INTR0OUCTION: CLIMATE CHANGE RlSK, S0URCES

AND GOVERNMENT POLICIES AND MEASURES

Ctimate Change Risk

1. Climate Change (CC) has a significant negative impact on Indonesia.
Combination of the rise of sea level and an increased occurrence of
the extreme weather, i.e. La Nina and El Nino,'will cause higher
intensity of erosion and abrasion. In turn it will further negatively
affect the changes in the coastline that is already losing ground to
higher sea level.'This negative impact is reflected in Indonesia's
capital Jakarta. It is estimated that by zroo Jakarta's coastline will
be reduced by 15 km, thereby directly affecting the Central Business
District.sThe erosion also contributedtotheloss of z4 of Indonesian
islands in two years (zoo5-2oo7).4 Extreme weather also causes
significant negative impact on the lives of the population that lives
along the coastline. This population is often confronted by maritime
accidentss and disasters caused by extreme weather, diseases6,
draught and flood. These factors also have severe impact on the
agricultural sector.T It should be noted that agriculture is a source of
income for 4oo/o of the Indonesian worKorce.8

Source of Green House Gases

2. The majority of Indonesia's GHGs come from land use change and
forestry sector (+6%), followed by enerry (z4o/o), peat fire (tz%),
waste (rr%), agriculture (S%) and industry @X).n

It is predicted that from 2001-2030 La Nina and Le Nino will occur every year. For
comparison from 1870-1999, they only happen one time every four vear. Bappenas,
"ICCSR: Scientific Basis; anal)'sis and projection of sea level rise and extreme weather
event" (March,201,0),38 - 41.
z ICCSR,47.
3 ICCSR,59.
4 GoI, 'National Action Plan Addressing Climate Change' (NAPACC) (2004,6.
5 It is me'ntioned that because of the extreme weather caused by anomalv in climate, one
accident happened in 29 December 2006 in Java sea that caused the death of more than
200 people. ICCSR,46. NAPACC (200n,3-5.
6 NAPACC (200n,5-6.
7 For example draught will cause decrease of production of palm oil up to 6-0/o per lear.
GoI, ICCS& Sektor Pertnnian (March 2010) (ICCSR Agriculture Sector), 18 - 25.
8 ICCSR Agriculture Sector, 1
9 The total amount is 1.415.988 Gg CO2e. Summary for Policy Makers: lndonesia
Second National Communication Under UNFCCC (November 2009) (2nd National
 GovernmentaI Stance on Ctimate Change
3. Indonesia is party to the UNFCCC and Kyoto protocol. Both were
ratified through Act No. 6/rgS+ and Act No. r7/zoo4 respectively.

4. The President has announced Indonesia's commitment to reduce Closure of open

dumping and
GHG emissions up to z6% by national effort and 4r% with
develop integrated
international support by zozo.'n The plan for emissions reduction is final dumping.
explained in the table below.

TABLE T ACTION PI-AN To REDUCE EMIssIoN Source: Adaptedfrom National Action Plan Reduction of Green House Gas
Emission, draft per August 2o7o11

5. The National Council on Climate Change (DNPI), headed by the

Forestry and
President, was established in 2oo8.'" The Council is tasked with
Control of Fire on Ministryof
Peat Land Forest and Peat Forestry, Ministry
developing policies, strategies and programmes to address climate
Land, Management of Environment change, coordinating climate change activities and strengthening
of Water, (MoE), Ministryof Indonesia's position in international negotiations.': Initiatives are
Rehabilitation of Agriculture (MoA),
Forest and Peat Ministry of Public also taken at the regional level by establishing Regional Council on
tand, Combating Works (MPW). Climate Change,'a or by establishing green development strategy's
Illegal Logging, -
and adaptation plan'6.
Deforestation
Prevention, Public
empowerment 6. The Indonesian Government entered into a Letter of Intent (LOI)
Agriculture with the Norwegian Government in [26 May zoro]. This represents
Introduction oflow
emission of Paddy an important development in the area of reducing emission from
variety, irrigation deforestation and forest degradation.'7 Under the terms of the
efficiency, use of LoI, the Norwegian Government has pledged to contribute funds
organic fertilizer.
Energ'& The use of bio-fuel, Ministry of 11 The clraft of ihe Naiional Action Plan on the Recluction of Creenhouse Cases Emission
Transportation higher standard of Transportation, htrs beren pronrulgated on Septelnber'20th, 2011 uncler the Presidential Regulation
machine in using Ministry of Energy, number 61 vear 2011. As a consecluerrce of Indonesia activc participaiion in formr-rlating
more efficient MPW. Paris Agreement on Climate Chtrnge, under 21st Conference of the Pariies (COP) of
fossil fuel, demand UNFCCC (Nor.'embe'r 30ih-December l2th 201 5), Indonesia is currentlv rvorkiug on
side management, the Interrcled Nationallv Deternrinecl Contributiurs 0NDC) as the nen'countrY's'
energy efficiency, c()nrmitmelr]t to ledlrce greenhouse gases. INDC] slioulti be formulated natiolrallY bV
and expansion of taking Paris Agreernent as main referetrcc'.
renewable energy. t2 'l'lris Council is esiablished through Plesiciential Regul;rtion 46/2448.
Energy efficiency, Ministry of Trade 13 Article 3 Presidential Regulation 46/2008.
use of renewable tl "Kaltirn Bentuk Den,an Perubahan lklim Daerah" rvrvr,r'.kaltimpror'.go.id/kaltim.
energy php ? p a gc' = ci e tai lbe'ri tri & i d =423 1
.15
East Kalirnantane.rncl Aceh for example has stated themselves as Green Province. See for

instance www,.kaltimprov.go.id/kaltim.plip?page=detailberita&icl=4474
t(; w\ / rv.antar.rnraiaram.com/ berita/ ?rubrik=5&icl=1 1456
t7 l.()l l,t'trtr'en lhe Co\errrrnenl rrl:tht'Kingrlonr ol N()rn'a\' ,lnrl thc Cot ertrttlettt ol lhe
ii 10 This commitment was first announced on 25 Septernber 2009 before the
G20 meetins in Republic of Indonesia on "Cooperatiorl on reciucing greenhouse gas emissions flom
Pittsburgh, USA cle'fore'station and fot'est clegradation", signed May 26,2070
lir

208 209
 to Indonesia's REDD+ efforts to the tune of r billion usD. As part
of this initiative, the Indonesian government has established a
Presidential Task Force to lay the ground work for the introduction
of a new institution tasked with, inter alia:'8
Implementing REDD+ activities,
Introducing a moratorium on new concession licenses on the
primary forest and peat land areas,
Developing an instrument for financing,
Developing a draft national strategy on REDD+,
LEGAL SYSTEM AND PRACTICE
Source of Law and Hierarchy of Legistations
7. Indonesia inherited its civil raw system from the Dutch. In addition
to written laws, other sources of Indonesian law are custom,
case law, treaty and doctrine. Indonesian law acknowledges the
rank or hierarchy of legal norms. According to Law rc/ zoo4 on
Legislation Making, the hierarchy, from the highest to the lowest,
is: Undang-undang Dasar ry4g fthe,,Constitution,); IJnd.ang_
undang (the "statutes" or "Laws", enacted by parriament and
Government) or peraturan pemerintah pengganti tJndang_
undang (the "Government Regulation in Lieu of Law"); peraturan
Pemerintah (the "Government Regulation"); perafuran presiden
(the "Presidential Regulation"); and peraturan Daerah(the ,,Local
Regulations").'e Lower level norms should not contradict higher level
nonns. The law also acknowledges legal norms made by other arms
of government, ministerial or public body as long as it is mandated
to do so by the law (although their positions in the hierarchy are still
in dispute).,o
Law Enforcement
8. Generally, criminal law is enforced by the police and the public
prosecution service. In addition to it, there are several government
18 Pr:esidential Decree 19/2010 concerning working croup on Institution o*,a"p*"",
REDD+. "i
19 Article 7 Law 1.0/ 2001
20 For example when ministerial regulation contraclicts with local regulation.
In practice,
normally the former will be recognizecl
as lligher law if it gets its irandate from the law
to regularte the disputed matter.
agencies and independent bodies that can investigate special crimes
- such as the Civil Servant Investigation Unit (PPNS) in the area of
forestry or Anti-Cormption Commission in the area of corruption.
9. Law bnforcement agencies, aside from some independent bodies,
are perceived as far from effective. Their integrity, commitment,
competency and professionalism - including enforcement of
environmental related crimes - are often questioned."
10. The Government has a significant role in supervising and enforcing
administrative law in relation to private sector activities on
environmental issues. However, due to the issues raised above,
notwithstanding many alleged legal violations, that power is seldom
used."
The "tirdicrarv
Structure and Jurisdiction
11. The judiciary is divided into four main jurisdictions: General Courts,
Religious Courts, Military Courts and Administrative Courts. The
law also allows the establishment of special courts/chambers under
each of the four jurisdictions. Mahkamah Agung (the "Supreme
Court") has the power to hear appeals from every jurisdiction and
to review the compliance of lower-level regulations with the higher
level regulations, including statutes - but not their compliance with
the constitution."s
12. In addition to these 'traditional courts', Indonesia has a newly
established Mahkamah Konstrtusl (the "Constitutional Court"). Its
main authority is to review the constitutionality of a statute passed
by the parliament and the government.24
21 Seefor instance, Satuatr Tugas Pemberantasan Mafia Hukum (Satgas PMI {), Morlrts
Opernndi, Aknr Mnsnlnh dnt Penmrggulnngamtva (Satgas PMH: Jakarta, 2009).
22 Mas Achmacl Santosa, Good Goz'ernmtce dnn Hukrmt Littgkurtgmr (]akartar: ICEL, 2001)
23 Article 24 A (1 ) 1945 Constitution
1^ lbid.
2L1
 Judicial lndependence, lmpartiality, Competence, Accountahitity and
Culturds
13. While judicial independence from the legislative and executive is no
longer a serious issue in 'traditional courts',6, judicial impartiality,
competence, accountability and culture still persist. Generally,
judges do not perceive case law as an important factor in deciding
similar cases, thereby making it difficult for parties to predict the
outcome of a case. While most judges are expected to interpret the
law in a narrow manner, it is not unusual for judges to interpret a
specific provision in a wide manner, often in a biased manner - e.g,
under the influence of corruption, lack of capacity, or, before the
reform era, due to government or e/ifes intervention.2T Moreover,
court decisions usually do not provide in depth legal ground/
argument. Similarly, discussions/reviews of the court's decisions
are rare.
L4. Many judges tend to decide based on the strict interpretation of the
letter of the law and only when the law is clear and explicit. As a
consequence, they refrain from entertaining legal arguments that
are based on the intent or spirit of the law or general provisions
in the law such as those that make reference to human rights -
not to mention international principles or case law from other
jurisdictions. Some judges take the position that general provisions
of the law that require implementing regulations do not produce
legal consequences until such regulations are passed.
15. At the same time, an established legal doctrine, case law or legal
expert witness argument is occasionally referred to by the judges
when interpreting some basic/common legal issues.
For this part, see generallv Satgas PMH, Modus Opcrnnrll, 2009; Sebastiaan Pompe,
Tlrc lndonasinn Suprame Court: o Study of Insfitutiorml Collnpse (2005); Adriaan Bedner,
Afunittistrntittc Courts Itt hrrlotrcsin: A socio-Legal slrrdy (Kluwer Law Intemational,
2001); David Nicholson, Enztironftmrtnl Disttute Resolutiorr irt Indonesin (Leiden: KITLV
Press, 2009), Rifqi S. Assegaf, 'Judicial lleform in tndorresia, 1,998-2006 in Naovki
Sakunroto and Hikrnan'anto Juwana (ed.), Rcfoning Latos mul Institutions in lttdttnesin:
mt Assessnent (Jakarta: FHUI, 200n, Rifqi S Assegaf and Josi Khatarina, KeterlnLknnn
i lnformosi di Pengndilan $akarta: LetP, 2006).
Before the so-called Reform Era judicial independence was fragile clue to governmcnt
i Sector', (2001), shows that 62% of Indonesian will avoicl taking their dispute to court at
inten'errtion, especially in big cases involving the government, the ellte.s or corporation
connected with the e/ilcs. After the Reform Era there were several reform initiatives
which significantlv rninimize direct intervention to the iudiciarl,.
See notes 25.
272 AI ANl PI-]N FJI,T] ii I"]I]KtIN4 DAN K€ADILAN
Litigation Culture
16. Indonesians are not litigious people."8 This is primarily due to the
state of the judiciary, as mentioned above, limited access to justice
and Jegal awareness, various cultural issues and, in some cases
(including environmental cases), imbalance of power between the
perpetrator and the victim. Public interest litigation is relatively
common. It is normally brought to court or is supported by non-
governmental organizations which unfortunately have limited
resources at their disposal.
LEGAL FRAMEWORK FOR CLIMATE CHANGE RELATED
ISSUES
Laws and regulations ,
17. Indonesia has no specific law on climate change. However, there is
a framework of laws that govern environmental issues. These laws
can be divided into three main categories differentiated by the scope
of their effect: General Environmental Law, Sectoral Environmental
Law, and Provincial and Local Environmental Legislation.
GeneraI Environmentat Law
18. General Environmental Law includes the Environmental
Management and Protection Act (EMPA) No. 3z year zoog and
Domestic Waste Management Act of r8/zoo8 and the Spatial
Planning Act No. 26year 2oo7.
19. EMPA explicitly acknowledges that CC is happening and stipulates
several references to it. For example, the state is obliged to have
a mitigation and adaptation plan as part of its Environmental
Protection and Management Plan (EPMP).'r 11t" has therefore
"PMPin the form of
to be developed at national, regional and local levels
a government regulation and a provincial/local regulation.go The
EMPA also regulates government's obligation to establish criteria
for environmental damage caused by climate change and regulate
The Asia Founclation, 'survev Report on Citizen' Perception of The Indonesian Justice
all cost.
29 Article 10 (4) EMPA
30 Article 10 (3) EMPA
 clearly that the breach of it by intention or negligence would result
in criminal prosecution.3l
20. The EMPA also introduces a Strategic Environmental study (sES),
which should be used as a guide in policy making - such as in
developing a spatial plan or in evaluating programs.e, The Strategic
Environmental Study is developed based on an analysis of the
carrying capacity of the environment, risks to the environment _
including risks caused by climate change and the capacity to adapt
to climate change, efficiency in the utilization of natural resources.
vulnerability and adaptability to climate change, resilience and the
prospect of biological diversity utilization.gs
2t. A new characteristic of EMPA is the introduction of an integrated
environmental license/permit. The EMPA states that an
environmental license should be acquired prior to the issuance
of the operational license for projects requiring an ElA.r+ The law
also stipulates that if an environmental license is revoked. than the
business license is automatically annulled.es
22. One of the aims of the Domestic Waste Management Act is to
put an end to the practice of open dumping that is very common
in Indonesia.g6 The law states that open dumping should be
discontinued by zor3.:z Unfortunately, until now no implementing
regulation has been passed even though the law states that it should
be completed by zoo9.
23. The spatial Planning Act is important as it strengthens environmental
capacity i.e. by defining the minimum amount of forest and open
space area in each province.
SectoraI EnvironmentaI Law
24. Sectoral Environmental Law consists of laws that regulate sectors
that have an impact on the environment, or in this case, on climate
change. These laws are: Industry Act of S|L9B4, Forestry Act of
3l Article 98 ancl 99 jo Article 21 (2) EMPA.
32 Article 19 (1) EMPA
33 Article 17 in accordance to 15 and Article 16 EMI)A
34 Article 40 (1) EMPA
35 Article 40 (2) EMPA
36 C)pen dumping releases rnethane to thc'atnrosphere.
l:
Article 44 DWMA
I
2L4
4L/Lggg, Oil and Gas Act of zzfzoor, Plantation law of t8f zoo4,
Enerry Act of go/zoo7, and Mining on Mineral and Coal law of
4 / zoo9, ElectricitY of 3o / zoo9.
25. The hidustry Act, enacted in 1984, only provides minimum and
normative environmental consideration but none are operational.a8
The Act does not provide adequate encouragement to cleaner
production, including emission reductions.
26. The Forestry Act of 4rllggg is very important in the Indonesian
context since most of Indonesia's emissions come from the forestry
sector. This law provides a framework for different functions of
forests, forest delineation, business activity in the forest area and
criminal sanction for illegal activities within the forest.ss However,
the law and its implementing regulation still have manyloopholes, for
instance the law still open a possibilityto change the use of protected
forests into other uses. Forest delineation is critical to ensuring legal
certainty in forest areas since, for example, all criminal sanctions
under the Forestry Act are only applicable to forest areas. At the
implementation level, forest delineation has only been completed
for around 11 percent of the whole forest area.+o Problems caused
by a weak legislation and numerous implementation problems
contribute to the current rate of deforestation of around r million
ha/vear.a'
27. Indonesian emissions from the agriculture sector (including
plantations) are low, while climate change impact on it is significant.
Unfortunately, the Agriculture Act does not provide a framework for
adaptation to climate change. However, the Act acknowledges the
impact of the agriculture sector on the environment, thus requiring
an EIA for agricultural businesses.+' It is important to note that
one of the highest pressures for forest conversion comes from the
agricultural sector, particularly palm oil plantations.+s The Act also
mentions the role of agriculture as carbon sink.aq Unfortunately,
there is no further explanation on the carbon sink role in the Act.
38 See Article 2, 3 and 9 for normative provisions.
39 See ICEUs research on Climate Fliendly Legal Framework on forestry sector
(forthcoming).
40 Marcus Colchester, Martua T Sirait and Boedhi Wiiarc{io, Tlrc Applicntion of FSC Principlts
Nwnber 2 md 3 in Indorrt'sin: Ol,stncles nnd Possibilitit,s (Jakarta, lValhi: 2003), 141.
47 Ministry of Forestrli Statistik Kehutanan Indonesia, 2008, 15.
+L Article 25 Law 18/2004.
43 Resosudarmo, et al, National Countrv Profile on REDD+ (Jakarta: CIFOR, forthcorning).
Article 4 Asriculture Act
CLIMATE CHANGE: L,AW. P0LICIES AND LIABILIIY lN INDONESIA 215
 28. The Enerry Act does not provide a strong framework for encouraging
the use of renewable enerry. Nonetheless, presidential Regulation
No. 5 of zoo6 gives clearer direction by stipulating that by the year
zoz5, the composition of renewable energy should be more than
t5%o lo ensure the fulfilment of national energy demand.+s At the
same time, the President released an instruction to enhance the
supply and use of bio fuel.q6 Currently there is a policy that obliges
the government to buy geo thermal enerry from producers.+z
29. The Mining of Mineral and Coal Act as well as Oil and Gas Act
basically do not address emission reductions from these sectors.
30. Majelis Permusyawaratan Rol<yaf (People's National Assembly) and
government have identified problems embedded in the natural
resources related legal framework.as Some of the problems are: natural
resources related legislation provides too much discretion in granting
concession permits and in taking decisions on forest areas, with few
checks and balances; the relevant legislations have many flaws and
loopholes which are often used to justi$r unsustainable practices;
and the legislation is not supportive of indigenous people and forest
dependant people. Therefore the strategy calls for the development
of a national climate friendly legal framework to supports effective
measures of mitigation and adaptation to address climate change. Five
main elements of climate friendlylegal frameworkare:ae (L). Legislation
should be based on environmental inventory, environmental protection
and management plan, and strategic environmental study - three of
environmental management instruments are provided in the EMpA.
(2). Legislation related to major drivers of GHGs should orientate to
reduce GHGs. [3). Legislation should give adequate protection of the
rights of the marginalized people particularly indigenous and forest
dependant people. (4J. Legislation should be able to contribute to
That comes from geo thermal, bio fuel, and other renewable energv, each for more than
tro/
46 Presidential Instruction 7 / 2006.
47 Based on Article 6 of Electricitv Act which is then further regulated by Ministry of
Energv Regularion2/2011. Press Release Ministrv of Energv and Mineral Resources
Monday 21 Februarv 2011 concenring socialization of the ie*, Minister Regulation in
www.esdm.go.id/ siaran-pers/ 55-siaran-pers/4173-sosialisasi-peraturan-menteri-esclm-
no-2-tahun-2011.htm1
Ketetapan Majelis Permusvawaratan Rakyat No. IX/MPR/2001, 9 November 2001. The
decree obligates the govemment ancl the parliament to ac{dress the issue in the natural
'l
resources related legisiations.
lr Mas Achmad santosa, Role of Gouarnance fu Addressing Clinnte Cltnnge, nnpublislrctl
i,
Pnper prapnred for L)emocrntic Gooernnnce Unit , UNDP-Indonesia (Decernber, 2010)
li
lr
2t6
the creation of strong deterrent effect. (5). Legislation related to
mitigation and adaptation should seriously consider civil and political
rights as well as economic, social and cultural rights particularly for
the rqarginalized people as guaranteed by Constitution.
CLIMATE CHANGE LITIGATION
Pubtic Law
Averview
There are four ways to bring a legal action related to climate change
31.
in the area of public law: (r) Constitutional review before the
Constitutional Court; (z) Judicial review (of legislation) before the
Supreme Court; (g) Challenge of administrative decision before the
Administrative Court; and (+) Administrative enforcement through
regulatory compliance.
Constitutional Review
32. The human rights provisions under the constitution, particularly the
right to healthy environment, can be used as grounds to challenge
statutes which are not supportive of GHG reductions before the
Constitutional Court. Article 28 H (1) reads "Every person shall
have the right to ...enjoy a good and healthy environment ...". Other
provisions, such as right to work (Article 28 D) and right to property
(Article 28 G) also can be used.s0 Furthermore, Article 33 provides
that economic development should be based on the sustainable
development principles.sl
33. While the interpretation of right to healthy environment was
never tested, in the Water Act Case the Court uses environmental
argument in its reasoning. Although the main legal issue in the case
relates to the question of who can utilize technology to modify the
weather by making artificial rain (private sector or state), the Court
also maintained that such activity can only be undertaken "after an
in-depth study and experiment, including by developing capacity
50 CC could also create loss of job (e.g. clue to long drought) as well as private Properw.
51 jinrly Assl-riddiqie, Green Constitutiou: Tltc Greert Nunrce in tlrc 1915 Corrstitution (Jakarta
Raiawali Press, 2009)
0l iI.IATt CHANGF: LAU/, p0tlCli:S AND LIABILITY lN iND0NESIA 2t7
 to prevent negative impacts on the environment and humans,,.s. p&sses. sz However it seems that the above decision is not followed
This decision bears witness to the progressive character of the bY other justices.ss
Constitutional Court,se and we can expect the public to use this
forum in similar cases on climate change related statutes.
Chalbnging Administrative Decisions
34. To bring a legal action before the Constitutional Court, one must ii ,.l
'i,]-i
prove the potential damage that he/she might be exposed to due to
the enactment of the statutesa In the Water Act Case the Court argued g7. Aside from the judicial review mechanism above, government
that practically everybody has the right to a healthy environment, liability related to the acts of government can be enforced in two
thus allowing a wide interpretation of legal standing in environmental other jurisdictions: Administrative Courts and General Courts.
related cases.ss The Administrative Courts only have jurisdiction to settle disputes
arising in the field of administration as a consequence of the issuance
.ludicial Review of Regulations
(or non-issuance) of an administrative decision. The law identifies
the elements of an "administrative decision" as:se
35. Generally, a legal action can be brought before the Supreme Court,
A written determination;
for instance, to review ministerial or local regulations on permits and -
planning, provided such regulations clearly violate the a statute (e.g. Issued by an administrative organ/official;
EMPA) or a government regulation. There will be wider grounds to
-
- containing an administrative act based on the law and regulation;
review ministerial or local regulation once Environmental protection
- That is concrete (i.e. not abstract or of a general nature) and
and Management Plan has been passeds6 and provides substantive
pertaining to an individual (i.e. concerning a person/legal
guidance on how to mitigate and adapt to climate change. As has
been discussed, the Environmental Protection and Management Person);
Plan should be legalized in the form of government regulation which That is final (can be applied without approbation from another
-
is superior in the hierarchy of legal norms. agency or offrcial); and

36. It is important to note that, according to the Supreme Court

- That creates legal consequences for a person/legal person.
Other claims related to the liability of unlawful governmental activities
Regulation No. r/zoo4, a judicial review application should be
fall under the jurisdiction of the General Courts.6o
submitted no later than r8o days after a regulation is passed (Art.
z tq}.This provision inevitably limits the right of a third party 38. With this limited jurisdiction, we can anticipate that only legal
whose interests may emerge after the time limit passes. In the llead actions concerning the issuance of a permit can be raised in climate
of Local Gouernment's Election, Appointment and Dismissal Case
a panel of Supreme Court justice allow judicial review application
from a third party even though it was submitted after the time limit

57 Thev argue, among others, that since such limitation is restr ictiug hunlan rights, it
52 Constitutional Court Decision 058-059-060-063/PUU-Ir/2004 stroitci Ue regulateil bv statute, not lo$'er level regul;1tions. See Supreme Court Decision
ancl 008/puu-ill/200s),
511. 41/P/HUM/2006.
53 Simon A. Butt, lttdicial RetiaL, irr lrrdonesin; hetwean Ciuil Law anrl Accttu.ntnhilitv?: A stutlrl 58 In lattcr decisions, the Supreme Court normallv reject judicial review application
i of Corrsfitrrtiottol Court l)ecision 2003 ^ 2005 (D Phil Thesis, Iv{elbourne Universitl', 2006}, submitted after the time limit passes.
j 177-240. 59 Article 1. point 3 La$, 5/l986.Some of the elemeuts are conlroversial in practice. See
i 54 Constitutional Court Decision 006/PUU-lIl /2005 Beclner, Adnrin ish.ntiite C-orrrls and P.M. FIadion, 'Judicial Review of Administrative
Action arrtl Government Liability in Indonesia' in Yr:ng Zhang (ed), conpnrolitte studies
55 constitutional Court Decision 058-059-060-063/PUU-Il/2001anct 008/puu-fi|/2005), in nntl Sauth F.nst Asin (Kluwer Law International,1999),
ttrt Colerwrrcrrtnt Linbititq East
479.
r1 8-120.
56 See discussion on this matter in the environmental frame work chapter. (dl See also the elucidation of Law 5/'l-c)86.

2t8 2L9
 change litigation.6'Nonetheless, this is a big issue
because research
shows that many permits for mining and agriculture corporations
in forest areas issued by government violate forestry and spatial
planning regulations -thus contributing to the onglirrg massive
destruction ofthe forest area.6"
Gri,ttnd or t.nal.!.enge and Timing
f
39. There are two grounds on which an administrative decision can be
challenged:6e
- The administrative decision is contrary to law and regulations;
- The administrative decision is contrary to goocl governance
practices (which are narrowly interpreted in the elucidation
of the law as: legal certainty, supremacy of law, transparency,
proportionality, professionalism and accountability).
40. To successfully challenge a permit, the plaintiff needs to establish an
explicit violation ofthe law or regulation caused by the issuance ofthat
permit, There is a risk to use good governance principle as the main
legal basis for the challenge due to the narrow interpretation ofthose
principles in the current law as compared to the principles already
established and practiced.6a
The law stipulates a time limit for individuals that become the
4r.
subject of the administrative decision to submit his/her application
61 Legally speaking, there sl-rould be a strong chance to use this legal action in CC
litigations, unless there is "extra judicial involvement" as in thiase of Titrsgettic
Cotton
cnsc where the court argued that Ministry of Agriculture ciecision
that authoiizrng
restricted pla.,'ing of transgenic cotton in seveial area to Monsanto is
permit thus it did not have to complete an EIA.
actually not a
62 satgas PMH (research forestrv sector in Central Kalimantan), 2011, unpublisired.
63 Article 53 (2) Law 9/2004.
64 Prior to the amendment of Law_S/19g6 sorne judges already applied good governance
principles -such as principles of prudence and juitification-of decisioX-
as gror.,.rs
to review administrative decision which was chalenged crespite there
is.o
explicit provision in the^Law 5/1986 alowing the use of those principles. In
the
ne*'amendme.t (Law 9/2004) sorne, but limited, good governance principles are
incorporated. The.ew law for instance, does not includJ the principles of prudence
and
iustification of decision. Thus there is a risk the judges ,.uy not uppiy tlut principles or
other principles that are not expricitry acknowlecrge in the new taw.
i see anna Erlvana,
'Administrative Court and Legal Reform since 199g in Intionesia,
i1 sakumoto a^cl
]uwana (eds.), ReJbrming Lnws, gl.Important to note that in the controversial Tralsg4ric
:
:,.
Cotto.n Cnse, the judges find that Ministerof Agriculture has
sufficient measure (e.g,
l public announcenent, expert review and laboiatorv test) before issuing
ti. tle iecision-
thus in line with the precautionary principles. lts failure to perform EIi
is not consirler
as the violation of that principles.
220 ALAN4 PUN BUIUH IIUKIJM DAN KEADILAI"I
(no later than go days after the decision received or published).65
There is no such provision forthe thirdparty affectedbythe decision.
Therefore, the third party can refer to the supreme court Guidance
which allows judges to decide the time limit on case by case basis -
which are normally in favour of the applicant.66
Leqal Standing
42. In order to have standing before the Administrative court, an
individual applicant must have had suffered loss as a result of the
contested decision (Article 53 hl). Environmental NGOs have been
granted legal standing in the law and case law.6z
Remedy
43. The main remedy in an Administrative court is the annulment of
administrative decisions and rehabilitation. Monetary compensation
is available, only as pro forma: up to around us$ 6oo. Nonetheless,
based on the Court's Specific Guidance No. zz3/Td'TIJN/X/t993
and the case "Lindawati u Bupati GianyQr", the plaintiff can seek
material compensation in a General Court as a follow up to his/her
victory in the Administrative Court.68
Ad m i ni st r ativ e E nf o rce m e nt th ro ugh Regu latory Co mpli a n ce
44. The Central and local governments are responsible for promoting
regulatory compliance following the issuance of permits. In doing
so, they have extensive powers, such as entering premises, taking
samples, checking equipments, etc.6e They can also sanction to
corporations that violate regulations by, inter alia, issuing warnings
or revoking permits.zo However, as mentioned earlier, those powers
are seldom used by the responsible officers despite many alleged
legal violations by the corporations.
65 Article 55 Law 5/1986.
Basically accorcling to Supreme Court Circular Letter 2/1999 and enforced in,
i.e,
66
Supreme Court De-cision 41K/TUN/1994- the application should be lodged no-later
than 90 day after the third partv aware of the existence of the contested decision.
See
Beclnec Adm i nistr a tioe Cour t, 775.
Article 92 Law 32/2009.See also Mas Achmad santosa and sulaiman N Sembiring,
hulorayon utnmn
Hnk Gtrgat organisnsi Lingkungnn (Jakarta: ICEL,1997)^andwnlhi z, htti
(South jakarti District Court Decision 520 / P'Jt. / G / 1988/PM Jkt'Pst)'
Bedner, Arh niistrnttue Cou r ts, 17 4 -
68
69 Article 74 (1) Law 32/2009.
70 Article 76 (2) Law 32/200q.
221
r
ill
Private Law 49. Article 1365 is wider than Article 87 since the action that can be
l: challenged under that article is not limited to those who cause
t:
I
Unlawf ul Acti o n : I ntrodu cti o n environmental pollution or damage as in Article 87. Furthermore,
the s-ubject of the law in Article 1365 is everybody (including the
45. Civil proceedings deal with, among others, any unlawful government)tt while in Article 87 the subject is limited to the party
action Qterbuatan melauan hukum) by person, legal person
responsible for the enterprise and/or activity. Thus, to challenge the
and government - excluding those instances that iall within
government's unlawfrrl action, we can only use Article 1365 as our
the jurisdiction of Administrative courts as discussed earlier.
legal basis.
consequently, it is civil proceedings that are likely to be brought in
relation to climate change issues.
Fault
+6. There are two grounds for legal actions in relation to unlawful
50. In general, fault includes subjective and objective elements.
activities in a climate change context. These can be found in Article
Subjectively, a person must have understood the meaning and the
1365 of the Civil Code and Article 87 of the EMPA.
nature of the action and must have acted with deliberate intention
Article 1365 states that: or negligence in carrying out the unlawful action. Objectively, the
measure is whether a reasonable person in the same circumstances
Euery unlawfuI action which couses ross fo another person, obriges would have foreseen the potential damage and would have acted
the person by whosefault the /oss hcs resulted, to compensate that differently.z+ Both of these elements must be fulfilled to establish
/oss fault. Although elements of fault are not explicitly listed in Article
87, in practice plaintiffs must be able to prove the existence of both
Article 87 reads:
these elements.Ts
Euery portA responsible for the enterprise and/or actiuifu
51. Under the previous law, strict liability applied for actions that use
committing unlauful action in the form of pollution and/or
hazardous materials, produce hazardous waste or which "create
enuironmental damage causing /oss to another person or the
significant impact to the environment" which implicitly applied to
enuironment shall be obriged to pay compensation and/or carry
any activity that required an EIA.z6 However, in the new EMPA the
out certain actions.
language has been changed to provide for strict liability for actions
47. Elements of an unlawful action that must be established, as well as that cause a "serious threat to the environment"zz It remains to be
other important related aspects, are elaborated below.z' seen how the courts will interpret this provision.

Unlawful Action Damage or Loss

+8. The term "unlawful" is usually defined widely, to include actions 52. Article 1365 only recognised damage or loss to a person, including
that contravene:7, both material and immaterial loss. Examples of the latter include

another's subjective right (e.g. freedom, reputation or property); 73 Wiriono Prodlodikoro, Perbuntnn Melnnggor Hukrrrrl (Bandung: Sumur Bandung,7976),
84.
lawful obligations of persons; 74 Moegni Djojodirdio, Perbuatan Melnztan Hukum (lakarta: Pradnya Paramita, 1982),66.
public decency; 75 Nicholson, Environmental Dispute,74.
principles of propriety/appropriateness, prudence and 76 Article 35 Law 23/1.997. Under Law 23/1997 every activity which "create significant
impact to he environment" should have ElA. Koesnacli Hardiasoemantri and Suparto
reasonable care. Wiicrvo in Nicholson, Erruironnrcntal Dispute ,83. However, court does not show progress
71 irr ihe applicatlon of this concept. Nichtrlson,82 - 85 based onLagunn Mntdiri cnse nnd
Rosa Agustina, Perhuntm Mernutnn Hukunr (Jakarta: pr.gram pasca sarjana o" ui, ,uorl
36.
PT Wnllti -o PT Pnkerin.

72 Setiawan, 'E,tu,at Kiterin perhustnn Mclnurnn Hukrtn yurispr.urlerrsi", 77 Article 88 Law 32 / 2009.
vnrin pcrntrirnrt
Nmnher 16 Tnlun 1I (Januari 1987\,71,6.

1
lr 222 AL.AM PUN BUTUH HUKUN4 DAN KEADILAN 223
t
I
 damage to one's health, enjoyment of life or feeling of security.
Article 87 also acknowledges damage or loss to the environment.
Causality
53. The causality element is one of the most important aspects of this
law, as the action in question has to be the most proximate and
actual cause of the claimed loss.z8
Remedies
54. There are several remedies available in civil litigation, including
provision of compensation and an order to perform a certain action.
The EMPA provides several examples of "certain actions',, which
includes: installing or improving waste management units, restoring
environmental functions or eliminating causes of environmental
pollution and/or damage.ze
55. There do not appear to be any cases where a court has granted a
remedy in the form of an order for the government to initiate a policy
to minimise future.8' Nonetheless, there are cases where the court
has ordered companies to repair the environmental damage and take
actions necessary to prevent or reduce future negative impact.81
Burden of Proof
56. The plaintiff bears the burden of proof in respect to Article 1365
and Article 87 although, at least in the law, judges have discretion
to extend the burden of proof to the defendant under certain
conditions.s"
78 Djojodirdjo, Perbuntan Melawan Hukwn ,35
79 Elucidation of Article 87 Law 32/2009.
80 rn Nunukan Case the court found that the govemment not conducting
unlawful activity
in protecting migrant worker while acknowledging that tl're protectiJn for migrant
worker is not yet ideal and therefore order the govemment to among all
"^u.In"."rrury
law, ratify relevant convention, conducting conirete action to reforri-management
of
migrant worker (south Jakarta Dishict Court Decision 2B/PDT
/c/2003/pN.JKT.r,Sr).
This decision is rejected bv the High Court (480/pDT /2005/pT.DKl|
81 wnhli tt PT Lreeltort lndonesin (south Jakarta District Court Decision 3gg/?D"I'.G/2000/
PN.Jaksel) and, Mnndnlarunngi Lntdslide cnsc (supreme Court Decision 77g4K/pdt/20;D4)
whereby court order defendants In class action io do the recovery of the lan|lslide areas
through forest and land rehabilitation prop;rams.
i 82 Article 163 HIR and Article 1865 Civil Code. Nonetheless the judges u.ray share the
burden of prove to the defendant under certain conditions. However, thls is seldom
il y_sg{by judges. see Yahva Harahap, Hukum Acara pertlnta (Jakarta: sinar crafika, 2006).
ii 518-34.
224
Who May Claim and Who Can be a Detendant?
57. Anyone who can prove that he/she suffered damage/loss can claim
compensation, especially for material loss. Environmental NGO's
can bring claims for certain action in the context of environmental
preservation. Principally, anyone 'responsible' for the damage/
loss can be sued. Normally, the court will interpret "responsible"
narrowly, targeting the main actors.
Standi ng and Re prese ntatio ns
58. Standing to bring civil proceedings in General Courts is similar
to standing in Administrative Courts. NGO's are also given legal
standing.er The main difference is the recognition of a class action
procedure.s+ Supreme Court Regulation No.z/zooz provides
clear guidance on how to administer a class action, in response to
controversy in past practice.ss Citizen's lawsuits are also beginning
to be recognized.s6
Prospective Cases; Government Liability
Averview
59. To date there is no single cases brought to the court using the
climate change arguments. Thus, in this part we will try to elaborate
potential climate change litigation with the understanding of the
Indonesian private law discussed above.
6o. Apart from cases where strict liability applies, elements of fault
and causation in environmental disputes generally are difficult
for plaintiffs to prove. Loss resulting from pollution, for instance,
involves a complex chain of causality. In many cases, pollution may
83 According to Law 32/2009, there are three requirements for a NGO to have standing
before the court: (a) it should be in a form of legal person; (b) its statuie clearlv states
that it is established to preserve/proiect the environment; (c) It has been actively
involved in environmental presen'ation/protection no less than two years.
84 Article 91 Law 32/2009.
85 fndro Sugianto, Clnss Action; Menrhuka Akses Keadilmt Bngi Mnsynrnknl (Malang: Intranss
Press, 2005), lI9 -"121'
In J. Sandyawan Sumardi, eI u Gouennnent of Indonesin Cnse for instance, the District Court
accept for the first time application using c'itizen lawsuit procedure. Nonetheless there
were critics on the decision since it did not provide clear qualification to bring citizen
law suit (see District Court Decision 28/PDT.G/2003/PN.Jkt.Pusat)' As discussecl
earlier, there is a tendency that many iudges are not to entertain new concept when
there is no guiclance from the Suprenre Court. Thus it is safer to saV that since there is
still no guiclance frorn the Supreme Court concerning this matter, there will be cases
where citizen lawsuit will be reiected by the court.
225
 originate from multiple sources, thus making it difficult to prove
that a particular action by the defendant caused the loss in question
although join responsibility is acknowledge in several cases.sT Even
more difficult problems may be faced in climate change related
litigation, especially direct climate change litigation in Indonesia.
First, Indonesia is not the main contributor to GHG. Second,
defendants can argue (and this will most likely be in line with the
court's interpretation) that it is the nature (weather/climate or
something else) that caused the loss, not them.
6r. It seems more likely that indirect rather than direct challenges on
climate change issues will succeed. Nevertheless, it may be possible
to directly challenge the government's unlawful actions related to
climate change since the government has several obligations under
the law.
62. Article 1365 stipulates that there are at least three occasions where
government liability in the context of climate change is enforceable,
that is if the government: (a) fails to conduct its specific obligation
under environmental law legal framework related with climate
change; (b) fails to take necessary action under human rights or
other relevant laws to prevent climate change impact; or (c) acts
in contravention to its plan, policy or obligation. Foilowing are the
examples of these three scenarios.
63. As discussed, environmental law and regulations impose several
obligations on the government in relation to mitigation and
adaptation. Among others, these obligations include the obligation
to develop Environmental protection and Management plan and
Strategic Environmental study, criteria for environmental damage
caused by climate change, complete the delineation of forest area
and spatial plan, and prohibit open dumping. Some, if not all, of
these obligations can be the subject of chailenges before the court
under unlawful action litigation.
6+. As an example, the government has acknowledged that some parts
of Jakarta will be impacted by the climate change.'. Thus, the
government should develop adaptation plans. If such plans are
absent and people in that area suffer losses attributable to climate
See for instancewollti v. Pt Pakerirr et n! Cnse (District Court Decision g/pdt.G/r99g/
t.
PN.Plg).
ICCSR,59 and 2,,,r National Communication, 12.
I
ii
Ir 226
Ii
Ti
EI
change, they could argue that the government should be held
hablJfor the failure to comply with its stipulated obligation. This
challenge, however, may be diffrcult to sustain as it would be difficult
to e-stablish the causal link between the absence of an adaptation
plan and the loss suffered.,In addition, scientific expert opinion is
also required to prove cause and effect.
65. The government's obligation to put an end to open dumping which
can minimize the release of GHG to the air as well as prevent smell
and other negative consequences, is on a different plane. When the
government does not comply with its stipulated obligation to put
an end to open dumping practices and there is a loss' e.g. there is
landslide that causes loss to property or life, the causal link is clearer
- improving the plaintiffs chances in court.
Failure to lmplement an 1btigation under Human Rights or other Relevant
Laws
66. Human rights provisions, such as the right to life, property or the
right to environment or right to health as stipulated in the Health
Actss can be used as a basis to challenge the government's failure to
properly adapt to climate change in relation to minimizing climate
change impacts on health. Due to the change of climate, for example,
there is a higher risk that the public will suffer from dengue fever.
consequently, when the government fails to initiate the necessary
policy and take the relevant actions to minimize the risk and loss
occurs, grounds may be available to take legal action' In Gun
Subasri, eI v Gouernment of Indonesia cq Gouernor of Jakarta lhe
court assessed the adequacy oflocal government's system to prevent
and respond to (regular) floods in Jakarta and found that the Mayor
was indeed engaging in an unlawful action in failing to implement
the system in place.eo
67. Indigenous people can also submit a claim that their right over land
in the forest areae'has not been respected by a REDD or a forest
conservation project.e, Nonetheless, this particular issue is related
to other causes - such as the unfinished task of delineating forest
89 Article 4 Law 39/2009.
90 UnfortunatelV the Mayor was not the parf,v in the case, thus the court reiect the clairns
due to errcx in person reasons.
h'rciigenous people rigl'rts are acknowledged in some laws, including Human Rights
Law and Land Law.
sce for example disputes ovel forest area betweeu PT REKI ancl Indigenous People
of Anak Dalam Tribe in jambi Tempoltrteraktif, "Bere'but Hutan Jambi" wr+'w'
tempointeraktif.com/ hg/ nusa _.lainnya/201'1/03 /07 /brk,20110307-31B193,id.html.
227
tr areas, and conflicts between the laws of forestry and land law (both
I topics would require specific attention that is teyond the scope of
I
this PaPer).ra
i
68. The most readily available legal ground to raise claims is in relation
to a government failure to inform the pubric on the impact of climate
change. The Public Access to Information Law clearly states that a
public body, including the government,eashould publish information
which may cause public harm, including natural or man-made
disaster.ss As mentioned above, government is already in possession
of data related to areas in Jakarta that win be impacted by climate
change. Thus, if the government does not provide this information to
those who live or have property that wil most likely will be damaged
or destroyed due to the raise ofsea level, than such entities should
have standing to claim compensation from the government when the
actual damage/loss takes place. Although the right to information
under Public Access to lnformation Law has never been tested. in
Dauid Tobing u Minister of Health, the Supreme court confirmed
that the government's failure to publish information concerning
the existence of harmful bacteria in baby milk is an unlawful action
as it demonstrates carelessness on the part of the government in
conducting its public service duty.eo
Failure to by the Government to lmplement lts plan/policy or Action contrary
to the Government's ptan/policy or ab\gation
69. As discussed, the government has policies related to climate
change, such as measures to increase the use of renewable ener$/
or to put an end to open dumping practices at certain times. while
the government's failure to achieve its plan/target is difficult to
challenge,sz a member o the public can challenge the government's
level of effort in implementing its duties. The likelihood or success
see among all Myma safitri,'Forest Tenure: Thesis on socio-Legar Chalenges of
Securing Communities Rights' (D phil Thesis, Leiden Universit-i:, ZOf f;.
"Privatebody" which fall under the obligation are only state own
companv (which is
financially supported, entirely or in part, by state budget), political purty
*j .,ur,_
governmental organization that get financial support from the state, pullic donatron
or an intemational grant. Thus, private corporation is not subject to tire law (Article
number 3 Law 1412008).
1
Article 10 Law 14/2008 and Art 12 [2] point a antl b Information Commission
Iiegulation 1/2010.
96 Supreme Court Decision 297 5 K / p dt / 2009.
97 Indroharto, Perbuaton Penerintnh Merrumt Hl*um publik tlan
Huktun perdata(Jakarta:
LPP-HAN, 1995),87_93.
228
is low, especially due to the difficulty in linking such failure to the
loss that might occur. Nevertheless, such an action can be used as
a means to pressure the government to take climate change more
seriously.
70. Government action that contravenes its own plan/policy is a
different story. In West Sumatera for instance, the government
developed infrastructure (roads) despite the fact that, based on
research, the area is likelyto be impactedbyclimate change (increase
of sea level).ee When such infrastructure is damaged (and in this
case, it was), a member of the public can raise a claim against the
government for wasting public funds.gs If there is damage to private
property in such an area, the property owner can challenge before an
Administrative Court the government's act in permitting houses or
businesses to be built in this area.
Prospective Bases; Business Liability
71. their indirect activities that
Businesses may also be held liable for
contribute to climate change. For example, if they breach a logging
license (e.g. logging outside the designated area) or start fires and
burn land for the purpose ofland clearing. In such cases, there is no
need to prove its relation to climate change as the breach itself is an
unlawful action. Thus if such actions result in damage to a person or
to the environment (as in Wclhf u PT Pakerinet ol'oo),the concerned
businesses can be held liable.
.fo business can be challenged for conducting
Another possibility is that a
an activity without a proper license. This type of lawsuit would be
easier to bring for an environmental NGO since it only needs to
prove that such unlawful activity is damaging the environment'
CriminaI Law
7g, There are several provisions of criminal law that can be used in
the context of climate change. Under the EMPA a person which
activity surpass the standard criteria for environmental damage,
98 www.klhsindonesia.org/file_share/ESP23-SEA-Padang.pdf plan to_develoP water
See
front city, 34-35.http:/ /jurnal.pdii'lipi'go.idladmin/jurnal/61087222'pdf (riset ttg
kondisi geogafis Pantai Padang);
99 JawaPos Nasional Nehvork, "Abrasi Pantai Meluas;86 Bangunan Hanyut", <ww.jpnn.
corn/read/20!0/'11'/05 /76320/Abrasi-Pantai-Meluas,-86-Bangunan-Hanvut>'
100 The case is about corporation which btrming land for land leaming which contributed
to significant forest fire.
 burning lands (for land clearing) or conducting activity without
environmental license can be prosecuted. The EMpA also recognizes
corporate criminal liability including corporate directors' liability.
The EMPA, Forestry, spatial planning and Access to Information
Act also envisage sanctions for: (r) officials granting operational
license without prior approval and an environmental license; (z)
officials granting environmental ]icense without an Environmental
Impact statement; (g) officials intentionally not performing their
superuisory work which results in environmental damage; (4)
Person cutting and transporting logs without a proper license; (5).
officials granting permits that are not in accordance to spatial plans;
and any Public body not providing information which may cause
public harm.
74. While the law is relatively adequate in terms of providing legal
protection in the climate change context, law enforcement, as
discussed earlier, remains an issue. Furthermore, most of people
who have been convicted in relation to crimes under the Forestry
Act ( for instance, for cutting and transporting logs without a proper
license) are field actors (physical perpetrators) not intellectual
actors (fu nctional perpetrators).
Practicatities
0rders and Enforcement
7s. courts can issue protective orders, such as freezing orders. They can
also issue orders to inspect the disputed object to get information to
decide the case.
26. General court decisions are mostly enforceabre, for instance by
seizing the defendant's assets, although problems have occurred
in such instances.'o' Administrative court decision used to be
difficult to enforce, unless the losing parry (the government) was
willing to enforce it voluntarily. The new law seeks to resolve this
issue by stipulating that 6o days after a court has declared that the
I
) administrative decision challenged is unlawful, it is automatically
1
null and void and the court can, inter alia, order the government to
pay a coercive sum (dtaangsom).,o'
101 Yahya Hgrlhap, Ruang Litrgkrry pernmsnlolnn
Eksekusi Bidmrg perrlnta (Jakarta: sir.rar
Grafika, 2005), 389-438.
102 Article 116 Law 51./ 2009.
230
.fn Foreign court decisions do not have any legal effect. Only foreign
arbitration awards concerning commercial matters can be legally
enforced (by submitting a request to the court). 'o:
Litigation Costs
78. Plaintiffs are required to pay a certain amount of estimated court fees
(for administration of the case) to initiate civil and administrative
litigation. However, the court will order the losing party to pay the
fees at the end of the process.'or This does not include legal fees and
costs ofgathering evidence, such as laboratory test or expert witness
fees -both of which are more substantial. Penurious plaintiffs are
entitled to have court fees waived and to free legal assistance.'os
There are no fees levied to lodge a claim before the constitutional
court.
Access to Information
79. A party can request the judge to order the other party to provide
information as long as he/she can convince the court of the
importance of that information to the litigation.
Bo. According to the EMPA, EIA contents, Government reports and
evaluation of environmental observation/monitoring concerning
the compliance and quality change in environmental condition and
spatial plans are all considered as public information. However,
there was no ground for a member of the public to access documents
submitted by corporations to the government, besides EIA related
documents. With the new Freedom of Information Act (see below)
such documents do not form part of the information that can be
exempted from public access, and therefore should be accessible.
8r. After the Law number t4fzoo9 regarding Public Access to
Information came into force in zoro there are stronger legal
guarantees to access to information from a public body (either
state or private). Public body decisions, policies (and supporting
(1\Law 30/1999. C)ther conclitions are: reciprocity principles and not against
103 Article 67
public policv. There aro notorious cases w4rere court refuse to recognize ancl enforce or
even annuls intemational awarcls r,r,ithout reasonable arguments occur, although that is
not the majority position of court. S R Luttrell, 'Lex Arbitri Indonesio -The Law, Practice
and Place'of Conrrnercial Arbitration in Inclonesia Tcrdal" 1v117*'.t.luttrell com/articles/
Lex*Arbih'i-lndcxesia-(lnt-A-L-R-% 20Dec-2007).pdf .
104 Article 181 (1) Civil Procedural Lrrw.
.144
105 Article C l_aw, 5'l / 2009 ancl Article 68 L.aw 49 / 2009. See also supreme court
Circular 10/2010.
237
 documents), project planning as well as correspondences of its 86.
head/officers are ail available for public information. There is arso
an obligation for a public body to publish information which mav
cause public harm.
CONCLUSION, TRENDS AND DEVELOPMENT
Bz. To date there is no strong climate change legal framework
yet in Indonesia, despite some improvement, particularly in
Environmental Management and protection Act. It is worsened with
the weak law enforcement. Generaily law enforcement agencies and
the judiciary are perceived as far from effective and their integrity,
commitment and professionalism are often questioned. Nonetheless,
82.
the government stance on climate change is positive and there are
some positive developments in the government policies and law
enforcement areas.
83. The commitment by president Susilo Bambang yudhoyono to reduce
GHGs of 260/o with self financing and to increase up to 4L
% with
international support by 2020 has attracted national stakeholders -
government and non government - and the international community
to develop ways to implement climate change mitigation in Indonesia
particularly reducing deforestation and forest degradation as a major
88.
source of GHGs. It is expected the new commitment by the president
foko Widodo even stronger than his predecessor.
B+. The Letter of Intent between the Government of Indonesia and
Royal Norwegian Embassy has induced Indonesia to take concrete
steps to resolve long standing problems on reforestation and forest
degradation through REDD+ including instituting a moratorium
policy to suspend new licenses in primary and secondary forests
and
peat land, and to accelerate and improve enforcement practices
so
as to produce strong deterrent effects.
Bs. Dissolution of the newly-established National REDD+ Agency
which is supposed to be the spearheader of nationar climate
change mitigation and the dissolution of The National council of
climate change in the beginning zor5 have been considered as
kind of weakening country's commitment to reduce GHGs. The new
institutional arrangement under president Joko widodo should
prove that the dissolution of the two above institutions does
not
affect the country's commitment and effort to mitigate and adapt
climate change. 106 Stnqhrg Orr Trnck: Tncklirtg Corruption Risks in Climnta Clnnge, UNDR 2010
232 ALAf'li''' i ,fr I
The strengthening of enforcement practices in the area of
natural resources has begun through the establishment of a joint
enforcement team initiated by the Ministry of Forestry consisting
of the Ministry of Forestry, Ministry of Environment, police,
public prosecutors, commission eradication commission, financial
intelligence unit and Presidential Task force to eradicate the judicial
corruption Since its establishment coordination among agencies
has been improved and more forest related crimes are brought to
justice. The Joint enforcement Team could be viewed as a positive
step to develop synergized efforts in promoting strong and effective
environmental enforcement instead of a sectoral approach in an
uncoordinated fashion.
The Supreme Court and the Ministry of Environment in
cooperation with the Indonesian Centre for Environmental Law and
the Asian Environmental Compliance and Enforcement Network
has developed the practice of environmental certified judges (ECJ)
which authorizes only certified judges to handle environmental and
natural resources related cases. To be certifiedjudges require special
training and continuous evaluation. With this, judges' knowledge/
expertise in handling natural resources related cases, including
climate change, should be improved'
The current involvement of the Corruption Eradication Commission
in working with the Ministry of Forests in preventing potential
corruption in the forestry area could also be seen as concrete step
to promote sound and good governance in Indonesia forestry's
management. This initial involvement can be an important start for
further work to address a potential risk of corruption in mitigation
and adaptation of climate change. As reiteratedbytlNDP, corruption
will potentially affect the REDD+ readiness, implementation, and
distribution phases'o6.
233
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"Kaltim Bentuk Dewan
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php?page = detailberita&id =423 1

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