Introduction
An individual who promotes and protects human rights related to the enjoyment of a safe, clean, healthy, and sustainable environment is recognized by the United Nations (UN) as an environmental human rights defender (“EHRD“).1  In other words, an EHRD is anyone, either individually or in groups, who engages in efforts to protect and realize the right to a good and healthy environment through peaceful means.2

The existence of EHRD in Indonesia is legitimized under Article 66 of Law Number 32 of 2009 on Environmental Protection and Management as lastly amended by Law Number 6 of 2023 on Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation into Law (“Environmental Law“) which stipulates, anyone who advocates for the right to a good and healthy environment cannot be criminally prosecuted or civilly sued.

Contrary to the article mentioned above, EHRDs are still exposed to threats due to their environmental activism work. The threats experienced by EHRDs mainly involve legal instruments, such as civil and criminal prosecution , as well as threats in the form of intimidation and arbitrary arrest.3 Such threats to EHRD through civil and/or criminal prosecution are known as Strategic Litigation Against Public Participation (“SLAPP“).4

This article will discuss the stance and consideration of judges in handling SLAPP cases against EHRD based on several decision precedents.

Discussion
SLAPPs are a form of strategic effort with the hidden purpose of eliminating public participation. Thus, SLAPPs do not aim to prove the truth in a lawsuit, but rather a protracted process that drains energy and diverts public attention.5 SLAPPs in Indonesia are very diverse as they can be in both civil and criminal domains, some of which are identified as lawsuits that use the grounds of defamation, assault, incitement, unlawful act, and others.

In fact, Indonesia already has an anti-SLAPP mechanism as a means of protecting public participation in achieving a good and healthy environment, including protecting EHRD in conducting environmental activism work. The anti-SLAPP principle is expressly regulated in Article 66 of the Environmental Law as mentioned above. In the period 2013 to 2023 (before it was revoked), there was a Chief of the Supreme Court Decree No. 36 of 2013 concerning the Implementation of Guidelines for Handling Environmental Cases, which served as a guideline for judges in handling SLAPP cases against EHRD. Further, Supreme Court Regulation Number 1 of 2023 on Guidelines for Adjudicating Environmental Cases (“Supreme Court Regulation 1/2023”) and Guideline of the Attorney General Number 8 of 2022 on the Handling of Criminal Cases in the Field of Environmental Protection and Management provide guidelines for handling SLAPP cases and protecting EHRDs. Most recently, Regulation of the Minister of Environment and Forestry Number 10 of 2024 on the Legal Protection of Persons Fighting for the Right to a Good and Healthy Environment comprehensively regulates legal protection for EHRDs.

Since the enactment of the Environmental Law, there has been an anti-SLAPP mechanism for EHRD, but there are still several SLAPP cases where EHRD does not receive protection as stipulated in the aforementioned regulations, including:

  1. Decision No. 397/Pid.Sus/2018/PN.Idm6
    It started when Sawin, Sukma, and Nanto, who were part of the community that rejected the construction of the PLTU in the Patrol subdistrict area, Indramayu, raised the red and white flag in celebration of the case-winning against the Indramayu 2 Coal Power Plant at the Bandung State Administrative Court. The next day, the position of the flag was reversed, which was unintended. The party that felt disturbed by this discovery reported it to the Indramayu Police Office. In its decision, the district court did not consider the anti-SLAPP defense raised by the defendants (EHRDs) and found the defendants guilty, stating in its consideration that “the defendants’ activities are not related to the defense of the right to a good environment, as reflected in the banners that were displayed, and instead the defendants displayed an upside down red and white flag, which is not consistent with the defense of a good and healthy environment, that the spirit of the anti-SLAPP is certainly not to undermine the honor of the national flag”. The judge sentenced Sawin, Sukma, and Nanto to six (6) months imprisonment for committing acts with the intent to undermine the honor of the national flag.
  1. Decision No. 802/Pid.Sus/2020/PN.Byw7
    The case commenced when Ahmad Busiin, Sugiyanto, and Abdullah blocked PT.  Rolas Nusantara Tambang’s trucks to protect the environment and their homes due to the negative impact of the quarry. Further, PT. Rolas Nusantara Tambang reported Ahmad Busiin, Sugiyanto, and Abdullah for obstructing or interfering with mining operations (Article 162 of Mining Law). The District Court found the defendants guilty and did not consider the Anti-SLAPP defense raised by the defendants,  stating in its consideration that the panel of judges disagreed and therefore dismissed the entire plea.

Nevertheless, there are also precedents where judges have enforced the anti-SLAPP mechanism on EHRDs, including:

  1. Daeng Kadir and Abdul Samad v. PT. Bumi Konawe Abadi
    This case were ruled under Decision No. 16/Pdt.G/2013/ PN.Unh jo. Decision No. 104/PDT/2014/ PT.KDI jo. Decision No.  1934K/Pdt/2015.8 Daeng Kadir and Abdul Azis conducted a demonstration that had permission from the local police, due to residents’ disappointment with PT Bumi Konawe Abadi’s mining activities that did not pay attention to environmental safety and community interests because they polluted residents’ ponds. This demonstration resulted in the blockage of PT Bumi Konawe Abadi’s truck road. Furthermore, PT Bumi Konawe Abadi felt aggrieved by the obstruction of the road and sued Daeng Kadir and Abdul Samad using Article 1365 of the Civil Code (unlawful act).The High Court overturned the District Court’s decision granting the plaintiff’s claim, considering that the defendant’s actions were a means of expressing opinions in public and were not contrary to the law. Subsequently, the Supreme Court rejected the plaintiff’s cassation request with the consideration that the defendant’s actions were protected under Article 66 of the Environment Law. Although the defendant did not raise an anti-SLAPP defense under Article 66 of the Environmental Law, the panel of judges at the appeal level actively explored that this case did not involve legal actions and was a form of public participation. Then, the cassation judges upheld the appeal court decision by stating that the authorities had authorized the demonstrations carried out by Daeng Kadir and Abdul Aziz and that the demonstrations were a form of advocacy for the environmental damage caused by the plaintiffs’ nickel mining activities. Thus, the actions of Daeng Kadir and Abdul Aziz were protected by Article 66 of the Environmental Law.
  1. Case of Daniel Tangkilisan
    This case were ruled under Decision No. 14/Pid.Sus/2024/PN.Jpa jo. Decision No. 374/Pid.Sus/2024/PT. SMG jo. Decision No. 6459 K/Pid.Sus/2024. Daniel is an EHRD who opposes the shrimp farming industry in which waste destroys mangroves, seaweed cultivation, and local tourism in Karimunjawa National Park. Daniel was prosecuted under Article 28(2) of the EIT Law for writing a comment on his Facebook account using the phrase “shrimp brain community”, which caused hatred among some community groups in Kemujan Village and Karimunjawa Village.District Court judges found that it was legally and convincingly proven that Daniel Tangkilisan committed the crime of “without the right to disseminate information aimed at creating hatred against certain groups of people based on ethnicity, religion, race and intergroup”. High Court decision acquitted Daniel Tangkilisan. The appellate judges found Daniel guilty of hate speech, but Daniel was also proven to be an EHRD, so the judge took into account Article 66 of the Environmental Law and Article 77 of the Supreme Court Regulation 1/2023, which states that if, after examining the subject matter of the case the judge concludes that the act charged by the prosecutor is proven, but the defendant is also proven to be an EHRD under Article 66 of the Environmental Law, the judge shall acquit the defendant of all charges. At the cassation level, the judge upheld the High Court’s decision in Decision No. 6459 K/Pid.Sus/2024 ruling that Daniel was acquitted, and hence, Daniel’s case became final and binding.

Based on the precedents of SLAPP cases above, there is a significant difference in the stance of judges in handling SLAPP cases brought before them. In Decision No. 397/Pid.Sus/2018/PN.Idm and Decision No. 802/Pid.Sus/2020/PN.Byw, the judge did not apply the anti-SLAPP mechanism against EHRD (the defendant) and did not even consider the anti-SLAPP defense submitted by the defendants. This is inversely proportional, in the Daeng Kadir case, where even though the defendant did not submit an anti-SLAPP defense, the panel of judges actively explored the case to state that what was done by the defendant was a form of advocacy against environmental damage so that the panel of judges stated the defendant’s actions were protected by Article 66 of the Environment Law and was acquitted of the claim. Then in the case of Daniel Tangkilisan, the judge acquitted Daniel from the charges when Daniel was proven to be an EHRD protected by Article 66 of the Environment Law. In Daniel’s case, the judge’s stance was in line with the procedure for handling SLAPP cases contained in Supreme Court Regulation 1/2023.

Closing
EHRDs in Indonesia have obtained legal protection in carrying out their activism work. Then the protection is strengthened by the existence of guidelines for law enforcement officials in handling SLAPP cases, where SLAPP is often a means to suppress the activism of an EHRD. Nevertheless, based on several precedents presented, there is still inconsistency in the stance of judges in handling SLAPP cases that befall EHRDs due to their activities in environmental activism.

Irwansyah Dhiaulhaq Mahendra

Sources:

  • Law Number 32 of 2009 on Environmental Protection and Management as lastly amended by Law Number 6 of 2023 on Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation into Law
  • Regulation of the Minister of Environment and Forestry Number 10 of 2024 on the Legal Protection of Persons Fighting for the Right to a Good and Healthy Environment
  • Supreme Court Regulation Number 1 of 2023 on Guidelines for Adjudicating Environmental Cases
  • Guideline of the Attorney General Number 8 of 2022 on the Handling of Criminal Cases in the Field of Environmental Protection and Management
  • Decision No. 397/Pid.Sus/2018/PN.Idm
  • Decision No. 802/Pid.Sus/2020/PN.Byw
  • Decision No. 16/Pdt.G/2013/ PN.Unh
  • Decision No. 104/PDT/2014/ PT.KDI
  • Decision No.  1934K/Pdt/2015
  • Decision No. 14/Pid.Sus/2024/PN.Jpa
  • Decision No. 374/Pid.Sus/2024/PT. SMG
  • Decision No. 6459 K/Pid.Sus/2024
  • Handayani, M. M., Achmadi, J. C., & Apsari, P. K. “Berbagai Wajah Fenomena SLAPP di Indonesia”. Jurnal Hukum Lingkungan Indonesia. 8(1). 2021
  • Indonesian Center for Environmental Law. “Panduan Bagi Pengacara Publik dalam Menghadapi Kasus SLAPP”. Indonesian Center for Enviromental Law. 2021
  • Lidya Nelisa. ”Urgensi Penguatan Ketentuan Prosedural Anti-SLAPP di Indonesia untuk Melindungi Pembela HAM Lingkungan dari Serangan Litigasi”. Jurnal Hukum Lingkungan Indonesia. 8(1). 2022

Sources

  1. United Nations General Assembly, A/HRC/40/L.22/Rev.1, https://docs.un.org/en/A/HRC/40/L.22/Rev.1, accessed March 2025.
  2. Handayani, M. M., Achmadi, J. C., & Apsari, P. K., “Berbagai Wajah Fenomena SLAPP di Indonesia”, Jurnal Hukum Lingkungan Indonesia, 8(1), 2021. p. 153.
  3. Lidya Nelisa, ”Urgensi Penguatan Ketentuan Prosedural Anti-SLAPP di Indonesia untuk Melindungi Pembela HAM Lingkungan dari Serangan Litigasi”, Jurnal Hukum Lingkungan Indonesia, 8(1), 2022, p. 119.
  4. George W. Pring, “SLAPPs: Strategic Lawsuits Against Public Participation”, Pace Envtl.L.Rev.3, 7, 1989. p. 7-8, as quoted in Handayani, et. al., Op. Cit., p. 155.
  5. ICEL Team, “Panduan Bagi Pengacara Publik dalam Menghadapi Kasus SLAPP”, Indonesian Center for Enviromental Law, 2021. p. 4
  6. Decision summary as quoted in Handayani, et. al., Op. Cit., p. 189.
  7. Ibid.
  8. Ibid., p. 187.