BACKGROUND:

The 1945 Constitution of the Republic of Indonesia states that a good and healthy environment is a human right and constitutional right for every Indonesian citizen. Therefore, the state, government and all stakeholders are obliged to protect and manage the environment in the implementation of sustainable development so that the Indonesian environment can remain a source and support of life for the Indonesian people and other living things.

The Unitary State of the Republic of Indonesia is located in a cross position between two continents and two oceans with a tropical climate and weather and seasons that produce natural conditions of high value. In addition, Indonesia has the second longest coastline in the world with a large population. Indonesia has an abundance of biodiversity and natural resources. This wealth needs to be protected and managed in an integrated environmental protection and management system between the marine, land and air environments based on the Archipelago Concept. Indonesia is also in a position that is very vulnerable to the impacts of climate change. These impacts include decreased food production, disruption of water availability, spread of pests and plant diseases and human diseases, rising sea levels, sinking of small islands, and extinction of biodiversity.

The availability of natural resources in quantity or quality is uneven, while development activities require increasing natural resources. Development activities also carry the risk of environmental pollution and damage. This condition can cause the carrying capacity, capacity, and productivity of the environment to decrease, which in turn becomes a social burden. Therefore, Indonesia’s environment must be protected and managed properly based on the principle of state responsibility, the principle of sustainability, and the principle of justice. In addition, environmental management must be able to provide economic, social and cultural benefits based on the principles of prudence, environmental democracy, decentralisation, and recognition and respect for local wisdom and environmental wisdom. Environmental protection and management requires the development of an integrated system in the form of a national policy for environmental protection and management that must be implemented in a principled and consistent manner from the centre to the regions.

The use of natural resources must be in harmony, harmonious and balanced with environmental functions. As a consequence, development policies, plans and/or programmes must be imbued with the obligation to conserve the environment and realise sustainable development goals. This law requires the Government and local governments to make a strategic environmental assessment (SEA) to ensure that the principle of sustainable development has become the basis and is integrated in the development of an area and/or policy, plan and/or programme. In other words, SEA results must be used as the basis for development policies, plans and/or programmes in an area. If the SEA results state that the carrying capacity and capacity has been exceeded, the policy, plan and/or development programme must be revised in accordance with the SEA recommendations and all businesses and/or activities that have exceeded the carrying capacity and capacity of the environment are no longer allowed.

Science and technology have improved the quality of life and changed human lifestyles. The use of chemical-based products has increased the production of hazardous and toxic waste. This requires the development of a safe disposal system with little risk to the environment, health, and the survival of humans and other living things. In addition to producing products that are beneficial to society, industrialisation has also resulted in the generation of hazardous and toxic waste, which when discharged into environmental media can threaten the environment, health and survival of humans and other living things. Realising this, hazardous and toxic materials and their waste need to be protected and managed properly. The territory of the Unitary State of the Republic of Indonesia must be free from hazardous and toxic waste discharges from outside the territory of Indonesia. Recognising the potential negative impacts caused as a consequence of development, efforts to control impacts early on are continuously being developed. Environmental impact assessment (AMDAL) is one of the preventive tools for environmental management that continues to be strengthened through increased accountability in the implementation of AMDAL preparation by requiring a licence for AMDAL assessors and applying certification for AMDAL document compilers, as well as by clarifying legal sanctions for violators in the field of AMDAL. AMDAL is also one of the main requirements in obtaining an environmental permit, which must be obtained prior to obtaining a business licence.

Preventive efforts in the context of controlling environmental impacts need to be carried out by maximally utilising supervision and licensing instruments. In the event that environmental pollution and damage has occurred, repressive efforts need to be made in the form of effective, consequent and consistent law enforcement against environmental pollution and damage that has occurred.

In this regard, it is necessary to develop a clear, firm and comprehensive legal system for environmental protection and management to ensure legal certainty as the basis for the protection and management of natural resources and other development activities. This Law also utilises various legal provisions, including administrative law, civil law, and criminal law. Civil law provisions include out-of-court and in-court settlement of environmental disputes. Settlement of environmental disputes in court includes class actions, the right to sue environmental organisations, or the right to sue the government. Through this method, it is hoped that in addition to creating a deterrent effect, it will also increase the awareness of all stakeholders about the importance of environmental protection and management for the lives of present and future generations.

Criminal law enforcement in this Law introduces a minimum sentence in addition to the maximum, expansion of evidence, punishment for violations of quality standards, integrated criminal law enforcement, and regulation of corporate criminal offences. Environmental criminal law enforcement still pays attention to the ultimum remedium principle which requires the application of criminal law enforcement as a last resort after the application of administrative law enforcement is considered unsuccessful. The application of the ultimum remedium principle only applies to certain formal criminal offences, namely criminalisation of violations of wastewater quality standards, emissions and disturbances.

The fundamental difference between Law No. 23/1997 on Environmental Management and this Law is the strengthening contained in this Law of the principles of environmental protection and management based on good governance because in every process of formulating and implementing instruments to prevent pollution and/or environmental damage as well as mitigation and law enforcement requires the integration of aspects of transparency, participation, accountability and justice.

The environment as a resource is an asset that can improve the welfare of society. This is in accordance with the command of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia which states that the earth, water and natural resources contained therein are used for the greatest prosperity of the people, and also as mandated in Law No. 32 of 2009 concerning Environmental Protection and Management in Article 1 paragraph (1) which states ‘The environment is a unit of space with all objects, forces, conditions and living things, including humans and their behaviour, which affect nature itself, the continuity of life, and the welfare of humans and other living things’.

Developing countries such as Indonesia absolutely carry out a development with the aim of fulfilling the needs and prosperity of the people. Development in this era of globalisation is supported by the emergence of highly sophisticated technology. In West Java province in particular, the development of technology is very rapid. However, this technology has a huge impact on environmental changes caused by the pollution of the environment by waste and garbage. Environmental pollution results in changes in the environmental order by human activities or natural processes, so that the quality of environmental quality drops to a certain level that causes the environment to be unable to function properly and at least according to West Java Police records, around 107 companies are suspected of dumping industrial waste into the Citarum River (source of the official website of the West Java Provincial Government https://jabarprov.go.id/index.php/news/30071/2018/09/26/107-Pabrik-Diduga-Buang-Limbah-Industri-ke-Sungai-Citarum).

Based on the description above, the author is interested in discussing ‘How is the application of sanctions against companies that pollute the environment based on Law No. 32 of 2009 concerning Environmental Protection and Management (in terms of administrative law and criminal law)’?

LEGAL BASIS:

Law No. 32 of 2009 concerning Environmental Protection and Management.

LEGAL ANALYSIS:

In order to focus the analysis of the case, the legal basis used in providing the analysis is Law No. 32 of 2009 on Environmental Protection and Management and its applicable implementing regulations.

The analysis of the case in terms of administrative law and criminal law, as follows:

1. Definition of Environmental Pollution

Before we start analysing the case above, it would be nice to know the definition of environmental pollution itself contained in Law No. 32 of 2009 concerning Environmental Protection and Management (hereinafter referred to as the PPLH Law), where in Article 1 paragraph (14) of the PPLH Law explains that Environmental Pollution is the entry or inclusion of living things, substances, energy and/or other components into the environment by human activities so that it exceeds the established environmental quality standards.

Then according to Article 1 paragraph (13) of the PPLH Law, Environmental Quality Standard is a measure of the limit or level of living things, substances, energy, or components that exist or must exist and/or pollutant elements whose existence is tolerated in a certain resource as an element of the environment. From the above definition, we can conclude that environmental pollution is a human activity that can make the predetermined environmental quality standards exceeded.

• Environmental Pollution Liability in the Law on Environmental Management and Protection

Article 53 of the Environmental Law explains that:

1. Every person who pollutes and/or damages the environment is obliged to mitigate pollution and/or environmental damage.

2. Countermeasures to environmental pollution and/or damage as referred to in paragraph (1) shall be carried out by:

• providing warning information on environmental pollution and/or damage to the public;

• isolation of pollution and/or environmental damage;

• stopping the source of pollution and/or environmental damage; and/or

• other methods in accordance with the development of science and technology.

3. Further provisions regarding the procedures for overcoming environmental pollution and/or damage as referred to in paragraph (1) shall be regulated in a Government Regulation.

If this section is interpreted systematically with the prevention and countermeasures section, then everyone, even though they have taken preventive measures, is still obliged to carry out countermeasures and restoration efforts if their business or activities still cause environmental pollution or destruction. The prevention efforts that have been made do not negate the obligation to carry out countermeasures and recovery.

Then in terms of recovery if pollution occurs, according to Article 54 of the PPLH Law explains that:

• Every person who pollutes and/or damages the environment is obliged to restore the function of the environment.

• Restoration of environmental functions as referred to in paragraph (1) shall be carried out in stages:

1. stopping the source of pollution and cleaning up polluting elements;

2. remediation;

3. rehabilitation;

4. restoration; and/or

5. other methods in accordance with the development of science and technology.

(3) Further provisions regarding the procedures for restoring environmental functions as referred to in paragraph (2) shall be regulated in a Government Regulation.

And in Article 55 of the PPLH Law also explains:

• The holder of an environmental permit as referred to in Article 36 paragraph (1) must provide a guarantee fund for the restoration of environmental functions.

• The guarantee fund is deposited in a state bank appointed by the Minister, Governor, or Regent/Mayor in accordance with their authority.

• The Minister, Governor, or Regent/Mayor in accordance with their authority may assign a third party to carry out the restoration of environmental functions using the guarantee fund.

• Further provisions regarding the guarantee fund as referred to in paragraph (1) to paragraph (3) are regulated in a Government Regulation.

The formulation of who is responsible for restoration is no different from that of countermeasures. Thus, recovery should be seen as a continuation of countermeasures. The person in charge of the business or activity and the Government or local government are the parties most responsible for remediation in accordance with the gradation of responsibility as described in the countermeasures section. Without having to go through a court of law to prove the degree of guilt, the person responsible for the business or activity and the government should be the ones to carry out recovery efforts first to prevent the impacts of pollution or destruction from becoming more widespread.

Every person in charge of a business and/or activities that discharges wastewater to water bodies must be provided with a Permit for Liquid Waste Discharge (IPLC) from the local Regent/Mayor. (IPLC) from the local Regent/Mayor. Mixing of wastewater from other activities/businesses will have an impact on the discharge and control technology.

In administrative law, companies that do not have a wastewater discharge permit, as long as they do not discharge into water bodies, then there is no violation. Whereas companies that have obtained a wastewater management permit but violate the provisions of the wastewater discharge permit, a written warning may be issued to the person in charge of the business and/or activity that violates the requirements.

• Aspects of Administrative Law in the Law on Environmental Management and Protection

The aspect of administrative law in environmental law enforcement has an important role as a legal effort aimed at preventing and overcoming environmental pollution and destruction through the utilisation of administrative authority in accordance with the mandate given by law. J.B.J.M. Ten Berge states that ‘administrative law enforcement instruments include two things, namely supervision and enforcement of sanctions. Supervision is a preventive measure to force compliance, while the application of sanctions is a repressive measure to force compliance.’

The direction to strengthen administrative law enforcement tools in the PPLH Law at least includes:

1. Permits that are utilised as monitoring and control tools;
2. Compliance monitoring mechanism; and
3. Administrative sanctions.

The Environmental Law regulates environmental permits (AMDAL, UKL, UPL and other environmental permits) as a supervision and control tool by obliging the Minister/Governor/Regent or Mayor to supervise the compliance of the person in charge of the business or activity. For this purpose, they are given the authority to delegate to the environmental agencies under them and to appoint environmental supervisory officials. In an effort to ensure that the government conducts supervision, the PPLH Law also provides oversight authority to the Government against local governments that deliberately do not apply administrative sanctions for serious violations that occur.

The PPLH Law also details the types of administrative sanctions and the relationship between the types of administrative sanctions, as well as the relationship between administrative sanctions and criminal sanctions. Efforts to clarify the types of administrative sanctions are carried out by detailing government coercion sanctions.

Efforts to clarify the relationship between types of administrative sanctions are carried out by regulating when and under what conditions various types of administrative sanctions are applied, for example the sanction of freezing and revoking environmental permits is carried out if the perpetrator does not carry out government coercion. Meanwhile, efforts to clarify the relationship between administrative sanctions and criminal sanctions are carried out by regulating: (i) the application of administrative sanctions does not mean exempting the perpetrator from the application of criminal sanctions; (ii) the implementation of criminal threats to violations of quality standards if the administrative sanctions that have been imposed are not complied with or violations of quality standards are carried out more than once; and (iii) the threat of criminal sanctions for perpetrators who do not implement government coercion. In addition, the PPLH Law also regulates the objects that are used as administrative lawsuits to the state administrative court. This arrangement is a form of providing access to the public to correct state administrative decisions in the environmental sector that are contrary to statutory regulations.

1. Surveillance

Article 71 to Article 74 of the Environmental Law has regulated the obligation of the Minister/Governor/Regent or Mayor to supervise the person in charge of the business or activity as an implication of their authority to grant environmental permits. This formulation shows the will of the formulator to ensure that environmental permits are truly utilised as a supervision and control tool to ensure that the person in charge of the business complies with the regulations and obligations in the context of environmental protection and management. This stems from the fact that often the granting of permits is not balanced with the supervision efforts carried out by the licensor. Therefore, permit issuers should also consider their capacity to conduct supervision before issuing permits, in addition to consideration of the capacity and carrying capacity of the environment.

• Administrative Sanctions

Administrative sanctions are part of law enforcement efforts that function as an effort to protect the environment and provide a deterrent effect. In the framework of environmental law enforcement, administrative sanctions in the form of imposition of government coercion (bestuursdwang) is one of the most effective and most widely used, in addition to revocation of licences.

Administrative sanctions in the PPLH Law itself are regulated from Article 76 to Article 83 of the PPLH Law. The imposition of administrative sanctions can be imposed on the person in charge of the business and/or activity through a mechanism:

1. Phased

The application of these sanctions is preceded by light administrative sanctions to the most severe sanctions. If the written warning is not complied with, then the next heavier administrative sanction, namely government coercion or licence suspension, will be applied. If the sanction of government coercion or licence suspension is not complied with, then even more severe sanctions can be imposed, namely the sanction of licence revocation.

2. Free (not phased)

This free application of administrative sanctions provides flexibility for officials authorised to impose sanctions to determine the choice of types of sanctions based on the level of violation. If the violation committed by the person in charge of the business and/or activity has caused pollution and/or environmental damage, the sanction of government compulsion can be imposed immediately. Furthermore, if government compulsion is not implemented, then the sanction of licence revocation can be carried out without being preceded by a written warning.

• Cumulative

The application of administrative sanctions consists of internal and external cumulative. Internal cumulative is the application of sanctions carried out by combining several types of administrative sanctions on one violation. For example in Article 81 of the PPLH Law which combines government coercion sanctions with administrative fines (administratief boete/bestuurlijke boete). Article 81 states that any delay in the implementation of government coercion sanctions, a fine is imposed. So, fines are imposed on every delay in the implementation of government coercion so that there is a cumulative imposition of administrative sanctions by combining government coercion sanctions with fines. The imposition of fines in Article 81 of the PPLH Law is not a forced money sanction (dwangsom) which certainly cannot be accumulated with government coercion (bestuursdwang).

Meanwhile, external cumulative is the application of sanctions carried out by combining the application of one type of administrative sanction with the application of other sanctions. The institution authorised to impose administrative sanctions must consider the following points in determining the imposition of administrative sanctions in stages or cumulatively, namely:

• the level or severity of the type of violation committed by the person responsible for the business and/or activity;

1. the level of compliance of the person responsible for the business and/or activity towards the fulfilment of the order or obligation specified in the administrative sanction;

2. track record of compliance of the person responsible for the business and/or activity; and/or

3. the level of influence or implication of the violation on the environment.

So, it is important to emphasise that the application of administrative sanctions must be understood as a further consequence of supervisory action. In addition, administrative sanctions also have an instrumental function, namely controlling prohibited acts and aimed at protecting the interests safeguarded by the violated provisions.

In the case of 107 companies allegedly discharging industrial waste into the Citarum River, which resulted in the quality of environmental quality dropping to a certain level that caused the environment to be unable to function, the Government, in this case the Governor of West Java, should impose administrative sanctions on companies that pollute the environment and also impose sanctions on companies that have management permits but use permits that are not in accordance with their designation.

• Criminal Law Aspects in the Law on Environmental Management and Protection

The PPLH Law itself has specifically regulated criminal offences in the Chapter on Criminal Provisions from Article 97 to Article 120 of the Law. Where in the criminal provisions are divided into two offences, namely Formil Offences and Materil Offences.

Material offences can be seen in Article 97 criminal offences introduced in the UUPPLH are also divided into formal offences and material offences. Material offences and formal offences can be defined as follows:

1. Material offences (generic crime) are unlawful acts that cause pollution or destruction of the environment that do not require proof of violations of administrative law rules such as permits.

2. A formal offence (specific crime) is an unlawful act against the rules of administrative law, so to prove the occurrence of a formal offence it is not necessary to pollute or destroy the environment like a material offence, but it is enough to prove a violation of administrative law.

The following are quoted some of the material offences asserted in the UUPPLH which are adjusted to several crimes related to the standard standard of habitual environmental pollution, namely:

Article 100

Any person who violates wastewater quality standard, emission quality standard, or nuisance quality standard shall be punished with imprisonment for a maximum of 3 (three) years and a maximum fine of Rp. 3,000,000,000.00 (three billion rupiah).

Article 105

Any person who introduces waste into the territory of the Unitary State of the Republic of Indonesia as referred to in Article 69 paragraph 1 letter c shall be punished with imprisonment for a minimum of four years and a maximum of twelve years and a fine of at least Rp. 4,000,000,000 and a maximum of Rp. 12,000,000,000.

Article 106

Any person who introduces B3 waste into the territory of the Unitary State of the Republic of Indonesia as referred to in Article 69 paragraph 1 letter d shall be punished with imprisonment for a minimum of five years and a maximum of fifteen years and a fine of at least Rp. 5,000,000,000 and a maximum of Rp. 15,000,000,000.

Article 107

Any person who imports hazardous waste prohibited under laws and regulations into the territory of the Unitary State of the Republic of Indonesia as referred to in Article 69 paragraph 1 letter b shall be punished with imprisonment for a minimum of five years and a maximum of fifteen years and a fine of at least Rp. 5,000,000,000 and a maximum of Rp. 15,000,000,000.

Article 108

Any person who commits land burning as referred to in Article 69 paragraph 1 letter h, shall be punished with imprisonment for a minimum of one year and a maximum of thirteen years and a fine of at least Rp. 3,000,000,000 and a maximum of Rp. 10,000,000,000.

Meanwhile, which is included in the formal offence, as a criminal offence that must be based on the administrative requirements of the company or individual that acts and should be suspected of committing a criminal offence against the environment can also be seen in several articles, such as:

Article 98

Any person who intentionally commits an act that results in the exceedance of ambient air quality standards, water quality standards, sea water quality standards, or standard criteria for environmental damage, shall be punished with imprisonment for a minimum of three years and a maximum of ten years and a fine of at least Rp. 3,000,000,000 and a maximum of Rp. 10,000,000,000.

Article 99

Any person whose negligence results in the exceedance of ambient air quality standards, water quality standards, sea water quality standards, or environmental damage standard criteria, shall be punished with imprisonment for a minimum of 1 (one) year and a maximum of 3 (three) years and a fine of at least Rp. 1,000,000,000.00 (one billion rupiah) and a maximum of Rp. 3,000,000,000.00 (three billion rupiah).

Article 102

Any person who conducts hazardous waste management without a permit as referred to in Article 59 paragraph 4, shall be punished with imprisonment for a minimum of one year and a maximum of three years and a fine of at least Rp. 1,000,000,000 and a maximum of Rp. 3,000,000,000.

And in the enforcement of environmental criminal law, corporations can be used as subjects of criminal law because the PPLH Law has specifically regulated it in Article 116 to Article 120 of the PPLH Law.

In addition, in the PPLH Law there is a principle of subsidiarity where this principle is one of the conditions for criminalisation which states that criminal sanctions should only be used if civil sanctions and administrative sanctions and other means are inappropriate and ineffective to deal with certain criminal acts. In criminal law it is known as the principle of subsidiarity or the ‘ultima ratio principle’ or the ‘ultimum remedium’ principle.

We can see this principle in the general explanation number 6 of the PPLH Law which states:

‘Criminal law enforcement in this Law introduces a minimum sentence in addition to the maximum, expansion of evidence, punishment for violations of quality standards, integration of criminal law enforcement, and regulation of corporate criminal offences. Environmental criminal law enforcement still pays attention to the ultimum remedium principle which requires the application of criminal law enforcement as a last resort after the application of administrative law enforcement is deemed unsuccessful. The application of this ultimum remedium principle only applies to certain formal criminal offences, namely criminalisation of violations of wastewater quality standards, emissions, and disturbances.’

Which then in Article 100 of the Environmental Law which states:

• Any person who violates wastewater quality standards, emission quality standards, or nuisance quality standards shall be punished with imprisonment for a maximum of 3 (three) years and a maximum fine of Rp. 3,000,000,000.00 (three billion rupiah).

• The criminal offence as referred to in paragraph (1) may only be imposed if the administrative sanctions that have been imposed are not complied with or the violation is committed more than once.

From the explanation above, it is known that environmental criminal law enforcement still pays attention to the principle of subsidiarity which requires the application of criminal law enforcement as a last resort after the application of administrative law enforcement is deemed unsuccessful. The application of this principle only applies to certain formal criminal offences, namely criminalisation of violations of wastewater quality standards, emissions, and disturbances.

In the case of the position above, the provisions of the articles imposed are Article 98 & Article 100 of the PPLH Law. Where if the company discharges production waste into the river which causes the quality standard threshold of the river to be exceeded. The criminal provisions in Article 100 of the Environmental Law can be applied if administrative or civil remedies have been taken against a company that has a waste management permit but still discharges the waste into the river which causes the quality standard threshold of the river to be exceeded.

CLOSURE:

Based on the above, the author concludes as follows:

1. The company must be responsible for the occurrence of environmental pollution to the river resulting in changes in the environmental order, so that the quality of environmental quality drops to a certain level that causes the environment cannot function as it should be subject to the provisions of Article 53 paragraph (1) in conjunction with Article 54 paragraph (1) of the PPLH Law which states that ‘every person who commits pollution and/or environmental damage is obliged to mitigate pollution and/or environmental damage and is obliged to restore environmental functions’.
2. In Administrative Law, there should be a warning to companies that have a Waste Management Permit and misuse the permit can be subject to a warning related to the waste they produce.
3. In Criminal Law, companies that pollute the environment into rivers can be subject to Article 98 of the Environmental Law because their actions result in exceeding the river quality standard threshold. In addition to Article 98, Article 100 can also be imposed if the company has first received administrative sanctions from the government.

Author: Rahmat Nur Najib, S.H.