Friday, March 17, 2017
Implementation of the Precautionary Principle in Environmental Cases Deemed Important
Marcell Sihombing, Hasyry Agustin
In spite of the fact that its attempts have seldom born any significant results, the Ministry of Environment and Forestry (Ministry) continues to tirelessly strive to uphold the law and to prosecute any companies alleged to have caused environmental damage through their involvement in illegal logging. Most verdicts handed down after trials have found companies thus accused to be not guilty, however the Ministry continues to refer to those few decisions issued by the Supreme Court (MA) which have recommended that such guilty companies be punished.
One well-known example of such a decision is Cassation Decision No. 460K/Pdt/2016. Through this ruling, the Supreme Court panel of judges assigned to preside over this case managed to find solid arguments which they employed in order to rectify previous rulings rendered by the first and second instance courts.
When dealing with any scientific uncertainties which arise during environmental cases in which both plaintiff and defendant have solid arguments in order to back up their arguments, judges are recommended to persist with their attempts to find applicable principles which they can use when attempting to resolve such cases. Indeed, judges should refer to, attempt to thoroughly understand and implement the core provisions which are set out under the applicable regulatory frameworks for the environmental sector, specifically the provisions set out under Law No. 32 of 2009 on Environmental Protection and Management (Environmental Law).
The Environmental Law itself already incorporates the so-called precautionary principle under Article (2), Point (f), which is itself a direct adoption of the 15th Principle of the 1992 Rio Declaration.
The abovementioned 15th Principle stipulates that, “in order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific uncertainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
Based upon this precautionary principle, the Supreme Court’s panel of judges sentenced the defendant in the abovementioned case, specifically a company operating in Pelalawan Riau, to a fine of IDR 16.2 billion. The defendant had initially been found not guilty by the court of first and second instances, before the Supreme Court’s panel of judges eventually ruled that this particular company had been guilty of damaging the environment outside the official area of its Timber Utilization Business License for Plantation Forests (IUPHHK-HT), in addition to some 5,590 hectare areas located within the IUPHHK-HT area in question.
Seeking Refuge Through SP3
The Supreme Court’s panel of judges went on to rectify the arguments proffered by the presiding judges at the first and second instance courts, which had correlated the National Police’s Investigation Termination Directive (Surat Perintah Penghentian Penyidikan – “SP3”) with the defendant’s criminal case and the civil lawsuit claims being filed by the Ministry.
According to the Supreme Court’s panel of judges, criminal and civil cases are characterized by different inquiry processes, and thus an SP3 for criminal prosecution does not automatically nullify a plaintiff’s right to file a civil lawsuit. In this case specifically, the lack of any testimonial letter from the official Forestry Office for the Pelalawan Regency did not mean that the defendant had not committed any unlawful acts.
The head of the Supreme Court’s panel of judges, Judge Takdir Rahmadi, also pointed to a number of issues relating to the lack of field inspections during trials involving environmental damage cases. Although it is neither mandatory or nor explicitly regulated under the prevailing laws and regulations for judges to undertake field inspections, Judge Rahmadi questioned the possibility of a judge ever confirming the occurrence of illegal logging outside of any prescribed IUPHHK-HT area or the actual size of any such logging area when said judge lacks a firm scientific basis for such an assertion.
Environmental Losses vs. Material Losses
Another significant matter addressed through Cassation Decision No. 460K/Pdt/2016 relates to the calculation of losses incurred as a result of environmental damage which, according to the Supreme Court’s panel of judges, are different in nature to material losses, which relate to goods or other commonly traded rights (e.g. property/goods ownership, copyright).
The panel of judges decided that calculations of any such losses should take any loss of ecological function and environmental restoration costs into consideration, as the environment obviously plays multiple functional and important roles within communities. Thus, in its verdict, the Supreme Court’s panel of judges asserted that any calculation of losses incurred involving environmental cases should be based upon the various provisions which are set out in Ministry Regulation No. 13 of 2011 on Indemnification for Environmental Damage and/or Pollution.
According to Henry Subagio, Executive Director of the Indonesian Center for Environmental Law (ICEL), Cassation Decision No. 460K/Pdt/2016 can be considered an important milestone within the Indonesian legal system, if not a landmark decision. Mr. Subagio also emphasized to hukumonline that court decisions seeking to implement justice in environmental cases were very rare, and that the arguments which were presented by the panel of judges in this case thus had a very strong foundation.
“I believe that this represents a legal breakthrough, because the judges did not simply render a decision according to their conscience but also took notions of environmental justice into consideration,” Mr. Subagio told hukumonline.
Mr. Subagio expressed his appreciation for the decision rendered by Judge Takdir Rahmadi, Judge Nurul Elmiyah and Judge I Gusti Agung Sumanatha, which in his opinion properly implemented the precautionary principle and therefore resolved the legal uncertainties which usually loom over environmental cases as a result of scientific doubts. Mr. Subagio ultimately believes that this decision represents a breakthrough as regards the common practice whereby judges end up absolving defendants of all charges due to a lack of technical certainty.
Aspe Warlan Yusuf, an expert in environmental law from Bandung’s Parahyangan University, affirmed Mr. Subagio’s assessment and also expressed his appreciation for Cassation Decision No. 460K/Pdt/2016 which, he believes, represents a proper implementation of the precautionary principle.
Mr. Yusuf went on to assert to hukumonline that there was nothing fundamentally wrong with panels of judges referring to international legal instruments such as the Rio Declaration when processing environmental cases. Indeed, Mr. Yusuf stated that judges could utilize any of the following sources when rendering decisions: laws and regulations, final and binding court decisions or jurisprudence, internal policies such as technical instructions, expert opinions, results of international studies and customary practices (kebiasaan). Thus, fundamentally speaking, the accommodation of the Rio Declaration into the judges’ arguments in this case can be seen as being legitimate. Moreover, Mr. Yusuf emphasized that such accommodations were particularly appropriate if international legal instruments had already been ratified or adopted under the national legal framework.