Hans Nicholas Jong, Jakarta – Indonesia's Supreme Court has ruled President Joko Widodo not liable in the disastrous fires in 2015 that devastate large swathes of rainforests and peatlands in the country, despite three previous court rulings that found the president liable for the disaster.
In 2016, a group of citizens and environmental activists in the province of Central Kalimantan affected by the 2015 fires filed a citizen lawsuit against the government, including the president.
In the lawsuit, the citizens said the government had failed to issue strong policies and carry out measures to prevent the annual recurring fire episode, and thus was liable for the 2015 fires in Central Kalimantan.
The great fires razed 2.6 million hectares (6.42 million acres) of land across the country, much of it carbon-rich peat forests, and sent clouds of choking haze billowing across large parts of Indonesia and neighboring Singapore and Malaysia.
The citizens won in 2018, but the government appealed the case all the way to the highest court.
In 2019, the Supreme Court upheld the ruling, ordering the government to accommodate the plaintiffs' demand for more stringent measures to address the annual fires.
In its legal consideration, the court said disaster mitigation within a country, including Indonesia, is the government's responsibility.
In August 2022, the government requested a case review, a final avenue of legal recourse that's permitted if there's new evidence or circumstances.
In this case, the government based its case review on the presence of new evidence. On Nov. 3, the Supreme Court approved the case review, effectively repealing its own guilty verdict for the government.
The plaintiffs say the ruling is worrying as it indicates the government won't step up its efforts to tackle the recurring fire problems and carry out their demands.
Among their demands are for the government to make a standard on firefighting equipment, make a map identifying areas prone to fires, punish companies with burned concessions, announce their identities to the public and build hospitals for pulmonary diseases that are free for victims of fires and haze.
"This is concerning because there haven't been significant changes on the field [regarding fire prevention and mitigation]," Arie Rompas, a Greenpeace Indonesia forest campaigner and one of the plaintiffs in the lawsuit, said in a virtual press conference Nov. 19.
In law enforcement, for instance, companies whose concessions burned in the 2015 fires still largely go unpunished, and these firms had fires again in their areas in 2019, he said.
Out of 50 companies that were investigated by the government for the 2015 and 2019 fires, only 15 of them ended up being convicted for their roles in the fires.
Following the 2015 fires, Indonesia had multiple years with minor fire episodes.
But the plaintiffs said it's likely due to milder weather in the intervening years brought by the La Nina weather system, especially in the past three years. This compared with the harsh dry season in 2015 fueled by an El Nino weather system.
Arie pointed out that when El Nino hit Indonesia again in 2019, official data showed that 1.64 million hectares (4.05 million acres) of forests were up in flames, nearly matching the intensity of the 2015 fires.
An independent analysis using freely available satellite data showed that the size of the 2019 fires was double the official estimate, with 3.11 million hectares (7.68 million acres) of burned areas.
"In 2019, the El Nino wasn't as strong [as the one in 2015], but the fact is that the size of the forest fires is nearly as big [as the one in 2015], and the burned areas are located in the same areas [burned in 2015]," Arie said. "This shows that the efforts done by the government [so far] haven't been effective."
Strong law enforcement and policies are more important now than ever as the country's meteorological agency, BMKG, has warned that there are higher risks of forest fires next year due to the absence of La Nina.
With no stringent policies in sight, the plaintiffs said they're worried Indonesia will see great fires like the ones in 2015 and 2019 happening again in the future.
"We can't make sure that when there's a long dry season next year, there won't be forest fires [like the ones we saw in 2015 and 2019]," Afandi, one of the plaintiffs, said. "So we're still worried."
The plaintiffs pointed out that even if the court found the government to be not liable for the 2015 fires, officials still have the obligation to issue stronger policies and carry out preventive measures to fulfil the citizens' rights to a clean environment.
Behind closed door
The plaintiffs have also questioned the process behind the case review, which they say has been shrouded in secrecy.
For one, the plaintiffs said they didn't receive the case review document at any point before the court made its ruling in November.
As a result, it's unclear what argument the judges used in their decision as well as what new evidence the government presented, Mariaty, one of the plaintiffs, said.
And subsequently, the plaintiffs didn't have the chance to refute the new evidence brought by the government.
"We are completely in the dark on what new evidence brought in the case review so that we can't give any response," Mariaty said. "And that's so not fair for us, the plaintiffs."
Yuda Ariyanto, head of the Ministry of Environment and Forestry's legal advocacy department, said the government filed the case review because the government believed it had gone all out in its efforts to tackle forest fires.
And in the case review, the government presented as new evidence information that showed how El Nino in 2015 was a particularly strong one, so forest fires in Indonesia were unavoidable at that time.
"So forest fires at that time were caused by natural factor," Yuda said as quoted by Indonesian newspaper Kompas.
Aryo Nugroho Waluyo, a lawyer for the plaintiffs, said the new evidence should've been shared with the plaintiffs in order to have a just trial process.
"Even if we don't ask [for the case review document], it's our right to get the document, as the plaintiffs," he told Mongabay.
Greenpeace Southeast Asia-Indonesia. (2020). Burning Issues: Five Years of Fires: Indonesias pro-business 'omnibus law' gives more impunity to biggest plantation sector burners. Retrieved from https://www.greenpeace.org/static/planet4-southeastasia-stateless/2020/10/b3692f64-five-year-of-fires-261020.pdf
Gaveau, D. L., Descals, A., Salim, M. A., Sheil, D., & Sloan, S. (2021). Refined burned-area mapping protocol using Sentinel-2 data increases estimate of 2019 Indonesian burning. Earth System Science Data, 13(11), 5353-5368. doi:10.5194/essd-13-5353-2021