Presentation on theme: "ACCESS TO ENVIRONMENTAL JUSTICE * * Dr. ANDRIANI NURDIN Vice Chief Judge of the High Court of Banten."— Presentation transcript:
ACCESS TO ENVIRONMENTAL JUSTICE * * Dr. ANDRIANI NURDIN Vice Chief Judge of the High Court of Banten
Law Number 4 Year 1982 regarding Basic Provisions for Environmental Management Law Number 23 Year 1997 regarding Environmental Management (EMA) Law Number 32 Year 2009 regarding Environmental Protection and Management.
a.The totality of environmental management elements; b.Clarity of authority between the central and region; c.Fortification of environmental controlling measures; d.Fortification of preventive instruments of environmental pollution and/or damage, which cover instruments of strategic environmental analysis, layout, quality standard of the environment, standard criteria for the environment, environmental impact assessment, environmental management programs, economic instruments of environment, environment- based legislation, environment-based budget, environmental risk analysis, and other instruments in accordance with developments of science and technology;
e. Empowerment of licensing as a controlling instrument; f. Empowerment of ecosystem approaches; g. Certainty in responding and anticipating global environmental development; h. Fortification of environmental democracy through information access, participation access and justice access as well as fortification of rights of communities in environmental protection and management; i. Clearer enforcement of civil, administration and criminal law; j. Fortification of environmental protection and management institution more effectively and responsively; and k. Fortification of authority of environmental supervisory officials and civil servant investigators.
The decision of the Central Jakarta District Court in 1998 recognizing NGO’s legal standing (legal standing of WALHI- Fiends of the Earth of Indonesia) for the first time ever in Indonesia – although such matter was not stipulated in environmental legislation at time the case was decided. Another court’s decision which must be noted was the decision of the Bangkinang District Court, in Riau Province in 2001 regarding land and forest fires case. The decision of the Bangkinang District Court applied the concept of corporate liability as provided for in the Law Number 23 Year 1997 Bangkinang Land&Forest Fires Criminal Case Number 19/Pid- B/2001/PN.BKN, registered 29 September 2001. Defendant: General Manager Plantation Company, PT (Limited Liability) Adei Plantation.
The third case was a civil litigation brought by the affected people on a landslides case against President of the Republic of Indonesia, Minister of Forestry, Governor of West Java, Major of Garut District, and Perhutani Inc (State Enterprise). The judges applied class action referred to Article 37 paragraph 1 of EMA and precautionary principle referred to Principle 15 of the Rio Declaration.
To respond to the environmental impact which causes mass injury, which begin to be brought before the court, the Supreme Court passed the Supreme Court Regulation Number 1 Year 2002 regarding Class Action Procedure on 26 April 2002 In line with the increase of public awareness to control government’s performance, Citizen law suit in various cases has been recognized, even there is not any regulation.
the Law Number 32 Year 2009 implied the Premum Remedium approach then Ultimum Remedium in order to improve environmental and give more access to justice, the Law Number 32 Year 2009 in Article 66 protected everybody who struggling for right to a proper and healthy environment shall not be liable to criminal or civil offence. Namely, anti Strategy Legal Action Againts Public Partisipation (SLAPP) Suit. Case in 2008, Walhi (NGOs) filed a tort lawsuit against PT NMR, ESDM and Ministry of Environmental Affairs. there was a counter lawsuit of 100 thousand American Dollar from PT Newmont Minahasa Raya (PT NMR) and Rp5 trillion from the Minister of Energy and Mineral Resrouces (SDM).