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A Closer Look on Indonesian Supreme Court’s Decision to Quash A Ministerial Regulation on Peat Protection

Peatland Governance Series

In 2015, Indonesia suffered from record-breaking fires, over 50 percent of which burned on peatland. Since then, Indonesia has doubled down efforts to protect and restore these ecosystems, which are some of the most carbon-rich in the world and a popular site for agricultural expansion. Transforming the way Indonesia manages its peatland is critical to achieving its national commitment to reduce greenhouse gas emissions as well as preventing other damaging impacts of fires, including school closures, respiratory issues and premature deaths. In this first instalment of the peatland governance series, we explore the legal aspect of recently quashed PermenLHK no. 17/ 2017 by Indonesian Supreme Court.

Indonesia has drawn considerable worldwide attention on its peat governance. At the recent COP 23 meeting, former US Vice President, Al Gore praised Indonesia’s commitment to restore degraded peatlands as part of climate change mitigation efforts. The positive sentiment did not come out of thin air as the government has been doing restoration efforts ranging from peat mapping to establishing Peat Care Village Program. Most importantly, the Ministry of Environment and Forestry (MOEF) has issued four ministerial regulations on peatland protection, as a follow-up of the Presidential Decree in 2016, which prohibits companies to plant on peat zoned for conservation.

Despite the progress, one major set back in peatland restoration efforts is the Indonesian Supreme Court’s decision to quash the Ministerial Regulation (PermenLHK) No. 17/2017, one of the ministerial regulations series on peatland protection.

PermenLHK No. 17. 2017 obliges companies to convert the function of concession that falls in the conservation category of peatland ecosystem into protected areas and restore them through rewetting and revegetation. If the companies’ concessions comprise at least 40 percent protected peat area, they are eligible to request land swap.

The challenge

The regulation garnered heated debate between businesses and labour unions with the MOEF and environmentalists. On one side, the regulation is needed to avoid further peat degradation that may lead to devastating forest fires. Meanwhile, businesses and labour unions are uneasy about potential economic and occupation loss from converting their concessions into protected areas. Even though the government has promised to substitute the lands through the land swap policy, as stipulated in the PermenLHK No. 40/ 2017, the labours are still concerned about the availability of the land to be swapped.

In June this year, a labour union in Riau Province (KSPSI) challenged the regulation to the Supreme Court. They argued that the regulation was a violation of the 1999 Forestry Law and the 2007 Spatial Planning Law. On October 2, the court gave the winning to the union and annuled the regulation.

Some people viewed this decision as a significant stumbling block to achieve the target of 2 million hectares of peatland restoration by 2020, especially since about 1.4 million hectares of the peatlands that have to be restored are located inside the companies’ concession. In the contrary, the environmental law experts and the ministry’s representative explained that the court’s decision does not change the company’s obligation to restore peatlands ecosystem as already stipulated in the 2016 Presidential Regulation. If anything, the annulment of PermenLHK No. 17/ 2017 is the companies’ loss as they will not have any rights to request for land in compensation.

Understanding the rationale of the court’s decision

The main consideration to give the winning to the plaintiff was because the court said PermenLHK No. 17/ 2017 aimed to create peatland ecosystem as a new category of forest zone, in addition to the existing zones for conservation, protection, and production, which is stipulated in the 1999 Forestry Law. Therefore, the court viewed this as a violation of the 1999 Forestry Law and issuing regulations on peatland was not within KLHK’s authority, which is ordered by the Forestry Law. This consideration was alarming because it highlighted the Supreme Court’s deep misunderstanding about the extent of MOEF’s scope of authority.

Firstly, the court should have taken into account that MOEF is a ministry resulting from a merger of four now-defunct state organizations: Forestry Ministry, Environment Ministry, the National REDD+ Agency, and the National Climate Change Council. As stated in Presidential Regulation No. 16/ 2015, MOEF now adopts and execute the mandate and function of those four organizations, including issuing regulations on forest and non-forest estate in its relations with environmental aspects. The mandate and function from the four previous state organizations granted the authority to MOEF to regulate any activities conducted by the government and private sectors that affects the environment.

Secondly, the Supreme Court had rarely referred to Law No. 32/ 2009 on Environment Protection and Management in the court’s decision and mostly focused on the 1999 Forestry Law. This minimum reference to the Law No. 32/ 2009 demonstrates the court’s lack of understanding on the importance of this Law as the basis for all activities related with environment – either it is inside peatland ecosystem area, forest estate, other land use (APL) or else. Instead, the partial Law assessment in revoking Permen LHK No. 17/ 2017 may trigger legal uncertainty to people affected by irresponsible management of peatland ecosystem.

Withstanding the possible domino effect

The Supreme Court holds a key role in the implementation of good governance because it has the authority to decide whether certain regulations on the lower level of Law issued are aligned with the higher Law. Even if the annulment of the PermenLHK No. 17/ 2017 would not bring much effect to stall the current progress of peatland restoration, the court’s rationale to quash the regulation could be used as legal precedent and create possible domino effect to take down related ministerial regulations issued by MOEF. Therefore, it is imperative for the judges in the Supreme Court to correct their misunderstanding on the peatland issues and MOEF’s scope of authority.

Lastly, this is also a wake-up call for non-governmental organizations (NGOs) and the affected communities to monitor the process in the Supreme Court closely, especially since the decision from the Supreme Court is final with no appeal opportunity. It is important to detect the misunderstanding of the judges since the early stage of the court process, so the NGOs and affected communities can educate through mainstream media about the errors during the argumentation in the court.

This way, we can together withstand the possible domino effect of the judges’ misunderstanding and enforce existing regulations for better peatland governance.

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