Indonesian ruling rings alarms over criminalization of environmental defenders

Hans Nicholas Jong

A court in Indonesia has sentenced an anti-mine activist to 10 months in jail on a rarely used charge of promoting communism.

The ruling is just the latest in a series of controversial prosecutions of environmental activists and protesters based on draconian or obscure laws, which critics say is meant to silence dissent against politically connected developers.

The environment ministry says it wants fewer cases going to court, but activists say the biggest perpetrators of what they deem the criminalization of criticism are the police and district attorneys.

Environmental and human rights activists are up in arms over the jailing of a prominent anti-mine protester by an Indonesian court — the latest victim of local authorities’ increased willingness to invoke draconian or obscure laws to silence such protests.

A court in Banyuwangi district, East Java, on Tuesday sentenced environmental activist Heri Budiawan to 10 months in jail for allegedly displaying a banner with a hammer-and-sickle logo — the universal standard of communism — during a protest last April against a gold mine in a once-protected forest.

The unusual charge is based on law from the pre-1998 regime of the late dictator Suharto, under which any public expression of support for communism is punishable with a prison sentence of up to 12 years. (Suharto himself rose to power on the back of a coup in which an estimated 500,000 to 1 million accused communist sympathizers were killed.)

Heri is the first person in Indonesia’s post-Suharto democratic era to be convicted under this draconian law — and perhaps not the last, rights activists warn.

“Budiawan’s prosecution is an ominous signal that environmental activists are now vulnerable to prosecution as ‘communists’ if they dare challenge corporations implicated in pollution,” Andreas Harsono, Indonesia researcher at Human Rights Watch, said in a statement.

“It will scare people off from criticizing any injustice in society,” Amnesty International Indonesia director Usman Hamid said in a separate statement.

Lack of evidence

Heri’s case centers on Tumpang Pitu, a forested mountain in Banyuwangi said to be the second-largest gold mine in Indonesia (after Freeport Indonesia’s Grasberg mine in Papua province). The area was previously designated as a protected forest, but in 2012 the Forestry Ministry reclassified it as a production forest, effectively paving the way for open-pit mining operations.

The mining concession is held by PT Merdeka Copper Gold, a company whose top shareholders include coal tycoons Edwin Soeryadjaya and Garibaldi Thohir. Production began in March 2017, dogged by protests from residents that the mining operations were destroying the mountain and polluting local sources of water.

In April 2017, Heri, along with other residents, staged a rally outside the miner’s field office, during which someone (the trial never revealed who) allegedly gave the protesters a banner that, in addition to a protest message, also had a hammer-and-sickle image.

During the trial, the offending banner was never presented as evidence; indeed, the only images of it came from photos the police took after they had arrested Heri. The judges, though, said that as the protest coordinator, Heri should have known about the banner and cancelled the demonstration rather than “cause public unrest.”

Rere Christanto, East Java coordinator of the Indonesian Forum for the Environment (WALHI), said the case should never have gone to court, given the lack of evidence.

He called the prosecution a textbook example of a Strategic Lawsuit Against Public Participation (SLAPP) — any kind of litigation brought with the aim of censoring, intimidating or silencing critics speaking out against those in power or on issues of public interest.

“Based on statements from the witnesses, there was no indication of any effort to promote communism [during the protest] either,” Rere said.

This is far from the first instance of draconian or obscure legislation being used to silence dissent against environmental crimes.

In December last year, police arrested three people after they joined a protest against the development of a coal-fired power plant in Indramayu district, West Java province. Police charged them with the crime of “insulting a state symbol” by allegedly raising the Indonesian flag upside-down — despite all the photographic evidence to the contrary. In Rembang, Central Java, a prominent activist faces charges of document forgery linked to a petition to protest a planned cement plant there. Throughout 2017, at least 152 environmental activists faced criminal charges, according to data from WALHI.

“This phenomenon shows that there’s a problem in our environmental law in protecting every individual who fights to protect the environment and their living space from infrastructure projects,” said Agung Wardana, an environmental law expert at Gadjah Mada University.

These prosecutions, he argued, clash directly with an article in the 2009 Environmental Protection and Management Law which stipulates that no criminal charges may be brought against anyone for campaigning for their right to a clean environment.

But the scope of the article is narrow: it protects only against lawsuits brought in response to formal complaints filed by petitioners, said WALHI policy assessment manager Even Sembiring.

“That’s the main problem [with the regulation]. That’s why we’re pushing for a stronger implementation of this regulation,” he said.

The Ministry of Environment and Forestry is also preparing guidelines for how to handle environmental activism and avoid cases going to court.

“There are a lot of people reporting [cases of criminalization of environmental activists] to us,” Ilyas Asaad, the ministry’s adviser for institutional liaison, said recently in Jakarta. “That’s why we have to make it clear [how to enforce the regulation]. If not, then this will keep happening.”

But WALHI’s Even pointed out that those guidelines, while well-intentioned, were aimed at ministry officials, and not at police, prosecutors and judges.

“It’s good, but it will only apply to the ministry, whereas the criminalization is carried out mostly by police and district attorneys,” he said. “So I doubt its effectiveness. The ministry should have made a joint regulation or a letter of agreement with police and district attorneys.”

HRW’s Andreas summed up the climate of intimidation: “As long as laws that facilitate such prosecutions stay on the books, the rights of peaceful protesters — including those seeking to defend the right to a healthy environment — will remain in doubt.”