A number of government officials including the President of Indonesia and the Governor of Jakarta recently have been sued by a community group over air pollution in Jakarta. The group has demanded the government to impose better policies to solve Jakarta air pollution problems. The claim was filed to the Central Jakarta District Court under the mechanism of citizen lawsuit.
What is citizen lawsuit?
Citizen lawsuit, also known as actio popularis, is a claim filed by private citizen against government institution for an unlawful act or a failure to perform non-discretionary duties. Not only the government, citizen lawsuit can also be filed against private parties that run or provide public services. Citizen lawsuit is basically intended to defend public interests from any unlawful acts or omissions by authorities or private parties.
In Indonesia, citizen lawsuit is currently only recognized for environmental disputes as regulated under the Decree of the Chief Justice of the Supreme Court of the Republic of Indonesia number 36/KMA/SK/II/2013 on the Enactment of Guidelines for the Handling of Environmental Cases.
Such Decree may become the source of law for the practice of citizen lawsuit in Indonesia as it states that although there is no statute on citizen lawsuit in Indonesia, judges should not deny cases on the reason of lack of legal basis. Moreover, in relation to that, the Decree also obliges Indonesian judges to explore, follow and comprehend living values within the public.
Further, the Decree also stipulates that citizen lawsuit must fulfill the following requirements:
- The plaintiff is one or more Indonesian citizen(s). Legal entity is not allowed to become a plaintiff.
- The defendant is government and/or state institutions.
- The cause of action must be for public interests.
- The object of the lawsuit is omission or failure to perform non-discretionary duties.
- A 60 working days prior notice or demand letter must be served. Failure to do so shall cause the citizen lawsuit to be formally declined.
- The notification or demand letter must be served by the aggrieved citizens against the government with a copy to the Chief Judge of the relevant District Court. The demand letter shall contain; (i) the alleged party or government institution that allegedly committed a violation; (ii) the type of violation; (iii) laws and/or regulations that have been violated; (iv) explanation on the public interests that have been violated i.e. the environment of living creatures that have been or are potentially polluted or damaged; (v) demanding financial compensation is not allowed.
- The 60 working days prior notice is aimed to provide chances to the government to fulfill its legal obligation as demanded by the aggrieved citizens.
- The proceeding of citizen lawsuit shall be done according to the prevailing Indonesian Civil Procedures.
Citizen lawsuit is not actually new in Indonesia, there were previous cases initiated pertaining to various public interests. One of them was a citizen lawsuit filed by a group of Indonesian citizens concerning the neglected migrant workers who were deported from Malaysia. The Central Jakarta District Court where the case was heard granted the claims which then resulted in the issuance of Law number 39 of 2004 on the Placement and Protection of Overseas Indonesian Worker. In another case, a citizen lawsuit about the implementation of school national examination was partially granted by the Indonesian Court. In the ruling, the Court punished the government to review the implementation of the national exam policy. Such decision was final and binding after being upheld by the Supreme Court.
Not all citizen lawsuits are successful, the one that was filed by some citizens over fuel price increase was denied by the Central Jakarta District Court on the basis that the citizen lawsuit is not a common practice in Indonesia.
Despite narrowly regulated, citizen lawsuit has become one of control mechanisms to the government. It provides chances for concerned citizens to stand up and defend public interests in the court of law. And more to that, it has widened access to justice in Indonesia.
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