Indonesia’s controversial Omnibus Law casts a long shadow

16 November 2020

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Indonesia’s controversial Omnibus Law casts a long shadow

Indonesian civil society must always navigate challenges surrounding transparency, but this year they have been aggravated by social turbulence and COVID-19. A victory early in the year --in which the government removed a rule prioritising short-term gain over public interest --has been more than undone by the passage of the Omnibus Law. 

Civil society were already concerned in April 2020 when the Indonesian Ministry of Trade passed Regulation P15/2020, ‘to alleviate the economic impact of the pandemic’. This regulation allowed export of forestry products without the legal documents required by their Legality Assurance System (SVLK) under the Voluntary Partnership Agreement (VPA) they have with the EU. The regulation would thus be in violation of the VPA (FW 254). Indonesian civil society organisations (CSOs) cooperated with a disparate group, including business associations in Belgium, the United Kingdom and Italy, and even the Indonesian Ministry of Forests, to apply pressure on the Ministry of Trade and in May 2020, Regulation P45/2020 was adopted, quietly revoking P15/2020

As elsewhere, COVID-19 has inserted uncertainty into forest governance processes. The yearly Periodic Evaluation (PE), identifying strengths and weaknesses in the practical functioning of Indonesia’s SVLK, was to begin in September 2020. Whether it has begun is unknown, but CSOs have been assured it will be ready by year’s end. Likewise, the 2020 FLEGT Joint Implementation Committee meeting has been postponed, likely until early 2021. 

Positive movement occurred, however, with Impact Monitoring (IM) of the SVLK’s overall effect on the business sector, local communities, smallholders and artisans, and the health of the forest itself. 2017 baselines were established regarding forest governance and institutions; illegal logging trade; forest conditions; economic development; and livelihoods. This 2019 IM report will measure changes in those baselines and, it is hoped, analyse why impacts occurred. Many are waiting for the report, not just in Indonesia, but also across Africa and Latin America. 

CSOs had been told the report was ready in June 2020 but were then invited to an online consultation about it, on 15 October. The discussion was positive. The IM consultant had examined illegal logging based on documents from the Ministry of Forestry, but CSOs asked him also to obtain data from local police offices. They also insisted that he consider the impact of logging operations not just on the activities of local artisans, but also on the livelihoods and wellbeing of local communities. 

They felt their suggestions were favourably received and would be followed up. 

The Omnibus Law (OL, Law no. 11 of 2020) passed on 5 October is set to undermine the positive forest governance framework agreed earlier in the year (FW 253). The OL intends to encourage business not just in the forest sector, but also across mining and palm oil sectors, by ‘facilitating’ the permit process – which the draft proposes to do by diminishing workers’ rights and legal protections, excluding Indigenous Peoples and local communities from decision-making processes, and restricting challenge by negatively affected groups. In particular, Law 32/2009 on Environmental Protection and Management has been pulled apart, with 30 articles amended, 17 removed and one added. At more than 1000 pages, a full analysis is not yet available. 

Recognising that the OL will tear down whatever protections they have managed to build, CSOs across the spectrum − labour organisations as well as environmental and social groups − are frightened, and have been protesting since it was proposed in February 2020. Turbulence continues even after its passage. The strategy is now for a broad coalition of CSOs, led by labour organisations but with support from  others, to mount a legal challenge in Indonesian courts and seek judicial review of the OL’s most damaging provisions. 

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Categories: EU-Indonesia Free Trade Agreement, Indonesia

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