Austin Jenish - Environmental activism, the law and SLAPP

[MUSIC PLAYING] Marika! Marika! Marika! The country of Indonesia, do they like me and Indonesia? 100% confident Indonesia will prevail. [MUSIC PLAYING] Welcome to the Talking Indonesia podcast for this week. I'm Dr. Elizabeth Kramer from the University of New South Wales. And today's recording is coming to you from McGatgarland, part of the Urination. Across the Acapelago, environmental activists are increasingly finding that the sharpest threat they face. Isn't out in the field, it's in the courtroom. In this episode, we're looking at how the law itself is being turned against environmental defenders in Indonesia, especially through what unknown as slaps, strategic lawsuits against public participation. What are these suits? And what is the intention behind them? To unpack this, I'm joined by Austin Jenish. Austin recently finished his studies and his path into his questions didn't begin in a lecture or a research program, but with a study abroad program that took him to Indonesia. He came to the country's legal system and his environment out of a genuine curiosity and followed that interest fire enough to start writing about it. So we actually connected through an article that Austin wrote for earth.org about Slap. And I think it's a great reminder, too, that research doesn't have to be formal. It can also be about following your own interests and curiosities and putting that out into the world. Austin holds degrees in both law and genetics from Monash University and now he's working at a commercial litigation forum. But his engagement with environmental issues is a longstanding passion. He served as a conservation status assessor with the International Union for Conservation of Nature. He's contributed environmental law and policy work to NGOs including the Institute for Criminal Justice Reform in Jakarta. And through Monash's law clinics, he's helped draft a framework for environmental litigation and supported the Cook Islands in the UN's plastic pollution treaty negotiations. (upbeat music) - Hi, Austin. Thank you so much for joining me on the Talking Indonesia podcast. I'm interested. How did you first become attracted to environmental issues in Indonesia and what's your history there? - Yeah, thank you for having me on. My interest really started with a study abroad program that I did a few years ago. So back in 2024 when I was in my final year of law school, before then I was interested in doing study abroad and I didn't really want to go to somewhere in Europe or Paris, you know, do something and come back with a boring story about how I sat and cough and learn a few things and came home. And I was looking for something that was a different type of country, a different legal system. And a country that I believe is going to grow in significance and importance, in power as well. And Indonesia really stood out to me. And I'll be honest, my interest in Indonesia, it very much centered generally speaking in Indonesian society, in the country and in the legal system. And when I actually wrote the article, I wrote it as how the Indonesian government or Indonesia as a nation is like the way I titled it was how Indonesia suppresses voices through lawsuits. And in order to pitch it to the earth.org audience, it was tailored to a more environmental, with a more environmental flavor. But yeah, so my interest started broadly speaking in democracy, but Indonesia has a very rich, it's rich in terms of its environment and it's a mega diverse country and it has, I think, 10% of the world's for us. So there's a whole lot to explore there as well. So it's really a fascinating nation to me. - Thanks, Austin. I will link your article in the show notes so people can have a look at that. You've jumped a little bit ahead of me by mentioning it before I introduced it. Totally fine, but I just want to, that's absolutely fine. But you just mentioned something about how Indonesia is, it's a democracy, it's potentially going to be growing in power and it has 10% of the world's, did you say the world's for us? - I believe it's tropical rainforest. - Tropical rainforest. Was that something that you discovered through your Indonesia experience? Or did you know that before you went and that was part of your decision? - It was something that I learned while looking more into Indonesia. Like before I went there, what stood out to me is, I believe it was a Goldman Sachs and a few other major banks and corporations who predicted that Indonesia will be the fourth largest economy by 2050. And that just stood out to me instantly. I did have a sense that Indonesia would be a very important nation for environmental conservation because it is massive and it's tropical. So I studied genetics and I also did a bit of conservation work during uni and a lot of the world's species are concentrated in biodiversity hotspots which are found in places like Indonesia, Amazon rainforests, parts of India, et cetera because typically in tropical environments what you get, you get these very stable climates where you can have so many different species that live in a single ecosystem. - So when there's a failure to care for forests and when there's a failure to care for these ecosystems, it can lead to a loss of species richness and diversity that's very difficult to get back. - And Indonesia is maybe not the forefront of conservation right now although there are many activists who are trying to push that cause and we will circle back to that in a moment but I love that you've mentioned you but this legal background but also your genetics and science and biodiversity background as well. So how has that influenced the research that you've done about Indonesia and was there something in particular with the experience you had while you were there that pointed you towards environmental issues or was it something else? - Yeah, so I think that both the degrees that I completed were very relevant sort of informing my world view and sort of how I think about issues and I think it's really vital to understanding I mean environmental law broadly speaking but also understanding how policy interacts with the priorities of scientists and so on. Like Indonesia is a, it's fascinating because it's legally pluralistic and whereas compared to Australia we're basically it's a legally central country with one system imposed by the British and continues today whereas Indonesia is the so many different cultures and cultural groups that have came in to Indonesia and brought their own like sort of added to the heritage. So as an example and you see that in the food you see that in the architecture this tends to be a mix of what you find in South India as well as East Asia and it mixes in with local and indigenous cultures and that has an influence on customer law because customer law is the indigenous legal system but it was easy to harmonize that with Hindu and Buddhist systems and after that you had Islamic systems that came in when Islamic traders then the Dutch and it's such a layered country. So I think that having a legal background was vital to understand these things but at the same time I feel that even after I spent about two months there and in office spending two months there only grasped a fraction of what's really going on in that nation and in its laws and society. - Yeah, well I mean there's definitely more research to be done if you are up for the challenge. But you've written about do we say slap or is it S-L-A-P-P? - I think we can call it slap. - Slap again. - You've written about slap which is an acronym for strategic lawsuits against public participation particularly in the context of climate activism in Indonesia and how this has affected individuals and organizations who are advocating for a better climate change policy but also advocating against particular projects that might threaten that goal. So before we get into the details of what slap lawsuits look like can you just talk us through what they actually are and how the law gets mobilized or weaponized against activists? - Sure and honestly I'm gonna call it slap suits even though I'll be saying suits twice. So slap suit as you described it's strategic lawsuits against public participation. The key term there is it's strategic. The law part is almost second to the fact that it's strategic. I mean they use around the world but they're not limited, it's a limited to Indonesia. There's even been a history of slap in Australia, slap suits in Australia and use all over the world. There's American commentary on it as well. But broadly speaking, it's the use of lawsuits, whether or not they're legally valid, designed to retaliate against someone who otherwise would have a successful case against you. So you could have a plaintiff on the other side who sues you and you as a defendant, you fire a slap lawsuit against them. Typically, it's like a powerful corporation or a government or someone in the government who may fire back a slap suit when they get sued in order to try and sort of brush away the initial lawsuit. Sometimes it's initiated by corporations or governments, it may not be used as a defense against it. Also, it's initiated by them in response to a protest or someone trying to change climate policy. If there's a corporation or government whose interests are against making such changes, they may fire a slap lawsuit and it's designed to intimidate as well. So a lot of times, it's the basis for these slap lawsuits or defamation. So defamation is one of those things where you can alleged it and even defend yourself against any bad claim that's made against you by saying that's a lie or that's defamatory or that's not based on anything. And if you huff your chest enough, a lot of people get scared. And that's sort of what slap is generally speaking. Every so often, you do get slap suits where they are genuinely legally valid and it does result in a finding of liability against target of these slap suits or a criminal conviction. But often when people fight against these slap suits, they are successful because the law is secondary to the fact that it's strategic and it's designed to intimidate scare people. So I guess in describing it as a strategy, it means that whoever is using it, they're looking for specific laws that might help them with their case, but it's not necessarily one particular law that gets used all the time. Yes. I mean, defamation is particularly is used more often than other causes of action. So in litigation, we talk about causes of action, which is the nature of the claim you're making as a plaintiff or as a defendant who's counter-sowing. So defamation is generally used, but it can be anything. It could be, well, this is a hypothetical, but if you're a hospital and you don't like a particular doctor, you could claim negligence, like bring a negligence lawsuit against a doctor. Like, there are different causes of action that are used, but defamation is the most dominant cause of action. And so turning to the Indonesia case, first, it might be helpful for you to talk us through maybe an example of how slap suits have been used in Indonesia. And then we can talk a little bit about the history and what's facilitating the particular trajectory of slap suits today. So can you give us an example of a case in Indonesia where a slap suit has been filed against a climate change defender or an environmental activist? There's been many different suits. One in particular, which is kind of harrowing in one sense, but I guess people who really know the Indonesian legal system inside out weren't surprised by the result of this. But it's a famous case, it's called bootie pego and so bootie pego, he was a resident of East Java and javas, a lot of powerful people and entities hang around there and do their business. He was protesting a gold mine which operated in East Java and he displayed banners rejecting the mining and organized this demonstration, but he was accused of enabling other individuals to sort of join the protests and put up a communism symbol. And then he was charged for violating criminal statute because communism is illegal in every sense and they have very harsh penalties against disseminating communist symbols, communist ideas, etc. And he was found to have committed crimes against state security and he was sentenced to ten months in prison. So this is an instance where actually there was a legal basis to it but it reflects the broader system where the certain political viewpoints are not allowed and it is kind of tied into the broader state philosophy of Indonesia where the belief in one god is central to the Indonesian ethos and communism is undermining that. And I understand that from, I mean obviously if you come from a western secular democracy you might be seen as a very strange or oppressive idea but if it's central to a country's culture I understand that but the danger is a lot of times even if someone hasn't actually done anything relating to communism it's used as a way to silence certain views. In this case he may not have directly displayed a communist symbol but because of some affiliation that was enough to silence him and put him away. Well I was going to ask do we know if he actually did display something or was this a charge that was made against him and perhaps there was no evidence but I'm not sure if you have the insight scoop on whether that is the case or not. I wish I did. Well the court that was their view and yeah I guess it's one of those things it's so tough to determine exactly what happened. Yeah and with the history of the communist party in Indonesia they know even this long after the 1960s it's still very much a scapegoat so that sounds like a pretty as he said something that you could have expected. He may be shocking looking from the outside in but it is kind of unfortunately expected when you are in the middle of that system now. I noticed in the article that you reported that between 2014 and 2020 according to Wafli which is Indonesia's friends of the earth organization they documented 1,131 cases of criminalization against environmental switch seems like a pretty big number. Are those cases mostly slap suits that they're referring to there or are there other kinds of criminalization as well? Yeah it's a broad number like it includes arrests, it'll include laws suit whether successful or not. So a combination of strategies are used by governments by corporations sometimes it's just a matter of bringing a criminal charge so if a charge is brought but if the charge is dropped it would still be included within that figure. And with these slap suits is there I mean even from the acronym it sounds like something that maybe could have developed in the US where they've got a very litigious society but I'm not sure is that actually the case or is there something that has been happening in Indonesia for quite some time so I guess what I'm asking is is there a history to this or is this a new phenomenon that we're seeing? Yeah so globally speaking there is a history to this I'm most familiar with the Australian and the Indonesian context but it's been there for a few decades in Australia as an example it's just that slap can be more or less effective when you look at the broader context of the legal system in which it operates so for example in Australia there are many cases during the 90s involving slap but typically a court tool shut it down very easily. There's all these ethical duties on litigators to not abuse process and so on and these are strictly enforced. There's a question of do they exist and how strictly are they enforced and they're generally strictly enforced? That doesn't mean slap isn't effective if you're a protestor against a large forestry company and they bring a million dollar lawsuit against you even if you fight it and you win the lawsuit itself may scare people away so in that sense it can be effective anywhere across the world but when you have institutions and structures in place that make it difficult for one of the things that lawyers will have to sign before you bring a lawsuit as a proper basis in big Australia and if the other side can demonstrate that you didn't bring a case to a proper basis you can be put before an ethics board and potentially get suspended or punished etc. So there's all these other things in place that regulate and make slap more challenging in countries that have a lot more checks and balances or are more mature democracies. In Indonesia it's challenging because it may not be as mature as other democracies as well as there's the issue of the criminal defamation framework. So in many cases even in Indonesia when you do fight the lawsuit you can win. So even if the allegation is severe. So for example if you insult the president of the vice president in the previous criminal court as you insult I believe the terminology uses assault the honor and dignity of the president you can be put to jail. That kind of charge is often made against someone who maybe in a woman in an Indonesian village you're saying hey don't you. pollute the river that I'm drinking from. But if you actually haven't made the insult, you can fight the case and win. But given the presence of this criminal defamation framework, like in the case of criminalization of communism, it's a lot more risk for protesters to try and defend against these actions. And sometimes there can be a legal basis, even though generally they may not be. So I guess the social or maybe even the psychological impact of these slap suits is one thing. But before we get to that, can you share some examples where people have been hit with these suits and have actually successfully defended them in Indonesia? Sure. I mean, there's many case. Maybe I'll go through to where let's say anti-slap has been successful. One of the cases is the Basuki-Vasees case. So Dr. Vasees, he was a lecturer in environmental science, and he was invited by the Kapikas and the Radication Commission. The Corruption and Radication Commission, which some people are alleging is becoming corrupt, unfortunately, but that's another point. That's a different point. A different point. Yeah, a commission that has done a lot of good work or since it's founding. And they were, I believe they're prosecuting a governor, Neur Alam. And he was, he had allegedly allowed a form of illegal mining in the Southeast to a university region. And Dr. Vasees had testified the extent to the environmental damage, which was used to put away governor Alam. And he was sentenced to 12 years in prison. Following that proceeding, he's obviously not too happy with how things went. And he brought personal taught lawsuit against Dr. Vasees, arguing that he should pay the ridiculous amount of over a billion Indonesian repeal. And he argued that his scientific interpretation was incorrect, all the stuff. But the court really sided with Dr. Vasees here because in the original proceeding, the court had adopted the expert testimony of Dr. Vasees. So if this was contradicted later on, that it would be undermining an earlier court decision. So the court made it very clear that you cannot come in with a fresh lawsuit and try to attack something that was approved earlier on in a decision. Yeah. So that's one example where the person has managed to, you know, not face dire consequences of a slap suit. Yes. Yes. Another case. And this is probably the most important case in recent years, which is a Rabundi case. And Rabundi was part of a class action lawsuit. He was like in a public employee workforce. And he was part of a class action lawsuit against an Indonesian industrial company for pollution through factory waste. Unfortunately, the lawsuit failed. But as a form of retaliation, he was reported to the police on charges of violating the old criminal code. I think his charges like falsifying documents and other charges. I believe there was a finding of guilt against Rabundi, but the high court of that region had acquitted him and had relied on article 66 of an Indonesian environmental law, which states that if my memory is if it, the person fights for the right of a good and healthy environment, they can't be prosecuted through criminal prosecution or through a civil lawsuit. And I think that's one of the most, if not the most powerful anti-slap provision in Indonesia today. And it really sements a right that's already there in the constitution. It's a win. It's a major win for environmentalists and environmental activists. Yeah, it seems very definitive that if no individual that's fighting for the right of a good and healthy environment can be prosecuted, then I guess that brings the question, you know, of why somebody would even bother with a slap suit in the case. But I think as we've sort of alluded to already, it's not just about the legal side of things. Yes, yes. So, you know, going back to this idea of it being strategic, if you had to boil it down, what do you think companies and individuals, particularly companies that are, you know, working in the environmental realm, what are they actually hoping to achieve a slap and what kind of impact are they hoping that these cases will have given the fact that they may be pretty frivolous. Frivolous is a perfect word. I think it really comes down to power and trying to exploit the vulnerable. So if a very powerful entity like a super corporation or the government, a powerful well-connected governor comes at you with a lawsuit and you're someone who lacks education, you may not know about these cases or you may not know the context of these cases, you may just stand down and surrender to the whims of the powerful. So I think that's really what anti-environmental companies and anti-environmental government entities and ministers that are counting on is lack of public education, lack of public awareness. And I think also there's a general trend. I'm kind of stepping out of Indonesia specifically, but I have noticed this around the world where people are noticing that there's corruption going on. The tends to be focused on individuals. This individual's corrupt and he or she is causing problems, as long as we get rid of this person, the system is better. And even the media, I think, is largely responsible in one sense by overly focusing on individuals who are corrupt and not informing the public about their own rights, about the fact that these are systematic problems. And this allows the powerful to exploit people who may not have the awareness on how they can defend themselves. Given that the situation that we're in at the moment, there are some academics at least who are pointing to democratic decline in Indonesia, activists facing more and more challenges and trying to get their issues and their policy goals across without being single out by the government or what have you. What do you see as the future of slap suits in Indonesia? Do you think that they will increase with this or are there other ways that environmental activists are being threatened? Yeah, environmental activists have some very tough in countries like Indonesia, for sure. Yeah, I think, look, I think there is a macro trend that's going on, which kind of gives a good amount of context to, let's say, democratic decline, because I don't think Indonesia is unique here. And I'll get to the slap issue. But I think this is very important to understand is, and this is sort of my take on it. I think what's happening now is you have a lot of countries, particularly developing economies who have less faith and confidence, either democracy or a democracy filled with checks and balances. And the reason why is partly, there is a practical element where if we turn the clock back to the 20th century, there was an ideological battle between the US promoting capitalism and democracy just in an ideological way and they don't always stand for what their supposed values are. And you had the Soviets who were promoting communism and also terrorism. And ultimately, the US won that ideological war. But in the modern world, what we have is a new ideological war between, let's say, China and the US. And what China is promoting is, OK, we can have elements of capitalism. And one of the reasons why even the communism was very appealing to people and it kind of caught across culture and race. And it was seen as like anti-colonialists in one sense. But now what you have is this new ideology, which is particularly pointed by China, saying that, OK, we can have elements of capitalism. But fundamentally, authoritarianism allows for governments to get things done. And if you're developing economy and you want to get things done, you should look to us and see how much we've transformed the country, how many people were brought out of poverty, et cetera, whereas Western democracy is failing and US is the example of how it's crumbling. So I think that's appealing to a lot of developing economies, including economies in Africa and Southeast Asia. And so that's there as a broader there in the backdrop. And to add to that, a lot of times, environmental regulations or environmental policies are seen as interfering with economic growth and development. And of course, if your only consideration when building a country is economics, if you have environmental policies, it could restrict energy supply, it could restrict all these things that could slow down growth. I mean, I would argue, and I think most people who care about the environment would argue that there are other benefits to environmentalism that are there. And the quality of people's lives are beyond just income and their pockets. And it's about things like air quality and being able to enjoy an environment and so on. But that drive is there. So that's what they're in the background. But going from that, you have people who exploit that situation and people who enter into power because they're power hungry and I think that sort of storm of like okay I want to develop the economy but I'm also kind of a power hungry type person I don't like anybody who criticizes my policy environmental activist criticize my policy they're stopping by life's duty of uplifting my people at any cost economically therefore I'm going to crush them and I think that is that trend sadly I think it will continue but it is up to people to fight for their own rights and I think also it's up to nations to define their own identity like Indonesia as a nation should obviously have its own identity and decide exactly where it wants to sit in terms of how much of prioritizes economics versus the environment but regardless in terms of its legacy will be judged on how you treat little people and what kind of rights you afford to them and how you protect those rights it's a very complicated issue what I'm getting at is I think that the trend of alternatives may continue but there are people who are out there who are fighting for the environment who are fighting for democracy yeah I mean I just going back to the article 66 is the Indonesian law on environmental protection that you cited earlier that says anybody who fights for the right to a good and healthy environment should be exempt from criminal civil action I mean that that places those people in a very special or you know glorified place and yet I think maybe that's not the reality that a lot of these environmental activists are actually facing I did have one last question which I know I'm just throwing out there just thinking about who is actually part of this environmental movement part of this climate change movement are we seeing a broad range of people involved there or are they just pockets or is it a lot mainly I guess indigenous groups who maybe are much more directly engaged with the environment in their day-to-day lives like how how how is that constellation of environmental defenders looking and forming an Indonesia that's a great question I have no clue as the numbers so I'm going to mix and match some experiences with some estimates I would say civil society is very much involved so when I was studying there I was doing an internship as well even though the focus is criminal justice reform I know all the people there are very much they care about these issues so there's tends to be unity among the civil society about this even among like anti-corruption groups like the ICW and I've met people there and there's a shared cause there at the very least being able to protest I don't know how much of the public is very much in tune with this but in terms of the people who are fighting for environmental it won't just be one view and this is something that that's definitely true in Australia as well you see different people with different priorities some people who maybe focus more on reducing emissions whereas other people maybe focus more on biodiversity but you are right that indigenous people are often are there in the heart of many of these movements and it comes down to a customer law and indigenous views on on rights of nature or at least duties towards nature that people have and it's just so deeply culturally embedded into indigenous communities there's like it's like a natural next step to fight for the environment because you're not just fighting for the environment you're fighting for your heritage you're fighting for maybe part of your own your own identity and you're fighting for your community well as he said hopefully more and more people will become involved because I think even though these are national issues within Indonesia the fact that there is such a large proportion of the world's rainforests there is a global issue so with that thank you so much Austin for joining me I've really enjoyed our chat and thank you for making the time I wish you all the best thank you so much for inviting me I really enjoyed it as well and that's it for this week's episode of the Talking Indonesia podcast I hope you've enjoyed the conversation and we'll see you next time