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Environmental Defenders Fear Backlash as Defendant Sues Expert Over Testimony

Basuki Wasis (third from left, holding a mic), an environmental expert from the Bogor Institute of Agriculture (IPB), speaks during a press conference at the Indonesian Legal Aid Institute (YLBHI)’s office in Jakarta. Photo courtesy of YLBHI.

 

  • Basuki Wasis, an environmental expert whose testimony helped convict a provincial governor of abuse of power, now faces a lawsuit brought by the latter for alleged inaccuracies in his calculations of environmental damage.
  • The lawsuit against Basuki is similar to one he faced last year from a palm oil company that was fined for setting fires on its concession. The earlier lawsuit was dropped, but the company now appears to be targeting another expert witness who testified against it.
  • The litigation has sparked concerns among environmental experts and activists alike, who fear it will have a silencing effect and allow environmental crimes to go unpunished.
  • They also worry that without financial assessments of damages caused to the environment, prosecutors trying corruption cases in the natural resources sector will not be able to push for longer prison sentences and heavier fines.

 

JAKARTA — Environmental experts and activists are closely watching a lawsuit filed against an academic whose testimony helped convict a governor on corruption charges, in a case many fear could set a worrying precedent.

Basuki Wasis, an expert on environmental degradation from the Bogor Institute of Agriculture (IPB), has testified in more than 200 cases involving environmental crimes such as forest fires and pollution.

On Feb. 14 this year, he testified as a prosecution witness against Nur Alam, the suspended governor of Southeast Sulawesi, who was charged with abuse of power in the issuance of mining licenses. Basuki told the court that the illegal mining activities by one of the companies that received a permit from Alam had led to deforestation and resulted in 2.7 trillion rupiah ($196 million) in combined ecological losses, environmental economic losses, and the cost of repairing the damage.

On March 12, Alam’s lawyers filed a lawsuit against Basuki, questioning the accuracy of his calculations and his credibility. (Alam was convicted on March 28; he was sentenced to 12 years in prison and ordered to pay fines and damages totaling 3.7 billion rupiah, or $268,000.)

“This is something new, in which an expert is being sued,” Basuki said at a recent press conference in Jakarta, adding, “I’m confused.”

Besides demanding a prison sentence for Basuki, Alam’s team also seeks to seize the witness’s assets, including his house, and calls for a combined 4.47 billion rupiah ($322,000) in fines and damages, according to a copy of the lawsuit seen by Mongabay.

The move has struck fear into the community of environmental experts in Indonesia, who say they are scared of winding up in prison for testifying against environmental violators in future cases. Basuki said the lawsuit had made him doubtful about whether he would continue to give testify as an expert witness.

“If every expert is sued, then we’ll just stay on campus and lecture,” he said. “We’ve protected our country and sacrificed everything. We use our own money to go to trial hearings to testify, because we want this country to develop. But if this is the [response], then we’ll just retreat.”

 

A disturbing pattern

Basuki’s case is not unprecedented, and not the first against the IPB expert. In 2015, he testified against the oil palm company PT Jatim Jaya Perkasa (JJP), which stood accused of responsibility for fires on its concession.

A court found the company guilty in 2017 and ordered it to pay damages of 491 billion rupiah ($35.4 million). JJP responded by suing Basuki over a typo in one of the documents that he had presented in his testimony. It also sought 610 billion rupiah ($44 million) in damages. The company eventually dropped its demands following mediation.

Now, however, there are indications that JJP is gunning for one of Basuki’s colleagues at IPB, Bambang Hero Saharjo, who says he has also been targeted for retaliation after testifying in the same case.

“What happened to Basuki obviously is very concerning and disturbs my concentration,” he told Mongabay. “Especially now that the same method is being planned for use against me.”

Bambang, who has calculated environmental damages for the government in a host of major cases, said JJP had sent a list of questions to the dean of IPB’s forestry department, just as it did prior to filing suit against Basuki.

“The answers from the dean were used as part of the basis for them to proceed with the lawsuit,” he said.

Bambang lamented that environmental experts like himself and Basuki were being retaliated against for presenting the facts.

“What’s interesting is that we who defend the country are being hunted,” he said. “Meanwhile, there are many experts used by defendants who are not competent and keep giving false testimony and even disgrace their own institutions in court. Yet they’re off the hook. But that’s the fact.”

 

Experts with a green conscience

Environmental activists worry that the ongoing lawsuit against Basuki will deter other experts from testifying against environmental violators, especially given the small number of people with the expertise to testify in complex legal cases who are genuinely concerned about environmental protection.

“Of course we’re concerned because there are so few experts who side with the environment and humanity, compared to the number of academics who prefer to defend companies rather than defend the environment,” Khalisah Kalid, from the Indonesian Forum for the Environment (Walhi), said at Basuki’s press conference.

Tama Langkun, from anti-graft NGO Indonesia Corruption Watch (ICW), said the lawsuit against Basuki could pose a setback for the country’s efforts to tackle corruption in the natural resources sector. He noted that the national anti-corruption agency, the KPK, had begun to give prominence to environmental damages in its calculations of state losses incurred through corruption, particularly with Alam’s case. The move has been hailed as giving prosecutors a stronger basis for pushing for heavier sentences and fines for crimes in the natural resources sector.

“This legal breakthrough in fighting corruption is what’s at stake at the moment,” Tama said. “But it’s being challenged by many problems.”

In addition to the retaliation against expert witnesses, a longstanding obstacle to cracking down harder on environmental crimes is the tendency for judges to go easy on defendants. In Alam’s case, the judges decided not to include Basuki’s calculation of environmental losses when determining the sentence. (KPK prosecutors have appealed the ruling, and are pushing for the 18-year sentence that they sought initially.)

“Expert Basuki Wasis could not prove that mining activities conducted by [license holder] PT AHB had caused soil and environmental damage, which he had included in the state losses,” Joko Subagyo, one of the judges, said when handing down the verdict, as quoted by The Jakarta Post.

Alam’s lawsuit also seeks to make him revoke the data he presented for calculating the environmental loss. But any dispute over the figures should have been presented and addressed during the trial rather than in a separate lawsuit, according to Henri Subagiyo, executive director of the Indonesian Center for Environmental Law (ICEL).

He noted that if Alam won the lawsuit against Basuki, it could affect the outcome of the KPK’s appeal. “This could damage our court system if we let this happen,” Henri said.

Hearings in the lawsuit have already begun, with the next hearing scheduled for May 3. Basuki’s legal team has attempted to settle the case with Alam’s lawyers, but to no avail.

“There’s always a possibility the lawsuit will be dropped,” Muji Kartika Rahayu, one of Basuki’s lawyers, told Mongabay. “Our hope is for the plaintiff to drop the lawsuit.”

 

Silencing critics through litigation

The case has fueled calls for Indonesia to adopt robust anti-SLAPP regulation. SLAPP, or Strategic Lawsuit Against Public Participation, is defined as any type of litigation brought with the aim of censoring, intimidating or silencing critics speaking out against those in power or on issues of public interest.

An article in the 2009 Environmental Protection and Management Law states that no criminal charges may be brought against anyone for campaigning for their right to a clean environment. But the scope of the article is narrow, as it protects only against lawsuits brought in response to formal complaints filed by petitioners.

The Ministry of Environment and Forestry is now preparing guidelines that will interpret the article more broadly to apply to environmental activism and prevent frivolous cases from going to court. Once the guidelines are in place, the ministry says, it hopes to prevent cases like Basuki’s from occurring again.

“We’re preparing the operational guidelines as a follow-up to the 2009 law,” Rasio Ridho Sani, the ministry’s director-general for law enforcement, told reporters at his office in Jakarta recently. “It’s our priority so that the protection of environmental management can run well.”

ICEL’s Henri said having law enforcers step up to protect people being targeted with SLAPP litigation was important, given that citizens could not be denied their right to file lawsuits.

“If someone wants to sue, no one can forbid them from doing so. So there’s always a chance for SLAPP,” he said. “That’s why the government has a very strategic role when there’s a SLAPP attempt.”

In cases like Basuki’s, it should be incumbent on the KPK and the Ministry of Environment and Forestry, as the government agencies under whose auspices he testified, to protect the expert witness, Henri said.

Environment and Forestry Minister Siti Nurbaya Bakar said separately that her office would provide assistance to Basuki.

“Because Basuki Wasis testified at our request, it’s our responsibility to handle this,” she told reporters at her office in Jakarta. “We will give our support in accordance with procedures.”

 

Source :https://news.mongabay.com/2018/04/environmental-defenders-fear-backlash-as-defendant-sues-expert-over-testimony/