses or with vigilante groups that take the law in their own hands, so that they receive many threats; starting with violence, criminalization and limits to their freedom, and up to murder. According to Global Witness, in 2014 alone, there were at least 166 murder cases involving documented environmental defenders around the world, two of which were in Indonesia.
In reality, the problem does not lie in law enforcers’ poor understanding of the environmental law, an institutional reason that has been cited frequently by observers of the weak enforcement in this country of the environmental law.
The magnitude of risk that environmental defenders face has become the foundation for the inclusion of anti-SLAPP rules in the Environmental Protection and Management Law (UU PPLH). This regulation is an effort to prohibit SLAPP being used against individuals struggling for environmental protection.
The anti-SLAPP arrangement in the environmental protection law can even be said to be rather progressive, because it exceeds its original coverage from strategic lawsuit to strategic litigation. If SLAPP was initially meant to be a silencing strategy through the lawsuit mechanism in civil law, in the UU PPLH, the definition of SLAPP has been expanded to "litigation", which covers both civil and criminal laws. This is important, considering that in the Indonesian context, environmental defenders are silenced by using the mechanism of criminal law.
If setting anti-SLAPP rules is already so progressive, why does SLAPP continue to happen in an increasing trend? In reality, the problem does not lie in law enforcers’ poor understanding of the environmental law, an institutional reason that has been cited frequently by observers of the weak enforcement in this country of the environmental law. More fundamentally, according to this writer, SLAPP cases in Indonesia show a tendency of state partiality through state apparatuses and corporations, either directly or indirectly.
Unbalanced relationships
In liberal countries that uphold individual property rights, the strategy of criminalizing ordinary environmental defenders centers on crimes against property – which constitute a private domain – such as trespassing. In this case, corporations as property owners report the environmental defenders for disturbing the integrity of individual ownership.
In Indonesia, the object of SLAPP is usually a crime against public order, for example, the desecration of the national flag or the spread of communist teachings.
In Indonesia, the object of SLAPP is usually a crime against public order, for example, the desecration of the national flag or the spread of communist teachings. "Public order" constitutes the state’s monopoly through its legal enforcement apparatuses, so that SLAPP efforts using "public order" as a political argument can be interpreted as revealing state partiality over capital interests.
In 2013, the Supreme Court issued a Chief Justice’s decree that provides guidelines in handling environmental cases. The decree broaches anti-SLAPP with the stipulation that the existence of a SLAPP allegation against an environmental defender has to be determined in advance through an interlocutory decision. Instead of stopping SLAPP efforts at the investigation stage, an environmental defender who falls victim to SLAPP still has to continue with the legal process and prove that he is a SLAPP victim during the trial.
Of course, such an assertion is counterproductive in the spirit of adopting anti-SLAPP rules. Actually, SLAPP efforts are not intended to prove whether the targeted environmental defender has committed a crime or not. Instead, SLAPP is a strategic effort with the main objective of blocking or even halting resistance against a development project by bringing the activity to the criminal/civil court and then draining the energy and resources of the resisting group. As a result, resistance against the development projects at the center of the problem is weakened and may even disappear.
The presence of the state in current environmental cases has frequently been problematic. Instead of empowering the position of communities, which tend to be weaker when dealing with corporations, the state is at present precisely a player that increasingly unbalances power relations in a conflict. As a result, this year’s criminalization of people who have fought to defend their living spaces and environment will remain a record in the coming years. I hope I am wrong.
Agung Wardana
Lecturer of Environmental Law, Gadjah Mada University Law School
