Public Participation and Freedom ofInformation in Environmental
Decision Making

Laode M Syarif, Ph.D
Faculty of Law Hasanuddin University
Partnership for Governance Reform in Indonesia

Indonesia is Part of the WorldYou
areHereI amFromHere• Actively involved in International Conferences• Indonesia has ratified most MEAs

Indonesian Involvement inEnvironmental Protection• Indonesia was actively involved in Stockholm Declaration on

Human Environment 1972
• Prof Emil Salim (former Minister of Population and Environment)
was a member of Brunthland Commission: Our Common Future1983• Actively involved in the 1992 Rio ConferenceList of MEAs that has been ratified• Convention on International Trade in Endangered
Species of Wild Fauna & Flora (CITES)• Convention on Wetlands of International
Importance Especially as Waterfowl Habitat• Vienna Convention for the Protection of theOzone Layer• Basel Convention on the Control ofTransboundary Movements of Hazardous Wastes& Their Disposal• Convention on Biological Diversity• UN Framework Convention on Climate Change• ASEAN Agreement on the Conservation ofNature and Natural Resources• ASEAN Agreement on Transboundary Haze
Pollution, ETC
Note: Most principles in these MEAs have been domesticated in National Legislation

Influence of MEAs to Indonesian Env’Legislation and Policy

What We Mean with PublicParticipation?

And of Course …RIGHTS to Challenge/Sue the Government

Indonesian Way of ‘domesticating’Public Participation• Access to information,• Participation in policy decision-making, and• Access to justice,What the Indonesian Law Says on
Public Participation and Information

Environmental Protection andManagement Act (EPMA) 2009
INFORMATION SYSTEM: Article 62(1) The government and regional governments shalldevelop an environmental information system tosupport the implementation and development ofpolicies on environmental protection andmanagement.
(2) The environmental information system shall beformulated in an integrated and coordinative
manner and SHALL be publicly published.
(3) The environmental information system shallcontain at least information about the status ofenvironment, map of environmental
vulnerabilities and other environmentalinformation.

EPMA 2009
PUBLIC PARTICIPATION: Article 70

Special Note:
Hymenopus
coronatus(known asorchid mantis)

1) Communities shall secure the equal and maximal right andopportunity to participate actively in environmental
protection and management.
2) The public participation may be in the form of:(a) social supervision; (b) suggestions, opinions,recommendations, objections, complaints; and/or (c)provide information and/or report.
3) Public participation shall be intended to:a. enhance awareness in environmental protection andmanagement;b. enhance independence, capability of communities andpartnership;c. boost the growth of capability and initiative ofcommunities;
d. encourage communities to conduct social supervision; ande. develop and preserve local culture and wisdom in theframework of the preservation of environmental functions.

Environmental Impact Assessment (EIA)• EMPA has special Chapter on EIA (Articles 22 to 33) andelaborated in Gov Reg No 27/2012 on EnvironmentalPermit.
• Every project that have significant impact to Environment
requires EIA.
• Every step on EIA requires the involvement of the Public.

EIA Appraisal Commission

EIA-AC shall consist of representatives of:
a.
b.
c.
d.
e.
f.

environmental institution;
relevant technical institutions;specialists in the field of relevant business and/or activity;
specialists in the field related to impacts arising from business
and/or activity;communities members that has the potential to be affected; andenvironmental organization (Env NGOs). (Article 30)

Access to JusticeCommunity Right to Sue(1) Communities shall have the right to file class action for theirown interests and/or interests of communities if thecommunities suffer from loss attributable to environmental
pollution and/or damage.
(2) The class action may be submitted if there is a similarity offact, incident, legal basis, and demand of communitymembers. (Article 91)

Right of Env’ NGOs

(1) Environmental organizations shall have the right to file lawsuit in theinterest of the preservation of environmental functions.
(2) The right to submit lawsuit shall be limited to demand for taking certain
actions without demand for compensation, except real cost orexpenditure.
(3) Environmental organizations may file lawsuit in the case of the following
requirements being fulfilled: (a) in the form of statutory body; (b)affirming in their memorandum of association that the organizations areestablished in the interest of the preservation of the environmentalfunctions; and (c) concrete activities have been executed in accordancewith their memorandum of association for 2 (two) years at theminimum. (Article 92)

First Recognition of NGO standing

Public interest litigation in environmental matters in Indonesia wasdeveloped through the recognition of legal standing of NGOs in 1988,
where the District Court of Jakarta granted standing to WALHI (anenvironmental NGO) in WALHI vs Five Government Agencies and PT
Indorayon Pulp and Paper (commonly known as the PT Indorayoncase). This decision was made based on 1982 EMA, where the right of
NGO to sue was not yet clear.
(The Late Justice: Paulus Lotulung-District Courtof Central Jakarta, No. 820/PDT.G/1998 PN. JKT.PTS)

WALHI vs PT Freeport
Decision No.459/Pdt.G/2000/PN.Jak.Sel.

Tailing
DAMWanagon RiverBanti Village & Amungme people

12 Km

WALHI vs PT Freeport
Decision No.459/Pdt.G/2000/PN.Jak.Sel.
The claim was triggered by an incident on 4 May 2000 when toxic sludge was released from a collapse oftailing dam into the Wanagon River and Banti village that killed four people, destroyed pig-sties,
vegetable gardens and a burial ground of the Amungme tribe in Banti village.
Freeport made a statement to the Special Commission of the Indonesian Parliament (DPR) and issued
press releases: it was caused by the ‘Act of God’
WALHI was not convinced by the statement and took a legal action in the District Court of South Jakarta
on the basis of the failure to provide true and accurate information on environmental management .
WALHI also questioned the validity of the defendant’s 1998 Annual Report.
WALHI asked Freeport to do public apologies in 10 national newspapers international publications,
national and international television. WALHI also demanded that Freeport to take steps to minimise therisk of landslides occurring from overburdens and to minimise the toxicity of the sludge released so that itcomplied with the standards appropriate for the dam and the river.
The District Court of South Jakarta concluded that Freeport had deliberately concealed information andhad given false and inaccurate explanations, thereby misleading the public, contravening Article 6(2) of
the 1997 EMA. Based on that finding, the Court ordered the defendant to reform its waste management
system and to minimise the risk of more rockslides into the Wanagon River. It also ordered the company
to reduce its toxic waste production so that it complied with water quality standards. However, theCourt rejected the public apology demanded by WALHI.

Supporting Role of FOI Act-2008
on Environmental/Natural resources Management

Supporting Role FOI Act-2008

1.
2.
3.
4.

Every Public Information is open and accessible to every User ofPublic Information.
The exception to the Public Information is strict and limited.
The Applicant shall be able to obtain every Public Information inprompt, low cost, and in a simple manner.
Public Information that is classified as confidential information
pursuant to the law, ethics, and the interest of the public, basedon special consideration in terms of the consequences … to protect
a larger interest of the people. (Article 2)

Obligation of Public Institutions(1) A Public Agency is obliged to provide and give and/or publish the PublicInformation under its authority except information that is classified inaccordance with the provision.
(2) A Public Agency is obliged to provide correct, accurate and not mislead
public information;
3) Public Agency shall establish and develop an information anddocumentation system to manage the Public Information properly andefficiently, so that it is easily accessible.
(4) A Public Agency is obliged to write down its reasoning for every policythat it takes to comply with the right of every person to get PublicInformation. Etc… (Article 7)

VSIndonesian Center of Environmental Law (ICEL) filed a case to the PublicInformation Commission Tribunal, due to the Refusal of The Ministry ofEnvironment and Forestry to disclose the concession maps within theIndonesian forest.
ICEL asked the Tribunal to access the “digital data of concessions” and satellite
images of Aceh forest cover 2010-2013 (both in JPEG and SHAPEFILE Format).
The Tribunal Ordered the Ministry of Environment and Forestry to share all
JPEG Format data/ but NOT SHAPEFILE Format. (Public Information Tribunal, 13Feb 2015).
Note: ICEL will Challenge this decision to Administrative Court.

(1) Indonesia has a sufficient legal basis for publicparticipation.
(2) Freedom of Information Act is playing a significant role inenvironment and natural resources management.
(3) However, the full implementation of the existing laws arestill problematic.
(4) The Executive and the Judiciary has to enhance theircapacity to respond to the increase demands of the people.

Thank You Osaka
Laode M Syarif
laode.syarif@kemitraan.or.id
syariflaw@gmail.com+62-8111-899-689