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Opinion

17 Déc 2020

Auteur:
Ade Wahyudin, Executive Director of Legal Aid Institute for the Press

New Omnibus Law threatens effective participation in environmental decision-making

Afandi Ahmad Syaikhu PIXABAY

Miners Ijen Indonesia

The passage of Omnibus Bill on Job Creation on 5 October 2020 has spurred a big wave of protests in various regions in Indonesia, including nationwide public protests and workers’ strikes in various sectors such as garments, mining, electronics, tourisms and other sectors. The rejection of various elements of society was borne out of numerous concerns, including lack of public participation and transparency during the deliberation of the bill as well as the very real threats to workers’ rights and environmental protection now it is enacted.

A heavy police response aimed at silencing protesters has been reported, ranging from imposing restrictions on peaceful protests, blocking access to protests’ meeting points, to arresting and torturing those who participated in the protests. Civil society groups have documented these repressive and violent actions by the police, including against students, throughout the course of the protests, which took place from 6 October to 22 October 2020.

Between 6 and 8 October 2020, the National Police stated they have arrested 5,918 people and more than 200 people had their status upgraded to the criminal investigation stage and been regarded as suspects while thousands were released.

The Omnibus Law does not only strip away the safeguards for labour rights, but also contributes to the continued repression on the rights to freedoms of expression and information. Specifically, the Law limits public participation in environmental decision-making processes, which was previously guaranteed by Law No. 32 Year 2009 on Environmental Protection and Management.

Comparison

Law No. 32 Year 2009 on Environmental Protection and Management

Article 26

(1) The AMDAL as referred to in Article 22 shall be formulated by the initiator by involving communities.

(2) The involvement of communities shall be based on principle of provision of information transparently and completely as well as shall be notified prior to the execution of the activity.

(3) The communities as referred to in paragraph (1) shall include:

(4) The communities as referred to in paragraph (1) may raise objection to the AMDAL document.

Law No. 11 Year 2020 on Job Creation (Omnibus Law)

Article 22 on the amendments to Article 26 of Law No. 32 Year 2009

(1) The AMDAL as referred to in Article 22 shall be formulated by the initiator by involving communities.

(2) The formulation of the AMDAL document is carried out by involving communities who are directly affected by the business plans and/or activities.

While retaining the environmental impact assessment (Analisis mengenai Dampak Lingkungan/ AMDAL) requirement for businesses, the Omnibus Law sets limitations on the qualifications of which ‘groups of people’ who can engage with the AMDAL process, namely only those who are directly affected by the impact of business plans or activities. The additional explanation of the three categories of actors listed in Law No. 32 Year 2009 has been lost. Particularly concerning is the loss of the explicit inclusion environmental activists, recognising their pivotal role in signalling harmful effects of business activities.

Historically, the involvement of the three categories of actors: the affected communities, environmental activists, and/or parties affected by all kinds of decision in AMDAL process was intended to increase the quality of AMDAL. The academic paper of Law No. 32 Year 2009, which was formulated to set out the parameters of the law and outlines the key issues the law seeks to address, asserts that while the three categories of actors interact in varying degree with each other, the involvement of both environmental activists and those who are indirectly affected by all kinds of decision in the AMDAL process is crucial. Information on environmental risks of business plans or activities may not be available and accessible by the communities and this information gap can be remedied by having environmental activists advocating together and/or on behalf of the communities. For example, WALHI, the largest and oldest environmental advocacy NGO in Indonesia, together with farmers in Kendeng, Central Java, filed a case review against the Decree of the Governor of Central Java on the environmental permit for state-owned cement company PT Semen Indonesia. On 5 October 2016, the Supreme Court ruled in favour of the farmers, ordering the governor to revoke the permit.

Access to information, which is a manifestation of the right to freedom of expression and serves as a critical tool to ensure communities’ right to a good and healthy environment, has also been curtailed under the Omnibus Law. Previously, public had the right to obtain information on environmental permit starting from the application stage (art. 39, Law No. 32 Year 2009), but in the Omnibus Law, this information could only be accessed after a decision has been made. Article 39 of Law No. 32 Year 2009, which obliged the government to announce every application and decision on environmental permit, was a straightforward identification of the critical role of community in the environmental decision-making process. Furthermore, the Omnibus Law stipulates that the announcement of environmental feasibility decision, which is a condition for issuing business licensing, will be made through an electronic system or other measures determined by the central government. This approach, which highly relies on digital technology, will widen the digital divide and inequality and cost communities’ right to information.

The right to freedom of expression is essential for establishing public participation in environmental decision-making. In many environmental disputes, the lack of public participation and transparency has led to violence, land grabbing and increased conflicts. Chillingly, environmental activists and defenders, whose work intersects with state and corporate activities, will be at greater risk as they will be seen as an enemy to development.

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