Every person has the right to enjoy a good and healthy environment,1 in which this right is protected, promoted, upheld, and fulfilled by the state, especially the government.2 This right is also included in Law No. 32 of 2009 on Environmental Protection and Management as amended by Government Regulation in Lieu of Law No. 2 year 2022 on Job Creation (“Environmental Law”) which stipulates that “Every person has the right over a proper and healthy environment as a part of human rights.”3

Government Regulation No. 41 of 1999 on Air Pollution Control (“PP 41/1999”) defines air pollution as “entry or insertion of substances, energy, and/or other components into the ambient air by human activities, so that the quality of the ambient air drop to a certain level causing the ambient air to be unable to fulfill its function”.4 Severe smoke fog caused by forest and land fires in Kalimantan is a form of air pollution because this causes the ambient air to not be able to fulfill its function. Whereas one of the citizen rights is a proper and healthy environment.

About environmental case such as severe smoke fog, state and/or government may be sued based on unlawful act which is governed by Article 1365 of the Indonesian Civil Code (“Civil Code”). The article states: “Every unlawful act that causes damage onto another person obliges the person who caused such damage because of his fault to compensate.”5

This article will discuss the implementation of lawsuit against state and/or government through civil dispute based on unlawful act. This article will specifically discuss how state and/or government is proven to have committed unlawful act on the severe smoke fog incident.

Case Discussion: Unlawful Act by State and/or Government in an Environmental Dispute

Case discussion will examine Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, including the related decisions on the appeal and cassation level.


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

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.6

Panel Of Judges’ Considerations

Article 1365 of the Civil Code became the basis of the lawsuit, thus elements of article 1365 shall be taken into consideration. These elements are: (1) an act; (2) the act is unlawful; (3) damage/loss; (4) fault; (5) causal relationship (causality) between unlawful act and the consequences.7

In this event, Panel of Judges considered two main issues:

  • assessment of the truth that the Defendants, as rulers or high-ranking state officials, committed an unlawful act due to the negligence of the Defendants who did not fulfill the functions and duties of preventing and overcoming forest and land fires that happens almost every year, should be assessed.8
  • assessment of the truth that the Defendants have not worked optimally according to the mandates given by the laws and regulations during the severe smoke fog.9

First, based on the revealed facts, panel of judges assessed that “environmental destruction and/or pollution has happened, in which the severe smoke fog in 2015 happened in Central Kalimantan region came from forest and land fires in Central Kalimantan Province.”10

This part discusses elements of unlawful act towards the case and determine whether the elements have been met or not:

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1) Unlawful Act

Panel of Judges set out considerations for each Defendant regarding assessing the responsibilities of the Defendants considering they have different duties and obligations under the laws and regulations.

  • Defendant I (President of Republic of Indonesia)

President holds the highest government power which in carrying out his duties can be helped by the ministers.11 Article 2 of Law No. 18 of 2013 on Prevention and Eradication of Forest Destruction as amended by Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation (“Law 18/2013”) also states that the prevention and eradication of forest destruction are based on the principles: fairness and legal certainty, sustainability, state responsibility, public participation, accountability, priority, and co-ordination.12 This establishes that the President, in fact, has roles in environmental protection and management, in this regard to prevent and overcome. Although Defendant I has carried out preventive means, according to the Panel of Judges the means have not been optimal. This is because the forest and land fires that cause severe smoke fog keeps recurring from 1997 until 2015.13

  • Defendant II, III, IV, V (Ministers)

Defendant in their capacities as ministers have the duty to help the President to prevent and overcome forest fires so that they do not spread widely and become massive. However, in this case, performances of Defendants II – V were also considered by the Panel of Judges to not have been optimum and slow in time of anticipating forest fires.14

  • Defendant VI (Governor of Central Kalimantan)

Against Defendant VI, in their capacity as Governor of Central Kalimantan, the Panel of Judges considered the Governor’s responsibility for controlling environmental damage and/or pollution in relation to forest and/or land fires. In addition to that, responsibility on environmental permits.15 However, facts that are revealed prove that Defendant VI “has not worked optimally as mandated by the laws and regulations whether during the pre, incident or post the forest and land fires which caused severe smoke fog, in which Defendant VI was slow in anticipating the spread of forest and land fires as well as the lack of coordination between Central Government and Regional Government that leads to people being victims due to the slow performance of Defendant VI…”16

  • Defendant VII (Regional People’s Representative Council)

Defendant VII, in its capacity as Regional People’s Representative Council, is an organizer element of province government17 and one of its functions is legislation.18 However, Defendant VII has neglected in carrying out its legislative function because there was no initiative to enact Regional Regulation prior to the occurrence of forest and land fires happened for years. Thus, the Panel of Judges considers that it had yet optimally carried out its duties and obligations as Regional People’s Representative Council.19

2) Damage/loss

There were material and immaterial losses due to the severe smoke fog, such as:20

  • People’s activities were disrupted, including student activities that experienced reduced study hours and flights.
  • Caused diarrhea and Upper Respiratory Tract Infections (“URTI”), to the extent of casualties.

3) Fault

Fault element conducted by the Defendant can be assessed from their negligence in conducting their duties and obligations set out in the laws and regulations as has been considered by the panel of judges.

4) Causal relationship (causality) between unlawful act and the consequences

In simple, causal relationship (causality) between unlawful act and the consequences can be drawn from the fact that due to the failure of the Defendants to carry out their obligations optimally, forest fires spread and kept recurring. Then, it resulted in a severe smoke fog which gave losses to the people, as mentioned above.

District Court’s Decision

Panel of Judges’ Decision granted part of the claims made by the Claimants. The Decision essentially states that the Defendants have committed unlawful act and each of the Defendant is punished to be held accountable according to their respective capacities as state officials, not in the form of compensation. 

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High Court’s Decision for appeal

The Defendants (Defendant I – Defendant VI) filed an appeal to Palangka Raya High Court. The decision No. 36/PDT/2017/PT PLK upheld the Palangka Raya District Court Decision No. 118/Pdt/G/LH/2016/PN Plk. The reasons for the Palangka Raya High Court’s decision are considerations by Panel of Judges’ District Court were proper and correct, and there were no novel issues to be considered.21 In addition, the Environmental Law as well as related laws and regulations were also considered.22

Supreme Court’s Decisions for cassation

Panel of Judges’ considerations in Supreme Court’s Decision No. 3555/K/Pdt/2018 also highlights the principle of public accountability, which in essence the government administration is open and fair to meet the standards of service towards citizens’ rights while also fulfilling governance obligations in enacting regulations, in this particular case in the environmental sector.23

In relation to this, therefore state and/or government institution in the implementation of environmental management also needs to take into consideration the principle of public accountability.

Furthermore, the Supreme Court also states that the judex facti decision shall not be seen as a form of punishment, rather as a form of implementing citizens’ right to welfare and responsibility of the government towards its citizens regardless of who caused it, when and how the incident or disaster occurred, but the spirit of leadership and the government’s sense to protect all of its citizens.24


State and/or government institution may be sued by another party who feel harmed because of environmental destruction and/or pollution. Although state and/or government institution does not directly cause such destruction, however as discussed on the case, state and/or government institution can still be held accountable due to its neglection in carrying out its duties and obligations.

Lawsuit is filed through civil procedures and based on unlawful act which is governed by article 1365 Civil Code. So long that the elements of unlawful act are met and the performances of state and/or government institution are not optimal towards the occurring environmental case, therefore judges are able to determine that the institution has committed unlawful act and be held accountable.

Brigieth Rungo Rata 


  1. Article 28 letter H, 1945 Constitution of the Republic of Indonesia (“1945 Constitution”).
  2. Article 28 letter I, Ibid.
  3. Article 65, Environmental Law.
  4. Article 1 paragraph (1), PP 41/1999.
  5. Article 1365, Civil Code.
  6. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, pp. 20-23.
  7. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 171.
  8. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 173.
  9. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p.174.
  10. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 180.
  11. Article 4 paragraph (1). Article 17, 1945 Constitution.
  12. Article 2, Law 18/2013.
  13. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 182.
  14. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 182.
  15. Government Regulation No. 41 of 2001 on Controlling Environmnetal Damage and/or Pollution in Relation to Forest and/or Land Firest (“PP 4/2001”); Article 72, Environmental Law quoted in [1] Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, pp. 183-184.
  16. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 184.
  17. Article 315 Law No. 17 of 2014 on People’s Consultative Assembly, People’s Representative Council, Regional Representative Council, and Regional People’s Representative Council.
  18. Article 316, Ibid.
  19. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, p. 186.
  20. Palangka Raya District Court’s Decision No. 118/Pdt.G/LH/2016/PN Plk, pp. 179-180.
  21. Palangka Raya High Court’s Decision No. 36/PDT/2017/PT PLK, p.11.
  22. Ibid, hal. 12.
  23. Supreme Court’s Decision No. 3555/K/Pdt/2018, p. 15.
  24. Supreme Court’s Decision No. 3555/K/Pdt/2018, p. 15.