This article is originally published on The Jakarta Post.
It was a pride moment for Indonesia at the UN Climate Change Conference COP23 in Bonn, Germany, in November 2017, when world leaders, including former US Vice-President Al Gore, praised Indonesian government’s effort to restore and protect peatland to mitigate climate change.
Such efforts, led by President Joko Widodo, are indeed strategic and critical, especially at the aftermath of the 2015 forest fires that mostly occurred in carbon-rich peatlands. The fires led to 19 casualties, 500,000 people suffering from acute respiratory infections, over 4 million students stopped attending school for a month, and estimated economic losses of up to 221 trillion rupiahs. The fires also released 1.62 billion metric tons of GHG to the air, equivalent to the emissions produced by nearly 350,000 vehicles throughout the year.
As a state based on the rule of law, where the power of government is given and led by the law, peatland restoration and protection efforts in Indonesia require legal reinforcement, including by providing new rules on peatland spatial plan that requires preservation of the new stipulated protected peat areas. However, peatland areas may have been granted business, plantations and agricultural permits or land rights. This situation indeed has potential to lead to conflicts between the new rules and those permits or rights. Permit or rights holders usually reject new rules using an argument of the rule of law: legal certainty, which is narrowly defined as the law should not change. Permit holders argued that they had secured the permit legally under the law and hence the new rules should not have impacted their concessions.
Such conflict occurred recently when the Ministry of Environment and Forestry (MoEF) issued a regulation that obliges forestry plantation permit holders to adjust their work plan to comply with the new peat spatial plan determined by the Ministry. As a manifestation of that conflict, a lawsuit was filed by Riau-K SPSI, a union of labor in the forest industry. The union attempted to bring down the rules by submitting a request for judiciary examination over the new rules to the Indonesian Supreme Court. The Supreme Court granted the applicant’s request, stating that the new rules contradict Law 41/1999 on Forestry and advising any rule makers to base their new rules on academic study.
A critical question dues: Does the rule of law disallow the government to make any changes in the law that have adverse effects on existing permits or legal obligations/rights?
The rule of law essentially is an element of democratic countries to prevent arbitrary and discriminative government practice. The law, as a set of rules that people should comply with, should be issued by authorities pursuant to standards, procedures, and objectives provided by the law. Amongst law experts, there is a growing perspective that the rule of law should not only be based on formal procedural standards, such that the law must be clear, open, relatively stable, and established based on the Law, but also take into account values in the society, especially human rights, justice and morality.
The 1945 Constitution of Indonesia, the highest law in the Indonesian legislation hierarchy, recognizes such societal values. The Constitution recognizes human rights, such as the right to clean and healthy environment as well as right to justice. Human rights shall be respected, which shall take into consideration moral judgment, religious values, security and public order. The rule of law in Indonesia hence requires not only formal procedural standards but also public values.
Besides, a stable law does not mean that the law could not be changed. Instead, law should be adjusted continuously to protect the welfare and justice for the people. The Law 12/2012 on Establishment of Laws and Regulations in fact allows retroactive laws in Indonesia provided that they exclude criminal provisions and regulate the effects of the new rules against the existing legal obligations and rights.
In the context of peatland protection in Indonesia, MoEF’s move in issuing the new rules is an effort to implement Government Regulation 71/2014 on Peatland Protection, Law 32/2009 on Environmental Protection and Management, and the 1945 Constitution of Indonesia. These laws prohibit land clearing in protected peat areas and require business owners to mitigate and restore damaged peat as a result of business activities.
Besides, the obligations of business owners to preserve protected peatland and mitigate environmental damage are not new. The obligations have been attached to businesses since at least the issuance of Law 4/1982 on Environment and Presidential Decree 32/1990 on Protected Areas Management. Hence, it needs prudent examination to say that the new rules delivered significant changes to businesses’ responsibilities.
In the situation where peat and environmental concerns overlapping with existing permits or rights, the rule of law should be perceived sensitively, accurately, comprehensively, and carefully. Upholding the rule of law should not only be considered merely as upholding procedural safeguards, but also public values and state’s objectives recognized by the Constitution. While the Supreme Court in the above-mentioned case has uplifted the importance of fulfilling the procedural standards, the substantive rule of law needs to further embrace. A narrow perception of the rule of law principle may harm public interests on good and healthy environment and abuse the law itself.