Strict Liability is not Applicable to Palm Industry
By : Herry Barus And Aldo Bella Putra | Thursday, October 26 2017 - 20:00 IWST
INDUSTRY.co.id - Bogor - The principle of absolute liability that does not require a proof of deliberate neglect of a strict liability can only apply to business activities that can have enormous adverse effects on nature, the environment, people and so on.
"The strict liability law rules initiated in various international conventions are actually only targeting the rules on business activities that could bring about the impact of extraordinary damage such as nuclear plants or drilling both onshore and offshore," said strict liability expert from Sebelas Maret State University (UNS) DR Hartiwiningsih in a national seminar entitled "The impact of fire on peat ecosystem" held by Faculty of Forestry IPB, in Bogor, Wednesday (25/10/2017).
Hartiwiningsih argues oil palm plantation activities are not included in the category of activities that can be subject to strict liability rules because it is not destructive.
"Basically, oil palm plantations are categorized as common industry because they get the blessing of the state and their plantations are located in the licensed area of HGU land, and the value, benefits and existence is huge because it absorbs labor and encourages economic growth."
Therefore, said Hartiwiningsih, the application of strict liabity cannot be applied indiscriminately to all industries including oil palm and not absolute. "The aggrieved parties should be entitled to file several grounds for objections on the basis of non-destructive activity. The key word is in the activity. This is different from the activities in the nuclear industry or drilling that directly impacts the damage," she said.
A similar statement was made by Airlangga University law observer Suparto Wojoyo. According to Suparto, the entire state area including the forest is actually the responsibility of the State. Article 33 of the 1945 Constitution which is highly State-centric states that the earth, water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people. Here we understand that no one has more power than the State because it gets the mandate of the people as a legal contract. Referring to this constitution means if an area experiencing a severe fire that disturbs ecosystems and environmental order, then the responsibility is in the state apparatus. They (the State apparatus) are obliged to assume legal responsibility for not performing their functions as supervisor and supervisor.
"A good concept of guidance and supervision lies with the police. Police not only publish motor / car license (SIM) license, but also run the function of coaching and supervise the rider run. So when there is a great fire, the question is whether the State apparatus has run a good coaching and supervisory function. "According to Suparto, when corporations are sued for being negligent in case of fire, they should be able to sue again on the basis of no guidance and supervision.
He also reminded the government to take the same responsibility when a fire broke out in an open access area such as a national park. "There must be a state liability. I.e. the government has the same legal responsibility in case of forest fires," he said.
Chairman of the Indonesian Peat Association (HGI) Supiandi Sabiham rate, the government does not see the substance of the fire problems that occur repeatedly.
According to Supiandi, the fire is a result of social problems that can happen anywhere in mineral and peat land. "But the settlement is only busy tinkering about soil water level in peatland and so it is not unrelated to the substance of the problem, namely poverty," said he