InfoSAWIT, JAKARTA - President Joko Widodo claimed that the fire (in the forests and areas) in many regions in Indonesia is as the organized crime. Some non-government organizations, without basic, even claimed that there would be interests of some corporates behind the fire (in the forests and areas). The question is that what about the areas cultivated by the government where the fire massively took place, such as, the forest? The advance country, such as, America and Russia have got the big flame when the El Nion takes place.

The claim of the president and some sides may n0t be accurate and still premature. The government needs to understand the causes and historic data about the disaster and how to handle the fire (in the forests and areas), at least, in the last five years so the government could prevent and handle the disaster effectively.

One base issue in the fire (in the forests and areas) is the regulation. In this case, there are two regulations that may cause the fire keep happening and in the end, it is potential to be transactional (corruptive). One issue is the nowadays regulation, both in national level, such as, Laws No. 32/2009 about the Protection and the Environment Cultivation and the Laws No. 41/1999 about Forestry; and in the regional level still make the villager do new plantings by burning the areas.

They are the villagers who could do new planting by burning the areas but could not control the bigger flame because of the wind in the dry season, namely in the peat. On the other hand, the government never publishes the condition to have fire extinguisher or does training to burn out the fire.

Suhartoyo (2017) in the treatise of preliminary document of Constitutional Court (CC) No. 25 / PUU – XV/2017 mentioned that the new planting by burning the areas done by the people (villagers) is part of local wisdom that should be protected. But the Constitutional Court never gives the solutions that the fire could be spread, including the leap of fire to the corporates’ areas.

In this case the government should have option, that is, forbidding the new planting fully by burning the areas or letting but should have tools to extinguish the fire and there should be certificates to  burnout the fire for the people who have license to do new planting by burning, including the anticipation if the fire spreads to the corporates’ areas.

The second issue is the strict liability to the corporate which refers to chapter 88, Laws of Protection and Environment Cultivation though as Hartiwiningsih (2017) described that the strict liability is not good to point at the fire case. In its essence, the strict liability should be given in the same time. This is not right if it is executed to the fire case. The legal is the polluter pays principle.

It means that it could not be done in the same time; the actor(s) that caused the fire should be responsible and this is different from the strict liability principle that claims that the corporate(s) should be responsible as long as the fire takes place in their areas, apart from and whoever made it knowing that there would be big losses economically and non-economically because of the fire.

Quoting from the sentence of Supreme Court No. 3555/K/PDT/2018 which was released on Friday, 19 July 2019, it sentenced the government of Indonesia for the contempt of court and fail to give fresh air to the people. The question is how to prepare good air for every people of Indonesia?

It means that in this case, the government should use the preventive paradigm so that the people would be the sufferers. The government should change the paradigm about how to handle the fire from the law enforcement perspective which is proven to misdirection to be the preventive approach, in this case, including the regulation should be designed linearly. For example, it needs to evaluate the new planting by burning.

As it is described by Roscoe Pound (1975) that the legal (in this case, regulation) should be as the ‘social engineering’ and ‘social control’ so that in this case, the regulation should control and make the behavior of the people prevent the fire (in the forests and areas).

The preventive approach in this case is the activity of related instance to prevent the fire. the government should optimize the roles before the fire takes place or gets wider. In the end after everything is done, but the fire keeps happening knowing that it could take place because of the nature that could be unavoidable, such as, the long drought season (El Nino).

(Writer: DR. Rio Christiawan,S.H.,M.Hum.,M.Kn./ Lecturer of Law, Universitas Prasetiya Mulya)