1. INTRODUCTION
    Protection of the environment is one of the important issues that has received increasing attention in various countries, including Indonesia. A healthy environment is the basic right of every citizen as stated in Article 28H of the 1945 Constitution. Basically, everyone has the right to a proper and healthy living environment and the right to fight for this right. In reality, however, it is not uncommon for people who fight for this right to the environment to face various threats, intimidation, and acts of violence.1

    Recently, on 30 August 2024, the Government through the Ministry of Environment and Forestry (KLHK) stipulated the Minister of Environment and Forestry Regulation Number 10 of 2024 concerning Legal Protection of Persons Fighting for the Right to a Good and Healthy Environment. This regulation focuses on technical procedures and complements the protection mechanism for environmental fighters to terminate cases as early as possible, which has been essentially regulated under the Supreme Court Regulation Number 1/2023 concerning Guidelines for Adjudicating Environmental Cases as the implementation of Article 66 of Law No. 32 of 2009 concerning Environmental Protection and Management.2

    The new regulation is as a response to the urgent need to protect environmental activists, who play an important role in maintaining environmental and ecosystem sustainability. This regulation aims to provide a guarantee of legal protection for individuals, groups, and organizations that fight for their rights to a good and healthy environment which provides protection for environmental defenders from the threat of criminal and civil charges.3 Some of the important points of this Regulation regulate the mechanism to ensure protection for environmental activists or fighters.

  2. DISCUSSION
    Based on Article 1 paragraph 1, an environmental activist is a person who struggles for the right to the environment, either as a victim or a reporter who takes legal action due to environmental pollution or destruction. Then, in the Article 2 paragraph (1) of this regulation, people who fight for the environment cannot be prosecuted criminally or sued civilly.

    Article 2 paragraph (2) of this regulation outlines the categories of individuals who may advocate for a healthy environment. It includes individuals, groups, environmental organizations, academics, indigenous legal entities, and business entities. These entities are recognized as those who fight for the right to a healthy environment and can take legal action due to environmental pollution or damage. This paragraph provides a comprehensive scope of the entities covered under the regulation, ensuring inclusivity and protection for a wide range of environmental activists.

    There are retaliatory actions stipulated in Article 5 paragraph (1) carried out by parties suspected of or potentially committing environmental pollution and/or damage to People Who Fight for the Environment. These actions can be in the form of:

    • Weakening the struggle and public participation, summon, criminal court, or civil lawsuit. Weakening of struggle and public participation can also include written threats, verbal threats, criminalization, or physical or psychological violence that endangers a person, their family members, or their property.
    • A demand letter referrings to a formal notice or warning.
    • Criminal proceedings include the reporting of alleged criminal acts or criminal prosecution (vide Article 5 paragraph (3)).
    • Civil litigation involves filing a civil suit with the aim of obtaining redress (vide Article 5 paragraph (4)).

    In response to such retaliatory actions, article 6 of this regulation describes the forms of legal protection provided to individuals who advocate for a healthy environment. This includes the prevention of retaliation and the handling of such acts. This provision ensures that legal protection is comprehensive and addresses different stages of potential threats or retaliation.

    The regulation also emphasizes efforts to prevent such actions, including law enforcement capacity building, establishment of a certified environmental law enforcement forum, coordination with local governments, establishing legal teams, local government agencies, and community-based organizations to communicate with each other and/or collaborating with local government agencies and community-based organizations to develop environmental laws. As such, it underscores the importance of proactive measures to protect environmental activists from potential retaliation.

    The handling of legal protection can be done through:

    1. determination of the case as retaliation; and
    2. providing legal assistance.

    Strengthening law enforcement officers, establishing communication forums, and supervising local governments to ensure immediate action against environmental violations.

    As a procedure, the various legal subjects that may submit such applications, including individuals, legal counsel, community representatives, environmental organizations, business entities, and academics or experts. In addition, applications may be submitted by ministries/agencies or regional agencies based on the request of the applicant or regional agencies based on the request of the applicant. The regulation provides a clear and inclusive procedure for initiating legal protection, ensuring that a broad spectrum of entities can seek legal recourse for environmental protection.

    For assessment requests submitted by environmental activists on the potential environmental damage/pollution and retaliation, the Minister forms an assessment team consisting of representatives from various entities, including ministries, law enforcement agencies, relevant government agencies, local governments, academics, and other relevant stakeholders.  This multidisciplinary approach ensures a comprehensive evaluation of the submitted application, taking into account both administrative and substantive aspects.

    The Minister has the authority to reject such applications and outlines the process for doing so. This underscores the importance of establishing criteria for rejecting applications for legal protection, ensuring that resources are allocated to cases that meet the necessary criteria and have a legitimate basis for legal protection.

    In addition, it explains that legal protection ceases if the beneficiary requests for its cessation or if subsequent monitoring and evaluation show that legal protection is no longer necessary. This emphasizes the role of beneficiary input and ongoing evaluation in determining the continuation or termination of legal protection measures. As such, it ensures that resources can be allocated effectively and that legal protection is provided only when necessary.

    This regulation places great emphasis on inter-agency coordination in implementing legal protection for individuals who advocate for a healthy environment. This regulation mandates the Minister to coordinate with ministries, agencies, and local governments involved in environmental protection and law enforcement. This coordination can be realized in the form of memoranda of understanding and cooperation agreements. Inter-agency coordination is critical in protecting the rights of environmental defenders and underscores the need for a cohesive, multi-stakeholder approach to environmental protection and legal support.

    Implementation Challenges
    Although this regulation affirms that environmental activists cannot be convicted, the main challenge remains the persistence of criminalization practices. Data shows that between 2014 and 2023, there were at least 133 cases of threats against environmental fighters.4 Many activists experience intimidation, threats, or even physical violence as a result of their fight for the environment.

    A recent example happened to an environmental activist named Daniel Frits Tangkilisan who rejected the shrimp farming industry whose waste damaged mangroves, seaweed cultivation, and local tourism in Karimunjawa National Park. Under the Decision Number 14/Pid.Sus/2024/PN Jpa,5 the Panel of Judges of the Jepara District Court stated that Daniel Frits was legally and convincingly proven to have 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 (SARA)”, as regulated under Article 28 paragraph (2) of the ITE Law. The Panel of Judges considered that Daniel’s actions in writing comments on his Facebook account with the phrase “shrimp brain community” had caused hatred in some groups of people in Kemujan Village and Karimunjawa Village. He was sentenced to seven months’ imprisonment and a fine of five million Rupiah or one month’s subsidy.

    He appealed to the decision.

    The High Court Judges provides the following consdierations:

    1. Article 66 of Law 32/2009 reads: “every person who fights for the right to a good and healthy environment cannot be prosecuted criminally or sued civilly”.
    2. Article 77 of Indonesian Supreme Court Regulation No. 1/2023 on Guidelines for Adjudicating Environmental Cases states: “In the event that after examining the subject matter of the case, the Judge concludes that the actions charged by the public prosecutor are proven, but the Defendant is also proven to be an activist for the right to a good and healthy environment as referred to in Article 66 of Law No. 32/2009, the Judge shall issue a decision for the release from all charges”.

    Based on the consideration of the panel of judges, the Semarang High Court through Decision No. 374/Pid.Sus/2024/Pt. SMG acquitted environmental activist Daniel Frits. The panel of judges stated that Daniel was guilty of hate speech on social media, but because he was proven to be an environmental activist, as per Article 77 of the Indonesian Supreme Court Regulation No. 1/2023, Daniel Frits was released from all charges.6

    The Daniel Frits case provides an example of legal protection for individuals advocating for a healthy environment, but he was later acquitted based on Article 66 of Law No. 32/2009 and article 77 of Supreme Court Regulation Number 1/2023. From this we can see that the enactment of the Minister of Environment and Forestry Regulation No. 10 of 2024 can supplement the existing regulations. This integration is hoped for more protection of environmental activists, covering both substantive and procedural aspects of legal protection.

    The case has been submitted for a cassation and we will wait for the Supreme Court’s decision on it.

  3. CONCLUSION
    The Minister of Environment and Forestry Regulation No. 10 of 2024 on Legal Protection of Persons Fighting for the Right to a Good and Healthy Environment is a step forward in ensuring that every citizen can fight for their right to the environment without fear or threat. With this regulation, it is expected to provide more space for environmental activists and civil society to be involved in the process of monitoring projects that have an impact on the environment. All stakeholders, both public and private, and most importantly, environmental activists and civil society, are given access to participate in decision-making related to the environment. At the same time, it ensures that environmental protection becomes a shared responsibility. This regulation not only provides legal protection, but also emphasizes Indonesia’s commitment to the protection of human rights, especially related to the right to a healthy and decent environment.
Salza Farikah Aquina

Sources

  1. Detik news: KLHK Sebut Permen LHK 10 Tahun 2024 Mampu Lindungi Pejuang Lingkungan. Available at https://news.detik.com/berita/d-7544851/klhk-sebut-permen-lhk-10-tahun-2024-mampu-lindungi-pejuang-lingkungan/amp
  2. Indonesian Center for Environmental Law (ICEL): Terbitnya Permen LHK No. 10 Tahun 2024: Instrumen Baru bagi Pelindungan Pejuang Lingkungan. Available at https://icel.or.id/id-id/kerja-kami/kabar-/siaran-pers/v/terbitnya-permen-lhk-no-10-tahun-2024-instrumen-baru-bagi-pelindungan-pejuanglingkungan
  3. Kumparan: Peraturan Menteri No 10 Tahun 2024, Kebijakan untuk Para Aktivis Lingkungan. Available at https://kumparan.com/ap-dimas-rahmat-naufal/peraturan-menteri-no-10-tahun-2024-kebijakan-untuk-para-aktivis-lingkungan-23WR8ocjvso/full
  4. Auriga Nusantara: Status Pembela Lingkungan di Indonesia 2014-2023: Ancaman Kiang Tinggi, Saatnya Negara Hadir. Available at https://auriga.or.id/press_release/detail/50/status-pembela-lingkungan-di-indonesia-2014-2023-ancaman-kian-tinggi-saatnya-negara-hadir?lang=id
  5. Putusan Nomor 14/Pid.Sus/2024/PN Jpa
  6. Putusan No. 374/Pid.Sus/2024/PT. SMG
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