Pursuing Corporate Responsibility for Land Burners

JAKARTA – United Nations Children’s Fund (Unicef), reported by the unicef.org website, Tuesday (24/9/2019) reminded the impact of land and forest fires on the islands of Borneo and Sumatra on children. This fire was said to cause 10 million children exposed to the risk of air pollution.

Unicef’s representative, Debora Comini believed, every year, there were millions of children who breathed toxic air and threatened their health and caused them to be unable to study at school. They suffered physical and cognitive losses for life.

She explained, children were vulnerable to air pollution because they breathed faster. Meanwhile, their physical strength and immune system were not yet perfect. Unicef ​​also estimated that 2.4 million children under five in both regions were affected by smog and forest fires that had been taking place since July 2019.

Based on research, babies born to mothers exposed to high levels of pollution during pregnancy, have a greater risk of experiencing growth disorders in the womb. In fact, it impacts on low birth weight, until premature birth.

The suffering of children because of land and forest fires is also revealed by the Ministry of Education and Culture (Kemendikbud). The ministry explained that poor air quality affected more than 46,000 schools or more than 7.8 million students. In areas that felt the heaviest impact of forest fires, many schools were forced to close, hampering children’s opportunities to learn.

Forest and peatland fires do occur frequently in Indonesia during the dry season. The situation this time was compounded by several factors, including a prolonged dry season, El Nino, and global warming.

“Families and their children must get accurate information about exposure to toxic air pollution because information like this can help them protect themselves,” Comini said.

Since it is disturbing, law enforcement officers also intervened. The findings were made as revealed by the Director of Certain Crimes (Tipidter) at the National Police Headquarters, Brigadier General Fadil Imran on Monday (30/9). He said, land and forest fires were triggered by human activities both intentionally and unintentionally carried out by individuals and corporations. The total area burned was 7,264 hectares (ha).

As of Tuesday (8/10), the National Police have named 325 people as suspects. Plus 95 corporations are also listed as land and forest fires suspects. “It is suspected that the intentional burning of forests was carried out by corporations and individuals,” said Head of the Headquarters of Indonesian National Police, Asep Adi Saputra, Tuesday (8/10).

Land and forest fires perpetrators are charged by Law No. 41 of 1999 concerning Forestry, Law No. 39 of 2014 concerning Plantations, Law No. 32 of 2009 concerning Environmental Protection and Management. As well as Articles 187 and 188 of the Criminal Code. With the threat of a minimum sentence of up to 15 years in prison and fines of Rp2 billion to Rp15 billion.

Chasing the Corporation

What the police are targeting, reminds us of the statement of the Professor of the Faculty of Forestry, Bogor Agricultural University, Bambang Hero Saharjo on several occasions. Bambang explained, the cause of forest fires by the company was a permit sale which resulted in the conversion of peatlands. According to Bambang’s data, during the seven government cabinet periods, the permits issuance reached 42,253,234 ha. Based on the recapitulation of forest area release, the largest permit occurred during the period 2005-2014.

Since the beginning, companies and individuals have prepared land by burning. Forest and land burning is mostly done by plantation and forestry companies because the cost is cheap. Besides being more effective when compared with conventional methods, namely with the clearance and chemicals. Burning forests can also increase the pH to 5-6 making it suitable for planting palm oil.

Not to mention, many companies do not protect their land from fires. A lot of land and forest fires occur in the concessions of palm oil plantations and industrial plantations.

Companies are hunted as suspects because corporations in carrying out their business, must preserve the environment by not burning land and forests, as well as protecting the concession from fires. As described in Article 67 of Law No. 32 Year 2009 which obliges everyone (including companies) to maintain the preservation of environmental functions and control environmental pollution and/or damage.

The obligation of companies to preserve forests is also emphasised in Article 32 of Law No. 41 of 1999 which requires permit holders as stipulated in Article 27 and Article 29 to protect, maintain, and preserve the forests where they operate.

Article 49 of Law No. 41 of 1999 states that right or permit holders are responsible for forest fires in their working area. Article 50 of the Forestry Law states that companies that violate these provisions can be held liable. Not only administrative, but includes civil, even criminal.

Administrative responsibility, based on Article 76 of Law No. 32 of 2009 and Article 80 paragraph 1 of Law No. 41 of 1999, in the form of administrative sanctions. Starting from written warning, government coercion, suspension of environmental permits. Even the revocation of environmental permits, so the company cannot run its business activities.

Director of Complaints, Supervision and Administrative Sanctions of the Directorate General of Law Enforcement (Gakkum)-KLHK Sugeng Priyanto revealed, his party was pursuing companies to fulfil civil responsibilities. That is based on Article 87 paragraph 1 of Law No. 32 of 2009 and Article 80 paragraph 1 of the Forestry Law. The intended responsibility refers to the principle of absolute liability (strict liability) in Article 88 of Law No. 32 Year 2009.

“The government is struggling to collect corporate responsibility in court,” he said, Tuesday (8/10).

He added, the intended responsibility referred to the principle of absolute liability (strict liability) as stipulated in Article 88 of Law No. 32 Year 2009.

The use of the strict liability principle makes it easy for investigators to process the defendant (the concessionaire) to the court to take responsibility for forest fires in the concession area without having to prove the defendant’s guilt. Investigators only need to prove that a fire had occurred in the defendant’s concession area and that the fire had caused environmental losses.

He said, during 2015-2017, the court’s decision regarding cases of land and forest fires that had permanent legal force for compensation and recovery reached Rp17.82 trillion. Then, the value of compensation for environmental losses outside the court of Rp36.59 trillion.

Unfortunately, the government still has difficulty executing court decisions to force companies to pay for environmental losses and the costs of environmental recovery. A detailed mechanism for the execution of court decisions has yet to be determined.

Blacklist of Entrepreneurs

On the other hand, there are administrative sanctions which are also a means for the government to create a deterrent effect for the corporation as a suspect in the land and forest fires. In addition to fines, revocation of permits is intended to create a deterrent effect on land and forest fires perpetrators. The possibility that the board of companies that have been sentenced for applying for new permits will not reach a deterrent effect.

One of the ways that can be done is to put the name of the company’s board in the black list. This was once an option for President Joko Widodo when the forest fires were severe in 2015. However, of the many corporate suspects related to forest fires in 2015, none of the company’s board was blacklisted.

Regarding that option being revived to handle the 2019 land and forest fires suspects, Sugeng said that it could be done. “But it needs a smart method so that by blacklisting the company owners who are land and forest fires suspects, it really makes a deterrent effect for them,” he advised.

In the eyes of the Executive Director of the Indonesian Center for Environmental Law (ICEL) Henri Subagiyo, the determination of the black list did not cause a deterrent effect. It was possible that that the authority of the company’s board was on other people who had not been blacklisted. Even with a new company, the company’s board repeated the activities as before.

He suggested to create a deterrent effect, law enforcement officers should not only crack down on corporations. Henri asked that they should also take action against the beneficiaries of corporations which commit criminal acts.

He was referring to Presidential Decree Number 13 Year 2018 concerning Application of Principles Regarding Beneficiaries of Corporations in the Prevention and Eradication of Criminal Acts of Money Laundering and Criminal Acts of Funding of Terrorism as well as Supreme Court Regulation (Perma) Number 13 of 2016 concerning Procedures for Handling Criminal Acts by Corporations, that those people can be charged.

“In Perma Number 13 of 2016, it can reach the controllers. Even if the person is not recorded in the register of shareholders. With the available evidence, the person can be charged by law,” said Henri, Tuesday (8/10).

If there were people who were proven to control a company even though they were not on the register of ownership, and the issue was brought to the act of money laundering, Henri said that the person can be seized of his assets. “In my opinion this is a more effective approach, tracing the last party to enjoy the proceeds of crime,” he continued.

Coordination Needed

Henri reminded that coordination between institutions was the key to the government’s success in pursuing corporate responsibility. Especially now that the handling of cases of land and forest fires fell into the realm of law enforcement. “MOEF cannot work alone,” he said.

Support for tracking the flow of funds by the Indonesian Financial Transaction Reports and Analysis Centre (PPATK), is believed to be the right assistance. PPATK can ensure that assets owned by the company management and beneficiaries of the company are monitored by the Financial Services Authority (OJK), the Ministry of Law and Human Rights (Menkumham), the Investment Coordinating Board (BKPM).

“PPATK can track the flow of funds, Menkumham can test the legality of ownership. The prosecutor’s office also has an important role, it can stop financial transactions by coordinating with the OJK,” said Henri.

The crime that had an intellectual actor, according to Henri was quite difficult if only handled by one ministry. The highest authority was in the executive so the President had to be able to coordinate the ministries and institutions to strive to resolve land and forest fires, explained Henri.

ICEL said that the value of money in the land and forest fires lawsuit case was quite decent. Sources of funds that should be able to be taken by the state can later be used to recover land and forest fires. “It takes commitment from the leadership of the President to sit down with his ranks,” said Henri.

Researcher of Forest and Land Governance Division of ICEL Isna Fatimah said, the success of the action for the forestry perpetrators could be seen from whether the perpetrators repeated their actions. In a corporate context, whether or not board and beneficiaries repeated their actions with the same company or new name.

“The current weaknesses are that sometimes supervision data cannot be collected by the government,” Isna said, Tuesday (8/10).

In cracking down on land forest fires perpetrators, Isna said, the government had to improve inventory related to land clearing permits. The government had to have data related to the number of companies that must be monitored first. According to her, it would be difficult to monitor if the data was not owned.

“The government must have data related to the permit, they must have one data that is synchronous between the central and regional governments,” said Isna.

From this data, it could be prioritised which company would be monitored in the first year onwards. Although admitted by Isna, there had to be a comprehensive supervision. Besides, she said that the corporation also had an obligation to report.

The government must be able to read the report carefully. It is possible that the corporation did not make the report, even though it had to be done at least once a year.

Unfortunately, often the government also does not fully understand the reports received. (George William Piri, James Manullang)

Source: https://www.validnews.id/Training- Responsibilities- Answer- Corporation- Burners- Land-bQF