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(1) The environment of Indonesia, which is bestowed by God the Almighty to the Indonesian people and nation, constitutes His gift and blessing which must be conserved and whose capacity must be developed in order that it may serve as a source and life support for the Indonesian people and nation and other living creatures for the sake of sustainability and promotion of the quality of life itself.
Pancasila, as the state's foundation and philosophy, constitutes a total and complete unity providing conviction to the Indonesian people and nation that happiness in life may be achieved if it is based on harmony, compatibility and balance, in the relationships established between man and God the Almighty, between man and man, between man and nature and man as an individual; in the framework of achieving material progress and spiritual happiness. There is a reciprocal relationship between man, society and the environment, a relationship which must always be nurtured and developed so that it may continue to exist in dynamic harmony, compatibility and balance.
The Constitution of 1945 as the constitutional basis requires that natural resources should be used for the maximum benefit of people's welfare.
This people's welfare must be sustainable enjoyable to the present and future generations.
Development as a conscious effort in processing and utilizing natural resources to promote people's welfare, in order to achieve both material prosperity and spiritual satisfaction. Therefore, the use of natural resources must be harmonious and compatible with the function of the environment and must also be in balance with it.
(2) The environment in the ecological sense does not recognize territorial boundaries, with respect to either state's territories and administrative territories. However, the environment which is linked with management must have a clear territorial boundary with respect to the management authority. The said environment is the environment of Indonesia.
Legally, the environment of Indonesia constitutes the space where the state of the Republic of Indonesia exercises its sovereignty and sovereign right as well as its jurisdiction. In this case the Indonesian environment is none other than a territory, which occupies the cross position between two continents and two oceans with a tropical climate, weather and seasons which provide a natural condition and a position with a strategic role with a high value as the place where the Indonesian people and nation establish their life as a society, a nation and a state in all its aspects. Therefore, the concept in managing the Indonesian environment is the Archipelagic Concept.
(3) The Indonesian environment as an ecosystem comprises various sub-systems with diverse social, cultural, economic and geographical aspects, which are responsible for different environmental supporting and accommodating capacities. Such a condition requires environmental nurturing and development which shall be based on the condition of the environmental supporting and accommodating capacities and promote harmony, compatibility and balance in the sub-systems, which shall also mean an improvement in the resilience of the sub-systems itself. In the meantime, nurturing and developing one sub-system shall also affect the other sub-systems, which shall eventually affect the resilience of the ecosystem as a whole.
Therefore, environmental management demands that a system with integratedness as its main characteristic should be developed. To this end, it is necessary to have a national policy on environmental management, which must be implemented consistently and consequently from the center to the regions.
(4) Development continuously utilizes natural resources in order to promote people's welfare and quality of life. Meanwhile, the availability of natural resources is limited and unevenly distributed, in terms of quantity and quality, while the demand for the said natural resources is increasing as a result of intensified development activities in order to fulfill increasingly bigger and more diverse needs of the population. On the other hand, the supporting capacity of the environment can be disrupted and the accommodating capacity of the environment can decrease.
Increasing development activities entail a risk of environmental pollution and damage so that the basic structure and function of the ecosystem, which serve to support life, may be damaged. This environmental pollution and damage shall constitute a social burden, which eventually shall require the society and the government to bear the recovery costs.
Maintenance of the sustainability of the function of the environment shall constitute people's interest and as such shall demand responsibility, transparency and the role of the community, which may be channeled through individuals, environmental organizations, such as non-governmental organizations, custom-based community group and so forth, In order to maintain and promote environmental supporting and accommodating capacities, on which sustainability of development shall rest.
Development which integrates the environment, including natural resources, serves as a means to achieve development sustainability and a guarantee for the welfare and life quality of the present and future generations. Therefore, the Indonesian environment must be managed under the principle of conserving the function of the environment in a harmonious, compatible and balanced manner in order to support sustainable development based on the concept of the environment for the promotion of the welfare and life quality of the present and future generations.
(5) The direction of Indonesia's long-term development shall be economic development which rests chiefly on industrial development, which uses among other things various chemicals and radioactive substances. In addition to turning out products useful to the community, industrialization also gives rise to excesses, among others the production of hazardous and toxic waste, which, If it is dumped into the environmental media, may pose a threat to the environment, health and the continuity of the lives of human beings and other living creatures.
Globally, science and technology have promoted the life quality of human beings. In reality, the life type of the Indonesian society is marked with the use of chemical-based products and has therefore increased the production of hazardous and toxic waste. This constitutes a big challenge with respect to the method of safe dumping with a small risk to the environment, health and the continuity of the lives of human beings and other living creatures.
Realization of the above matter has necessitated good management of hazardous and toxic substances. One thing that must be given attention to is that the territory of the Unitary State of the Republic of Indonesia must be free from the dumping of hazardous and toxic waste from outside the territory of Indonesia.
(6) As development efforts are increasing, the impact exerted on the environment is also becoming greater. This condition has prompted increasing necessity to make efforts to control environmental impacts so that the risk introduced to the environment can be minimized.
Efforts to control environmental Impacts cannot be separated from the acts oi supervision to ensure compliance with the prevailing laws in the environmental area. A preventive legal apparatus takes the form of licenses to carry out businesses and/or activities. Therefore, the license must expressly mention the requirements and obligations which must be complied with and performed by the parties responsible for the businesses and/or other activities. What has been mentioned above implies the participation of various government agencies environmental management so that it is necessary to set a clear limit to the authority of each government agency which takes part in the management of the environment.
(7) In line with the essence of the Unitary State of the Republic of Indonesia as a law based state, the development of the system of environmental management as part of environmentally friendly sustainable development must be provided with a clear, firm and comprehensive legal foundation in order to guarantee legal certainty to environmental management efforts. This legal foundation is based on the environmental legal principle and compliance of everybody with the environmental legal norms which are entirely based on Pancasila and the Constitution of 1945.
Law No.4/1982 on basic provisions on the environment (Statute Book of 1982 No.12, Supplement to Statute Book No.3215, Supplement to Statute Book No.3215) has marked the beginning of the development of legal apparatuses as the foundation for efforts to manage the Indonesian environment as an integral part of environmentally friendly sustainable development undertakings. Within a period of over one decade as from the promulgation of the said law, the community's awareness of the environment has improved rapidly, marked among other things by an increasing number of diverse community organizations working in the environmental area other than non-governmental organizations. intensified pioneering of the community in the conservation of the function of the environment is also evidence so that the community does not only participate but also play a concrete Role. In the meantime, legal matters on the environment developing in the community requires regulation in the form of a law in order to guarantee legal certainty.
On the other hand, the development of the global environment and international aspirations shall increasingly affect efforts to manage the Indonesian environment. In observing the development of the said situation, it is deemed necessary to improve Law No.4/1982 on basic provisions on the management of the environment.
This law contains environmental legal norms. Besides, this law shall also serve as a foundation on which assessment and adjustment shall be made with respect to all prevailing laws containing provisions on the environment, namely the laws on irrigation, mining and energy, forestry, conservation of biological natural resources and their ecosystem, industry, residential areas, spatial layout, land use system and so forth.
Increased effectiveness of all legal provisions, either the administrative law, civil law or criminal law, and efforts to make effective the settlement of environmental disputes alternatively, namely out-of-court settlement of environmental disputes in order that the disputing parties may reach an agreement. In addition, it is also necessary to give a chance for the filing of a lawsuit in representation/class action. The said manner in which environmental disputes are settled is expected to increase the community's compliance with the value system regarding how important the conservation and development of environmental capacities shall be to the lives of human beings now and in future.
To support the administrative law, the enforcement of the criminal law shall continue to take into account the subsidiary principle, namely that the criminal law should be effectively used if the sanctions set forth in other laws, such as administrative sanctions and civil sanctions, and an alternative settlement of environmental disputes are not effective and/or if the degree of the guilt of the perpetrator is relatively serious and/or if the effect of his act is relatively big in magnitude, and/or his act gives rise to social restlessness. As anticipation is made of the likelihood of more frequent occurrence of criminal acts committed by a corporation, this law also regulates corporate responsibility.
Therefore, all the above-mentioned laws are brought together in a legal system of the Indonesian environment.
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On the basis of the principle of the state's responsibility, on the one hand, the state guarantees that the utilization of natural resources shall produce the greatest benefit to the welfare and the life quality of the people, with respect to both the present and future generations. On the other hand, the state shall prevent the performance of the activities of utilizing natural resources within the territory of its jurisdiction which shall inflict losses to the territory of another country's jurisdiction and shall protect the state against the impact of activities carried out outside the territory of the state. The principle of sustainability means that everyone shoulders their obligation to and responsibility for the coming generation and with respect to their fellow beings in the same generation. To ensure that the said obligation and responsibility shall be performed, the capacity of the environment must be conserved. The conservation of the capacity of the environment shall be the pillar on which sustainable development shall rest.
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The right over information about the environment constitutes a logical consequence of the right to play a role in the management of the environment, which is based on the principle of transparency. The right over information about the environment shall enhance the value and the effectiveness of participation in environmental management, in addition to opening up opportunities for the community to actualize their right over favorable and healthy environment.
The information about the environment as meant in this sub-article may be in the form of data, description or other information linked with environment management which according to its nature and objective shall indeed be open to the community to have knowledge about, such as documents on the analysis on environmental impacts, reports and evaluation of the result of environmental monitoring, with respect to either monitoring of compliance or monitoring of a change in the quality of the environment, and the spatial layout plan.
The role as meant in this article shall include the role in the decision-making process, by means of either filing an objection or a hearing or in another way stipulated in the laws. The said role shall be played among others in the process of evaluating the analysis on environmental impacts or the formulation of a policy on the environment. The implementation shall be based on the principle of transparency. Transparency enables the community to give thoughts to environmental management and offer their views on and considerations about decision making in the management of the environment.
This correct and accurate information is intended for assessing compliance of the party responsible for the business and/or activity with the laws.
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Clause a
The self-reliance and empowerment of the community constitute the preconditions to nurture the capacity of the community as agents in environmental management along with the government and other agents of development.
Clause b
Improved capacity and pioneering of the community shall promote the effectiveness of the role of the community in environmental management.
Clause c
Improved responsiveness of the community will further decrease the likelihood of adverse impacts.
Clause d
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Clause e
As responsiveness is improving, the speed at which the information about an environmental problem is given shall be get higher so that the problem can be followed-up.
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Clause a
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Clause b
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Clause c
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Clause d
The activities which exert social impacts shall be the activities with impacts on public interests, culturally and structurally.
Clause e
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In the framework of formulating a national policy on environmental management and spatial layout arrangement, it is obligatory that attention should be rationally and proportionally paid to the potential, aspiration and necessity and values growing and developing among the community. For example, attention to be paid to a custom-based community whose life and living rely on the natural resources available around them.
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Clause a
Referred to as decision makers in this decree shall be the authorized parties, namely the government, the community and other agents of development.
Clause b
This activity shall be conducted through counseling, guidance and education and training in the framework of promoting the quality and quantity of human resources.
Clause c
The role of the community in this article shall encompass participation, both in the efforts and in the process of making decisions on the conservation of the supporting and accommodating capacities of the environment. In the framework of the role of the community partnership among the agents of environmental management, namely the government, the business circles and the community, including among others non-governmental organizations and scientific professional organizations, shall be developed.
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Clause e
What is referred to in this provision 8s preventive apparatuses shall be the acts taken at the level of decision making and planning, such as spatial layout and the analysis of environmental impacts. As for preventive acts, these shall be the acts at the level of implementation through compliance with the quality standards of the waste and/or economic instruments. Proactive acts shall be the acts at the production level with the application of the standardization of the environment, such as ISO 14000.
Environmental management apparatuses which are preemptive, preventive and proactive in nature shall be for example the development and application of environmentally friendly technology, the application of environmental insurance and voluntary environmental audit implemented by the parties responsible for businesses and/or activities in order to improve the performance.
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Clause g
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Clause h
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Clause i
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The scope of the implementation of environmental management basically encompasses various sector which shall be the responsibility of various ministries and government agencies. To avoid authority overlapping and conflicts of interests, it is necessary to have coordination, integration, synchronization and simplification through the institutional apparatuses under the coordination of the minister.
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Clause a
The Unitary State of the Republic of Indonesia is rich with diverse potentials of biological and non-biological natural resources, characteristically diverse cultures of the community and aspirations which may be the man asset for national development. To this end, in order to achieve integration and unity of the patterns of thinking and steps which shall guarantee the realization of environmental management efficiently and effectively on t basis of the Archipelagic Concept, the central government may stipulate that certain authority, with account being taken of the situation and condition of the regions, regarding both natural potentials and regional capacities should be given to the apparatuses of the central government agencies in the regions in the framework of implementing the principle of deconcentration.
Clause b
The central government or first-level regional administration may assign second-level regional administrations to play a role in the implementation of environmental management policies as assisting tasks. Through the assisting tasks, the authority, financing, instruments and responsibility shall continue to rest with the government which gives the assignment.
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With account being taken of the capacities, situation and conditions of the regions, the central government may delegate matters in the environmental area to the regions so that they shall be the authority, tasks and responsibility of regional administrations on the basis of the principle of decentralization.
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The analysis on environmental impacts shall, on the one hand, constitutes part of a feasibility study to implement a business plan and or a plan of action, while on the other it shall constitute a requirement which must be fulfilled in order to obtain a license to conduct the business and/or activity. On the basis of this analysis a better understanding may be obtained of the major and significant impacts, either negative or positive, on the environment which may arise from the business and/or activity so that preparation can be made for steps to manage the negative impacts and develop the positive impacts.
To measure or determine the major and significant impacts, the following criteria, among other things, shall be used:
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Waste management constitutes a series of activities encompassing storage, collection, transportation, utilization and processing of waste including stockpiling of the outcome of the said processing.
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The said obligation to conduct processing constitutes efforts to reduce the likelihood of a risk towards the environment in the form of environmental pollution or damage, considering that hazardous and toxic substances have enough potential to give rise to negative effects.
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The examples of the said licenses are among others a license for a mining concession for businesses in the mining area, or an industrial license for businesses in the industrial area.
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The license for running a business and/or doing an activity must stress the obligation related to compliance with the provision on environmental management which must be performed by the party responsible for the business and/or the activity in carrying out the business and/or activity. As for the business and/or activity for which the drawing up of or implementation of an analysis on environmental impacts is mandatory, the plans for environmental management and monitoring the implementation of which shall be mandatory to the party for the business and/or activity must be clearly mentioned and formulated in the license for conducting the business and/or activity. For example, the obligation process the waste, the requirements for the quality of the waste which can be dumped into the environmental media, and the obligation related to the dumping of waste such as the obligation to conduct self-monitoring and the obligation to report the result of the said self-monitoring to the government agency responsible in the area of environmental impact control. If pursuant to the prevailing laws a business plan and/or a plan of action entails the obligation to conduct an analysis on environmental Impacts, an approval for the said analysis on environmental impacts must be forwarded along with the application for a license to conduct U business and/or activity.
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The announcement of the license to conduct a business and/or activity constitutes the implementation o transparency on the part of the government. The said announcement of a license to conduct a business and/o activity shall enable the participation of community members, particularly those not yet using an opportunity ii the procedure for an objection, a hearing and so forth in the decision-making process of the license.
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A business and/or activity shall produce waste. In general this waste must first be processed prior to being dumped into the environmental media so that it shall not bring about environmental pollution and/c damage. In certain circumstances, the waste produced by a business and/or activity may be recycled as a raw material for a product. However, this recycling process shall produce waste, as a residue which can no longer b recycled and which shall therefore be dumped into the environmental media.
The dumping as meant in this article shall be the dumping of waste as a residue of a business and/c activity and/or another substance which is no longer used or whose usefulness has expired into environment media, which may be land, water or air.
The dumping of waste and/or material into the environmental media shall exert an impact on the ecosystem. Therefore, the provision in this article stipulates that in principle it is prohibited to dump waste into environmental media, with the exception of certain environmental media stipulated by & government.
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In the case of appointing authorized officials from other government agencies to conduct supervision, the Minister shall establish coordination with the heads of the government agencies concerned.
The provision in this sub-article shall constitute the implementation of Article 13 sub-article (1).
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Referred to as taking account of the situation and condition of the place where supervision is conduct shall be respecting the prevailing values and norms, which may be written or otherwise.
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The extent of seriousness of violations against regulations on the environment may differ, starting from violations against administrative requirements to violations claiming victims.
Referred to as certain violations shall be violations by a business and/or activity with such seriousness that it is deemed necessary to terminate the business activities, for example because there are community members whose health is affected by environmental pollution and/or damage.
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Environmental audit shall constitute a significant instrument for the parties responsible for businesses and/or activities in order to improve the efficiency of their activities and performance in complying with the environmental requirements stipulated in the laws. In this sense, environmental audit shall be drawn up voluntarily to verify compliance with the prevailing laws on the environment and also with the policies and standard internally stipulated by the parties responsible for the businesses and/or activities concerned.
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The result of environmental audit as meant in this sub-article shall constitute a document which shall be pen to the public as an effort to protect the community and shall therefore have to be announced.
The provision in this sub-article is intended to protect the civil rights of the disputing parties.
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The provision in this sub-article is intended to prevent different decisions from being made regarding one dispute on the environment and shall therefore guarantee legal certainty.
The settlement of a dispute on the environment through out-of-court negotiations shall be voluntarily conducted by the interested parties, namely the parties sustaining losses and those inflicting losses, government agencies relevant to the subject of the dispute and may involve parties caring for environmental management.
What is meant as a certain act here shall be a measure to restore the function of the environment with account being taken of the values living in the local community.
To expedite the goings-on of out-of-court negotiations, the Interested parties may request the service of a neutral third party in the form of the following:
a. neutral third party not having an authority to make a decision.
This neutral third party shall have the function of a party facilitating the interested parties so that an agreement may be reached.
This neutral third party must:
b. a neutral third party with an authority to make a decision shall have the function of an arbiter and all arbitration decisions shall be permanent in nature and shall be binding to the disputing parties.
An institute providing services for the settlement of environmental disputes is intended to serve as an Institute capable of expediting the implementation of the mechanism of choice regarding the settlement of the dispute on the basis of the principle of impartiality and professionalism.
The government sets up such an institute as a public service.
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This sub-article shall constitute the realization of the principle in the law on the environment, which is called the polluter-shall-pay principle. Besides being required to pay compensation, an environmental polluter and/or a party damaging the environment may also be required by a judge to take certain legal acts, for example the instructions to:fix or repair a waste-treating unit so that the waste shall conform to the quality standard of the environment as stipulated;restore the function of the environment;remove or destroy the causes for environmental pollution and/or damage.
The requirement to pay for distress money for every day of lateness in the implementation of the instruction of the court to take certain acts shall be intended to conserve the function of the environment.
The definition of strict liability shall be that the element of the guild need not be proven by the plaintiff as the basis for the payment of compensation. The provision in this sub-article shall constitute lex specialis in the lawsuit on a law-violating act in general. The amount of the compensation which may be charged on parties polluting or damaging the environment may, pursuant to this article, be determined up to a certain extent. Being up to a certain extent as referred to here shall apply if pursuant to the prevailing laws it is stipulated that there is an obligation for the business and/or activity concerned to be insured or if environmental funds are already available.
Clause a
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Clause b
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Clause c
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Referred to as an act of a third party in this sub-article shall constitute an act of unfair competition or a mistake committed by the government.
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Referred to as the right to file a lawsuit In representation or a class action in this sub-article shall be the right of a small group of community members to act in representation of the community in a large number who have been disadvantaged on the basis of identicalness In the problems, legal facts and lawsuits arising because of environmental pollution and/or damage.
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A lawsuit filed by an environmental organization cannot be In the form of a demand for compensation, but shall be limited only to other lawsuits, namely:
Not every environmental organization may act on behalf of the environment; they can do so only after fulfilling certain requirements. The requirement as meant above shall selectively recognize the presence of environmental organizations as having ius standi to file a lawsuit on behalf of the environment to the court of law, whether a public court or a state administrative court, depending on the competence of the court concerned in examining and trying the case concerned.
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SUPPLEMENT TO STATUTE BOOK OF THE REPUBLIC OF INDONESIA
No.3699, No.23/1997