Introduction

Legal protection for the environment in Indonesia is begun several years after the Indonesian independence, however, its legislation was scattered. Since 1982, in general, the legal protection of the environment in Indonesia has been formally established with the enactment of Law No. 4 of 1982 concerning General Provisions for Environmental Management on 11 March 1982. The Law has been amended twice, in 1997 through Law No. 23 of 1997 concerning Environmental Management and in 2009 through Law No. 23 of 2009 concerning Environmental Protection and Management. The law is an effort to protect Indonesia’s abundant biodiversity and natural resources, which need to be protected and managed within an integrated environmental protection and management system between the marine, land, and air in the scope of Indonesian archipelagic vision. The existence of various laws and regulations regarding environmental protection in Indonesia shows the spirit of Indonesian people to preserve and protect the environment, which has an impact on the lives of the current and future generations.

Unfortunately, the spirit is not supported by an implementation of realistic enforcement. This unrealistic enforcement causes efforts to protect the environment in Indonesia to have no real results. This happens especially when the government seeks to restore environmental sustainability in Indonesia due to an event of negligence or damage caused by certain parties. Therefore, the focus of this paper is to show the efforts to protect the environment in Indonesia by exposing environmental law cases. Below is the brief summary of the cases:

PT Kallista Alam, a palm oil company, burned around 1000 hectares of forest within the Leuser Ecosystem Area (KEL) in 2012, which caused environmental damage in that region. In response, the Ministry of Environment filed a lawsuit against PT Kallista Alam with the intention to get material compensation and the recovery cost of the damaged land. Based on Meulaboh District Court Decision No. 12 / Pdt.G / 2012 / PN.MBO on 8 January 2014, the Panel of Judges decided that PT Kallista Alam was proven to have burned the forest and was sentenced to pay material damages of IDR 114,303,419,000.00 (one hundred fourteen billion three hundred and three million four hundred and nineteen thousand Rupiah) and punished PT Kallista Alam to restore the burned land which in the area of approximately 1000 hectares for IDR 251,765,250,000.00 (two hundred fifty-one billion seven hundred sixty-five million two hundred fifty-thousand Rupiah) so that the land can function properly. As a result, the total compensation that must be paid by PT Kallista Alam is IDR 366,068,669,000.00 (three hundred sixty-six billion sixty-eight million six hundred sixty-nine thousand Rupiah). The decision of the Meulaboh District Court No. 12 / Pdt.G / 2012 / PN.MBO was also strengthened at the appeal level by Banda Aceh High Court through Decision No. 50 / PDT / 2014 / PT.BNA, at the cassation level by the Supreme Court of the Republic of Indonesia through Decision No. 651 K / Pdt / 2015, and at the level of Review by the Supreme Court of the Republic of Indonesia through the decision number 1 / PK / Pdt / 2017.

But as far as the author’s knowledge (it is possible, the situation may change as time goes by), until now the decision is not yet executed by the Government. PT Kallista Alam succeeded in making this decision  inexecutable through a lawsuit filed by PT Kallista Alam against the State Ministry of Environment and Forestry of the Republic of Indonesia, with the argument that the coordinates used by the Ministry of Environment are wrong. In the lawsuit, the coordinate argued by the Ministry of Environment as PT Kallista Alam’s area were 96º 32´ 0 ″ – 98º 32´ 21 ″ East Longitude and 3º 47´ 8 ″ – 3º 51´ 22 ″ North Latitude, but according to PT Kallista Alam as the Plaintiff, 98º 32´21 ″ East Longitude is the wrong coordinate and thus asked the Meulaboh District Court to declare that the object of the lawsuit is not according to the fact or error in objecto. In the Meulaboh District Court Decision No. 16 / Pdt.G / 2017 / PN.Mbo, the Panel of Judges stated that the argument of PT Kallista Alam is right and their claims are proven, so the Panel of Judges decided that the coordinate had been erroneous and the decision containing the lawsuit on forest burning could not be executed against PT Kallista Alam. The Panel of Judges then declared that the Supreme Court’s Decision No. 1 PK / PDT / 2015 dated 18 April 2017 does not have an executorial title for PT Kallista Alam[1].

Ministry of Environment and Forestry of the Republic of Indonesia vs. PT Bumi Mekar Hijau

This case began with a forest fire in PT Bumi Mekar Hijau’s Industrial Plantation Forest area in 2014. The Ministry of the Environment suspected that PT Bumi Mekar Hijau was burning forests intending to clear the land. Based on this, the Ministry of Environment filed a lawsuit against PT Bumi Mekar Hijau in the Palembang District Court to get compensation for the alleged environmental pollution. At first the Panel of Judges of the Palembang District Court in its decision No. 24 / Pdt.G / 2015 / PN.Plg on 30 December 2015 rejected the Ministry of Environment and Forestry’s claim with legal considerations that were considered controversial by the media, one of which is as follow:

“… as a scientific evidence there is no indication that the land is damaged, the land is still functioning properly according to its purpose as Industrial Plantation Forest land, on the former burned land the acacia plant can regrow well, the Panel of Judges see it as a fact of process when conducted an on-site hearing. “

The legal consideration of the Panel of Judges of Palembang District Court in its decision was highly condemned by the Indonesian people and caused much confusion in the media. Such consideration was viewed by most Indonesian as a strange decision. Meanwhile, the legal consideration is only one of several other legal considerations, in which the Panel of Judges states the following:

“Considering, that because the Defendant did not carry out an act that was argued by the Plaintiff, there is no need to further assess the compensation in this case.“

This legal consideration shows that the Panel of Judges has stated that PT Bumi Mekar Hijau did not carry out the actions claimed by the Plaintiff in its lawsuit, and has accepted the argument of PT Bumi Mekar Hijau that the forest fire incident had caused loss to PT Bumi Mekar Hijau. Therefore the Panel of Judges rejected the lawsuit filed by the Minister of Environment (Plaintiff) in its entirety.

The Minister of Environment then filed an appeal in the Palembang High Court, where the Panel of Judges at the Palembang High Court in his decision No. 51 / Pdt / 2016 / PT.PLG decided to annul the decision of the District Court and stated that PT Bumi Mekar Hijau had committed Unlawful Acts in accordance with Article 1365 of the Civil Code. The basis of the legal considerations of the High Court decision is:

“…  in accordance with the provisions above, it can be concluded that the forest fire occurred in the area of the Business Permit for the Utilization of Forest Products in Plantation Forests (IUPHHK-HTI) of PT. Bumi Mekar Hijau / Defendant / Appellee, then it is proper that this fire is the legal responsibility of the Defendant / Appellee as the holder of a business permit in the Defendant / Appellee’s  IUPHHK-HTI area.  An undebatable legal fact, that the forest fire occurred on the Defendant / Appellee’s IUPHHK-HTI area, therefore legally, the Defendant/Appellee is considered to have not carried out the law and must be responsible for the fire. Therefore, the Defendant / Appellee must be responsible for all of the impact of the forest fire.”

The Panel of Judges in the High Court argues that PT Bumi Mekar Hijau is liable for all impacts resulted from the forest fire, which occurred in the area of its business license, based on the principle of strict liability. The Panel of The also added that:

“Considering, that as has been considered above where the Defendant / Appellee in the event of a forest fire in the area under his control, which was caused among other due to the facilities and infrastructure of fire control owned by the Defendant / Appellee is inadequate then according to the High Court, the Defendant / Appellee was negligent for not completing fire prevention infrastructure in accordance with the requirements specified in the legislation in the prevention and control of fires as the Plaintiff argues in his lawsuit. “

The Panel of Judges in the High Court argues that PT Bumi Mekar Hijau has an obligation to own an adequate fire extinguisher facilities, and according to the Panel of Judges, the fire extinguisher facilities owned by PT Bumi Mekar Hijau at the time of the fire occurred were inadequate so PT Bumi Mekar Hijau was declared to have neglected these obligations. As a result, PT Bumi Mekar Hijau was punished to pay compensation for the forest fires.

Uniquely, in this case, the Chief of the Panel of Judges in the High Court stated a dissenting opinion that the Minister of Environment (Plaintiff) could not prove that PT Bumi Mekar Hijau was the party responsible for the forest fire, and further PT Bumi Mekar Hijau had suffered huge losses (approximately 7 trillion) due to the forest fires. The available evidence tends to indicate that the fire occurred due to the actions of the community around PT Bumi Mekar Hijau area, so the Chief Judge agrees with the Palembang District Court Judges. However, because the Member Judges opines that PT Bumi Mekar Hijau has committed an unlawful act, the decisions taken are made by the Member Judges.

Based on the decision of the Palembang High Court No. 51 / Pdt / 2016 / PT.PLG, PT Bumi Mekar Hijau is punished to pay compensation amounting to IDR 78,502,500,000.00 (seventy-eight billion five hundred two million five hundred thousand Rupiah), or only 1% (one percent) of the total lawsuits filed by the Minister of Environment (IDR 7,986,605,000,000.00 (seven trillion nine hundred eighty-six billion six hundred five million Rupiah)).

Ministry of Environment of the Republic of Indonesia vs. PT Merbau Pelalawan Lestari

This case is a case related to alleged illegal logging conducted by PT Merbau Pelalawan Lestari. For that, the Ministry of Environment filed a lawsuit in Pekanbaru District Court against PT Merbau Pelalawan Lestari to ask for compensation. The panel of judges at Pekanbaru District Court through its decision No. 157 / Pdt.G / 2013 / PN.Pbr on 3 March  2014, rejected the Ministry’s claim, in which Pekanbaru District Court’s decision was upheld at the Appeal level by the Pekanbaru High Court through its decision No. 157 / Pdt.G / 2013 / PN.Pbr on February 10, 2014. The Ministry of Environment then filed an appeal to the Supreme Court, where the Supreme Court finally granted the  Ministry’s appeal based on Decision No. 460 K / Pdt / 2016.

The Supreme Court’s legal considerations are as follows:

“… Defendant’s act of carrying out deforestation outside the location of Business Permit for the Utilization of Forest Products in Plantation Forests (IUPHHK-HTI) and cutting down the forest within the location of Business Permit for the Utilization of Forest Products in Plantation Forests (IUPHHK-HTI) by violating the prevailing laws and regulations is an unlawful act. “

Therefore, the Supreme Court punished PT Merbau Pelalawan Lestari with the following decision:

“Punish and order the Defendant to pay environmental compensation to the state through the Ministry of Environment and Forestry of the Republic of Indonesia directly and immediately to the Plaintiff in the amount of IDR 16,244,574,805,000.00 (sixteen trillion two hundred forty-four billion five hundred seventy-four million eight hundred five thousand rupiahs) consisting of:

– Losses due to environmental destruction in the area of ​​ Business Permit for the Utilization of Forest Products in Plantation Forests (IUPHHK-HTI)  with the area of ​​± 5,590 ha (five thousand five hundred ninety hectares) in the amount of IDR 12,167,725,050,000.00 (twelve trillion one hundred sixty-seven billion seven hundred twenty-five million fifty thousand rupiah), and;

– Losses due to environmental destruction outside the area of ​​ Business Permit for the Utilization of Forest Products in Plantation Forests (IUPHHK-HTI)  with the area of ± 1,873 ha (one thousand eight hundred seventy three hectares) in the amount of IDR 4,076,849,755,000.00 (four trillion seventy-six billion eight hundred forty-nine million seven hundred fifty-five thousand rupiah); “

Therefore, it can be seen that the total amount of compensation that must be borne by PT Merbau Pelalawan Lestari is IDR 16,244,574,805,000.00 (sixteen trillion two hundred forty-four billion five hundred seventy-four million eight hundred five thousand Rupiah), which is a very large amount. However, as far as we know (it  is possible to change as time goes by), until now the government has not executed the decision.

Ministry of Environment and Forestry vs. The Petroleum Authority of Thailand Exploration and Production Australasia Ashmore Cartier PTY. LTD. (PTTEP AA), The Petroleum Authority of Thailand Exploration and Production Public Company Limited (PTTEP) and The Petroleum Authority of Thailand Public Company Limited (PTT)

This environmental case is related to the case of the oil spill in the Timor Sea, to be exact about 260 kilometers northwest of the coast of Australia which allegedly caused by PTTEP AA. The Montara oil spill occurred on 21 August 2009 and continued until November 3, 2009. The number of spills from this incident is estimated to reach 30,000 barrels during the 74 days when the spill occurred. Based on comprehensive research, no oil reaches the mainland of Australia or the mainland of Indonesia, where the nearest oil spill to Australia is 35 kilometers from the mainland of Australia, and closest to Indonesia is 94 kilometers from mainland of Indonesia[2].

Based on this, on 3 May 2017, the Ministry of Environment and Forestry represented by the State Attorney Prosecutors filed a lawsuit in the Central Jakarta District Court against PTTEP AA, PTTEP and PTT to request compensation for the allegation of environmental damage in the amount of IDR 23,014,589,777,000.00 (twenty-three trillion fourteen billion five hundred eighty-nine million seven hundred seventy-seven thousand Rupiah) and recovery costs due to damage in the amount of IDR 4,468,084,555,000.00 (four trillion four hundred sixty-eight billion eighty-four million five hundred fifty-five thousand Rupiah), in total, the Ministry of Environment and Forestry demanded a compensation in the amount of IDR 27,482,674,322,000 (twenty-seven trillion four hundred eighty-two billion six hundred seventy-four million three hundred twenty-two thousand Rupiah). However, the case was revoked by the Ministry of Environment and Forestry because they want to revise their lawsuit. To date, as far as we know, no new lawsuit has been filed by the Ministry of Environment and Forestry regarding this case.

Based on the author’s research, there are a number of other environmental cases that the government won in fantastic numbers. The following table shows some environmental cases which are won by the government:

No	Parties	Value  being Claimed	Granted Value
1.	Ministry of Environment (“MoE”) v. PT Bumi Mekar Hijau	IDR 7,986,605,000,000.00 (seven trillion nine hundred eighty-six billion six hundred five million Rupiah)	IDR 78,502,500,000.00 (seventy-eight billion five hundred two million five hundred thousand Rupiah)
2.	MoE v. PT Selatnasik Indokwarsa (Defendant I) and PT Simpang Pesak Indokwarsa (Defendant II)	Material: IDR 32,264,312,000.00 (thirty-two billion two hundred sixty-four million three hundred twelve thousand Rupiah)   Immaterial:   IDR 10,000,000,000.00 (ten billion Rupiah)	IDR 32,264,312,000.00 (thirty-two billion two hundred sixty-four million three hundred twelve thousand Rupiah)
3.	MoE v. PT Kalista Alam	IDR 366,068,669,000.00 (three hundred sixty-six billion sixty-eight million six hundred sixty-nine thousand Rupiah)   Penalty: IDR 10,000,000.00 (ten million Rupiah)	IDR 366,068,669,000.00 (three hundred sixty-six billion sixty-eight million six hundred sixty-nine thousand Rupiah)   Penalty: IDR 5,000,000.00 (five million Rupiah)
4.	MoE v. PT Merbau Pelalawan Lestari	IDR 16,244,574,805,000.00 (sixteen trillion two hundred forty-four billion five hundred seventy-four million eight hundred five thousand Rupiah)	IDR 16,244,574,805,000.00 (sixteen trillion two hundred forty-four billion five hundred seventy-four million eight hundred five thousand Rupiah)
5.	MoE v. PT National Sago Prima	IDR 1,072,913,922,500.00 (one trillion seventy-two billion nine hundred thirteen million nine hundred twenty-two thousand five hundred Rupiah)   Penalty: IDR 50,000,000.00 (fifty million Rupiah)	IDR 1,072,913,922,500.00 (one trillion seventy-two billion nine hundred thirteen million nine hundred twenty-two thousand five hundred Rupiah)   Penalty: IDR 50,000,000.00 (fifty million Rupiah)
6.	MoE v. PT Waringin Agro Jaya	IDR 758,409,614,000.00 (seven hundred fifty-eight billion four hundred nine million six hundred fourteen thousand Rupiah)   Penalty: IDR 50,000,000.00 (fifty million Rupiah)	IDR 466,468,991,700.00 (four hundred sixty-six billion four hundred sixty-eight million nine hundred ninety-one thousand seven hundred Rupiah)

Based on the table above, and based on our research on existing environmental cases, the government has a very high chance of winning the lawsuit. The verdict, too, seemed to always follow whatever the value of claims asked by the government. The compensation formula used by the government in its lawsuit always follows the maximum calculation formula as regulated in several Minister of Environment regulations such as Minister of Environment Regulation No. 13 of 2011 concerning Compensation due to Pollution and/or Environmental Damage which has been replaced by Minister of the Environment Regulation No. 7 of 2014 concerning Environmental Losses Due to Pollution and / or Environmental Damage. The government as the party that suffers loss will certainly file a maximum lawsuit and leave it to the Panel of Judges to give the fairest possible decision, which is to calculate the value of actual losses incurred.

Decisions demanding fantastic values result in the difficulty of the government to execute such decisions. This is because the companies that cause environmental damage do not have assets as big as the amount of compensation demanded. As a result, these companies will not be able to pay compensation and even choose their business to simply be terminated by the government.

According to Kontan, a mass media platform, Siti Nurbaya as Minister of Environment and Forestry is of the view that the government was faced with several issues to conduct the executions, one of them is economic and social issues such as bankruptcy threat, and labor threat^[1]. Siti Nurbaya herself agreed that there has never been an execution of a permanent legal verdict for environmental cases as above^[2].

Conclusion

Based on the explanation above, we can conclude that Indonesia’s spirit to preserve the environment and its natural resources is very high. This can be seen by the existence of laws and regulations concerning environmental protection as a legal basis for environmental protection. Moreover, regulations regarding compensation in the event of environmental damage caused by certain parties have been formed comprehensively. We can also see this spirit from the community’s enthusiasm for environmental cases in Indonesia. Certainly, this enthusiasm needs the community’s legal awareness and realistic implementation of environmental protection as its basis. Judges who examine and decide on environmental cases must be very careful in making decisions. There is a tendency that the Judge will be considered as a “hero” when he wins an environmental case filed by the government, and will be immediately ridiculed when the Judge issues a decision that does not meet the expectations of the government as a plaintiff.

Judges who adjudicate on environmental cases tend to adopt the amount of compensation proposed by the government, resulting in fantastic compensation and in the end such decision will be difficult to execute. In our opinion, the task of the judge in the hearing is to determine the amount of fair compensation, so that all parties are able to carry out their obligations and the damaged environment can be recovered. When a decision cannot be executed, the ultimate goal of a judicial process, which is to restore the damaged environment, becomes difficult to achieve.

Hope this is useful.

FREDRIK J. PINAKUNARY LAW OFFICES

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[1] Handoyo, “The Reasons why Sanctions for Forest Destroyers Not Executed”, Kontan.co.id, Tuesday, January 24, 2017, was taken from the Kontan website on August 10, 2018 at 3:20 pm via the following link: https://nasional.kontan.co.id/news/eksekusi-putusan-terhadap-perusak-hutan-terkendala. Also can be accessed at the following link: http://nasional.kontan.co.id/news/menang-rp-16-t-klhk-belum-bisa-eksekusi.

[2] Ibid.

[1] Andi Saputra, “District Cout Annulled Supreme Court Decision which punish the Forest Fire Actor IDR 366 Billion!”, DetikNews, May 3, 2018, taken from the Detiknews website on August 9, 2018 at 11:17 through the following link: https://news.detik.com/berita/d-4002412/pn-batalkan-vonis-ma-yang-hukum-pembakar-hutan-rp-366-miliar and also can be accessed in another website, such as: https://icel.or.id/wakil-ketua-kpk-angkat-bicara-soal-kasus-kallista-alam/

[2] “Montara Environmental Monitoring Program, Report of Research ”, second edition, published in 2013 which is a special supervision program for the Montara oil spill initiated by PTTEP AA with the Australian Government. The full report can be found on the SEWPaC website at: www.environment.gov.au/coasts/oilspill/scientific-monitoring.html.