A number of civil society organisations doubt the commitment of the government and the DPR 2019-2024 period in protecting and improving environmental and natural resources governance. This doubt can be seen from the legislative process and the drafting of regulations issued by the government and the DPR recently. Because, the substance gives a large space over the function of land and forests for business (corporate) interests.
Executive Director of ICEL Henri Subagiyo noted that there were at least 5 bills and government regulations that weakened environmental protection. Firstly, the Palm Oil Bill. According to Henri, this bill would increase plantation extensification which had the potential to increase tenure and environmental conflicts. Secondly, the Criminal Code Bill (RKUHP), in addition to containing provisions that could charge human rights and environmental activists, this bill undermines penalties that charge corporations.
Henri explained that criminal sanctions for corporations should be strengthened, so that not only were the board structures charged, but also their legal entities and corporate controllers that were outside the corporate structure. In addition, the parent corporation was responsible for the actions of the subsidiary. “For example if a subsidiary’s concession land is on fire, then the criminal must be pursued up to the parent company level,” Henri said in a discussion in Jakarta, Wednesday (16/10/2019).
Third, the Land Bill. Henri believed that the Land Bill increased excessive land tenure and did not consider environmental functions in land governance. Fourth, Government Regulation No. 24 of 2018 concerning Online Integrated Investment Licensing or better known as Online Single Submission (OSS). PP OSS does not position environmental impact analysis (EIA) as a consideration in issuing environmental permits.
The OSS mechanism prioritises commitment-based permits rather than EIA requirements. The OSS mechanism places investments in the uncertainty of environmental and social law. However, EIA is important because it opens up space for community participation. As an information, recently, ICEL and other civil society organisations have submitted PP OSS judicial review to the Supreme Court (MA). Now, we are just waiting for the Supreme Court’s verdict.
Fourth, Government Regulation No. 13 of 2017 concerning Amendments to Government Regulation No. 26 of 2008 concerning National Spatial Planning. Henri assessed that this regulation gave privileges to development that fall into the category of national strategic projects. Article 114A PP No. 13 of 2017 provides space for the development of strategic projects to deviate regional RTRW or Spatial Detail Plan (RDTR) based on ministerial recommendations without clear parameters.
Henri also regretted the revision of the KPK Law of which substance weakened the KPK institutionally. In fact, the weakening of the KPK would threaten all sectors including environmental and natural resources management. According to Henri, there were many corruption problems that occurred in the environmental and natural resources sectors of which impacts would certainly harm the community.
“Various legislation and regulations that have sprung up until the end of Jokowi-JK’s tenure must be re-evaluated, especially those that are counterproductive to environmental and natural resources protection,” advised Henri.
The government’s commitment to enforce court decisions and encourage the execution of court decisions according to Henri is also weak. For example, the court’s decision in the “Kendeng” case in Central Java; decision on judicial review of Presidential Decree No. 18 2016 concerning the Acceleration of the Development of Waste-to-Energy Power Plants; a Palangkaraya citizen lawsuit related to land and forest fires in 2015.
Next, Cirebon II CFFP environmental permit; PT Kahatex liquid waste disposal permit in the Cikijing river. The government tends to disobey or pretend to obey by “tricking” rather than conducting a thorough evaluation. In fact, in the case of the Cirebon CFFP, the government issued Government Regulation No. 13 of 2017 to deviate the regional RTRW or RTDR through the minister’s recommendation.
Henri saw the government claimed to have carried out environmental law enforcement in the case of land and forest fires. Not a few court decisions won by the government, but the victory was only on paper because the execution of the decision had not been carried out optimally.
According to Henri, law enforcement, including its execution is one way to provide a deterrent effect on those who violated environmental regulations. In fact, the government could do many ways to execute the decision, for example chasing or suspending company assets. All government agencies such as the police, prosecutors, the OJK, the Ministry of Law and Human Rights, BKPM, and others could provide support so that the execution can be carried out.
Deforestation and Climate Change
Head of the Forest Campaign Team of Green Peace Indonesia Arie Rompas said the corporation was responsible for forest destruction in Indonesia. Based on the data from the Ministry of Environment and Forestry for the period 1995-2015 about 24 million hectares of rainforest in Indonesia were destroyed. For the 2015-2017 period, 19 percent of deforestation occurred in palm oil concessions. The destruction of this rainforest has placed Indonesia as one of the biggest global emitters after the United States and China.
This fact is reinforced by the findings of Green Peace in 2015-2018 where a number of palm oil supplier companies destroyed forest areas twice the size of Singapore. Policies issued by the government to curb deforestation rates such as Presidential Instruction No. 5 Year 2019 concerning the Cessation of Granting of New Permits and Improving Governance of Primary Natural Forests and Peatlands turned out to be not optimal. The Presidential Instruction, which was first published in 2011, still has gaps, so it does not provide long-term protection of forests and peatlands.
Instead of suppressing deforestation, Arie actually noted the fact that deforestation and land were increasing. Green Peace analysis result shows that one third of the burned area in the 2015-2018 period was in the moratorium area (land sterilisation). The period of 2005-2011 when there was no moratorium on total deforestation of around 800 thousand hectares, 7 years after the moratorium (2012-2018) total deforestation of 1.2 million hectares.
During the implementation of the moratorium every 6 months the government revised the area under moratorium. In the revision, many carbon-rich forests and peatlands were removed from the moratorium map. Some of the removed land was granted permits for palm oil and pulp plantations, logging and mining. In the next 5 years Indonesia will still face the problem of deforestation.
“President Jokowi said the Moratorium Presidential Instruction is permanent, but there are still forests and peatlands that have not yet entered the moratorium area, so deforestation continues,” Arie said.
The problem of deforestation is exacerbated by the weak law enforcement, implementation and execution of court decisions. The government through the Ministry of ATR/BPN makes the situation even more difficult because they do not want to open information on HGU holders. Even though the Supreme Court had ordered it through its decision. Protection of forests and peatlands is increasingly bleak because the government plans to revise more than 70 regulations in the context of accelerating the entry of investment or known as the omnibus law.
“This policy in the next 5 years will expand forest destruction, land grabbing, and increase the potential for land and forest fires,” Arie said.
Political Bonds “Ijon Politik”
Coordinator of Jatam Merah Johansyah believed that in the next 5 years community safety was still threatened by mine expansion. Jatam noted that mining permit sales were on the rise before and after the regional elections (pilkada) and general elections (pemilu). Jatam called the practice as political bonds or “ijon politik”.
According to Merah, political bonds is a practice in which entrepreneurs or donors provide financial support to candidates, in return the elected candidates provide investment security and policies that facilitate and permit exploitation of mining and other extractive industries. Merah gave an example of 120 mining permits in Central Java issued during January 2017-February 2018. The peak, 13 Mining Business Licenses (IUP) issued in July 2017 or 6 months before the Central Java Regional Election took place.
Then in East Borneo the period 2017-2018 172 mining permits were issued. As is known, East Borneo held the 2018 elections. Merah noted that forms of political bonds were not only a clearance sale, but also the issuance of policies and regulations that provide convenience or benefit businessmen and politicians. For example, ahead of the 2018 elections the government issued 1 PP, 4 ESDM Ministerial Regulations (Permen), and 9 ESDM Ministerial Decrees. ESDM Ministerial Regulation No. 11 of 2018 was issued on the 19th of February 2018 to facilitate the determination of the mine ahead of the elections in various regions.
The government’s plan to revise at least 76 laws to be in line with investment or also known as omnibus law, according to Merah, this policy was in order to accommodate the interests of entrepreneurs. Even the KPK Law Revision, according to Merah, would foster corrupt practices in the mining sector. Since the beginning, Jatam has predicted that black mining investment will be disrupted by actions taken by the KPK because in the last 5 years the sector has entered into the issue of corruption in the SDA sector.
Jatam noted that from 2014 to 2018, the KPK had played a role in improving natural resource management, increasing state revenues, law enforcement in the natural resources sector, and improving environmental policies. The KPK’s achievements, according to Merah, were encouraged through the national movement to save natural resources (GNPSDA). This movement is able to charge ministers, regional heads, legislative members, and law enforcement officials involved in corruption cases in the natural resources sector. But, it is estimated that in the next 5 years the achievements of the KPK will collapse due to the revision of the KPK Law and the election of a new KPK leader which is being questioned by the public.
“Jatam projects the government for the next 5 years as a door to Indonesia’s entry into neo new order (orba) that is supported by black investment and sources of political financing that come from mining and extractive oligarchies,” Merah said.
Half the Members of the House of Representatives are Entrepreneurs
Researcher of Auriga Nusantara Foundation Iqbal Damanik counted that almost half of the 2019-2024 DPR members were entrepreneurs. He suggested that in the future there should be regulations that regulate candidates who participate in elections must release their business interests. Potential conflicts of interest will arise if the candidate is elected as a legislative member.
Especially towards the end of the 2014-2019 term of office of the DPR there are a number of bills relating to the land-based economy such as the Land Bill, the Mineral and Coal Bill, the Legislative Bill, and the Water Resources Law which was recently passed. For this reason, Iqbal proposes that instead of rolling out the omnibus law, President Jokowi should pay close attention to the KPK report to harmonise regulations in the environmental and natural resources fields so that they are in line with relevant laws.
“If there are overlapping regulations, it is better to merge, revise, or delete them if they are no longer needed,” he suggested.
Advocacy and program manager of PWYP Aryanto Nugroho believed that in the past five years President Jokowi had been unable to resolve the mining and oil and gas mafia case. This can be seen from the many CFFP projects that use coal as raw material. In fact, it is predicted that coal reserves in Indonesia will run out within 30 years. The government is not serious about rolling out policies to change dependence on fossil energy into renewable energy.
Then governance in the environmental sector and natural resources does not prioritise transparency and accountability. It is evident from the HGU data that the court ordered to be opened, but until now the government is still closing it, so it cannot be accessed by the public. This is also the case with contracts of work and PKP2B owned by large companies whose information is always closed by the government. This kind of governance does not provide legal certainty for investors who want to comply with statutory regulations.
“’Good’ investors (lawful, red) will stay away from Indonesia because there is no legal certainty,” he concluded.
Source: https: //www.hukumonline.com/berita/bread/lt5da760a549d22/section-environmental-living-and-sda-alpered-makin-suram/