322
A. G. Wibisana and S. N. Setyorini
the departure from liability based on fault not only renders strict liability unconstitutional but also makes it result in legal uncertainty for the petitioners (Ibid. pp. 16–17).
The petitioners argue that article 88 should be void unless it is applied according to
liability based on fault (Ibid. p. 17). In conclusion, the petitioners ask the Constitutional Court to declare article 88 of the 2009 EPMA on strict liability conditionally
unconstitutional, in the sense that it is unconstitutional unless interpreted to place
liability for losses proportionally to those whose faults have contributed to the losses
in question (Ibid. p. 18).
Following Wibisana (2019), this chapter finds that charges against the use of
strict liability in Indonesia’s peatland fire are unfounded for several reasons. First,
strict liability has already been in Indonesian environmental law at least since 1982,
that is, through Law Number 4 of 1982 on General Provisions of Environmental
Management. In the 2009 Environmental Law, strict liability is stated in article 88,
by which those who carried out activities using hazardous substances, producing
hazardous wastes, or creating serious threats to the environment are strictly liable
for the resulting damage (Wibisana 2019, p. 187).
Second, although it is likely that the utilization of forested land or peatlands
for timber and oil palm plantations does not use hazardous substances, nor produce
hazardous wastes, one could still apply strict liability for the activity as long as it poses
serious threats to the environment. The 2009 Environmental Law defines “serious
threats” as the types of threats that have the potentials to give rise to a wide range
of environmental impacts and public anxiety (art. 1 point 34). Furthermore, the term
“serious threats” is also explained in the Chief Justice Decree Number 36 of 2013
as pollution or environmental damage likely to be irreversible or with widespread
consequences to human health, water surface, underground water, soil, air, plants,
or animals (The Decree of Indonesia’s Chief Justice Number 036/KMA/SK/II/2013,
p. 39).
In 2010, Hooijer et al. argue that land-use activities might have impacts on the net
greenhouse gas balance of peatlands, dominated by net CO 2 uptake by vegetation,
CO 2 emissions from drainage-related peat decomposition, CO 2 and other emissions
from fires, exports of dissolved and particulate organic carbon, and likely emissions
of methane and nitrous oxides (Hooijer et al. 2010, p. 1506). If fires occurred, the
impacts are devastating. The 1997 fires, for example, released as much as 40% of
annual global emissions from fossil fuels (Aldhous 2004, p. 145). Therefore, it is
plausible to argue that timber and oil palm plantations indeed pose serious threats to
the environment.
Third, it could further be argued that strict liability is applicable if the clearing of
the land or peatland falls into an unnatural use of land, or if the activity is exposing
the area into threats of forest fires so significant that an exercise of utmost care cannot
eliminate the threats. The case for this type of argument is even stronger when the
activities of land or peatland clearing for timber and oil palm plantations cover a very
large area.
In this regard, one could refer to Harrison et al. who argue that the reduction in
the water-table level through the construction of drainage is a major trigger for fire.
In contrast, undisturbed peatlands are typically waterlogged and flooded for much of
A. G. Wibisana and S. N. Setyorini
the departure from liability based on fault not only renders strict liability unconstitutional but also makes it result in legal uncertainty for the petitioners (Ibid. pp. 16–17).
The petitioners argue that article 88 should be void unless it is applied according to
liability based on fault (Ibid. p. 17). In conclusion, the petitioners ask the Constitutional Court to declare article 88 of the 2009 EPMA on strict liability conditionally
unconstitutional, in the sense that it is unconstitutional unless interpreted to place
liability for losses proportionally to those whose faults have contributed to the losses
in question (Ibid. p. 18).
Following Wibisana (2019), this chapter finds that charges against the use of
strict liability in Indonesia’s peatland fire are unfounded for several reasons. First,
strict liability has already been in Indonesian environmental law at least since 1982,
that is, through Law Number 4 of 1982 on General Provisions of Environmental
Management. In the 2009 Environmental Law, strict liability is stated in article 88,
by which those who carried out activities using hazardous substances, producing
hazardous wastes, or creating serious threats to the environment are strictly liable
for the resulting damage (Wibisana 2019, p. 187).
Second, although it is likely that the utilization of forested land or peatlands
for timber and oil palm plantations does not use hazardous substances, nor produce
hazardous wastes, one could still apply strict liability for the activity as long as it poses
serious threats to the environment. The 2009 Environmental Law defines “serious
threats” as the types of threats that have the potentials to give rise to a wide range
of environmental impacts and public anxiety (art. 1 point 34). Furthermore, the term
“serious threats” is also explained in the Chief Justice Decree Number 36 of 2013
as pollution or environmental damage likely to be irreversible or with widespread
consequences to human health, water surface, underground water, soil, air, plants,
or animals (The Decree of Indonesia’s Chief Justice Number 036/KMA/SK/II/2013,
p. 39).
In 2010, Hooijer et al. argue that land-use activities might have impacts on the net
greenhouse gas balance of peatlands, dominated by net CO 2 uptake by vegetation,
CO 2 emissions from drainage-related peat decomposition, CO 2 and other emissions
from fires, exports of dissolved and particulate organic carbon, and likely emissions
of methane and nitrous oxides (Hooijer et al. 2010, p. 1506). If fires occurred, the
impacts are devastating. The 1997 fires, for example, released as much as 40% of
annual global emissions from fossil fuels (Aldhous 2004, p. 145). Therefore, it is
plausible to argue that timber and oil palm plantations indeed pose serious threats to
the environment.
Third, it could further be argued that strict liability is applicable if the clearing of
the land or peatland falls into an unnatural use of land, or if the activity is exposing
the area into threats of forest fires so significant that an exercise of utmost care cannot
eliminate the threats. The case for this type of argument is even stronger when the
activities of land or peatland clearing for timber and oil palm plantations cover a very
large area.
In this regard, one could refer to Harrison et al. who argue that the reduction in
the water-table level through the construction of drainage is a major trigger for fire.
In contrast, undisturbed peatlands are typically waterlogged and flooded for much of