The Panel of Judges at Manado State Administrative High Court (PT TUN) decided to reject the appeal on the Environmental and Climate Change Lawsuit filed by Hendrikus Woro, an Environmental Defender from the Awyu Tribe, Boven Digoel Regency, and the Plaintiff- Intervenor filed by the head of Yayasan Pusaka Bentala Rakyat and the National WALHI Executive.
The decision of the panel of judges of PT TUN Manado dated 1 March 2024, chaired by Simbar Kristianto, S.H., dismissed the lawsuit simply on the grounds that the time limit had lapsed. According to the panel of judges, Hendrikus Woro’s lawsuit at Jayapura PTUN on 13 March 2023 had exceeded the 90-day deadline since the object of the dispute was identified, namely the environmental permit issued by the Papua Provincial Government’s One Stop Office for Investment and Open Services for a palm oil company, PT Indo Asiana Lestari ( PT IAL).
Member of the Save Papua Forests Advocacy Team, Tigor G Hutapea, in a press release (14 March 2024) criticized the decision of the panel of judges of PT TUN Manado, in that the calculation of days by the panel of judges is questionable as it disregarded Supreme Court Regulation Number 1 of 2023 regarding Guidelines for Hearing Environmental Cases and a special calendar stipulated by the Governor of Papua – which has a longer Christmas holiday than the national calendar. The lawsuit had also undergone a dismissal examination process at PTUN Jayapura, it was declared accepted, and has not passed the expiration date.
With regard to the deadline for filing a lawsuit, Article 18 paragraph 2 of Supreme Court Regulation (Perma) 1 of 2023 contains the phrase “or since becoming aware of the potential or occurrence of environmental impact“. This means that there are actually a number of options for the panel of judges to interpret the deadline for filing a lawsuit. The state administrative judges, with reference to Circular Letter of the Supreme Court Number 1 of 2017, should have prioritized substantive justice over formal justice. This is because the function of formal law or procedural law is to uphold material/substantive legal principles.
The panel of judges’ decision did not have the courage to consider the principles of environmental protection and management in handling cases, namely the principle of prevention of environmental hazards, the principle of sustainable development, sustainability of ecosystems and environmental carrying capacity, the principle of recognition and empowerment of the rights of indigenous peoples. Disregarding these principles and allowing the permits to destroy forests and the environment may pose a risk of increasing climate problems and social conflicts.
Never backed down in defending justice and the rights of indigenous peoples and the environment, Hendrikus Woro Hendrikus and his attorneys filed a cassation with the Supreme Court, which was marked by the submission of a memorandum of cassation to PTUN Jayapura on Thursday, 14 March 2024. A number of Indigenous Youth held a peaceful rally at PTUN Jayapura to accompany the said submission of cassation memorandum.
“Cassation is the next battle for the Awyu indigenous people in defending their customary forest. The Supreme Court must examine this lawsuit by referring to the guidelines for hearing environmental cases which they themselves have made, in order to issue a fair decision for the Awyu indigenous people,” said Tigor G. Hutapea.
Ideally, the court can serve as a fortress in actualizing the urgency of climate actions to resolve the climate crisis issues faced by mankind and the environment as per Sustainable Development Goal 13.
“If the judges truly possess an environmental perspective, they should choose the provisions that best open the opportunities for access to environmental justice. The judges’ choice to use the most convenient provisions would in fact shut the opportunities for environmental justice and indicate the position of the judges who have no environmental protection perspective,” said Sekar Banjaran Aji, a member of the Awyu tribe’s attorney team.
Not only did it not have an environmental protection perspective, none of the panel of judges of PT TUN Manado who heard the case possess environmental judge certification. This is also contradictory to Decision Letter of the Chief Justice of the Supreme Court Number 36 of 2013 regarding Implementation of the Guidelines for Handling Environmental Cases. “This means that there is a formal flaw in handling Hendrikus Woro’s lawsuit, since at least one of the three judges should possess environmental judge certification,” said Emanuel Gobay, a member of the Awyu tribe’s attorney team from the Papua Legal Aid Institute (LBH).
Ank, Mar 2024
