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t was a proud moment for Indonesia at the United Nations Climate Change Conference in Bonn, Germany, in November 2017, when world leaders, including former United States vice president Al Gore, praised Indonesia’s efforts to restore and protect peatland to mitigate climate change.

Such efforts, led by President Joko “Jokowi” Widodo, are indeed strategic and critical, especially in the aftermath of the 2015 forest fires that mostly occurred in carbon-rich peatland.

The fires led to 19 casualties, 500,000 people suffering from acute respiratory infections, disruption of classes for over 4 million students for a month and estimated losses of over Rp 220 trillion. The fires also released 1.62 million metric tons of greenhouse gases, equivalent to emissions from nearly 350,000 vehicles throughout the year.

Peatland restoration and protection efforts in Indonesia require legal reinforcement, including by providing new rules on peatland spatial plans that requires preservation of the newly stipulated protected peat areas. However, peatland areas may have been granted business, plantation and agricultural permits or land rights. This situation indeed can lead to conflicts between the new rules and those permits or rights.

Permit or rights holders usually reject new rules citing narrowly defined legal certainty. Permit holders argue that they have secured the permit legally and hence the new rules should not impact their concessions.

Such conflict occurred recently when the Environment and Forestry Ministry issued a regulation that obliges forestry plantation permit holders to adjust their plans to comply with the new peat spatial plan determined by the ministry.

A lawsuit was filed against the regulation by Riau-K SPSI, a labor union in the forest industry. The Supreme Court granted the applicant’s request, stating that the new rules contradicted Law No. 41/1999 on forestry.

But does the rule of law disallow the government to make any changes in the law that has adverse effects on exiting permits or legal obligations/rights?

The rule of law essentially is an element of democratic countries to prevent arbitrary and discriminative government practices. The law should be issued by authorities pursuant to legal standards, procedures and objectives.

Today, there is a growing perspective including among legal experts themselves that the rule of law should not only be based on formal procedural standards, such that the law must be clear, open, relatively stable and established based on the law, but also take into account values especially human rights, justice and morality.

The 1945 Constitution recognizes human rights, such as the right to a clean and healthy environment as well as the right to justice. Also, the law should be adjusted continuously to protect public welfare and justice. The Law No. 12/2012 on the establishment of laws and regulations, in fact, allows retroactive laws in Indonesia provided they exclude criminal provisions and regulate the effects of the new rules against existing legal obligations and rights.

Regarding peatland protection the above ministry’s new rule is an effort to implement Government Regulation No. 71/2014 on peatland protection and Law No. 32/2009 on environmental protection and management, apart from the Constitution. These laws prohibit land clearing in protected peat areas and require business owners to mitigate and restore damaged peat as a result of business activities.

In any case, the obligations of business owners to preserve protected peatland and mitigate environmental damage are not new. They have already been attached to businesses at least since the 1982 law on environment and the 1990 presidential decree on management of protected areas.

Where peat and environmental concerns overlap with existing permits or rights, the rule of law should be perceived sensitively, accurately, comprehensively and carefully. Upholding the rule of law should not only be considered merely as upholding procedural safeguards.

While the Supreme Court in the above-mentioned case stressed the importance of meeting procedural standards, the substantive rule of law needs to be further embraced. A narrow perception of the rule of law may harm public interests on a good and healthy environment and abuse the law itself.
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Nirarta Samadhi is the director of the World Resources Institute Indonesia. Dewi Tresya is a public policy and legal consultant.