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Timur Abimanyu, SH.

MH

DEVELOPMENT OF ENVIRONMENTAL LAW IN INDONESIA, THE AUTHOR: PROF.DR.Takdir Rahmadi, SH., LLM.

JAKARTA - Public Relations, The development of modern environmental law in Indonesia was born since the enactment of Law No. 4 of 1982 On Basic Provisions of Environmental Management, dated March 11, 1982 is commonly abbreviated as UULH 1982. UULH 1982 on 19 September 1997 was replaced by Law. 23, 1997, and then Law. 23, 1997 (UULH 1997) also declared invalid by the Law no. 32 of 2009 on the Protection and Environmental Management (LN No. 209 years. 140, abbreviated by UUPPLH). According to the akdemisi, environmental law is a law called the functional areas of law, a law which contains provisions state administrative law, criminal and civil. If we carefully whether these three UULH 1982, 1997 and UUPPLH UULH 2009 menandung norms of legislation that comes into the field of state administrative law, criminal and civil. UUPPLH 2009 as the main formal source of environmental law in Indonesia in addition to any provisions of law and legal instruments such as those contained in previous legislation UULH UULH 1982 and 1997 had also contains norms and legal instruments of the new law. Several important new legal norm is about legal protection of every person who fought right to the environment, the authority of the Civil Investigator Officers (investigators) and the creation of a new offense, offense material. In this paper some new legal norms which will be described. First, UUPPLH has expressly adopted the principles contained in the Rio Delarasi 1992, namely the principles of state responsibility, integrity, prudence, justice, polluter pays, participatory and local wisdom. Adoption is a legal political importance because it may strengthen the importance of environmental management mmanakala dealing with shortterm economic interests. The judge in the hearing of a case can use these principles to give attention to the importance of environmental management that may not be noticed by the business or government regulatory authority. Second, UUPPLH, in particular with Article 66 UUPPLH very forward in giving legal protection to those who fight for the rights to the environment from possible criminal

and civil liability. Legal protection is very important because in the past there have been cases in which environmental activists who report allegations of pollution and environmental destruction have been sued in civil or criminally prosecuted on the basis of defamation companies which allegedly has caused contamination or destruction of the environment. In the U.S. legal system and Phillipina, guarantees the protection of the law is called the Anti-SLAPP (strategic legal action against public participation), which claims made by companies suspected of contaminating or damaging the environment and then sue the complainant or whistle-blower or blower allegations of environmental issues in order to cause fear and harm to the complainant or its material or information to other parties in the future. SLAPP lawsuits can be deadly courage members of the public to be critical and to submit reports or information about the allegations or the occurrence of environmental issues by the business sectors that may ultimately thwart environmental management involving the active participation of civil society (civil socitey) . The judges in Indonesia is important to understand the presence and use of Article 66 UUPPLH Third, UUPPLH has caused a change in the field of investigative authority in environmental matters. Pursuant to Article 6 paragraph (1) Book of the Law of Criminal Law (Criminal Code), the investigator is a police officer of the Republic of Indonesia (hereinafter abbreviated to the police) officers and Civil Servants (hereinafter abbreviated to the investigators) are given special authority given by law, legislation. UUPPLH is one of law as stipulated in Article 6 paragraph (1) which is the basis for the existence of investigators as defined in article other than the Police Authority as defined in Article 7 paragraph (1) Criminal Code, among others, to arrest, detention, search, and foreclosure, inspection and seizure of letters and coordinating authority for the implementation of the task investigators (Article 7 paragraph (2), the Police as an institution is authorized to submit the case file to the public prosecutor (Article 8 paragraph (2). Thus, based on the system of the Criminal Procedure Code, investigators are not authorized to submit the results of the investigation file directly to the public prosecutor, but must pass the Police. UUPPLH has changed during these provisions authorizes the Police as the only institution that can deliver the results of the investigation file to the public prosecutor as stated in Article 8 paragraph (2) Criminal Procedure Code. With the enactment of UUPPLH has caused the change. This change occurs through the Article 94 paragraph (6) UUPPLH which states: "The results of the investigation conducted by the civil servant investigators presented to the public prosecutor." Thus, the Civil Servant (investigators) the environment can be and is authorized to submit the file result the investigation directly to the public prosecutor without going through the police again. The authorization is still to be demonstrated empirically in the future whether to bring a positive development for the criminal enforcement of environmental laws or do not bring any change. UUPPLH provide investigators in the investigation authority to: a. To examine the truth of reports or information relating to criminal offenses in the field of environmental protection and management; b. Conduct an examination of any person suspected of committing criminal offenses in the field of environmental protection and management;

c. Request for information and evidence from any person with respect to criminal d. e. f. g. h. i. j. k.
events in the field of protection and environmental management; Conduct examination of books, records and other documents relating to criminal offenses in the field of environmental protection and management; Conduct alleged in certain places there is material evidence, books, records and other documents; To confiscation of infringing goods and materials that can be used as evidence in criminal perkaratindak in the field of environmental protection and management; Ask for expert assistance in the implementation of tasks in the field of criminal investigation and management of environmental protection discontinue the investigation; Entering certain places, photographing, and / or make audio visual recordings; Conduct a search of the body, clothing, indoor and / or other place is the place where the alleged crime Arrest and detain criminals.

Fourth, in UUPPLH approach to criminal law not as a last resort - commonly referred to as' ultimum remedium "- to punish the behavior of businesses that pose environmental concerns. In 1997 UULH criminal sanctions to be a last resort after state administrative law enforcement is ineffective. In UUPPLH, "ultimum remedium" applies only to one article only, namely Article 100 UUPPLH which states: (1) Any person who violates waste water quality standard, emission standard quality, or impaired quality standard shall be punished with imprisonment of 3 (three) years and a maximum fine of Rp. 000 million, 00. (2) The offenses referred to in paragraph (1) may only be imposed when the administrative sanction has been imposed is not complied with or the violation was committed more than once. " From the formulation of Article 100 paragraph (2) can clearly be understood that the criminal sanctions provided in Article 100 paragraph (1) will be imposed if saknis ineffective administrative or repeated violations. This means that criminal sanctions serve as a last resort. Fifth, UUPPLH has strongly put to the leaders of criminal enterprises that have caused contamination or damage. In 1997 UULH not expressly stated head or director of a business entity subject to the responsibility of the criminal. UULH 1997 only uses the term "giving orders" or "that acts as a leader" in the crime. In 2009 the criminal leadership UUPPLH entities defined in Article 116 to Article 119. However, UUPPLH remain the responsibility of adopting a business entity (corporate liability). Section 116 contains the criteria for the birth UUPPLH liability corporation and who was responsible. If judging the formulation of Article 116 UUPPLH, enterprise liability arising in any of the following conditions: (1) environmental crimes committed by business entities, or on behalf of a business entity or (2) by a person based on employment or other relationship is based on the act within the scope of a business entity. Because the enterprise can not work without driven by humans, then the physical perpetrators of human remains, the person on behalf of a business entity or person under a work agreement, suppose an employee or other relationships, eg chartering agreement work.

The next important thing is to determine who should be responsible if an environmental crime is alleged to have done by the business entity or corporation. Article 116 paragraph (1) mentions "criminal and penal sanctions imposed: (a) a legal entity and / or (b) the person who gave the order to carry out the crime or the person acting as a leader in the crime." In addition , the concept of accountability should also be guided by the provisions of Article 118 UUPPLH which states: On criminal acts referred to in Article 116 paragraph (1) letter a criminal sanction imposed on business entities represented by the board authorized to represent the inside and outside the court in accordance with the legislation as functional perpetrators. Thus, from the formulation of Article 116 and Article 118 UUPPLH can be seen that there are three parties may be subject to prosecution and punishment, there are three parties, namely: 1. entity itself; 2. people who give orders or act as a leader in crime; 3. board. Basically without the provision of Article 118 which states UUPPLH "sanctions imposed on business entities represented by the board authorized to represent the inside and outside the court in accordance with laws and regulations as the perpetrators of the functional", the board remains also may be subject to liability on the basis of the criteria "people who gave the order or the person acting as a leader in crime "as defined in Article 116 paragraph (1) letter b. The difference is the formulation of Article 116 paragraph (1) letter b does require that the investigator and the public to prove that penutut penguruslah who has acted as the people who give orders or act as a leader in crime, so it takes the hard work of investigators and prosecutors to prove the role of the administrators in environmental crime. Instead, according to the provisions of Article 116 paragraph (1) point b is associated with Section 118, the board because of his position is not necessarily or automatically assume criminal responsibility, so much easier in the effort to prosecute because they do not require proof of specific roles of administrators in an environment of criminal events. Explanation of Article 118 UUPPLH reinforce the interpretation that if a business entity environmental criminal offenses, prosecution and punishment "imposed on the head of a business entity on the basis of corporate leaders who have physical players and the authority to accept such action". Definition of "accept such action" is "approving, allowing or not enough to supervise the physical perpetrator's actions, or have policies that allow for the crime." Thus, the management company and let employees know the company without going through the release of waste disposal is considered pengeolahan committing a criminal act on behalf of the corporation, so he must be responsible. Formulation of terms and explanation of Article 118 UUPPLH is a breakthrough or progress if judging in terms of efforts to encourage the managers of the company in order to seriously implement the prevention, control and restoration of pollution or environmental destruction when in charge of a business entity. The provisions of Article 118 UUPPLH formulation similar to the vicarious liability in Anglo-Saxon legal system. Sixth, UUPPLH also contain offense material applied to the relevant government authorities in the field of environmental monitoring. enforcement of offenses of this material can be viewed as a progressive penal policy in order to encourage government

officials to seriously implement environmental management. Material offense is defined in Article 112 UUPPLH namely: "Any officer who knowingly authorized to supervise the observance is not responsible for the business and / or activity of regulatory and environmental permits, as referred to in Article 71 and Article 72 which result in pollution or environmental damage resulting in loss of human lives, pindan is liable to imprisonment of 1 (one) year or a maximum fine of Rp. 500 million, 00 (five hundred million rupiah). Indonesia growing environmental laws in addition to the development of such legislation through the promulgation UULH 1982, UULH UUPPLH 1997 and 2009, also developed through court decisions. Two court decisions that can be viewed as important decisions (landmark decisions) is the Central Jakarta State Court's decision in the case against PT IIU WALHI, Minister of Industry, Ministry of Forestry, Ministry of Home Affairs, Minister of Environment and the Governor of North Sumatra Jakarta District Court center. WALHI lawsuit filed in 1982 expiration UULH which basically does not expressly recognize the right of NGOs to sue the law enforcement environment, but the judge in the lawsuit that contested the right interpretation of the concept of public participation in environmental management that was recognized in 1982 UULH (Decision Walhi case PT IIU No opponent. 820/Pdt/G/1988). The verdict was later provided the inspiration for lawmakers to formulate the right of environmental organizations to sue the law, namely Article 38 UULH 1997. Another important decision of a lawsuit by Smith and colleagues (as many as eight people, including Smith) to the President, the Minister of Forestry, Perhutanioffice, West Java Provincial Government and the Government of Garut in Bandung District Court. The Plaintiffs and the people who represented them were victims of a landslide of Mount Mandalawangi Kadungora Garut district and has suffered losses in the form of loss of property, destruction of farmlands and fields, the death of their relatives and the destruction of public facilities and damage the local ecosystem. District Court judges in pertimbangnnya (No. 49/Pdt.G/2003/PN.BDG, dated August 28, 2003), among others, said that the state has a responsibility in environmental management. State responsibility was carried out by the government led by President of the Republic of Indonesia, but because the President has established a Ministry of Forestry, the forestry management has become entirely the responsibility of the Minister of Forestry. Minister of Forestry has authorized Perhutanioffice West Java to manage the forests of Mount Mandalawangi. West Java Provincial Government and the Government in accordance with the scope of Garut each task based on the legislation in force, in particular Law No. 22 of 1999 on Local Government - in effect at the time of occurrence of floods and landslides on Mount Mandalawangi - also have a responsibility to carry out forest management Mandalawangi because it is in the forest area of West Java province jurisdictions and Garut. In pertimbanggnya judges also said that there have been changes in forest management policy in Mount Mandalawangi conducted by the Ministry of Forestry, is to change the status of the previous functions of forest protected areas and then become limited production forest area by decree of the Minister of Forestry. 419/KPTS/II/1999 with all its consequences such as reduced number of stands of trees and forests so that the failure of reforestation Mandalawangi no longer have the ability to recharge water. Furthermore Majelsi judge said that the environmental damage and material loss of the plaintiff caused by floods and landslides in mountain Mandalawangi been factually

proven so it is not necessary anymore. Legal issues that still need to prove the causal relationship, which changes the function of mountain forests Mandalawangi of protected forest into forest production based on changes in forest policy, as reflected in the Decree of the Minister of Forestry. 419/KPTS/II/1999 has caused flooding and landslides. The interesting thing is the judges also in consideration refers to the principle keberhati caution (precautionary principle) that the 15 principles in the Rio Declaration as the basis for solving the problem of "lack of knowledge" are shown with descriptions of expert witnesses on both sides conflicting so that their testimony can not be used as evidence to conclude the cause of the facts have been floods and landslides on Mount Mandalawangi. Although the principle of caution keberhati not get into the legislation Indonesia at the time this case was tried, the judge turned out to have used these principles as a basis for consideration of the verdict. Thought and consideration of the judge in this case despite the fact that one of the judges who adjudicate in the first ever environmental law training, among others, discuss the function of the principles set forth in the Rio Declaration as a source of law. Knowledge acquired during training has broadened horizons and used in the practice of law. This fact shows also the importance of the judge is constantly improving his knowledge through education and non-degree, eg training. Therefore, the policy chief justice to hold a judge certification program is based on the decision environment as Chief Justice of Republic of. 134/KMA/SKIX/2011 on the Certification of Environmental Justice is an appropriate policy because it is through this program the capacity of judges in dealing with environmental matters can be improved. ================= iIlustrasi By Timur Abimanyu, SH.MH But in fact the existence of Article 118 UUPPLH, still a lot of employers do violations including violations of human rights to a violation of the endangered species in the forests of Kalimantan in Indonesia. UUPPLH also be aligned with the Local Government Regulation which authorizes and both internal and external policy violations committed against the company. Where pemeritah area must be responsible for violations of them occurred in the law. Overlaps or conflicts with a policy of environmental laws, BAL, the Central Government and Local Regulations, Autonomy Act or the Authority and the Law of Human Rights undanh applicable both in Indonesia and in the international world ..... All policies related to UUPPLH authorities should be harmonized and co-exist, so in the conduct of dispute resolution may lead to the maximum possible in order to create a deterrent for the perpetrators of violations of these UUPPLH. Because the intent interest of the people that should take precedence ..... In the same way mandated by the 1945 Constitution of the Republic of Indonesia. source of data :
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