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APCEL Report : Indonesia Back to : Index : ASEAN Project : Indonesia
The Republic of Indonesia is a sprawling archipelagic nation of 13,500 islands occupying a land area of 1,826,440 square kilometres, with a coastline over 54,000 kilometres in length. With a population of over 209 million (July 1997 estimate) scattered over some 6,000 inhabited islands, Indonesia is divided into 24 propinsi (provinces), 2 special regions (Aceh and Yogyakarta) and 1 special capital city district (Jakarta Raya or Greater Jakarta). The main islands are Java, Sumatra, Sulawesi and Kalimantan (the Indonesian portion of Borneo island). The economy is dominated largely by agriculture, industry and mining, with the main exports being petroleum and natural gas, textiles, minerals, manufactured goods and timber. The largest cities are the national capital, Jakarta (population 10 million), the East Javan city of Surabaya (population 3 million), and the northern Sumatran city of Medan (population 2 million). Indonesia’s per capita gross domestic product stands at US$3,770 (1996 estimate). In recent years, Indonesia has been experiencing severe environmental problems resulting from uncontrolled deforestation and burning of forests, degradation of its land and marine resources, air and water pollution from industrial wastes and contamination from the mining industry. The main problem in recent months has been indiscriminate land clearing by the use of fire, both by large-scale plantation owners as well as farmers employing the "slash-and-burn" technique. The resultant smoke pall caused severe air pollution and adverse health effects in many parts of Indonesia, as well as neighbouring Singapore, Malaysia and Brunei. As in most developing countries, rapid industrialisation and the opening up of the economy have resulted in unsustainable developmental practices in many instances. Indonesia’s environmental problems have largely been caused by land use pressures, overpopulation in several islands, unfavourable climatic conditions and the irresponsible practices of local and foreign investors, exacerbated in several instances by the inaction of local authorities. In recent months, the devastating effects of the economic turmoil and social unrest in Indonesia have led to worries that environmental protection would be relegated to a concern of secondary importance. Indeed, it appears that environmental problems in Indonesia are worsening, with prolonged droughts and indiscriminate land clearing causing the ignition of fresh rounds of forest fires in Kalimantan and Sumatra.
The Indonesian President is both the head of state and head of government, and is elected by consensus by the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) for five-year terms. Executive power resides in the Cabinet (appointed by the President), while legislative competence lies with the unicameral Dewan Perwakilan Rakyat (House of Representatives). The members of the House of Representatives, in turn, make up the People’s Consultative Assembly together with a number of indirectly-selected members. Hence, the Assembly is the highest legislative body, and its decisions are the highest ranking sources of law in the legal hierarchy. The provinces are headed by the Gubernur (governors). The various propinsi or provinces (otherwise known as Level 1 regions) are further subdivided into kabupaten or districts (Level 2 regions, headed by the Bupati or district administrators), subdistricts and villages. Within the provinces, there are municipalities or city governments which enjoy the same status as districts. These are headed by the walikotamadya (town administrators or mayors). Due to the emphasis on the unitary state, provincial autonomy is theoretically circumscribed. In practice however, the vastness of Indonesia means that provincial authorities have substantial freedom in many respects, particularly in relation to the implementation of centrally-enacted policies. A three-tier court system is in place in Indonesia - general courts for criminal and civil cases in each district, appeal courts in each province, and the Mahkamah Agung (Supreme Court) at the national apex. For criminal cases to be brought before the courts, two stages must first be satisfied: police investigation and prosecution by the Jaksa (prosecutor). In Indonesia, the institution responsible for environmental management and coordination is the Office of the State Minister for the Environment (sometimes known as the State Ministry for the Environment). The Office of the State Minister is substantially less powerful than a full-fledged Ministry, the former being non-departmental, i.e. not possessing departments in the provinces. Hence, the Office of the State Minister plays more of a coordinating role from Jakarta, and has no actual enforcement competence in the provinces. In 1990, the Indonesian government established an environmental institution known as the Badan Pengendalian Dampak Lingkungan (BAPEDAL) - the Environmental Impact Management Agency. BAPEDAL reports directly to the President, and is headed by the State Minister for the Environment himself. BAPEDAL possesses provincial jurisdiction and is currently in the process of establishing regional branches in all the provinces.The division of responsibilities between the Office of the State Minister for the Environment and BAPEDAL is not altogether clear. Apparently, there exist institutional tensions and rivalries between BAPEDAL and its parent organisation, the Office of the State Minister. A compromise has apparently been drawn out whereby the Office of the State Minister retains competence to formulate and coordinate policy and promulgate laws, while BAPEDAL ‘prepares’ legislation and is concerned with ‘enforcement’. This arrangement does not exactly clarify the confusion surrounding the division of competences. In any case, it is clear that to fully understand the task of environmental management in Indonesia, the jurisdiction and activities of both the Office of the State Minister for the Environment and BAPEDAL must be appreciated. Complementing the role of BAPEDAL branches at the local level would be the provincial government apparatus themselves. In general, the main enforcement mechanisms in the provinces are the police and army, acting with the local governments, prosecutors and BAPEDAL branches, where applicable. The environmental NGO movement in Indonesia is significant. In 1980, the then State Minister for the Environment, Emil Salim, promoted the creation of WALHI, a forum for environmental NGOs in Indonesia. WALHI was created out of the first national meeting of 79 environmental organisations initiated by a group known as the Kelompok Sepuluh (Group of Ten). These organisations subsequently became participants in the WALHI network. There are now over 330 environmental groups affiliated to WALHI. In total, there are over 600 NGOs working on environmental issues throughout Indonesia. In 1988, WALHI became the first NGO to obtain legal standing to sue upon an environmental issue in the case of WALHI v. Indorayon. Following this, WALHI obtained standing as a community group in two other suits: WALHI et al v. Mojokerto District Prosecutor and WALHI et al v. President of Indonesia. These three cases were the genesis of the development of public interest environmental litigation in Indonesia. Despite the significant advances made by WALHI and other NGOs, numerous difficulties still exist, chief of which is the lack of access to information and participation. Even though laws provide for such access, it is usually difficult in reality to obtain public information on issues like land ownership. Second, even though the standing of NGOs is now recognised, actual vindication of environmental rights is lacking. In all 24 environmental cases brought by local communities between 1988 and 1994, not a single one succeeded. Third, environmental activists in Indonesia constantly face the stigma of being branded as "anti-development", or even "communists". Hence, it appears that while their achievements have been encouraging, NGOs still face significant challenges in Indonesia. The hierarchy of legislation in Indonesia is as follows:
This Act must today be read in conjunction with numerous implementing regulations that had been passed under the repealed Act No. 4. Indonesian environmental legislation must also be understood in the context of broad state policies, chief of which is the Garis-garis Besar Haluan Negara (GBHN) (Policies of the State). These are guidelines for state policy that are passed every five years by the People’s Consultative Assembly. The principle of sustainable development had been entrenched primarily in GBHN 1973-1978. This was further elucidated in REPELITA II (74-49) (the Five Year Development Plan II). Subsequent GBHN and REPELITA policies have consistently entrenched the ideas of sustainable development and natural resource management. The 1997 EMA lays out in Article 3, the basis, objective and target of the Act - "environmental management consistent with national responsibility and sustainable development", and "exploitation within the framework of the holistic development of the Indonesian individual and community in its entirety". Chapter III goes on to elaborate upon the right of every person to a healthy environment and the obligation to preserve environmental functions and combat environmental pollution. Chapter IV provides that natural resources are controlled by the state, and are to be developed by the government for the greatest possible public good. Article 11 in Chapter IV reposes the tasks of environmental management in "an institutional instrument which is coordinated by the Minister". Though it is not immediately clear which institution is referred to here, it is likely that both the Office of the State Minister and BAPEDAL would have jurisdictional competence to perform the tasks of environmental management. The 1997 EMA proceeds to provide for the delegation of authority to provincial governments, and anticipates the passage of Presidential Decisions and Government Regulations for these purposes. Chapter V on the Preservation of Environmental Functions prohibits every business and/or activity from breaching environmental quality standards and criteria. Projects with impacts on the environment must possess an environmental impact analysis, the further elucidation of which will be done through Government Regulations. Businesses and activities must manage their wastes, including hazardous and toxic wastes. Supervision, compliance control, environmental audits and administrative sanctions at provincial and district levels are also provided for. The latter includes sanctions in the form of revocation of business licenses. Chapter VII provides for environmental dispute settlement either through judicial or extra-judicial means. Judicial settlement anticipates the payment of compensation and the issuance of orders to carry out certain actions. Two very significant features of the 1997 EMA appear in this Chapter - first, strict liability is prescribed for violations involving hazardous and toxic materials which cause significant impact to the environment. Second, following recent decisions in the courts, community and environmental organisations are explicitly given standing to bring class actions in court and/or to report on environmental violations. Other interesting features of the 1997 EMA are as follows:
One major problem lies in the division of competences amongst the following bodies:
For instance, the Industry Act, the Forestry Act and the Agriculture Act, administered respectively by the Ministries of Industry, Forestry and Agriculture, all contain provisions on environmental violations. In the recent (and ongoing) forest fire crisis, there was a serious uncertainty as to which government agency (and provincial authority) would be responsible for air pollution emanating from the plantation and industrial sectors’ clearing of forest land by the use of fire. The Office of the State Minister for the Environment and the State Minister himself appeared to the international media to be directly responsible, by virtue of their constant exposure in the media. Yet, the State Minister was quoted to have said that jurisdictional competence lay also with the Ministries of Agriculture and Forestry as well as local authorities. Other problems relate to the enforcement of penalties - several sectoral laws like Government Regulation No. 20 on Water Pollution Control, administered by provincial governments, have provisions which are cross-referenced to criminal and administrative sanctions under the 1982 EMA. There are also provisions in the Industry and Agriculture Acts which are similarly cross-referenced. There is uncertainty as to which ministry/agency/provincial authority is to administer these penalties, and in what manner. In addition, the interplay between civil, criminal and administrative remedies is uncertain. The 1997 EMA refers to the Civil Procedures Law and civil claims for compensation. This ostensibly refers to the torts section of the Indonesian Civil Code. Meanwhile, criminal investigation and sanctions are also provided for under the 1997 EMA, with specific imprisonment terms and fines prescribed for certain environmental violations. Reference is also made in the 1997 EMA to the Criminal Code and the Criminal Procedures Law. Therefore, it appears that criminal liability is governed not only by the 1997 EMA, but also the latter two codes. It is uncertain whether the provisions in all these laws are consistent or harmonious with each other, and whether the application of one set of rules displaces the other. Further, there are the administrative sanctions governed by Act No. 5 of 1986 concerning Administrative Jurisdiction. This may be relevant in relation to administrative penalties such as the revocation of licenses. Therefore, efforts are seriously needed to clarify all these possible sources of confusion in relation to the prescription and administration of legal remedies. One major area in which action has been taken to resolve jurisdictional overlaps relates to the AMDAL, or environmental impact assessment (EIA) process. In this respect, some progress has already been made towards coordinating an integrated, multisectoral approach to commissioning and appraising EIAs. For one thing, BAPEDAL is clearly recognised as the agency responsible for EIAs. In addition, detailed legislation exists to lay down procedures for "Integrated/Multisectoral Businesses or Activities", i.e. major developmental projects which involve several sectoral interests, and therefore, the competence of several ministries. For such projects, the EIA process involves the input of sectoral ministries as well as provincial governments, and prescribes a comprehensive procedure for appraisal at the national and regional levels. Of course, as in many other developing countries, problems remain with the actual implementation of these EIA provisions, and reports of EIA procedures being viewed as obstructive to development and therefore circumvented are not uncommon. All the above problems, coupled with the difficulties introduced by private vested interests, civil servants’ inaction and a general lack of transparency, lead to a less than satisfactory level of implementation/enforcement of laws. Both the Office of the State Minister and BAPEDAL clearly need to further reinforce their respective positions vis-à-vis the other sectoral departments. This relationship is in practice, still characterised by confusion and a certain degree of conflict. The problems of overlaps in jurisdiction and lack of cooperation from sectoral departments are considered as a major bottleneck for the Office of the State Minister/BAPEDAL’s mission to succeed. As described by one author: Even before the cases reach the courts, significant procedural difficulties stand in the way of the plaintiffs’ claims. The recognition of environmental NGOs’ standing may have gone some way towards alleviating locus standi problems, but substantial difficulties remain with the gathering of evidence. To begin with, it is generally very difficult to persuade the police and the prosecutors to investigate environmental violations, especially in relation to smaller-scale violations in the remote regions. The evidentiary burden borne by plaintiffs is high, and the securing of evidence is a monumental task, especially if the defendants are powerful business concerns. Litigious cases take a long time to conclude and often entails considerable expense and effort for plaintiffs. This may in part explain the recent emphasis on alternative dispute resolution (ADR) mechanisms, which are seen to be consonant with the musyawarah (consensual) culture of administration popular in Indonesia. In spite of all these problems, several major cases have been brought to court, primarily by the NGOs. However, the success rate is not particularly encouraging. Several observers feel that the NGOs have managed to halt infringements of environmental regulations by instituting court cases, while others feet that the courts have been rather weak in applying environmental law and unwilling to act independently of executive policy or against well-connected parties. Ultimately, a balanced opinion can be maintained - that although the scope for enforcement of environmental law through the courts is widening, success in obtaining actual remedies is still extremely limited. The passage of the framework 1997 EMA heralds a challenging age for environmental management in Indonesia. Whilst innovative concepts such as standing for NGOs, environmental audits and specific penalties for violators have finally been legislated, significant challenges remain in ensuring effective enforcement of environmental legislation. The enforcement effort would clearly have to be taken up on the institutional and administrative fronts, where the streamlining of competences amongst national and provincial agencies is critically needed. What is also required is the political will to resist efforts by vested interests to compromise environmental laws and procedures. This will have to be manifested through strong executive and judicial vindication of environmental rights, lest these rights remain good only on paper. In other words, legislation providing for a sound framework in environmental protection alone is clearly insufficient; it is only through concerted efforts in implementation and enforcement that meaningful protection of the environment can be achieved. This may sound almost too trite to reiterate, but it starkly reflects the reality in many developing countries like Indonesia.
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