- Indonesia has passed an overhauled criminal code that experts and activists say will weaken environmental protections and make it easier to persecute environmental defenders.
- Among the controversial provisions in the heavily criticized bill: an exemption from prosecution for companies that violate environmental laws; reduced punishment and the choice to pick a fine over a jail sentence for convicted violators; and a higher burden of proof for environmental crimes.
- It could also be used to prosecute environmental defenders who protest public works projects, on the pretext of insulting the president.
- The new code will not go into full effect until 2025, giving opponents time to challenge it at the Constitutional Court.
JAKARTA — Indonesia’s parliament has passed into law a sweeping set of amendments to the country’s Criminal Code, which experts have warned will weaken environmental protections.
The House of Representatives on Dec. 6 unanimously decided to codify Indonesia’s penal code, a holdover from the Dutch colonial era and known as the KUHP, despite years of criticism from experts and protesters arguing the changes would weaken law enforcement against environmental crimes. The new code is currently awaiting President Joko Widodo’s signature, after which a series of derivative regulations will be drafted before the law is fully enacted in 2025.
“We condemn the passage of the Criminal Code Bill into law,” the Indonesian Forum for the Environment (Walhi), the country’s largest green NGO, wrote in a social media post in the wake of the codification.
Among the changes pertaining to environmental issues, experts reviewing the draft as of September said it would restore a provision codified in 1997 that a company has to be proven to be violating certain laws first before it can be prosecuted for environmental crimes. That provision was key in a successful defense by gold mining company PT Newmont Minahasa Raya against a lawsuit filed by the Indonesian government in 2005 for marine pollution.
The company had been accused of dumping waste into Buyat Bay, in North Sulawesi province, without proper monitoring of the detoxification process of its tailings, resulting in extreme levels of heavy metal contamination in the coastal marine environment.
Another change regards evidence of environmental crimes, for which investigators will now have to present indications of both environmental pollution and damage. This differs from the 2009 environmental protection law, which states that criminal charges can be brought for either pollution or damage to the environment.
Experts say these changes demand a higher burden of proof for law enforcers, from police to environmental inspectors to prosecutors, to show that environmental crimes have occurred.
The new code also exempts companies from facing charges of environmental crimes, limiting any liability to officers of the company. The September draft of the code states that environmental crimes must be attributed to a specific person and cannot be blamed on a company. (The September draft is the latest publicly available draft reviewed by experts; the final version passed on Dec. 6 was not publicly available as of the time this report was published.)
The new code also prescribes reduced sanctions for environmental crimes, with convicted violators allowed to choose the form of their punishment: imprisonment or fines. The current environmental law imposes both. Another controversial article in the code makes it a criminal offense to insult the sitting president, which experts say could be used to criminalize environmental defenders criticizing public works projects.
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.
Responding to the widespread criticism of the new criminal code, Indonesia’s law and human rights minister, Yasonna Laoly, a chief proponent of the bill, said those opposed to it should take their criticism to the Constitutional Court. “That way is more elegant,” he said.
Basten Gokkon is a senior staff writer for Indonesia at Mongabay. Find him on Twitter @bgokkon.
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