Draft Criminal Code and Environmental Law Regression
The creation of danger both in an abstract and concrete way is a crime whose emphasis is an administrative offense, which then poses a risk of harm to the environment.
If the destruction of the environment through our legal instruments was a meal, then the Job Creation Law would be the main course and the Draft Criminal Code (RKUHP) the perfect dessert.
The RKUHP contains provisions regarding environmental crimes, namely Articles 344 and 345. Article 344 Paragraph (1) states, “anyone who unlawfully commits an act that results in pollution or destruction of the environment that exceeds the quality standards of the environment and the standard criteria for environmental damage as regulated in the provisions of laws and regulations shall be subject to criminal penalties…”.
Meanwhile, Article 345 Paragraph (1) contains almost the same provisions, with three differences. First, Article 344 is intended for acts committed intentionally, while Article 345 is for acts committed due to negligence. Second, Article 344 requires that the act be carried out in a way that is against the law, while Article 345 does not contain this requirement. Third, Article 344 contains the threat of criminal sanctions that are more severe than Article 345.
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Apart from containing lighter sanctions than similar provisions in the 2009 Environmental Law (UU No 32/2009), the two articles in the RKUHP are also a regression or setback, which has the potential to make the enforcement of criminal law for environmental pollution almost impossible to do. Before it's too late, both articles are better removed from the RKUHP. The following explanation illustrates why the environmental criminal provisions in the RKUHP are a setback.
‘Unlawfully’ prerequisite
The "unlawfully" prerequisite for criminal acts that result in environmental pollution and/or damage appeared for the first time in Indonesia in Article 41 of the 1997 Environmental Law (UU No 23/1997).
Then, when there was reform, this prerequisite was abolished in Article 98 of the 2009 Environmental Law (UU No 32/2009). Thus, the reappearance of this "unlawfully" term in the RKUHP means that the lawmaker intends to revive what has been "decimated" by Law No. 32/2009.
Furthermore, the revival of the “unlawfully” term has two fundamental problems. First, this requirement departs from an incorrect assumption, where it seems possible that there is environmental pollution/destruction that is not against the law. In fact, according to Law No. 32/2009, everyone is prohibited from committing acts that cause environmental pollution/damage.
With this element, activities that have permits cannot be punished even though they have caused environmental pollution/damage.
Second, by reviving the "unlawfully" term, the RKUHP forgets history. When Law No. 32/2009 was drafted, there were several cases of major pollution that could not be punished. One of the biggest legal obstacles to the sentencing is that Law No. 23/1997 requires the existence of an element of "unlawfully". With this element, activities that have permits cannot be punished even though they have caused environmental pollution/damage.
The abolition of the "unlawfully" term in Law No. 32/2009 is more or less influenced by the writings of Michael Faure in the book Environmental Law in Development: Lessons from the Indonesian Experience (2006). In this essay, the types of environmental crimes are divided into several categories, including abstract danger, concrete endangerment and serious environmental pollution.
The creation of danger both in an abstract and concrete way is a crime whose emphasis is an administrative offense, which then poses a risk of harm to the environment. The action being punished is the administrative offense, while the pollution itself may not have occurred. Meanwhile, the acts that cause serious pollution focus on the pollution that has occurred, regardless of whether there are administrative violations (independent crimes).
The act being punished here is the pollution, not the administrative offence. Prof Faure's writing further criticizes the criminal provisions in Law No. 23/1997 for failing to formulate provisions for independent crimes that cause serious pollution. One of the highlights is the existence of the “unlawfully” element in the criminal provisions for pollution in the law.
The lawmaker of Law No. 32/2009 captures the problems in Law No. 23/1997. Then Article 98 was born, in which the "unlawfully" term is no longer an element of a criminal act.
This abolition indicates that permits, for example for land-clearing activities or disposing of waste, cannot be used as an excuse to be freed from criminal liability, when environmental pollution/damage arises from these activities.
Such provisions can also be seen in various criminal provisions in other countries, for example Section 330a of the German Criminal Code and Article 115 of the Environmental Protection Act of New South Wales, Australia.
The fact that there is pollution is sufficient to convict an individual, without the need for a condition that the pollution is carried out in a way that is against the law. Such provisions can also be seen in various criminal provisions in other countries, for example Section 330a of the German Criminal Code and Article 115 of the Environmental Protection Act of New South Wales, Australia.
In addition, the provisions of Law No. 32/2009 are also in line with the Resolution of the 15th International Congress of Penal Law, 1994 in Rio de Janeiro, Brazil.
The return of the "unlawfully" term in Article 344 of the RKUHP facilitates the re-emergence of the impediments to punishment contained in Law No. 23/1997. As a result, it is very possible that most cases of land fires and water pollution will no longer be able to be prosecuted under the articles of intent, because most of the perpetrators in these two cases, especially corporations, are parties who have permits. They can only be charged with negligence, with the threat of a much lighter sanction.
Two standard conditions for criminal acts
Articles 344 and 345 of the RKUHP stipulate that actions that can be punished are actions that "exceed the environmental quality standards and the standard criteria for environmental damage".
According to Law No. 32/2009, quality standards are divided into two major groups, environmental quality standards (Article 20) and damage standard criteria (Article 21). Environmental-quality standards are used to measure the presence or absence of pollution, while the standard-damage criteria are used to determine environmental damage. Both measure different conditions. Therefore, the use of the word “AND” in both articles means that the exceedance of the standard must be cumulative.
Requiring a violation of these two types of standards is not only wrong in theory, but will also have serious implications for criminal environmental-law enforcement. It will be very rare, perhaps impossible, to find cases that can be subject to Article 344 or 345 of the RKUHP because actions that can be punished, apart from having to cause pollution, must at the same time cause environmental damage!
It is possible that the government and the House of Representatives (DPR) consider the word “AND” in Articles 344 and 345 of the RKUHP a typo. However, this provision cannot be changed simply by changing the word “AND” in both articles to and/or. This solution is just as dangerous and only shows a lack of understanding of the regulation of environmental-quality standards and standard criteria for damage in Indonesia.
Regression in environmental law
One of the principles of environmental law that has recently developed is the principle of non-regression, a principle that requires any states to ensure that environmental laws and policies do not regress.
In 2012, the United Nations General Assembly adopted Resolution 66/288 on “The Future We Want”. Paragraph 20 of this document states that at this time we cannot backtrack from the commitments made by the 1992 Rio Summit. One of the important commitments of this meeting is to realize sustainable development.
During the meeting, the IUCN adopted Resolution 128 urging countries to recognize the principle of non-regression in their policies and laws, as an important principle for realizing sustainable development.
In this context, what was decided at the 2012 World Conservation Congress in Korea is important to note. During the meeting, the IUCN adopted Resolution 128 urging countries to recognize the principle of non-regression in their policies and laws, as an important principle for realizing sustainable development.
Unfortunately, the current environmental law in Indonesia is not good. The Job Creation Law has created a number of setbacks in environmental law, ranging from significantly reducing community participation in environmental decision-making; making licensing related to waste disposal unclear, with all its implications for law enforcement; to decriminalization.
Meanwhile, Government Regulation No. 22/2021 as the implementer of the Job Creation Law in the environmental sector even contains provisions that turn off absolute accountability, a civil liability which has so far been used successfully by the government in various environmental cases. In short, what is happening in Indonesia now is a regression -- a setback that actually distances us from our commitment to realizing sustainable development, because it is contrary to what the UN General Assembly requested above.
Andri G Wibisana
Andri G Wibisana, Professor of Environmental Law and Chairman of the Center for Environmental Law and Climate Justice, FHUI
(This article was translated by Kurniawan Siswo).
