Hans Nicholas Jong, Jakarta – In the nearly two years since Indonesian lawmakers passed a controversial mining law, the legislation has increasingly been used by police to arrest villagers and local activists opposed to mining operations on their lands.
Human rights activists, including the national rights commission, Komnas HAM, have criticized the law, an amendment to an old mining law, for its provisions that are widely seen as undermining the rights of local communities for the benefit of mining companies.
"After the revision of the mining law [in May 2020], Article 162 has often been used to silence people's fights against mining operations," Melky Nahar, campaign head for watchdog group Mining Advocacy Network (Jatam), told Mongabay, referring to the most contentious provision in the new law.
Article 162 states that "anyone who hinders or disturbs mining activities by permit holders who have met the requirements ... may be punished with a maximum prison term of one year and maximum fines of 100 million rupiah [$7,000]."
Of the 53 people subjected to criminal charges for opposing mining companies in 2021, at least 10 were charged with violating Article 162, according to Satrio Manggala, environmental policy manager at the Indonesian Forum for the Environment (Walhi).
"So these people protested [against mining activity], but in their protests, they're perceived as hindering and disturbing mining activity," he said at a recent online press conference.
Hairansyah, a commissioner with the government-funded Komnas HAM, called the article "a major setback" as it poses "a serious threat to human rights defenders." He said the article goes against the 2009 law on environmental protection, which states that no criminal charges may be brought against anyone for campaigning for their right to a clean environment. Activists warn that Article 162 adds to a growing list of measures encouraging the prosecution of dissent against extractive and other environmentally harmful activities.
Prosecutions under these measures are known as SLAPP, or strategic lawsuits against public participation, and in the case of the mining law's Article 162, they have proliferated in the past two years.
In December 2020, state-owned tin miner PT Timah pressed charges against 12 residents of the fishing village of Matras, on the island of Bangka off Sumatra, after they boarded one of its vessels in a protest. The company said the villagers had disrupted its operations, in violation of Article 162.
The villagers justified their actions as an act of protest against the company's mining activities that they said had disrupted their livelihoods, reducing their daily fish catches by nearly 90%.
In November 2021, residents of Tuntung village on the island of Sulawesi blocked the road leading to a nickel mine run by PT Koninis Fajar Mineral (KFM), also in protest against the environmental impact of the company's activities. They said the water in their village had been polluted by KFM's operations.
Following the protest, local police summoned and questioned at least 13 of the protesters under the pretext of Article 162 violations.
On Dec. 29, some of the villagers reported the police to the local office of Komnas HAM, saying they felt they were being criminalized under Article 162. On Jan. 4 this year, the rights commission sent a letter to the police asking them to stop any legal proceedings against the villagers.
In the letter, Komnas HAM called Article 162 a contentious tool for silencing the voices of people defending their rights against mining activities, and pointed out that the public's rights to gather and express their opinions are guaranteed under the Constitution and the 1999 law on human rights.
Jatam's Melky said there was no question that the use of Article 162 by the police was aimed at stifling grassroots opposition. "This increasing trend of criminalization is not an effort to uphold the law, but to cripple people's fight [against mining]," he said.
'A devious policy'
The most recent case involving the use of Article 162 was the arrest of 10 people, including villagers and activists, in Pasar Seluma village in southern Sumatra.
On Dec. 23, the protesters set up an encampment in the mining area of PT Faminglevto Bakti Abadi (FBA), an iron ore miner that they say never obtained their permission to operate in their area, and whose activities since 2010 have been mired in irregularities.
On Dec. 27, police bulldozed the protesters' tents and arrested them, including Ayu Nevi Anggraeni, a villager who said they were dragged out of their tents like animals.
"We and our children were forcibly dragged. The police didn't care for us," she said at an online press conference. "We're being treated like a thief or an animal even though we did nothing wrong. We didn't provoke [anyone]. From deep within our heart, we want the mine to be closed."
Another villager, who did not give her name, said she felt the same.
"We're just asking for justice," she said. "When we were being kicked out of the protest site, some police officers called us stupid. Why? We just want to defend our territory."
The Pasar Seluma police chief, Darmawan Dwiharyanto, told local media that the forced eviction was a last resort after previous attempts to persuade the villagers to leave the site had failed.
Saman Lating, a lawyer representing the villagers, said police investigators had told him the villagers were arrested for disrupting FBA's activities – that is, for violating Article 162.
"We know that this article is a powerful one in the mining law used by the powers that be," he said at the online press conference. "This article is meant to perpetuate all mining activities in Indonesia."
But Saman questioned the use of Article 162 in this case, given that it's ostensibly meant to protect businesses that have the proper permits. This doesn't appear to be the case for FBA, he said.
The company is allegedly operating without having conducted an environmental impact assessment, known locally as an Amdal, or obtaining an environmental permit. It has also allegedly failed to pay its post-mining reclamation deposit to the state as of 2018. The deposit, which is required of all miners, is meant to ensure that funds are available for rehabilitating the site once mining operations have ended.
FBA was also included on a list of companies whose mining permits were revoked by the Ministry of Energy and Mineral Resources in 2016. Rere Christanto, manager of the mining division at Walhi, said FBA had also violated at least 15 regulations by operating in coastal and protected areas.
Usin Abdisyah Putra Sembiring, a provincial councilor in Bengkulu, where Pasar Seluma is located, said FBA isn't fit to operate because it hasn't fulfilled all of its obligations. In addition to allegedly not having an Amdal and an environmental permit, he said, the company has never reported its environmental monitoring and management plan to the local environmental agency.
Mongabay has reached out to the environmental agency in Bengkulu to confirm the allegations but hasn't received a response.
If all these allegations are true, said Saman the lawyer, then the police had no grounds for evicting and arresting the villagers protesting against FBA's presence. By doing so, he said, "the law enforcers are working to justify the mistakes of the company."
Walhi's Rere said the case in Pasar Seluma is evidence of how the mining law has become a serious threat to people's rights.
"What's happening in Pasar Seluma further convinces us that the mining law is a devious policy used to eradicate people's participation [in fighting for their rights]," he said.
Activists from Walhi and from mining watchdog Jatam's office in East Kalimantan province in June last year filed a constitutional challenge against the mining law. The challenge, known as a judicial review, seeks to strike down nine articles from the law on constitutional grounds, including Article 162.
In a hearing at the Constitutional Court on Jan. 5, Ridwan Jamaludin, the director-general of minerals and coal at the Ministry of Energy and Mineral Resources, said the article isn't aimed at silencing protesters, but at providing legal certainty for investors.
It's meant, he said, "to protect them from irresponsible people in a government effort to build a healthy climate for investment."
Jatam's Melky said this reasoning shows how the government is siding with companies instead of the people.
"His statement shows that the government is not working to guarantee people's safety and [the rights to] their land, but just to make sure that the interests of companies are guaranteed without hurdles," he said.
Melky added that during the legislative process to pass the mining bill into law, there was no public participation allowed. This, he said, explains the inclusion of provisions like Article 162.
"The problem is that nearly all mining policies in Indonesia [are issued] without involving the public as the rightful owners of land [in the country]," he said. "All [deliberation] is done behind closed doors."
Walhi's Satrio said this isn't the first time Article 162 has been challenged in court.
The previous mining law also contained the same article, which critics challenged three times at the Constitutional Court. The court eventually ruled that the restrictions prescribed in the article could only be applied to people who have sold their lands to mining companies, and not to all individuals who oppose mining operations, Satrio said.
But when lawmakers passed the amended law in 2020, they reinstated the same old article that the court had ruled unconstitutional, and not the updated version from the court.
"We initially thought that when the mining law was amended in 2020, the article would disappear, or at least the version from the Constitutional Court will be used," Satrio said. "However, the article reappeared in its complete form, which led to many victims [of criminalization] in 2021."