PREREQUISITES FOR EFFECTIVEENVIRONMENTAL ENFORCEMENTA Portrait of Indonesia

Prepared ByMas Achmad SantosaIndonesian Center for Environmental Law

CHALLENGES

GENERAL PORTRAIT OFENVIRONMENTAL ENFORCEMENT

TYPE OF ENFORCEMENT

PRIMARY ACTORS

PRIMARY LEGAL WEAPONS

KEYS TO SUCCESS

CHALLENGES

1. ADMINISTRATIVE

2. CIVIL3. CRIMINAL

1. SPECIAL INVESTIGATORS

MOE MOF MOFISH

2. POLICE3. PROSECUTORS4. JUDGES

SPECIALISED COURT ON FISHERY

GENERAL COURT

1. ENVIRONMENTAL PROTECTION AND MANAGEMENT ACT 2009

2. FORESTRY ACT 1999

3. FISHERY ACT 2006

4. CONSERVATION ACT 1990

5. SPATIAL PLANNING ACT 2006

6. ANTI CORRUPTION ACT

7. MONEY LAUNDERING ACT

8. CRIMINAL CODE

STRONG AND GENUINE POLITICAL WILL & LEADERSHIP

RHETORIC &“PAPER TIGER”

GOOD PLANNING ON ENVIRONMENTAL ENFORCEMENT

NO ROADMAP TO IMPROVE EXISTING CONDITIONS

EFFECTIVE COORDINATION

1. EGO SECTOR WHICH IS EXACERBATED BY DISHARMONIZATION OF LAW• Joint task force in combating

illegal logging under MOF• Joint task force in handling

pollution cases under MOE• Working group to combat

illegal logging based on Presidential Instruction no. 04/2005 (ores in the planning stage)

3 ABBILITIES:1. TO DETECT

Violation2. TO RESPOND

Swiftly and surely

3. TO PUNISH

1. PUBLIC COMPLAINT SYSTEM HAS NOT BEEN WELL MANAGED

2. MONITORING & INSPECTION ARE NOT CONDUCTED REGULARLY (National, Provincial & Local)

3. NUMBER OF PERSON TO INSPECT AND MONITOR IS NOT EQUAL TO TARGETTED AREAS (PARTICULARLY IN FOREST MGT)

4. LACK OF TECHNICAL SKILL OF ENFORCEMENT OFFICERs

5. INSUFFICIENT BUDGET AND INFRASTRUCTURE

6. RAMPANT CORRUPTION IN ENFORCEMENT AGENCIES

PREREQUISITE OF EFFECTIVE ENVIRONMENTAL ENFORCEMENT

GOOD

GOVERNANC

E

GREEN CONSTITUTION:1. Fundamental rights + nature rights (ecocentrism

approach)2. State obligation3. Acknowledgement of the sustainable development

principlesENVIRONMENTAL LEADERSHIP

EFFECTIVE ENVIROMENT

ADMINISTRATION ENFORCEMENT

ORES GREENING THE BENCH

1.INTEGRATED ENVIRONMENT LICENSE

2.INTERCONECTEDNESS BETWEEN ENVIRONMENTAL AND BUSSINESS PERMITS

3.UTILIZATION OF PERMIT AS A CONTROL TOOLS.

4.REGULAR MONITORING & INSPECTION.

5.APPROPRIATE ADMINISTRATIVE SANCTION FOR EACH VIOLATION

1. ONE ROOF/HOUSE

2. ONE POLICY3. ONE

COMANDER4. ONE

INTEGRITY SYSTEM (CODE OF ETHIC, ADEQUATE SALARY, & DISCIPLINARY MEASURES)

1.FULL BLOWN (COMPLETE) – Special court + judges + expert + special rules of procedures

2.ADEQUATE Chamber in the Supreme Court + special division in general court

3.MINIMUM Flying / permanent certified judges

STRONG CIVIL SOCIETY:1. ENGAGING CAPACITY FROM WITHIN2. PRESSURE FROM WITHOUT

EFFECTIVE

ENVIROMENT

AL ENFORCEMEN

T

PROMISING SITUATION

• The concept of “green constitution” has become a part of the proposed (5th) amendment developed by Presidential Advisory Council

• Strong political will and leadership of the Chief Justice to promote capacity building of judges and green bench concept

• Bureaucratic reform in national and local government, including in Judiciary and Enforcement Agencies has started.

• Newly promulgated Freedom of Information Law and freedom of the press enable civil society to participate more effectively

• Enabling provision of ORES in the newly promulgated Environmental Protection and Management Act

• President SBY has recently pledged in the G20 meeting and COP 15 to cut carbon emission 26% by 2020 and has also promised to stop conversion of peat land and primary forest for 5 years

• The government has promised a review of forest concession permit to mitigate the climate change

PROMISING SITUATION

• National Development Planning Agencies has recommended the concept of “green industry” which has been included in the National Strategy on the Reduction of Greenhouse Gases

• Establishment of ORES initiated by MoE in cooperation with civil society organization (ICEL) and the establishment of Environmental Prosecutor’s Squad in AGO

• US government and EU have stopped the trade in illegal timber internationally by making it a serious criminal offence (it prevents illegal timber exportation)

• The ongoing cooperation between international development agencies and the Supreme Court, MoE and other agencies to promote the rule of law and environmental justice