The SETAPAK program promotes good forest and land governance as fundamental to achieving sustainable forest management, reducing greenhouse gas emissions, and supporting sustainable low carbon economic growth. A vital aspect of good land use governance is ensuring public access to official information on forest and land governance decisions. This allows civil society to monitor government actions and judicial responses to legal infractions as well as to obtain details of mining and plantation licenses to ensure that land is allocated appropriately and licenses adhere to laws and obligations.

SETAPAK partners have been using Indonesia’s 2008 Freedom of Information Law to gain access to documents filed by mining and plantation companies in support of their license applications. This is a critical first step in monitoring the plans and activities of these powerful commercial groups, and ensuring that government is accountable, efficient and honest.

“Transparency of public information is a facility to optimize public supervision on the organizing of the state and other public agencies and everything that affects the interest of the public.” Indonesia’s 2008 Freedom of Information Law.

Accessing Public Information

West Kalimantan from the air | Photo: Armin Hari

Indonesia’s Law No. 14 of 2008 on Disclosure of Public Information (the Freedom of Information Act), which became operational in 2010, requires that public information is accessible to all Indonesian citizens and legal entities. It is seen by environmentalists as a vital mechanism to enable civil society to gather information about land use policies, details of environmental impact assessment (AMDAL) studies, and permits to prospect, mine and establish plantations. All state bodies which receive government funding are subject to the Act, along with community- or foreign-funded non-government organizations.

Beyond establishing the right to access public information, the Act provides grievance mechanisms which can be used if public bodies ignore information requests, or only partially fulfill them. The most important of these are provided by national and provincial Information Commissions. These are independent bodies made up of government and community representatives who are chosen by the National Parliament from a list compiled by the president.

The Act also specifies mechanisms for resolving disputes regarding Information Commission decisions. Administrative courts address disputes involving state public bodies (badan publik negara), and the general courts hear cases involving other types of public bodies. These courts can order the disclosure of all or part of the information requested, or confirm its nondisclosure. Information which might impede law enforcement or threaten national security, international relations or national economic

stability is excluded from the Act, along with personal information, and information that conflicts with intellectual property rights.

Currently public awareness of the Act is low, and with little or no extra funding provided by central government to support implementation, many public agencies, particularly at district level, continue to respond inadequately. A 2014 study by the Indonesian Centre for Environmental Law (ICEL) and the National Secretariat of the Indonesian Forum for Budget Transparency (Seknas FITRA) found that out of 311 information requests related to land and forest governance, 188 (60.5 percent) were not responded to, and only 70 (22.5 percent) were responded to, although many of the responses were refusals to supply documents. Explanations included that the local government did not have the documents or was not authorized to release the documents, or that the documents were commercially confidential. Of the 52 documents that were released, 32 (61 percent) were only obtained after further pressure was applied.

As many local governments are still at the early stages of implementation, SETAPAK partners are providing assistance to local governments on how to implement the Act, and to the public on how to use it to obtain land use information, which can then be used to press for accountability. Support is also provided to civil society groups pursuing grievance procedures, which are frequently necessary to enforce information requests. As grievance procedures often gain public attention, they can act as further impetus for implementation.

Access Equals Accountability

Defending DemocracyAccess to information is a key component of transparency, and a vital element of good governance. It enables civil society to hold government to account, improves public policy and administration, and combats corruption. Transparency allows and encourages all citizens to play an active part in democracy by insisting that officials exercise their power for the greater good. They can only do this when they have full information about their government’s activities and policies, and know their entitlements. Secrecy prevents citizens from checking abuses of public power, and the absence of information often creates a sense of disempowerment and mistrust. Greater transparency helps to ensure the benefits of growth are distributed equitably and efficiently.

Access to information is also an important weapon against corruption. Guaranteed access to information enables citizens, the media and law enforcement agencies to use official records to uncover past cases of corruption and maladministration, and acts as a deterrent against future illegal acts.

Persistence Pays

Legal Aid To Support Access To InformationRecognizing the lack of legal aid and lawyers with environmental expertise in West Kalimantan, SETAPAK partner HuMa (the Association for Community and Ecology-based Law Reform) supported the establishment of the Kalimantan Community Legal Support Network (Gerakan Bantuan Hukum Rakyat - GBHR), which helped SAMPAN and Link-AR Borneo pursue and ultimately win their critical case. The network provides legal support for forest governance issues, particularly cases that involve conflict between communities and extractive and land-based industries.

Indonesia’s NGOs are now playing an important role in increasing demand for public information. In June 2014, SETAPAK partner MATA pursued an information grievance against the Mining and Energy and Forestry and Plantation agencies in Aceh when information about budget allocations and permit processing was not provided. The grievances were mediated out of court by the Aceh Information Commission which ruled in MATA’s favour. In September 2014, MATA pursued a further grievance against the Plantation agency when a request for forest permit information was not responded to. Two mediations were held, which again supported MATA’s case and led to the release of the information.

Also in September 2014, GeRAK (Aceh Anti-Corruption Movement) pursued an information grievance when a request for mining, revenue and shareholding information was not provided by the West Aceh district government. Following two mediations, the Aceh Information Commission decided in GeRAK’s favour and the information was released with the exception of the shareholding details. GeRAK has also successfully pursued an information grievance through three mediations in South Aceh.

The ruling was the outcome of nearly a year’s work, and a series of court cases, which had begun in November 2013 when SAMPAN and Link-AR Borneo had written to Ketapang’s Mining Department requesting details of the mining companies’ operations and plans. Having received no response to this application, or to a subsequent reminder, in January 2014 a grievance was filed with the Central Information Commission in Jakarta, as West Kalimantan had no provincial Information Commission. SAMPAN and Link-AR Borneo were assisted by a legal team from the SETAPAK-supported initiative, the Kalimantan Community Legal Support Network (Gerakan Bantuan Hukum Rakyat – GBHR; see box) to pursue this grievance.

These cases have had implications beyond immediate access to information. In response to MATA’s actions, Aceh’s provincial government has clarified the procedures required for government agencies to provide public information. MATA has also been conducting workshops with civil society organizations and academics to list what information is and is not public. This list has been supplied to the four provincial government agencies that handle forest and land information in Aceh.

In October 2014 SETAPAK partner SAMPAN, together with Link-AR Borneo, was also successful in Pontianak, West Kalimantan when the district administrative court ruled that the Department of Mining and Energy in Ketapang had no obligation or right to keep secret the details of work plans, financial agreements and environmental impact assessments of six mining companies operating in the region. These companies including the publicly-listed bauxite miner, PT Cita Mineral Investindo, and PT Sandai Inti Jaya Tambang, a subsidiary of one of Indonesia’s largest natural resources conglomerates.

When this grievance was rejected in May with the Information Commission accepting Ketapang’s Mining Department’s submission that the documents in question were commercially confidential, SAMPAN and Link-AR Borneo began an action in Pontianak’s administrative court. An initial hearing at the end of August failed to reach a resolution because the Mining Department’s attorney arrived late, but following further submissions in September, the court ruled in SAMPAN and Link-AR Borneo’s favour.

The Asia Foundation’s SETAPAK program, funded by the UK Climate Change Unit, is focused on improving forest and land governance in Indonesia. As well as reducing greenhouse gas emissions to mitigate global climate change, the program helps Indonesia’s decentralized governance ensure transparency and accountability in the management, protection and distribution of benefits from natural resources with the intention of achieving sustainable economic growth.

Palm oil on the way to Ketapang | Photo: Armin Hari

The case represents a landmark for communities dealing with extractive and plantation-based commercial operations across Indonesia. Following the verdict, Dr Hermansyah, a lecturer at the Faculty of Law at Pontianak’s Tanjungpura University and member of the GBHR said: “The judge understood the implications of the case. It shows that the public right to information can be enforced in the courtroom. It means that legally, people affected by business operations are entitled to know what the anticipated impacts will be.”

The ruling is of particular relevance to Ketapang’s communities. According to SAMPAN’s analysis of permits, more land has been permitted for concessions than there is total land area – 100.3% of the district’s land area, or 3,254,521 hectares, has been issued for mining and plantation concessions have been issued when only 3,158,800 ha of land exists. This excessive expansion of land based industry operations has left little to no land for local communities vital water and food sources. Improved access to information is vital to promote social and environmental justice in districts like Ketapang.

A Landmark Case