Hans Nicholas Jong, Jakarta – An Indonesian palm oil company that dropped a lawsuit against a fire expert whose testimony led to its being fined is suing a second time, in what observers call a frivolous action meant to intimidate him.
The first hearing in the case is scheduled for Jan. 17, with PT Jatim Jaya Perkasa (JJP) suing Bambang Hero Saharjo, an expert on fire forensics at the Bogor Institute of Agriculture (IPB), for 500 billion rupiah ($32 million) for what it says was false and exaggerated testimony.
JJP had previously sued Bambang in 2018 for a similar amount, 510 billion rupiah ($36 million at the time), only to subsequently drop its case. That came after Bambang had testified in legal proceedings brought in 2015 by Indonesia's environment ministry against JJP for negligence over fires on its concession in Sumatra. Bambang's testimony was seen as key in JJP being found liable and fined 491 billion rupiah ($36.7 million at the time).
In its first lawsuit, JJP had focused on a technicality – Bambang's use of the IPB logo in materials he presented during his testimony – rather than the substance of his expertise. The new lawsuit, filed in December 2023, centers on Bambang's assessment of the total area burned as a result of the company's negligence. The company says the figure he gave of 1,000 hectares (2,470 acres) was much larger than the 120 hectares (300 acres) that a lower court had ruled the company liable for. The environment ministry in 2016 appealed that ruling, and a higher court found the company liable for the full 1,000 hectares. This decision was upheld in 2018 by the Supreme Court.
JJP's new lawsuit alleges that if Bambang had not provided a "false and exaggerated" assessment of the fire damage, the company would have been liable for a much smaller fine of about $2.2 million.
Bambang called the new lawsuit baseless, pointing out he had never used the figure of 120 hectares at any time when testifying against JJP.
"In all of the documents that I wrote as an expert [witness], the size of the fires has always been 1,000 hectares," he told Mongabay. "The same goes to the calculations of the [greenhouse] gases emitted from the fires and the environmental loss – they all use the figure of 1,000 hectares."
Bambang said the new lawsuit saddened and concerned him.
"What I conveyed [as a fire forensics expert] was based on science, and during the trial I was sworn to testify as an expert," he said. "What also makes me sad is the fact that the company has still not paid a single rupiah [of its fines] for the environmental loss and recovery."
Mongabay contacted JJP's legal representatives for comment, but did not receive a response as of the time this article was published.
JJP unsuccessfully sued another expert witness around the same time as its first lawsuit against Bambang. These repeated legal actions constitute a textbook case of "strategic lawsuit against public participation" or SLAPP, according to experts. SLAPP typically describes any kind of litigation with little to no merit that's brought with the aim of censoring, intimidating or silencing critics speaking out against those in power or on issues of public interest.
JJP's lawsuits are also a threat to academic freedom, said Andri Gunawan Wibisana, a professor of environmental law at the University of Indonesia.
"If this lawsuit proceeds and Bambang is ruled to be liable, this will threaten our position as experts who are asked to testify in court," he said at a press conference in Jakarta. "We can't refuse [to testify as expert witnesses], but if [the testimony] are deemed to be a disservice, then we can be sued. [So] this is actually an attack on us academics."
Lawsuits like those filed by JJP threaten academic freedom by attempting to undermine the credibility of environmental experts like Bambang, said Raynaldo G. Sembiring, executive director of the Indonesian Center for Environmental Law (ICEL), an NGO.
"This [lawsuit] could be followed by similar actions by other environmental criminals," he said at the same press conference. "If JJP's lawsuit is accepted and [Bambang] is ruled guilty, then this will have a snowball effect, used by other companies to free themselves [from having to pay fines] even if they've been proven guilty."
While the current lawsuit might be aimed at hurting Bambang's credibility, he remains a respected figure among environmental experts and thus there's no doubt about his reputation, said Okto Yugo, deputy coordinator of the Riau Forest Rescue Network (Jikalahari), an NGO working in the province where JJP's concession is located.
"We in Riau [province] are very grateful to have academics like Bambang Hero," he said. "Because of his testimony, many companies have been punished for land and forest fires, and there have been changes [due to law enforcement] and a decrease in the number of hotspots and air pollution [from fires]."
Okto also noted that Bambang was in 2019 awarded a top environmental prize for his work in delivering justice against palm oil companies accused of allowing fires on their concessions. Bambang won the John Maddox Prize for Standing up for Science, a joint initiative by the charity Sense about Science and the scientific journal Nature, for continuing "to testify and stand up for the Indonesian people's constitutional right to a healthy environment, one of the very few scientists in his field who are prepared to do so."
"Everyone acknowledges the credibility of Bambang Hero, and there's no doubt about it," Okto said. "So JJP's lawsuit is very strange and inappropriate. Not to mention that JJP itself is a company that's been punished for environmental crime."
The lawsuit also indicates an effort by the company to avoid paying its fine, said Uli Arta Siagian, forest and plantation campaign manager at Walhi, Indonesia's biggest environmental NGO. She noted the company has still paid nothing in the more than five years since the Supreme Court had issued its final and binding verdict in the case.
"This is an attempt to run away from paying the fine," Uli said. "The hope is to have the court admit that there was a mistake in the calculation of the size of the fires, and thus [JJP] would pay a lower fine."
The company has also failed to install adequate fire prevention facilities, such as message boards that show the risk of fires, which is a violation of a 2018 agriculture ministry regulation on fire-free plantation management, Uli said.
Walhi's monitoring has also found indications of JJP planting 546 hectares (1,349 acres) of oil palms outside its concession, she added.
All these are enough reason for the government, in this case the environment ministry, to punish JJP by reviewing and revoking its permits, Uli said.
"Not only is this company not obeying a legally binding verdict, it also doesn't have a commitment for good palm oil management," she said.
Uli also called on the environment ministry to blacklist JJP so that it receives extra scrutiny when seeking to apply for new permit or get financing from banks.
"If the company still enjoys the perks [of accessing financing and permits], then there's no deterrent effect for JJP and other companies that behave the same," she said.
Law professor Andri said there needs to be a retaliatory lawsuit filed to deter JJP from continuing to go after environmental defenders like Bambang.
"This [lawsuit] could make many people afraid to fight for their environmental rights. Therefore, a lawsuit like this needs to be [retaliated against] to deter [future lawsuits]," he said. "How to do that? By suing [the company] back. I hope there's a countersuit against companies like this, against JJP, to prevent them from doing stuff like this."
Anti-SLAPP
Indonesia already have some regulations that protect citizens from SLAPP lawsuits, according to ICEL program director Grita Anindarini.
An article in the 2009 Environmental Protection and Management Law, for instance, states that no criminal charges may be brought against anyone for campaigning for their right to a clean environment. The article is commonly referred as an anti-SLAPP measure to thwart malicious lawsuits.
A 2023 regulation issued by the Supreme Court, which serves as a guideline for justices in environmental cases, further strengthens the anti-SLAPP measure. It states that legal protection must be given to anyone who fights for their right to a clean environment, and that any lawsuit aimed directly or indirectly at preventing this right is a violation of the 2009 environmental law.
Based on these existing regulations alone, JJP's new lawsuit against Bambang has no merit from the start, Grita said. She added the company should instead focus on paying its fine.
The government says it's in the process of collecting the fine from JJP, but that the company has been uncooperative. A court in Jakarta summoned JJP multiple times in 2022 to get the company to pay, but it never responded to the summonses.
This shows the company has no intention of paying, according to Rasio Ridho Sani, the environment ministry's head of law enforcement. To speed up the collection process, the ministry requested a warrant from the Jakarta court in October 2022 to seize JJP's assets. To fulfill the request, the environment ministry still needs to work with the land ministry to get data on JJP's land bank.
"The commitment and consistency of the Ministry of Environment and Forestry in enforcing the law, including through civil lawsuits, are very clear," Rasio said during a press conference in Jakarta. "We won't stop fighting environmental crimes with all existing instruments, whether administrative, civil or criminal [lawsuits]. We will execute all verdicts of civil lawsuits that are legally binding so that the environmental loss can be recovered."
Some experts say getting JJP to pay up won't be enough to deter the company. Instead, the government should issue more comprehensive anti-SLAPP regulations as the current ones aren't strong enough to prevent these frivolous lawsuits, they said.
Prior to the 2009 environmental law, there were 13 environment-related SLAPP lawsuits in Indonesia, according to a 2021 study by ICEL researchers. From 2009 to 2021, when anti-SLAPP regulation came into force, the study identified seven such lawsuits.
The study authors say these numbers are likely an underestimate, as many SLAPP cases are settled out of court and thus aren't documented. SLAPP remains a common practice due to the lack of understanding how to identify a case as such, the paper says.
And while the Supreme Court has issued a guideline on how to implement anti-SLAPP measure, it's still not enough, Grita said. The environment ministry and the police should also issue regulations specifically on anti-SLAPP measures, she said.
"So far, the [anti-SLAPP] regulations are still limited to particular institutions, like the Supreme Court," Grita said. "So there's still work to do for the state to really protect [its citizens]."
Sekar Banjaran Aji, national coordinator at the Public Interest Lawyer Network (PIL-NET) and a Greenpeace Indonesia forest campaigner, said the environment ministry plays a crucial role in protecting environmental defenders like Bambang from SLAPP lawsuits.
"This is a starting point for the environment ministry to rethink about [issuing] a regulation on anti-SLAPP to protect experts [who testify for the ministry]," she said.
Bambang said SLAPP lawsuits shouldn't have a place in Indonesia.
"SLAPPs like this should be eradicated, particularly against experts, especially if they're done to legalize environmental degradation and pollution," he said. "I'm sure the international community is watching and will not stay silent when there is pressure against experts. Not to mention that land and forest fires are a significant contributor to greenhouse gas emissions."
Citation
Handayani, M. M., Achmadi, J. C., & Apsari, P. K. (2022). Berbagai wajah fenomena SLAPP di Indonesia. Jurnal Hukum Lingkungan Indonesia, 8(1), 152-192. doi:10.38011/jhli.v8i1.369