15 Peatland Protection in Indonesia: Toward the Right Direction?
321
108/Pdt.G/2015/PN.Jkt.Utr, pp. 22–23). Similar to the plaintiff’s logic in MoE v. PT.
Kalista Alam, here the plaintiff also relied on the unlawful act rule, by arguing on the
one hand that the defendant has intentionally conducted an unlawful act by setting
the fire on its land in order to make preparation for land clearing and the planting
of oil palm, and on the other hand that the defendant has negligently conducted an
unlawful act by failing to comply with various obligations to prevent and control fires
(MoEF v. PT. Jatim Jaya Perkasa, pp. 18–24, and 24–27). Although the court held
the defendant liable and consequently ordered the defendant to pay a compensation
of IDR 7.2 billion and to conduct rehabilitation measures worth of IDR 22.2 billion
(Ibid. pp. 166 and 170), the court remained silent on the issue of liability.
Furthermore, strict liability was briefly discussed by the court in MoEF v. PT. Bumi
Mekar Hijau (High Court of Palembang Decision Number 51/PDT/2016/PT.PLG,
pp. 168–169). However, the High Court was eventually of the opinion that the defendant had negligently failed to comply with obligations related to the prevention and
control of forest fires (MoEF v. PT. Bumi Mekar Hijau, pp. 168–169 and 171–172).
Accordingly, the court held the defendant liable for conducting an unlawful act and
ordered the defendant to pay a compensation of IDR 78.5 million (Ibid. p. 190).
Strict liability was finally seriously taken into account in the MoEF v. PT.
Waringin Agro Jaya (District Court of South Jakarta Decision Number 456/Pdt.GLH/2016/PN.Jkt.Sel). Like in previous cases, the plaintiff employed both the
unlawful act rule and strict liability for the defendant’s liability (MoEF v. PT. Waringin
Agro Jaya, pp. 11–23 and 23–30). Concerning strict liability, the plaintiff argued that
the defendant’s activities pose serious threats to the environment, and hence, the
application of strict liability is justified (Ibid. pp. 38–40). In its ruling, the court
found that the defendant’s activities related to oil palm plantation posed serious risks
to the environment, and hence strict liability could be applied to this case (Ibid.
pp. 293–294). The court held the defendant strictly liable for the losses arising out of
fires in the defendant’s controlled area, and awarded the plaintiff with compensation
of IDR 173.4 billion as well as ordered the defendant to conduct restoration measures
of at least IDR 293 billion (Ibid. p. 304).
Critiques have been directed toward the use of strict liability in fire litigation.
Wijoyo and Hartiwiningsih, for example, argued that strict liability is not applicable
to oil palm plantation because the plantation does not constitute dangerous activity
(Sudarsono 2017).
Interestingly, on 19 May 2017, the Asosiasi Pengusaha Hutan Indonesia (APHI),
that is, the Indonesian association of forest concession holders, and the Gabungan
Pengusaha Kelapa Sawit Indonesia (GAPKI), that is, the Indonesian Palm Oil Organization, filed a petition to Constitutional Court against several provisions on the 2009
Environmental Law and the 1999 Forestry Law, including article 88 of the 2009 Environmental Law regarding strict liability. According to the petitioners, strict liability
(i.e. article 88 of the 2009 Environmental Law) is in contravention with article 28D
of the Constitution regarding the guarantee that everyone has the rights to fairness,
legal certainty, and equality before the law (Petition to Constitutional Court Number
25/PUU.XV/2017, p. 16). In the petitioners’ point of view, strict liability is unconstitutional because it departs from the conventional liability based on fault. Furthermore,
321
108/Pdt.G/2015/PN.Jkt.Utr, pp. 22–23). Similar to the plaintiff’s logic in MoE v. PT.
Kalista Alam, here the plaintiff also relied on the unlawful act rule, by arguing on the
one hand that the defendant has intentionally conducted an unlawful act by setting
the fire on its land in order to make preparation for land clearing and the planting
of oil palm, and on the other hand that the defendant has negligently conducted an
unlawful act by failing to comply with various obligations to prevent and control fires
(MoEF v. PT. Jatim Jaya Perkasa, pp. 18–24, and 24–27). Although the court held
the defendant liable and consequently ordered the defendant to pay a compensation
of IDR 7.2 billion and to conduct rehabilitation measures worth of IDR 22.2 billion
(Ibid. pp. 166 and 170), the court remained silent on the issue of liability.
Furthermore, strict liability was briefly discussed by the court in MoEF v. PT. Bumi
Mekar Hijau (High Court of Palembang Decision Number 51/PDT/2016/PT.PLG,
pp. 168–169). However, the High Court was eventually of the opinion that the defendant had negligently failed to comply with obligations related to the prevention and
control of forest fires (MoEF v. PT. Bumi Mekar Hijau, pp. 168–169 and 171–172).
Accordingly, the court held the defendant liable for conducting an unlawful act and
ordered the defendant to pay a compensation of IDR 78.5 million (Ibid. p. 190).
Strict liability was finally seriously taken into account in the MoEF v. PT.
Waringin Agro Jaya (District Court of South Jakarta Decision Number 456/Pdt.GLH/2016/PN.Jkt.Sel). Like in previous cases, the plaintiff employed both the
unlawful act rule and strict liability for the defendant’s liability (MoEF v. PT. Waringin
Agro Jaya, pp. 11–23 and 23–30). Concerning strict liability, the plaintiff argued that
the defendant’s activities pose serious threats to the environment, and hence, the
application of strict liability is justified (Ibid. pp. 38–40). In its ruling, the court
found that the defendant’s activities related to oil palm plantation posed serious risks
to the environment, and hence strict liability could be applied to this case (Ibid.
pp. 293–294). The court held the defendant strictly liable for the losses arising out of
fires in the defendant’s controlled area, and awarded the plaintiff with compensation
of IDR 173.4 billion as well as ordered the defendant to conduct restoration measures
of at least IDR 293 billion (Ibid. p. 304).
Critiques have been directed toward the use of strict liability in fire litigation.
Wijoyo and Hartiwiningsih, for example, argued that strict liability is not applicable
to oil palm plantation because the plantation does not constitute dangerous activity
(Sudarsono 2017).
Interestingly, on 19 May 2017, the Asosiasi Pengusaha Hutan Indonesia (APHI),
that is, the Indonesian association of forest concession holders, and the Gabungan
Pengusaha Kelapa Sawit Indonesia (GAPKI), that is, the Indonesian Palm Oil Organization, filed a petition to Constitutional Court against several provisions on the 2009
Environmental Law and the 1999 Forestry Law, including article 88 of the 2009 Environmental Law regarding strict liability. According to the petitioners, strict liability
(i.e. article 88 of the 2009 Environmental Law) is in contravention with article 28D
of the Constitution regarding the guarantee that everyone has the rights to fairness,
legal certainty, and equality before the law (Petition to Constitutional Court Number
25/PUU.XV/2017, p. 16). In the petitioners’ point of view, strict liability is unconstitutional because it departs from the conventional liability based on fault. Furthermore,