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judicial review filed against a strict liability clause, which has been used as a legal basis for the government to sue companies accused of environmental destruction, has been widely lambasted, with many saying that removing the clause would weaken the nation’s environmental protection.

The strict liability principle is found in Article 88 of the 2009 Law on environmental protection and management, which stipulates that anyone who poses a serious threat to the environment will be held responsible without the need to prove fault.

The request received a sour response from Environment and Forestry Minister Siti Nurbaya Bakar, who insisted that the strict liability clause was still needed.

“They have been granted concession permits, how can they refuse to take responsibility if there is a fire on their land and instead put the blame on others?” Siti said over the weekend.

Moreover, she said Indonesia’s application of the clause in its environmental laws was not unusual as the concept was used globally.

The Indonesian Palm Oil Producers Association (GAPKI) and the Association of Indonesian Forest Concession Holders (APHI) filed a petition in late May with the Constitutional Court to review the article. The plaintiffs argued the article was unfair for them as environmental damages could also be caused by other parties. Besides the article, the plaintiffs also challenged two other articles in the law: Article 69 on the prohibition of land clearing through slash-and-burn practices and Article 99 on penalties for damaging the environment due to negligence.

The article is rarely used in Indonesian environmental law cases, but there are some instances in which it has come into play. In 2003, the Bandung District Court ruled in favor of landslide victims in Mandalawangi, Garut regency, in the first ruling in the country to use the strict liability clause.

Some 14 years later, the South Jakarta District Court also ruled in favor of the Environment and Forestry Ministry, which had filed a lawsuit using the strict liability clause against palm oil company PT Waringin Agro Jaya. In the Feb. 7 ruling, the court declared the company guilty of starting forest fires to clear land in Ogan Komering Ilir in South Sumatra and ordered it to pay Rp 466.5 billion (US$ 35 million).

The clause was used recently by President Joko “Jokowi” Widodo’s administration in a lawsuit it filed on May 3 at the Cental Jakarta District Court against three foreign companies accused of causing an oil spill in the Montara oil and gas field in the Timor Sea that affected marine resources and the livelihoods of fishermen in East Nusa Tenggara.

Edhy Prabowo, chairman of House of Representatives Commission IV overseeing forestry, echoed Siti’s sentiment, saying that he regretted the request and expected that the Constitutional Court would be fair in handling it. He added that it was “better to punish some negligent companies than to leave the environment destroyed.”

The Gerindra lawmaker said business players had no need to be worried if they operated their businesses properly as the clause was directed at negligent companies.

Meanwhile, environmental law expert from Gadjah Mada University (UGM) Harry Supriyono questioned the plaintiffs’ arguments. Under the principle, the court allows a defendant to prove they have carried out their activities carefully if they insist that they are not responsible for environmental damage in their business concession area.

Raynaldo Sembiring, deputy director of the Indonesian Center for Environmental Law (ICEL) said it was important that the principle was retained because as science continued to develop, new types of businesses would emerge that posed new risks to the environment.