Richard Ness : Blog : Appeal Brings the Case Back to Jakarta and to Politics

Appeal Brings the Case Back to Jakarta and to Politics - 04 Jun 2007
by Eric

The appeal has no legs but the prosecutors still filed the papers on 14-May-07. And once again the action of the prosecutors has confirmed that this appeal is basically meant to appease certain political forces and circumvent the law.

If you think about the appeal from a legal and substantive point of view, the appeal is at best a feeble attempt to overturn a decisive verdict of complete acquittal. But the Buyat case has never been about rule of law or the law of science—it has however always been about politics. And the government’s decision to appeal the verdict is yet another confirmation of this sad reality.

The Ministry of Environment and the prosecution are simply determined to put my Dad in jail even though it has been confirmed and reconfirmed many times that Buyat Bay is clean. But to understand the behavior of politically motivated regulators, one must compare their determination about the Buyat case to the extraordinary hesitation and reluctance they have shown about the Lapindo case. In the case of Lapindo tens of thousands of people have been displaced from their homes, lives have been lost, untreated waste is getting dumped in the sea and environmental degradation is visible all over. Yet after one year of the Lapindo disaster, there is hardly any sign of regulatory action. And therefore it is not a surprise that on the one-year anniversary of the Lapindo case, various leading national dailies in Indonesia have expressed their outrage and are demanding accountability.

To understand the full extent of the regulatory double-standard and how unfair this whole case against my Dad has been, have a look at this video of the comparative on-the-ground facts of Lapindo and Buyat Bay. [video]

In the case of Buyat, the regulators swung into action within days and succeeded in manufacturing a false criminal case that has now lasted for more than two years. And even after a complete acquittal on the 24th of April 2007, the case continues to be dragged into an unnecessary appeal process now.

The fact is that the Buyat case should never have come to court as was stated in the verdict of the 24th April, 2007. In fact, the prosecution also believed that there were a number of very major weaknesses with the case at the pre-trial stage. As early as October 2004, the prosecutors had openly expressed their displeasure about the Buyat case and had formally informed the Police and the regulators that the pre-trial investigation had failed to follow the legally binding procedures of valid and fair evidence collection and case preparation.

In an October 2004 document which is known as P-19, the prosecutors listed thirteen items that needed elucidation by the Police. According to Indonesian laws, it is mandatory for investigators to provide explanations to the questions raised by the prosecutors in the P-19 document but investigators failed to do so.

The objections raised by the prosecutors in P-19 are quite significant. Some of the questions and comments by the prosecutors are:

1) “Does a criminal case even have to happen? …enforcement of penal law provisions shall continue to observe the subsidiary principle, namely that the penal law should be used if other legal penalties such as administrative penalties and civil penalties as well as environmental alternative dispute resolution are not effective”
2) “That the police lab is not accredited and that “the laboratory that analyses the samples does not have the capacity to make a conclusion whether the result of its analysis constitutes a criminal offence.” And that the lab that carries out the “tests for chemical traces must be carried out by an accredited laboratory of chemicals of national or international repute”.
3) In regards to the samples: “Having examined the dossiers, the minutes of delivery of sample by the investigator to the laboratory are not found, and also the Minutes of the taking of the analysis of the remaining sample and the result thereof by the investigator from the laboratory that made the analysis of the sample.”
4) No witnesses for the defendant were seen: “Article 116 paragraph (3) CCP states in the examination of a suspect, he is to be asked whether he wishes to have witnesses in his favour to be heard, and if there are, this must be recorded in the minutes. Furthermore Article 116 paragraph (4) CCP states that if what is mentioned in paragraph (3) occurs, the investigator must summons and examine the witnesses. The Minutes of Investigation of the Suspect (all of the Suspects) the investigator did not ask the suspects whether there are witnesses that are in their favor.

P-19 [English] [Bahasa]

After reading the P-19, it becomes clear that the prosecution knew from the very start that there was no valid case against my Dad. The reality is that the prosecution didn’t want the Buyat case at all because the Police failed to provide satisfactory answers to the objections raised by the prosecution in the P-19 document.

And this is indeed confirmed by the fact that the prosecution returned the case files to the Police not once but three times. The prosecution tried hard to decline the case because they knew that they could not win this law suit based merely on the accusations by NGOs and certain politicians. The Buyat case needed hard evidence and the prosecutors couldn’t find any in the case files submitted by the Police. But in the end they succumbed to the political pressures from a handful of politicians and NGOs and accepted the case.

And after accepting a flawed case in 2004, more than two years later the prosecutors have once again agreed to file what is clearly a flawed appeal. As expressed in the P-19 in October 2004, the prosecutors never trusted the accuracy of the Police samples from the very beginning of the case. Yet you see now that the same prosecutors are touting the Police lab results as their core evidence. How can the prosecution explain this inconsistency?

The prosecutors simply obey the orders of their political bosses. It is obvious that the prosecutors are just a convenient channel through which political players have molded the Buyat controversy into a political product that has not only adversely affected the flow of investment and job creation, but it has also sidelined the real environmental issues in the country.

The contradictory behavior of the Ministry of Environment in the Buyat and Lapindo cases has exposed the dominant role of politics in managing national environmental issues in the current government. The Ministry of Environment has been sluggish about regulatory actions in other cases too. In August 2005, the Ministry announced that hundreds of firms were in violation of environmental standards and dozens of them were chronic polluters against whom the Ministry intended to take regulatory actions [The Jakarta Post]. Yet it has never come to public attention if any such enforcement action was ever taken against the firms that were in violation.

The sad fact is that the water and air quality continues to deteriorate, and millions of people are exposed to contaminants on a routine basis in Jakarta and other parts of the country. Yet we see that the Ministry of Environment continues to obsess about Buyat Bay where there is no pollution, and at the same time it continues to ignore the pollution issues at hundreds of other locations where environmental degradation is so obvious.

It will be disastrous for Indonesia’s environment, if regulatory and enforcement decisions continue to be determined politically and not on the basis of genuine environmental issue. The Ministry of Environment and certain NGOs have made a strategic mistake by vesting so heavily in the Buyat case where it is clear that there is no pollution. And this way they have jeopardized the welfare of millions of citizens.

The decisive verdict of the 24th of April, 2007 was a major step forward towards restoring faith in the justice system of Indonesia. The appeal filed on the 14th May, 2007 is a clear two-step back. This appeal is simply outrageous and it is hard to believe that politics can be this extreme and inhuman, and so incompatible with the fact that Buyat Bay is clean.