- Indonesia’s plan to revise its outdated criminal code could lead to a systematic weakening of existing environmental laws, experts warn.
- The latest draft of the code contains provisions that would make it more difficult to prosecute environmental crimes, such as dumping toxic waste in rivers and setting forest fires, the experts say.
- They note also that it makes punishment more lenient and lets companies off the hook, while potentially making it easier to prosecute environmental defenders.
- The experts have called on the government and lawmakers to go back to the drawing board and ensure that environmental crimes are treated as the extraordinary crimes that they are.
JAKARTA — An ambitious and long-anticipated plan by Indonesian lawmakers to revise the country’s criminal code, inherited from the Dutch colonial era, could make it much more difficult to prosecute polluting companies, experts warn.
The latest draft of the revised penal code, known as the RKUHP, was only recently made publicly available after an uproar over the government’s refusal to provide full public access to the draft. Experts reviewing it have since found provisions that they say could weaken law enforcement against environmental crimes.
“If [the revised criminal code] is passed in the form of the latest draft [without further changes], I can assure [you] that there won’t be any environmental pollution cases that are criminally prosecuted,” Andri Gunawan Wibisana, a professor of environmental law at the University of Indonesia, said at a recent press conference in Jakarta.
That’s in large part because the draft proposes rolling back a provision in the 2009 Environmental Protection Law, which states that prosecutors don’t have to prove that a company is violating other laws in order to charge it with an environmental crime. The previous version of the environmental law, which was passed in 1997 and which the revised criminal code bill intends to restore, says a company has to be proven to be violating certain laws first before it can be prosecuted for environmental crimes.
This old provision was used by gold mining company PT Newmont Minahasa Raya in its successful defense against a lawsuit filed by the Indonesian government in 2005.
The government, seeking $117 million in damages, said the U.S.-based company had polluted the sea in Buyat Bay, North Sulawesi province, by failing to effectively monitor the detoxification process of its tailings before dumping them into the bay. This resulted in high levels of heavy metal concentrations in the water.
At trial, Newmont presented a witness who said that the firm didn’t violate the law because it had obtained all the necessary permits and thus was operating legally — that is, its pollution was authorized by the laws and regulations under which it had obtained its permits, and therefore it shouldn’t be prosecuted for environmental crimes.
“So the definition of law violation is shifted to administrative violation [only],” Raynaldo G. Sembiring, the executive director of the Indonesian Center for Environmental Law (ICEL), said at the recent press conference. “That happened because the old 1997 environmental law still mandated that a law violation [be proven].”
In April 2007, a court cleared Newmont Minahasa Raya and its president, Richard Ness, of all charges, saying they couldn’t be proven.
Because of the Newmont case, the requirement for a law violation to be proven was dropped from the 2009 environmental law, Raynaldo said.
Reinstating the 1997 standard means companies will once again be able to make the case that they aren’t violating any environmental rules because their permits allow them to operate, even if their activities impact the environment, Raynaldo said.
“So why [is this provision] being reinstated” in the revised criminal code, he asked.
Greater burden of proof
The draft also states that environmental crimes can only be proven to happen when there are activities that both pollute and damage the environment.
Again, this differs from the 2009 environmental law, which states that criminal charges can be sought for either polluting the environment or damaging the environment.
Indonesian law defines environmental pollution as occurring when a human activity causes substances or materials to enter the environment to the extent that they exceed the prescribed safe standards for those particular substances. Environmental damage, meanwhile, is defined as occurring when a human activity alters the physical and chemical components of the environment, either directly or indirectly, beyond prescribed safe thresholds.
Each is further divided into three categories: air, sea and water, in the case of environmental pollution; and mangrove, peatland and biomass, the case of environmental damage.
These categorizations would make it difficult to pursue a successful prosecution if both pollution and damage are required to be proven, given that there’s rarely any environmental crime that would meet both definitions, Andri said.
“Let’s say there’s a factory that dumps its waste and pollutes a river,” he said. “Does it also destroy mangrove forests at the same time? That’s not the case. [The mangroves] are far away. So these [pollution and damage] are two different criteria.”
Even if prosecutors only have to prove that environmental pollution has occurred, the bill would make it difficult to get a conviction. That’s because it bundles all environmental pollution into one, unlike the 2009 environmental law, which splits environmental pollution into two main categories: ambient standard and effluent standard.
Ambient standard looks at the environment itself, and is divided into three categories: air, sea and water. Effluent standard looks at the byproduct of industry, such as liquid waste, emissions and noise.
Under the prevailing legal framework, a factory that pumps out liquid waste exceeding the effluent standard, but not enough to push the water quality past the ambient standard, could still be found guilty on the first point.
Under the revised criminal code, it’s not clear whether a company would have to violate both standards to be found guilty.
“This means law enforcers will be confused,” Raynaldo said.
All these changes mean law enforcers, from police to environmental inspectors to prosecutors, will have to meet a higher burden of proof that environmental crimes have occurred, Andri said.
No more corporate culpability
Even if a company is found guilty of an environmental crime, only its officers would be liable for punishment. Under the 2009 law, the company itself would also be liable, Andri noted.
The revised criminal code defines a corporate crime as one committed by a company employee or someone working for a company. In other words, an environmental crime has to be attributed to a specific person and cannot be blamed on a company, Andri said.
The problem with this is that it’s very difficult to attribute a corporate crime to a specific individual, he added.
“The larger a company, the more difficult it is for us to determine which individual inside the corporation who commits the crime,” Andri said. “Because a crime could be caused by a system, a policy, or even a culture inside a company.”
This is what’s known as organizational fault or corporate culpability, he added.
“For instance, does a company have a culture that pushes people to commit violations? Do violations get ignored? Or do people who violate [the law] get a promotion instead?” Andri said. “Based on this theory, it is the corporations that needed to be focused on to see if they made a mistake or not.”
Corporate culpability has been cited numerous times in the prosecution of companies for fires on their concessions.
“In nearly all cases of forest fires, the most important thing is to criminally convict companies because they don’t have [adequate] firefighting equipment,” Andri said. “This means that the judges are focusing on the companies’ policies.”
By strictly defining corporate crime as something done by individuals, the revised code ensures impunity for environmental crimes that companies are responsible for, he said.
Less harsh punishment
Prescribed punishments would be reduced under the revised criminal code, which does away with minimum sanctions for environmental crimes. The 2009 environmental law stipulates a minimum prison time of three years and 3 billion rupiah ($202,000) in fines for environmental crimes.
“What’s the implication? Companies could get very lenient sanctions because there’s no minimum sanction,” Puspa Dewi, head of the law division at the Indonesian Forum for the Environment (Walhi), said at the recent press conference. “It could be that the court just punishes [companies] with 1 million rupiah [$67] in fines.”
The revision also allows convicted violators to choose the form of their punishment — imprisonment or fines — while the 2009 law says both must be imposed.
“If we look at these sanctions, they obviously make it easier for environmental criminals to pollute,” Puspa said.
ICEL’s Raynaldo said the government and lawmakers appeared to be moving away from using criminal sanctions, like prison time, to administrative sanctions, like fines and permit suspensions. He said this is also apparent in the so-called omnibus law on job creation, a sweeping slate of deregulatory measures that was passed in 2020 amid widespread protests.
That law prioritizes administrative sanctions over criminal ones, such as in the case of illegal palm oil plantations inside forests. Under previous laws, the operators of these illegal plantations could face criminal prosecution, but the omnibus law essentially pardons the companies as long as they pay a certain amount in fines and obtain the necessary permits.
Raynaldo said this shift toward leniency when it comes to environmental crimes marks a failure by the government and lawmakers to realize that these are extraordinary crimes and should be treated accordingly.
“The revised criminal code fails to capture the essence of environmental law enforcement,” he said. “It seems like when [the government wants to] regulate environmental crimes, they see it from a neutral perspective, treating all crimes in the penal code as the same.”
At the same time as it promises to let polluting companies off the hook, the revised criminal code could lead to greater prosecution of Indigenous peoples, farmers and activists, Puspa said.
According to data from Walhi, at least 58 people and/or organizations faced criminal investigations in connection with their defense of the environment in 2021. In many cases, these defenses included protests and other public acts calling on or criticizing the authorities, including the president, in connection with their causes.
But these calls are prone to becoming illegal under the revised penal code, which states that insulting a sitting president can be punished by up to three years in jail if done in public, or four years if done online or on social media.
“In some environmental cases, we see that the president bears responsibility. This could lead to criminalization” in the event that protesters criticize the president, Puspa said. “And if there are those who try to sue [companies for environmental crimes] but can’t meet the criteria, this could backfire against the environmental defenders.”
Calls to revise the revision
With so many problematic provisions in the latest draft of the revised penal code, the experts have called on the government and lawmakers to go back to the drawing board.
They say it’s better to remove articles about environmental crimes in the penal code altogether than to water down the existing rules. Efforts to address any weaknesses in the 2009 environmental law should be carried out in separate legislation, they add.
Dedi Mulyadi, the deputy chair of the parliamentary committee overseeing environmental issues, said he’s pushing for his fellow committee members to address the concerns raised by the experts.
“We hope that the working committee would consider environmental sustainability aspects and won’t hesitate to put in articles that contain heavier [sanctions for environmental crimes],” he told Mongabay. “Because we understand that when it comes to corporate environmental crimes, law enforcers often have difficulties in proving [the crimes].”
Dedi said stronger law enforcement against environmental crimes is especially crucial as the government under President Joko Widodo pushes for massive infrastructure development across the country.
“Environmental violations have to receive adequate punishment, and there should be no room for criminals to hide behind the law,” he said. “Because environmental violations impact the lives of many people. Money can be replaced, but a destroyed environment can’t.”
Banner image: Smoke, allegedly from a fire used for land clearing, billows at an oil palm plantation at a peat swamp in Aceh province, Indonesia, in 2012. Image by Dita Alangkara/CIFOR via Flickr (CC BY-NC-ND 2.0).
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