Citizen Lawsuit Mechanism in Environmental Dispute

Introduction

Citizen lawsuit is an action by citizens to sue government and/or state institution. In Indonesia, citizen lawsuit mechanism has yet to be regulated under the law. Nevertheless, this type of lawsuit has become common practice in Indonesian judicial practice.

Chairman of the Supreme Court issued Decision No.: 36/KMA/SK/II/2013 on Implementation of Guidelines for Handling Environmental Disputes (“KMA 36/2013”) in which one of the stipulations is concerning citizen lawsuit.

Definition of citizen lawsuit set out in KMA 36/2013 is a lawsuit that may be lodged by any person over an unlawful act, provided that the lawsuit is for public interest and as a result of government’s omission or non-performance of legal obligations or Environmental Organization’s failure to use its right to file a lawsuit.¹

Requirements to file a lawsuit through citizen lawsuit mechanism

Requirements to file a citizen lawsuit is regulated in KMA 36/2013. These requirements are:²

• Claimant(s) is one or more Indonesian Citizen(s), not a legal entity;
• Defendant(s) is government and/or state institution(s);
• Basis of lawsuit is for public interest;
• Object of lawsuit is omission or non-performance of legal obligation(s);
• Notification/demand must be sent within 60 working days prior to the lawsuit, and it is compulsory. In any event that there is notification/demand, the lawsuit must be declared as inadmissible;
• Notification/demand from the potential claimant to the potential defendant with a copy to the Head of the local District Court.

Short notice/notification/demand shall be made in written form and consists of:

• Information on perpetrators and institution(s) relevant to the violation(s);
• Type of violation(s);
• Laws and regulations that have been violated;
• Public interests are environmental and living things’ interests that are potentially or have been affected by pollution and/or environmental damage;
• Cannot file a claim for monetary compensation;
• Citizen Lawsuit procedures refer to the HIR.

The period of 60 working days, as referred to in point e), has a purpose. The said purpose is to provide opportunity for the Government to carry out its legal obligations as requested or demanded by the potential claimant(s).

Implementation of citizen lawsuit in environmental disputes

This article will specifically discuss one of environmental disputes in relation to large-scale forest and land fires in Kalimantan which resulted in smoke fog through court decision, specifically in relation to the implementation of citizen lawsuit in Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk.

Background

The Claimants are several Indonesian citizens that are residents of Palangka Raya City, through the citizen lawsuit mechanism.

Whereas the Defendants are the rulers and officials of Republic of Indonesia, that are: President (Defendant I), Minister of Environment and Forestry (Defendant II), Minister of Agriculture (Defendant III), Minister of Agrarian Affairs and Spatial Planning (Defendant IV), Minister of Health (Defendant V), Governor of Central Kalimantan (Defendant VI), Central Kalimantan Regional People’s Representative Council (Defendant VII).

The Claimants argued that the Defendants have been negligent in carrying out their duties or mandates as rulers or high-ranking state officials in the large-scale forest fires incident that had occurred since 1997 and last occurred in 2015 in which resulted in losses, both materially and immaterially, including from making people sick to fatalities due to smoke fog.³

Panel of Judges’ Considerations

In relation to formal requirements to file a lawsuit through citizen lawsuit, the panel of judges’ considerations are to consider whether the requirements set out in KMA 36/2013 have been fulfilled.

Thus, this part will discuss the panel of judges’ consideration for each aforementioned requirement:

1. Claimant(s) is one or more Indonesian Citizen(s), not a legal entity:
   Through evidence P-1.1 until P-1.7 that are ID and Tax Identification Number or Notice of Local Tax Assessment owned by the Claimants, therefore Panel of Judges stated that the Claimants are Indonesian citizen, not legal entity.
2. Defendant(s) is government and/or state institution(s);
   From the revealed facts in court, Defendant I until Defendant VII are government institution(s) or state institution(s) as abovementioned, thus the Panel of Judges also stated that this second requirement has also been met.⁴
3. Basis of lawsuit is for public interest;
4. Object of lawsuit is omission or non-performance of legal obligation(s):
   In relation to the third and fourth requirements, the Panel of Judges assessed that within the description of the lawsuit filed by the Claimants that it includes or elaborates third and fourth requirements.⁵
   In relation to these requirements, the Claimants stated, “that this effort of Citizen Lawsuit by the Claimants carried out is solely for the fulfillment of human rights that concern the public interest that is neglected by Republic of Indonesia.”⁶ Furthermore, in relation to the fourth requirement, the Claimants clearly states in the description of the lawsuit on the obligations that are failed to be performed by the Defendants.
5. Notification/demand must be sent within 60 working days prior to the lawsuit and it is compulsory. In any event that there is notification/demand, the lawsuit must be declared as inadmissible;
6. Notification/demand from the potential claimant to the potential defendant with a copy to the Head of the local District Court.

The fifth requirement requires notification/demand to be sent within period of 60 working days, in any event that the period is violated then the lawsuit must be declared to not be accepted.⁷

In relation to the fifth and sixth requirements concerning notification/demand, it has been proven by evidence P-8.1 until P-8.7. This evidence are receipt numbers for citizen lawsuit’s notifications.⁸ Furthermore, the Claimants have also delivered the copies of notifications/demands to Palangka Raya District Court. Therefore, the fifth and sixth requirements have also been fulfilled.⁹

The requirements as set out in KMA 36/2013 have been fulfilled based on the abovementioned Panel of Judges’ considerations. Thus, the citizen lawsuit was admitted since the formal requirements have been met.¹⁰

Court’s Decision

Panel of Judges decided that the lawsuit can be accepted and partly granted. In relation to the citizen lawsuit, due to the requirement that there cannot be a claim for compensation in the lawsuit, therefore the forms of responsibilities that can be granted are: punishment to enact regulations, policies, establishing hospital, and as such.¹¹

Closing

Citizen lawsuit is in fact has yet to be regulated under the laws, whereas citizen lawsuit has been common practice in Indonesian judicial practice. Therefore, KMA 36/2013 was issued to fill the legal void concerning citizen lawsuit. This type of lawsuit also needs to meet all six requirements that have been discussed above to determine that the suit can be admitted by the Court formally.

Brigieth Rungo Rata

1. Chapter IV letter B point 3, KMA 36/2013.
2. Chapter IV letter B point 3, KMA 36/2013.
3. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, pp. 20-23.
4. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 167.
5. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 167.
6. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 47.
7. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 167.
8. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 123.
9. Ibid, p. 168.
10. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 168.
11. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, pp. 191-193.