Part Ⅲ: Additional Studies on National Environmental Governance And

Part Ⅲ: Additional Studies on National Environmental Governance and Cross-Sectoral Issues in Asia Table of Contents • Environmental Governance in Indonesia FX Endro Susilo and Hyronimus Rhiti • Environmental Governance in Malaysia Wan Portiah Hamzah • Environmental Governance in the Philippines Merlin M. Magallona and Ben S. Malayang III • Environmental Governance in Thailand Somrudee Nicro • Comments Keiko Imai • Environmental Governance in Bangladesh Khandaker Mainuddin • Environmental Governance in India: Land and Forest Regeneration Vijay Laxmi Pandey and Jyoti Parikh • Comments Kazushi Uemura • Environmental Governance in Korea Hoi-Seong Jeong and Hoe-Seog Cheong • Environmental Governance in China Pei Xiaofei • Comments James E. Nickum CROSS-SECTORAL ISSUES • Trade and Environment: Legal Perspectives Shinya Murase • Growth and Environmental Governance Yohei Harashima • Environmental Security and the Asian Region Miranda A. Schreurs • Comments Tae Yong Jung OVERALL DISCUSSIONS • Summary of Overall Discussions Chaired by Kazu Kato Environmental Governance in Indonesia FX Endro Susilo and Hyronimus Rhiti 1. Broad Introductory Overview 1.1 History of Environmental Protection in Indonesia Indonesian environmental awareness has not come up until 1973 when, for the first time, environmental policy was incorporated in its guidelines of state policy.1 Before 1972 environmental issues were not addressed either in national or local level. The emergence of national environmental policy was much influenced by the outcome of the 1972 Stockholm Conference on Human Living Environment. In preparing national report on environmental problems for that conference, there was national seminar held in Bandung, and Mochtar Kusumaatmaja, one leading legal expert in Indonesia, presented the paper entitled “Regulating Environmental Affairs: Thoughts and Recommendations”. He was then often regarded as the first legal expert who triggered the commitment for environmental protection.2 The administration of Indonesian government shall, according to the 1945 Constitution, be based upon the guidelines of state policy set forth by the highest state institution called the People’s Consultative Assembly. The state policy is further elaborated in the 5-year term Development Plan set forth by president as the head of executive branch. The environmental policy as stipulated in the 1973 Guidelines of State Policy read as follow: In the implementation of development, Indonesia’s natural resources should be rationally utilized. The exploitation of these natural resources should not destroy the human environment and should be executed by a comprehensive policy, which takes into account the needs of future generations. Environmental policy was then always provided in the following guidelines of state policy. During the 1979-1984 administration based upon the 1978 guidelines of state policy, the State Ministry for Development Supervision and Environment was established, and the Act no 4 of 1982 on the Environmental Management (hereinafter called EMA) as an “umbrella” for regulations related to environment was promulgated. Since its promulgation, Indonesia has taken an integrated approach, rather than a fragmentary one, in dealing with environmental problems. However, due to some weaknesses of its provisions and enforcement, and in anticipating more various and serious environmental problems in Indonesia, the Act no 4 of 1982 was later replaced with the Act no 23 of 1 GBHN (Guidelines of State Policy) 1973. 2 Koesnadi Hardjasoemantri, Hukum tata lingkungan, Gadjah Mada University Press, Ed. Ke 6, Cet. 15 1997. The old EMA was often criticized as less operational since many of its implementing regulations were not yet promulgated. Based on the old EMA, only few environmental cases were brought before courts since there were difficulties in proving the causation. In civil procedure, the victims tended to be disadvantageous since the burden of proof was placed on them. In this regard, the legal principle applied in civil procedure is “liability based on fault.” 3 Fault is the constitutive for liability. In the middle of 1997 Indonesia encountered with serious economic and political problems, and it was getting worse related to the forced resignation of Soeharto administration on May 21, 1998 due to the increasing reform movement pioneered by university students across the nation. The Habibie administration, the successor of Soeharto, was, in general, regarded as temporary government, and people were still waiting for the definitive and legitimate one. The current government under Abdurrahman Wachid resulting from the mostly-regarded democratic general election in 1999 has widely been regarded legitimate. During the serious economic and political problems starting from 1997 when Central Bank (Bank Indonesia) changed its policy to float Indonesian currency (Rupiah), public attention focused on how to get out of the severe crisis since most Indonesian people had suffered from it. Meanwhile, the environmental issues were not addressed vigorously though the new EMA of 1997 had been promulgated. 1.2 Legal Aspect of Environmental Protection The promulgation of EMA 1982 as further replaced with EMA 1997 was aimed at providing environmental quality and society with legal protection. According to Article 5 of EMA 1997, every person is entitled to healthy environment. Besides, EMA 1997 also guarantees the existence of right to access of environmental information and right to participate in environmental management. Since regarded as subjective rights, those rights grant a legal claim to the individual to have his or her interest in a decent environment respected. The claim related to injuries in environmental cases covers rights to monetary compensation and rights to having the damaged or polluted environment restored and improved. Rights to monetary compensation are granted to individual victims based upon the “liability based on fault” principle, while rights to have the polluted environment restored and improved also called rights to demand the performance of an act to restore, preserve or improve the environment) are granted to government which is represented by district attorney in a civil case,4 and Environmental NGO (now, according to EMA 1997, called Environmental Organization). The standing of NGO in environmental Ke11, Yogyakarta, p. 32. 3 Article 1365 of Indonsin Civil Code. 4 Article 27 (2) Act no 5 of 1991. 16 cases has now been legally recognized.5 All the claims will be examined by district courts based upon the liability based on fault principle. Since “fault principle” as stipulated in Article 1635 of Indonesian Civil Code shall be used in environmental disputes while environmental disputes are always concerned with two different parties, that are, business activities with stronger socio-economic position and common people with weaker socio-economic standing, courts’ rulings will have tended provided victims (as well as environmental quality) with less sufficient legal protection. The consequence of fault principle is that plaintiff has to bear the burden of proof of causation. And since scientific proof related to environmental cases has proved to be a complicated problem for environmental disputes settlement through courts, common people as plaintiffs have proved to be in a more disadvantageous situation. Weaknesses of fault principle have made EMA 1997 introduce some breakthroughs in dealing with environmental disputes, that is, among others, the implementation of “strict liability” principle. An importance feature of strict liability principle is the absence of the requirement of fault. What the plaintiff shall prove is only the causation of damage. Another important factor related to the doctrine of strict liability is the burden of proof. The universal principle, commonly called liability based on fault principle, places the burden of proof on the plaintiff, and plaintiff shall prove the defendant’s fault. The strict liability principle, on the other hand, does not put the burden of poof of fault on the plaintiff. Plaintiff will only prove the causation of damage. And if the defendant wants to be freed from liability, he or she shall prove that the fault is not on his/ her hand; instead, it shall be proved on someone else’ hand. 1.3 Environmental NGO Environmental NGO was recognized by EMA 1982. It was regarded as government's partner in environmental management in Indonesia. As a result, Environmental NGO developed, and environmental awareness pioneered by Environmental NGO-s was on the rise. They were coordinated in a forum called WALHI (Environmental Forum in Indonesia). However, in its development, Environmental NGOs have tended to be regarded as the strong critics against the government's policy. Therefore, when EMA 1982 was replaced with EMA 1997, some changes concerning Environmental NGO-s were obvious. Under EMA 1997, the name of Environmental NGO has been changed into Environmental Organization. The term “non-government” which has, so far, been considered being opposition against government has been omitted. In addition, to establish Environmental Organization, three requirements, shall be fulfilled, namely: 1. It shall be taking the form of legal body. 5 Article 38 of the 1997 EMA. 17 2. Its statute shall stipulate that the main focus is concerned with environmental conservation. 3. It shall be proved that it has worked out its duties as stipulated in its statute. The most controversial requirement is the requirement number 3 since the existence

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