Leiden Law Blog

Indonesia’s escape from environmental responsibility

Indonesia’s escape from environmental responsibility

How many pieces of clothing do you have in your closet with a ‘Made in Indonesia’ label? Probably more than you think, even if Indonesia’s production for the domestic market is much larger than its export. To keep up with customer demand, industries have been burgeoning. In addition to this rapid industrial development, Indonesia’s abundant natural resources are being eagerly exploited. This puts a heavy strain on the environment, yet the government is reluctant to take effective measures against violators of the law. When one reads Indonesia’s environmental law, this hardly comes as a surprise.  

For my research, I look at conflicts between local communities and industries concerning environmental pollution, and there is much to be said about these. But perhaps the thing that struck me the most is the government’s reluctance to use administrative sanctions. I would have expected a response within the administrative law framework. After all, as I learned in law school, administrative sanctions are special instruments provided to the executive government that enable it to protect certain general interests, for example a healthy environment. One of the heaviest sanctions is administrative coercion (bestuursdwang), by which the executive itself undertakes the necessary action to halt a violation which is damaging the environment.   

Mediation or criminal prosecution?

In Indonesia however, I observed that in environmental pollution cases the government prefers to either facilitate mediation between the ‘victims’ and violator, or prosecute the latter before the criminal court. Both strategies have severe downsides. Mediation can lead to an outcome that does not stop the environmental violation. Pollution victims involved in the negotiations often settle for a job, a new road, or health and educational services, leaving the environmental problems untouched. Perhaps even more disturbing is that the people who claim to represent the victims in these negotiations often use the opportunity to pursue their own personal interests and not so much those of the victims . This may even lead to violent internal conflicts.

Criminal prosecution as a response to environmental violations is also problematic. The criminal act is often hard to prove and the lengthy, expensive procedure relies on institutions such as the police, the public prosecutor and the court. In Indonesia, involvement of these institutions unfortunately does not guarantee a proper trial. And above all, even if a criminal sanction is eventually imposed, it is punitive and therefore not primarily aimed at halting the violation.   

Indonesian version of Administrative Coercion

Having said all this, one wonders why the government does not use a more straightforward strategy. By imposing administrative sanctions, and in particular administrative coercion, the government could quickly and relatively easily halt violations. There are many reasons for this, but a particularly remarkable one can be found in Article 81 of Indonesia’s Environmental Law of 2009. Please read carefully:

‘Anyone carrying responsibility for a business (...) who does not implement administrative coercion can be fined for delaying the implementation of the administrative coercive sanction’.

In other words: the violator should apply the administrative coercion, not the government. The Indonesian concept of administrative coercion thus appears to be fundamentally different to  what it entails in most other parts of the world. 

In practice, ‘administrative coercion’ in Indonesia is a letter stipulating a number of measures the violator is urged to take. If he fails to execute these measures, the government does either nothing or turns to the criminal law scheme as an ‘ultimum remedium’, starting a long, expensive and usually ineffective process that seldom leads to a halt of the violation. 

Can we blame the officials for acting in this way? The law offers them an escape that allows them not to take heavy measures, thus enabling them to avoid confrontations with powerful industries. It also offers an easy escape from their responsibility for protecting the general interests of society. I am not saying that changing the law will immediately lead to great environmental law enforcement, but at least it is a good place to start. 

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