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A. G. Wibisana and S. N. Setyorini
Legal Challenges for Peatland Protection: The Importance
Roles of the Principles of Environmental Law
The peatland regulations have been faced with various challenges and critiques; two
of them are selected for the discussions in this section. First, the use of strict liability
for forest fires has been criticized on the grounds that forestry activities and plantation
do not fall into abnormally dangerous activities, and should hence be excluded from
the implementation of strict liability (Sudarsono 2017). Second, critiques have also
been directed toward the requirement of water-table level of 0.4 m in the Peatland
Regulation (Gor 2017; Sabiham et al. 2016, p. 39.). This section replies these critiques
and defends the improved government responses against peatland degradation.
1. Strict Liability for Plantation?
Recalling some provisions regarding forest or land fires, one could find the following
conclusions. First, forest/land fire is prohibited and considered a crime according to
Indonesian law. Second, permit holders have the legal obligation and responsibility to
prevent the forest/land fires within the area under their control. Third, permit holders
have the obligation and responsibility to control forest fires and conduct recovery for
the resulting environmental damage arising out of forest fires within the area under
their control. Fourth, the legal construction of various provisions on forest fires in
Indonesia does not allow excuses, because the obligations to prevent forest/land fires
and to control as well as to conduct environmental recovery are linked to permits or
authority to manage a certain area of forest.
Unfortunately, such powerful provisions were not fully utilized until 2013. Indeed,
2013 marks an important moment in law enforcement in forest fires. For the first
time ever, the government (the MoE/MoEF) brought a lawsuit against a concession
holder. Following the success of the lawsuit, the MoEF has initiated several other
suits against the concession holders and won the majority of them.
Interestingly, there are attempts to apply strict liability to these cases.
In MoE v. PT. Kalista Alam (District Court of Meulaboh Decision Number
12/PDT.G/2012/PN.MBO, 2013), for example, the Minister of Environment (MoE),
used strict liability to hold the defendant liable (MoE v. PT. Kalista Alam, District
Court of Meulaboh, p. 25) in addition to the conventional liability rule for unlawful
conducts (Ibid. pp. 20–25 and 26–33).
The court was, unfortunately, silent on the question of whether strict liability was
applicable to the case. The MoE v. PT. Kalista Alam (2013) ruling is, nevertheless,
a notable case since it is the first case of wildfires ruled in favor of the government.
In this case, the court found the defendant liable according to the unlawful act rule.
The court then ordered the defendant to pay a compensation of IDR 115 billion
and to conduct restoration worth at least IDR 250 billion (Ibid. p. 231). The ruling
went through the Supreme Court, which eventually upheld the lower court rulings
(Supreme Court Decision Number 651 K/Pdt/2015).
Similarly, a call for strict liability was also briefly discussed by the plaintiff in
MoEF v. PT. Jatim Jaya Perkasa (District Court of North Jakarta Decision Number
A. G. Wibisana and S. N. Setyorini
Legal Challenges for Peatland Protection: The Importance
Roles of the Principles of Environmental Law
The peatland regulations have been faced with various challenges and critiques; two
of them are selected for the discussions in this section. First, the use of strict liability
for forest fires has been criticized on the grounds that forestry activities and plantation
do not fall into abnormally dangerous activities, and should hence be excluded from
the implementation of strict liability (Sudarsono 2017). Second, critiques have also
been directed toward the requirement of water-table level of 0.4 m in the Peatland
Regulation (Gor 2017; Sabiham et al. 2016, p. 39.). This section replies these critiques
and defends the improved government responses against peatland degradation.
1. Strict Liability for Plantation?
Recalling some provisions regarding forest or land fires, one could find the following
conclusions. First, forest/land fire is prohibited and considered a crime according to
Indonesian law. Second, permit holders have the legal obligation and responsibility to
prevent the forest/land fires within the area under their control. Third, permit holders
have the obligation and responsibility to control forest fires and conduct recovery for
the resulting environmental damage arising out of forest fires within the area under
their control. Fourth, the legal construction of various provisions on forest fires in
Indonesia does not allow excuses, because the obligations to prevent forest/land fires
and to control as well as to conduct environmental recovery are linked to permits or
authority to manage a certain area of forest.
Unfortunately, such powerful provisions were not fully utilized until 2013. Indeed,
2013 marks an important moment in law enforcement in forest fires. For the first
time ever, the government (the MoE/MoEF) brought a lawsuit against a concession
holder. Following the success of the lawsuit, the MoEF has initiated several other
suits against the concession holders and won the majority of them.
Interestingly, there are attempts to apply strict liability to these cases.
In MoE v. PT. Kalista Alam (District Court of Meulaboh Decision Number
12/PDT.G/2012/PN.MBO, 2013), for example, the Minister of Environment (MoE),
used strict liability to hold the defendant liable (MoE v. PT. Kalista Alam, District
Court of Meulaboh, p. 25) in addition to the conventional liability rule for unlawful
conducts (Ibid. pp. 20–25 and 26–33).
The court was, unfortunately, silent on the question of whether strict liability was
applicable to the case. The MoE v. PT. Kalista Alam (2013) ruling is, nevertheless,
a notable case since it is the first case of wildfires ruled in favor of the government.
In this case, the court found the defendant liable according to the unlawful act rule.
The court then ordered the defendant to pay a compensation of IDR 115 billion
and to conduct restoration worth at least IDR 250 billion (Ibid. p. 231). The ruling
went through the Supreme Court, which eventually upheld the lower court rulings
(Supreme Court Decision Number 651 K/Pdt/2015).
Similarly, a call for strict liability was also briefly discussed by the plaintiff in
MoEF v. PT. Jatim Jaya Perkasa (District Court of North Jakarta Decision Number