Jakarta, Thursday 9 May 2019. Coalition of Civil Society Organizations for Cultivation Rights Title (HGU, Hak Guna Usaha) criticized the policy of the Coordinating Minister for the Economy Darmin Nasution that prohibits information and data of palm oil plantation to be open to the public as this action is contrary to the Public Information Disclosure Law (UU KIP/Law No. 14 year 2008) article 11 paragraph 2 that HGU data is information that “must be available at any time”.
The letter of the Deputy Minister for Food and Agriculture Coordination at the Coordinating Ministry for Economic Affairs, Musdalifah Machmud, was released on the grounds of protecting the strategic value of palm oil industry for the national economic resilience. [1] This directive is a form of government intervention to the private sector not to disclose oil palm HGU data.
The directive from the Coordinating Minister for the Economy contradicts the Public Information Disclosure Law, especially the Supreme Court decision ruling that palm oil HGU data are open to the public. [2] The government directive addressed to the Indonesian Palm Oil Council (DMSI), the Chairman of the Indonesian Palm Oil Association (GAPKI), and the leaders of companies in the palm oil sector has absolutely no legal basis and should be ignored; if the government and the palm oil industry wish to build good reputation in the eyes of the world, it should be started with transparency of data.
The main points stated in the circular letter also contradict one another. How is it possible for the government to actually push for policies to implement of sustainable palm oil practices if important information data such as HGU are excluded. The first dictum letter a-e which contains Verification of the area of palm oil plantations, The Presidential Instruction on Palm Oil Moratorium, Overlaps of oil palm plantations with forest areas, Accelerating the one map policy, and Strengthening ISPO will not be carried out properly without transparency and public participation. This is actually outlined in dictum 2 -4, which is clearly far from commitment to sustainable palm oil.
Moreover, this step is also contrary to President Jokowi’s instructions regarding the acceleration of resolving land problems and agrarian conflicts between communities and state plantation companies (BUMN) and the private sector. This is because most of the plantation conflicts are caused by problematic HGU’s of palm oil companies that overlap with areas cultivated by communities and villages. One of the prerequisites for resolving and unraveling the agrarian conflict is disclosure of HGU’s data and land tenure. According to KPA records, of the 144 agrarian plantations conflicts that occurred in 2018, 60% occurred in palm oil plantations.
The third dictum of the letter, signed by the Deputy Minister for Food and Agriculture Coordination, asks the relevant Ministries / Agencies and Local Governments to classify data and information on HGU as exempt information.
The determination of public information as exempt information as referred to in Article 6 of the UU KIP must be examined against several points, namely:
- Information that can endanger the country;
- Information relating to the interests of protecting business from unfair competition;
- Information relating to personal rights;
- Information relating to job secrets; and / or
- The requested public information has not been ordered or documented.
Meanwhile, HGU information is important information that interested parties should know in order to encourage more professional and sustainable management of oil palm plantations, as provided by the standards by ISPO and RSPO. Sustainable oil palm plantation management upholds the principle of openness / transparency. So that the exclusion of HGU information is a step backwards in the Government’s commitment to improving sustainable palm oil plantation practices.
If the possession of HGU has been in accordance with legal procedures, then there is no need to raise concerns over the use of HGU information. The problem is that obtaining plantation (oil palm) permits is often “not through legal procedures”. So that there are still many plantations that are located in forest areas, in conflict with the community, and even operating without clear permits (without HGU). Ironically, “sustainability certification” can still be obtained.
The fourth dictum of the letter, signed by the Deputy Minister for Food and Agriculture Coordination, also calls on palm oil companies not to make agreements with other parties, to provide data or information relating to palm oil plantations. The coalition considers this directive to be controversial, because in some cases companies are required to disclose such data and information based on court orders as regulated in Article 18 paragraph 1 of UU KIP.
Meanwhile, Article 18 paragraph 2 states that the party whose secret is disclosed gives written approval; and / or disclosures relating to one’s position in public positions. This means that owners of data are protected by their rights to disclose information based on voluntary principle. So that if the owner agrees to open data and information, then it is legally valid.
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Notes:
[1] Letter No. TAN.03.01 / 265 / D.II.M.EKON / 05/2019 Dated May 6, 2019
[2] Supreme Court: Government is Obliged to Open Data on Kalimantan Palm Oil HGU: Supreme Court Decision No. Register 121 K / TUN / 2017 dated March 6, 2017 https://putusan.mahkamahagung.go.id/putusan/feb6010cce27551f7d413980c7023c1f
Contacts:
Civil Society Coalition for Advocacy Open HGU Data
YLBHI, Eknas WALHI, FWI, KPA, Sawit Watch, Huma, TUK Indonesia, Auriga, AMAN, Greenpeace Indonesia, Elsam, Jatam
- Asep Komarudin, Forest Campaigner at Greenpeace Indonesia (0813-10728-770)
- Agung Ady Setiawan, Campaigner of Forest Watch Indonesia (085783517913)
- Era Purnama Sari, Deputy Chairperson of Advocacy at YLBHI (081210322745)
- Benni Wijaya, Head of Campaign Department at KPA (085363066036)
- Wida Nindita, Department of Knowledge and Environmental Resource Management at Sawit Watch (087873904204)
- Mega Dwi Yulyandini, Advocacy and Campaign Staff at the Indonesian HuMa Association (081217135686)
- Andi Muttaqien, Deputy Director of Advocacy at ELSAM (0812-1996-984)