Another environmental expert sued over testimony against palm oil firm

A palm oil company convicted and fined for negligence over fires in its concession is now suing one of the expert witnesses who testified against it in court.

A prominent environmental expert in Indonesia faces a lawsuit by a palm oil company after testifying against its practices, in the second case of its kind this year.

The move has stoked fear among activists, who say it’s part of an escalating campaign to silence environmental defenders.

The lawsuit was filed by palm oil firm PT Jatim Jaya Perkasa (JJP) against Bambang Hero Saharjo, a forestry expert from the Bogor Institute of Agriculture (IPB), on Sept. 17 with a court in Cibinong, in West Java province.

Bambang had testified in 2015 as a witness for the prosecution in a government lawsuit against JJP for negligence leading to fires in its concession in Sumatra. A key part of his testimony was his financial assessment of the environmental damage done as a result of the fires. His expertise was seen as instrumental in the guilty verdict subsequently handed down to JJP.

The court also fined the company 119.8 billion rupiah ($7.9 million) and ordered it to pay for the restoration of 10 square kilometers (3.9 square miles) of burned plantation, estimated at 371.1 billion rupiah ($24.4 million).

JJP appealed, but the ruling was upheld by the country’s highest court earlier this year.

The company has now turned its attention to Bambang, suing him not over the substance of his testimony, but on a mere technicality: In its lawsuit, JJP says the evidence presented by Bambang was inadmissible because it used both the IPB logo and the letterhead of the Ministry of Environment and Forestry. (The ministry, which brought the lawsuit against JJP, had commissioned Bambang to carry out the environmental damage assessment.)

Because of this, the company is seeking a total of 510 billion rupiah ($33.5 million) in damages from Bambang.

Bambang said the lawsuit was an attempt by JJP to shirk its responsibility.

“I’m disappointed and worried with attempts like this,” he told Mongabay. “They want to wash their hands clean of the fires that truly happened and destroyed the environment and emitted greenhouse gases — something that shouldn’t have happened.”

JJP could not be reached for comment.

Bambang also said the lawsuit wouldn’t deter him from continuing to testify against environmental violators.

“I won’t back off, not even one step, because there are already many cases waiting for me,” he said. “I will keep fighting for the people’s constitutional right to a healthy environment. We can’t afford to be afraid in the face of lawsuit threats like those from JJP.”

Worrying trend

The lawsuit against Bambang is the second filed this year by JJP against a witness over their testimony. Earlier this year, Basuki Wasis, also an environmental expert from IPB, was hit with a lawsuit on similarly frivolous grounds. In his case, the company said his testimony was inadmissible because of a typo in one of the documents he’d presented as evidence. JJP sought 610 billion rupiah ($44 million) in damages from Basuki, before dropping its demands upon mediation.

For Basuki, it was just the latest pushback to his testimonies in a litany of environmental cases. In March, Nur Alam, the governor of Southeast Sulawesi province at the time, sued Basuki after the expert testified that illegal mining activities permitted by Alam had caused extensive damage to the environment.

Alam was sentenced to 12 years in prison and ordered to pay fines and damages totaling 3.7 billion rupiah ($243,000). But his lawsuit against Basuki continues.

Khalisah Khalid, from the Indonesian Forum for the Environment (Walhi), says the cases against Basuki and Bambang highlight a worrying trend toward the criminalization of environmental defenders from all sorts of background, including highly regarded academics.

In the past, she said, companies typically targeted grassroots activists, such as farmers. Now, though, anyone questioning a company’s environmental conduct is fair game, thanks to increasingly aggressive litigation under the practice known as Strategic Lawsuit Against Public Participation (SLAPP).

SLAPP typically describes any kind of litigation brought with the aim of censoring, intimidating or silencing critics speaking out against those in power or on issues of the public interest.

“Until now, we’ve always thought that it’s only local people who are criminalised,” Khalisah said at a recent event in Jakarta. “But now everyone, including experts who are actually protected by the law when they voice their opinions in court in accordance to their expertise, are also criminalised.”

Khalisah said this trend could seriously harm Indonesia’s efforts to bring to justice environmental violators, including corrupt politicians and scofflaw companies, given that experts like Bambang and Basuki were key to prosecution efforts.

Rasio Ridho Sani, head of law enforcement at the Ministry of Environment and Forestry, agreed that these lawsuits appeared to be baseless and aimed at intimidating witnesses.

“The basis for JJP’s lawsuit is weak and appears to be forced to silence experts who fight for the environment,” he said. He added that Bambang’s case was a part of a larger trend of companies fighting back against their prosecution.

“Our consistency in enforcing the law has drawn opposition,” Rasio said. “There are 24 pretrial motions that we’re currently facing. We also face two civil lawsuits, three administrative lawsuits, one judicial review and three case reviews.”

Rasio said there were a number of anti-SLAPP regulations in place to protect environmental defenders like Bambang against criminalization.

An article in the 2006 Environmental Protection Law states that no individual may be sued for seeking to exercise their right to a healthy environment. Similarly, an article in the 2013 Forest Degradation Prevention and Mitigation Law says no one can be sued for submitting a report or information relevant to the scope of the law.

“Experts’ testimonies in court are protected by the law,” Rasio said.

I will keep fighting for the people’s constitutional right to a healthy environment. We can’t afford to be afraid in the face of lawsuit threats like those from JJP.

Bambang Hero Saharjo, forensics expert

Protections ‘not enforced’

But the fact that experts continue to face a backlash for their testimonies highlights the need for additional regulations empowering police and prosecutors to act against SLAPP litigation, activists say.

“We’re waiting for a regulation to be issued that can guarantee the protection of everyone [from being criminalized], including experts,” Walhi’s Khalisah said.

Rasio said the environment ministry was finalising a draft of a regulation on enforcement of the existing anti-SLAPP articles.

“It’s our priority to issue the ministerial regulation soon,” he said. “While the existing laws are already clear and can be followed, we still need the ministerial regulation to make it easier for law enforcers to implement them.”

Khalisah said that while she appreciated the ministry’s decision to issue the regulation, she was concerned that it still wouldn’t compel law enforcers outside the ministry, such as the police, to enforce the anti-SLAPP articles. She said many law enforcers, especially the police, still didn’t understand that anti-SLAPP rules applied to everyone.

“The police consider the anti-SLAPP articles to only apply to people who have [formally complained about them] to the police,” Khalisah said.

“We’re actually pushing for a stronger regulation in the form of a presidential regulation on the protection of human rights defenders,” she added. “We’re trying to put the issue of environmental defenders there. Why a presidential regulation instead of a ministerial regulation? Because would a ministerial regulation be strong enough?”

Rasio said the soon-to-be-issued ministerial regulation would suffice as a first step. He added the ministry had spoken with law enforcers from other institutions, including from the courts, the Attorney General’s Office, the police and the Judicial Commission — the government’s court watchdog — to ensure they were aware of the anti-SLAPP regulations.

Khalisah urged the ministry to speed up the process.

“Our energy is depleted and our focus is divided to handle all these criminalisation attempts,” she said. “At the same time, there are still many environmental cases waiting to be resolved. The government should be aware of this.”

This story was published with permission from Mongabay.com. Read the full story.

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