Category Archives: environmental

Water for sale (Indonesia)

(Jakarta Post)

Back in 2005, the Indonesian Constitutional Court ruled that Jakarta’s water privatization scheme did not violate Article 33 of the Constitution, which mandates that “land and water and natural resources… shall be controlled and shall be used for the greatest prosperity for the people” (see decision here; for more about water rights in Indonesia and the case, see this law review article).

However, some NGOs remain dissatisfied with the situation. Recently, the Coalition of Jakarta Residents Opposing Water Privatization (KMMSAJ) filed a lawsuit against city water operator PAM Jaya and its partners. According to The Jakarta Post, activists complain that the company charges excessive rates that price the poor out.

One interesting aspect to the case is that Jakarta Governor Joko “Jokowi” Widodo has already announced that he hopes to buy French company Suez Environment’s 51% share in one of the partners, Palyja. It will be interesting to see if his intention influences the court and the interaction between his administration and the litigants.

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Who rules the forests? (Indonesia)

New owners?

The Alliance of Indigenous Peoples of the Archipelago (AMAN) filed a petition for constitutional review back in March asking the Mahkamah Konstitusi to remove state ownership from customary forests. According to Art. 1f of the 1999 Law on Forestry, “customary forests are state forests located in the areas of custom-based communities” (emphasis added). The justices agreed with AMAN. According to Justice Alim, “Members of customary societies have the right to clear forests belonging to them and use the land to fulfill their personal and family needs. The rights of indigenous communities will not be eradicated, as long as they’re protected under Article 18b of the Constitution.”

What’s perhaps more surprising is that the government seems fine with having lost the case. According to The Jakarta Globe, Ministry of Forestry spokesperson Sumarto claimed, “The Ministry of Forestry considers indigenous peoples living in a certain area as being part of the forest itself. They cannot be separated.” Of course, this could just be PR spin. After all, why would the central government want to cede control over forest resources? However, there also seems to be an implicit subtext in his comments, namely that the government might be glad to be rid of some of the burden in managing the forests.

One broader question is why the MK has found itself handling so many forestry cases in the first place. According to the MK website, the justices have heard 10 cases dealing with forestry law. To some extent, this is not surprising given the importance of forest resources in Indonesia, which has the largest remaining forest reserves in Southeast Asia (and possibly East Asia as a whole). However, it also seems to stem from the legacy of the New Order era and the lack of clarity in ownership over natural resources (or, put another way, the clarity that the government might seize resources and distribute them to clients). 
Another possibility (one I am investigating through my dissertation) is that forestry law appears so frequently in the court’s docket because the plaintiffs – often indigenous peoples with limited resources – cannot fight their battles in the legislature but can appeal to the court. This would suggest that the MK acts as something of an equalizing force in Indonesian politics, giving disadvantaged groups a greater say in policymaking. 

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A new issue for Myanmar’s Supreme Court – the environment

I’ve often mentioned Myanmar’s Supreme Court on this blog in the context of judicial independence and political opposition. Recently, several Burmese environmentalists and politicians brought a petition before the Court asking it to halt the Myitsone Dam in Kachin State. It seems the plaintiffs are asking the Court to order the government to release more information about the proposed impacts of the dam (writ of quo warrant) and to halt construction of the dam until a cost-benefit analysis is conducted (writ of prohibition). According to Mizzima, independent MP Win Cho said, “If MPs cannot get real information about the Myitsone Dam construction and the possibility of the extinction of Irrawaddy River before the parliament ends, we will file suit.” 
I don’t recall any other cases in the Burmese Supreme Court quite like this one. However, it does coincide with National League for Democracy leader Aung San Suu Kyi’s recent emphasis on environmental issues. Indeed, Joshua Kurlantzick, a fellow at the Council on Foreign Relations, recently proposed that environmental issues would be a safer issue for Burma’s political opposition. However, I don’t yet have any idea how the Supreme Court treats environmental issues or whether this petition will have more success. While environmental issues might not be as controversial as political prisoners, the political elite will likely not permit challenges to flagship infrastructure projects to be litigated in court.

UPDATE: It seems the government is split on the Myitsone Dam issue as well, with Thein Sein opposing it. Irrawaddy has an article highlighting some of the interesting – albeit heresy – debate.

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Suo Moto Tango in Pakistan

While I was in Asia, one of my articles was posted on Tom Ginsburg’s Comparative Constitutions Blog. The article, “Suo Moto Tango,” discusses the Pakistani Supreme Court’s use of suo moto jurisdiction to remedy environmental problems. It is part of a somewhat longer article I am writing for a book on environmental law (hopefully due out this fall). Enjoy!

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Newmont – and one of my old law review articles – vindicated

A couple of years ago, I wrote an article in the Georgetown International Environmental Law Review about the Indonesian government’s prosecution of Newmont Mining Corporation for pollution in Buyat Bay. In the article (which you can download here), I discussed the court’s use of scientific evidence and conclude that the judges got it right in acquitting the company. The judges detailed the scientific evidence, presented evidence from both sides, and accepted the evidence that had the most credibility (and the prosecution’s evidence suffered severe credibility problems). However, my background in environmental sciences is minimal, so I had to trust the scientific conclusions of others.

Fortunately, a new report by Indonesian and Australian scientists has reaffirmed the court’s verdict. According to Asia Sentinel, the authors concluded that arsenic and mercury standards in the bay did not exceed Indonesian or international standards. Moreover, they state:

“We also compared fish captured within 10 kilometers of the area with those captured in other coastal areas, and their heavy metal contents were also very low,” Amin Soebandrio, a scientist from the University of Indonesia, told reporters.

However, not all environmentalists are buying the reports conclusions:

“We proposed for them to check on the impact on fish by breeding them on site. We also asked them to examine cells on the algae, but not one of our considerations was included,” said Rignolda Djamaluddin, director of Manado-based Kelola Foundation, who has participated in the Buyat research since the beginning. “They also did not include the impact on the ground, whether the pollution had reached people’s wells to cause so many diseases.”

The report’s authors responded that, if the oceans did not have increased levels of pollutants, then wells would certainly not, given that they’re generally far inland. 

The central problem is that neither side has much faith in the Indonesian court system. Environmentalists view them as subject to corruption and capture. Denise Leith wrote a fascinating book about another mining company, Freeport, and its misdeeds in Indonesia. For Newmont, the judiciary’s horrible reputation reduces the value of any court verdict – which is one reason why yet another scientific report was needed to confirm the court’s acquittal of Newmont. The optimist in me hopes this dynamic will produce a coalition in favor of judicial reform – one in which defendants and plaintiffs both realize that a clean judicial verdict comes with authority and is worth more than one obtained through corruption. Alas, I don’t think domestic companies will face the same pressures and public relations nightmare as Newmont – especially because they, unlike Newmont, face lower risks in engaging in corruption (such as the U.S. Foreign Corrupt Practices Act) and are more familiar with the local context (such as knowing which judges owe which companies favors).

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