THE APPLICATION OF CRIMINAL LAW INSTRUMENT IN THE ENVIRONMENTAL LAW ENFORCEMENT
HAMZAH, A.1 AND SURACHMAN, R.M.2
1Public Prosecutor for the Republic of Indonesia
2Senior Public Prosecutor for the Republic of Indonesia1 INTRODUCTION
1.1 Indonesian Environmental Legislation
The Stockholm Declaration on Human Environment (1972) also triggered the Indonesian government to develop an environmental management policy and to materialize the environmental protection programs in line with the policy. Nevertheless, it was not until 1978 that the Ministry of Environment came into being. Four years later the 1982 Environmental Management Act was promulgated. This Act is intended as the "umbrella provisions" under which the future Indonesian environmental legislation will be drafted.1
It does not mean, however, that prior to 1982 there were no legislation dealing with the environmental protection, environmental management, and environmental enforcement.
Munadjat Danusaputro, the first Indonesian Professor of Environmental Law, divides the Indonesian environmental legislation into the classical type and the modern one. Whereas the classical type consists of laws and regulations promulgated during the Dutch colonial time, the modern type consists of laws and regulations enacted after getting the independence.2
The first type is rigid, sectoral, and consumption oriented,3 such as reflected inter alia in the 1920 Fishery Conservation Ordinance, the 1926 Nuisance ordinance, the 1931 Wild Animal Ordinance, the 1936 General Water Regulation, and the 1941 Nature Protection Ordinance.
The second type is flexible, integrated, and environmental oriented,4 such as found inter alia in the 1948 Cities Planning Ordinance, the 1960 Health Basic Act, the 1964 Atom Energy Act, the 1973 Continental Shelf Act, the 1982 Environmental Management Act, and the 1990 Conservation of BioNatural Resource Act.
Equally important, criminal provisions relating to environment have been sporadically prescribed in the 1915 Indonesian Penal Code. For example, articles 202, 203, 204, and 205 stipulate the protection of human health; articles 172 and 502 stipulate the nuisance; and article 302 and 540 stipulate the protection of animals. Still, in case of these penal code offences the attention is focused on the offender or the sanctioned conduct not on the interest of environmental protection or environmental management.5
1.2 Environmental Law: Revisited
Since the time of Hammurabi men have searched the meaning of law. Yet what Kant indicated not less than two hundreds years ago remains unchained: "Noch suchen die Juristen eine Definition zu ihrem Begriffe von Recht."6
It is not easy indeed to find a definition of law that would meet the satisfaction of all jurists. The same is true of formulating the meaning of environmental law. For the purpose of writing this work paper only one definition has been chosen. It says that environmental law is part of the law dealing with physical environment and it is applicable to prevent or to overcome the problems of environmental pollution, environmental exhaustion, and environmental damage.7
According to this definition, the environmental law deals only with the physical environment, or the physical surroundings of men. It does not deal with the social environment, or the relation between men and their surroundings.8 Hence, the Indonesian environmental law does not deal, for example, with the so called "cultural pollution" of Bali Island caused by the continuing influx of foreign tourists.
The meaning of environment for men, on the other hand, may be found in the quality of environment. This environmental quality has some relations with the environmental value for human health and safety, with the environmental value for a variety of utilizations, and with the environmental values themselves detached from particular utilizations.9
Also, we should mention environmental problem. This problem is a social phenomenon too and not mere a natural science one. As a result, the environmental problem deals also with social phenomena such as population growth, migration, and social behaviour in the forms of producing, migration, and recreating.10
We may say that the environmental problem is the deterioration of environmental quality. This deterioration may be seen in the forms of environmental pollution, environmental exhaustion, and environmental damage.11
1.3 The Function of Environmental Law
Functionally, the environmental Law provides the norms for the positive side of social behaviour. The norms may directly command or prohibit the society. However, the environmental law often provides norms indirectly. That is quite true when it gives a ground upon which the authorities provide norms to the regulated persons.12 In the meantime, the existence of a good environmental law is not a guarantee for a good environmental quality. Some more factors such as education, technics, and financial incentive are needed to gain that quality.13
1.4 Environmental Oriented Development Concept
Within the context of Indonesia the function of environmental law is to guard and to champion the policy of the environment oriented development concept,14 or to stimulate further economic growth without permanent damage to environmental quality. The time is due for the Indonesian people to reach the goal of "sustainable development", or "the development that meets the needs of the present without compromising the ability of future generations to meet their own needs.15
2 ENVIRONMENTAL LAW ENFORCEMENT
2.1 Cross Section of Legislations
Despite its modern characteristic, the present environmental legislation also proofs to be an intricate one. Environmental legislation is indeed a cross section of a variety of laws,16 such as constitutional law, administrative law, civil law, criminal law, and tax law as well.
The constitutional law describes the public organizations and its powers to apply and to enforce the environmental law. The administrative law regulates the environmental policy and environmental standards such as the system, the procedure, and the control of licensing. The civil law provides remedies for obtaining compensation for environmental damage. The criminal law provides coercive norms under which the people obey the environmental law. And the tax law may be violated in case there is any infringement of environmental laws motivated by economic but illegal goal.
2.2 Environmental Regulatory Chain
The environmental law may be enforced by two methods. Monitoring compliance through negotiation, licensing, and control is the preventive method. On the other hand, sanctioning against violations through administrative law, civil law, or criminal law instruments is the repressive method.17
Thus, environmental law enforcement may be understood as:18
to mean the observance of the environmental law through supervising and inspection, as well as the detection of violations of that law, the reparation of the environmental damage it has caused and taking legal action against the offender(s).
Enforcement is generally the weakest link in the regulatory chain of any government environmental policy plan. The process cycle of the plan consists of legislation, standard setting, licensing, implementation and enforcement. The movement of the cycle is continuing and the feedbacks of enforcement become beneficial inputs for the legislation process. To tell the truth, adjustment and correction of environmental legislation would be more successful if it is based on the experience obtained in the enforcement process.19
Particularly, in Indonesia factors like geography, education, technic, instrument, and finance have a great impact upon the present situation of environmental law enforcement.
2.2.1 Geographical factor
Indonesia consists of five big islands and about 13,600 small islands and the population, which is pluralistic in nature, has reached over 180 million. Due to its different background in culture, tradition, value, and religion, it is not unusual if they have different insight too. Some of them need special protection of the Government with special treatment and even with special laws and regulations. And to reach the people living in remote and isolated areas, the communication system should be improved and an information network should be installed.
2.2.2 Educational factor
Actions and measures should be taken systematically to help the people become more aware of law and more familiar with ecological matters. And it is necessary for the people to realize, that the ignorance of law is not a good defence for not obeying the law.
2.2.3 Technical factor
Generally the law enforcement agents lack of experience, sound knowledge, and technical skill in handling environmental offences with effective and efficient. Therefore, intensive but comprehensive training on environmental law enforcement should be organized for groups of civilian investigators, police, public prosecutors, and local as well as provincial government officials. The next step is public prosecutors specializing in environmental problems should be appointed to be involved in every stage of environmental law enforcement. Likewise, the judges should be familiar with the environmental laws and regulations.
2.2.4 Instrumental factor
A regulation on environmental impact assessment was promulgated in 1987. It is followed by setting the standards of surface water, effluent, liquid waste, ambient air, and emission. Yet some more legal instruments should be provided to implement the 1982 Environmental Management Act. For example, there are no regulations to compensate victims of environmental damage; to assign activities for which "strict liability" principle be applied in case of environmental damage occurs; and to prosecute the corporation because of its criminal liability in committing an environmental offence.20
2.2.5 Financial factor
In addition to technical know how and managerial skill, adequate financial incentives are needed for the success of environmental protection programs. Likewise, big budget and funds must be available if the role of environmental law enforcement will be intensified.
In spite of those factors, the Government is now more firm in stressing the increasing role of enforcement. What is more, the year of 1991 was declared by the Minister of Environment, Professor Emil Salim, as the Environmental Law Enforcement Year of Indonesia.
2.3 Instruments of Enforcement
Legal norm and legal instrument are the two sides of a coin. Legal instrument is the tool to maintain, to control, and to enforce the norms.
The environmental law may be enforced by administrative instrument, civil instrument, and criminal law instrument. This order does not reflect a preference of applying each of those instruments. All of them are of the same importance. For example, it is possible to apply criminal law instrument as the first choice, especially if the norm has been intentionally violated or if the violation is committed by a repeater or if the environmental damage is serious and irreparable.
Again it is not unusual in some jurisdictions (e. g. in the Netherlands, in the United Sates, and in Canada) that environmental law is enforced through the parallel proceedings, where administrative actions or civil actions are pursued simultaneously with criminal actions.21
2.3.1 Administrative instrument
It is proportionally effective, however, to apply the administrative instrument if the offence is trivial and the environmental damage is reparable. Mostly the government officials having local, provincial or sectoral jurisdiction are vested with powers to apply this instrument. They have authority to stop environmental standard; consequently, they have authority to stop violations of the environmental standard. Whereas criminal law instruments are designated to impose sanctions on the violator, administrative instruments are focused on the violation.22
In the Netherlands the administrative sanction may be in the form of bestuurdwang,23 and in Indonesia it is called paksaan pemeliharaan hukum.24 Both are the same: action taken by the administrative authority without the intervention of the court. In the United States it is known as administrative action.25 Some of the administrative actions are known as "police powers" in administrative law. The actions are used only in exceptional circumstances and known in many countries.26
Next, there is penalty for noncompliance. In the Netherlands it is called dwangsom,27 or "administrative daily fine" and it is almost similar to administrative fine known in the United States.28 Again, there is the sanction of revoking the permit or the license. This is the most severe administrative action and known in most countries of the world.29 In Indonesia this measure is provisioned inter alia in the 1926 Nuisance Ordinance.
Last year Indonesian administrative courts just began to operate under the Act No. 5 of 1986 concerning the Administrative Justice System. It means it is possible now for any person or a private legal person to ask administrative judge to test the validity and the legality of an administrative action taken against the person.30
In the Indonesian administrative law, any administrative action taken in the form of ketetapan which is the same as beschikking in the Netherlands administrative law is a juridical decision. Therefore, any government authority taking such action should adhere to "the principle of good administration". The administrative court may annul his decision otherwise.30a
2.3.2 Criminal Law and Civil Instrument
Particularly, in Indonesia people like to resort to criminal law since civil proceedings will take years. And equipped with coercion powers, public prosecutor in Indonesia will enforced the final judgment of criminal court in an expedient means. The enforcement of final judgment in civil proceedings will take longer time. Other factor for the choice is the possibility of imposing more severe criminal sanctions on some offenders. For the committing of certain environmental offences the suspect is detainable in Indonesia.
Civil instrument will be the first choice when there is no sufficient evidence for criminal proceedings. Legally and practically, in civil proceedings the onus of proof is less strict than in criminal proceedings.
In Indonesia, public prosecutor as lawyer of the State may appear in civil proceedings when the state is the party. In the future civil instrument will be increasingly importance for the enforcement of environmental law in Indonesia. The instrument will be possibly applied to claim compensation of a serious environmental damage in particular. Also it will be applied widely to secure injunctions or in case criminal prosecution can not be instigated due to the lapse of time.30b
2.4 Factors of the Enforcement
As has been noted, all of the legal instruments are of the same importance. In practice, the choice of the appropriate instrument to be applied will depend on some factors of the enforcement.
Therefore, it will be more effective and efficient if the enforcement agents proportionally consider the following factors,31 such as, whether:
(1) the offence is a dolus (not a culpa)
(2) the offence is very serious
(3) the offence is very sensitive because of publicity
(4) the offence is not willing to cooperate in securing compliance
(5) the offender is a repeater (recidivist)
(6) the offender is a corporation (not an individual)
(7) the proof of guilt needs sophisticated evidence
(8) the environmental damage is irreparable
(9) the cost of administrative sanction is not recoverable because of e.g. bankruptcy(10) the reaction of the local community as the victim of environmental violation is strong
If the answers to those questions are positive, it is appropriate to apply the criminal law instrument at the earliest stage of enforcement.
3 ENVIRONMENTAL LAW ENFORCEMENT THROUGH CRIMINAL LAW INSTRUMENT
3.1 Ultimum Remedium
As has been noted, the order of the legal instruments, viz. :administrative, civil, and criminal law instrument does not reflect a preferential order.
At the same time, in some countries criminal law has played only a supporting role in the enforcement of environmental law. Criminal law instrument, moreover, in the past regarded traditionally as the last resort, or ultimum remedium. Within the context of the adage, criminal law proceedings will not be pursued, unless administrative action or civil action has been taken but failed to reach the desired results.32
3.2 Current Trend
That traditional view has gradually changed. This is due to the fact that the role of the criminal law relating to environmental offences is of increasing importance. For example, in the Federal Republic of Germany some efforts have been done to extent the sphere of criminal law by formulating new offences and changing the nature of delicts.33 And then in 1980 a new section under the heading of "Offences Against The Environment" was inserted into the German Penal Code. One of the reasons is to expose the socially harmful nature of environmental offences to the attention of the public.34 What is more, at the Eighth UN Congress held in Havana, Cuba (September, 1990) Germany called upon the member states inter alia "to give more effective shape to their criminal law relating to environmental offences."35 Earlier, Germany had been successful in strengthening the criminal law to protect environment at the Federal as well as Länder level. Hence, some regulatory statutes (Ordnungswidrigkeiten) relating to the environment have provisions referring to Penal Code.36 Further, the Seventeenth Conference of European Ministers of Justice held in Istanbul, Turkey (June, 1990) gave a positive response to the proposal of Germany on the harmonization of the criminal law of each participant states relating to environmental offences.37
In the Netherlands, the adage of ultimum remedium within the context of criminal law instrument has been left. The reason is it often led to discussions between administrative officials and the public prosecutor about the question if the last resort situation had been reached.38
3.3 Other Efforts and Measures
The experience of several countries has revealed that compliance may be easily secured only when the promotion or the enforcement is backed by criminal sanctions.
Some industrial countries and a few developing countries have followed German path. They have reshaped their criminal law relating to environmental offence inter alia by introducing new section dealing with crimes against the environment in their penal code.39
In some European countries such as Portugal, Spain, Hungary, and, before 1992, the Soviet Union, serious environmental offences have been part of penal code.40 The situation is the same in the Netherlands, moreover, a great number of environmental offences have been categorized there as economic crimes. Accordingly, the criminal proceedings of such offences are ruled by special procedure stipulating in the WED (Wet Economische Delicten, or [the 1950] Economic Crimes Act).
This categorization has some advantages. For example, the investigators have greater power; the public prosecutor can apply provisional measures and has more opportunities to settle the case out of court; and the judge specialized in economic crimes can impose a variety of special sanctions and measures.41 And although there is no suspicion of any offence, inspection is permitted, and search as well as seizure are more possible. In short, police power under Dutch environmental law are somewhat more extended than under general criminal procedure.42 This practice derives from the rule under the Dutch penal code, which is in harmony with the legal maxims: lex specialis derogat legi generali and generalibus specialia derogant.
3.4 The Role of Public Prosecutor
Generally, public prosecutor has more privileges then the police in relation with the court. He is, in any event, the filter of the criminal justice system, since in committing criminal cases to trial, the court is dependent on the decision of the public prosecutor whether the prosecution will be conducted or not. Even in jurisdictions where the decision of public prosecutor in dropping the case needs confirmation of the court, most of the time the court will give a positive response to the demand of the public prosecutor.43
To be sure, in countries where the police have a very limited discretionary power, the prosecutorial discretion of the public prosecutor is of great importance, especially if he holds the powers of investigation as well as the power of directing any other law enforcement agency. Within this context, the public prosecutor of Japan or of the Netherlands is the right model of the public legal officer holding the key position in the administration of criminal justice.44
In Japan, the prosecutorial power has long been monopolized by the public prosecutor. And the suspension of prosecution system, which has gained public acceptance in Japan, has been practised widely, by which the public prosecutor is allowed to suspend the prosecution of an offender, if he deems the prosecution appear unnecessary "because of the character, age and environment of the offender, the gravity and the circumstances of the offence, or the conditions subsequent to the commission of offence."45 As a result, more than 50 per cent of the property cases (e. g. theft) committed by very old offenders are practically dropped by the public prosecutor.46
In the Netherlands, the dropping of the procedure is exercised widely by the public prosecutor and has long been recognized as the "normal" decision and is independent on the consents of the court. As a result, less than 50 per cent of the cases delivered to the prosecution service end up in court.47
3.5 Opportunity Principle Versus Legality Principle
The prosecutorial discretion practised in Japan or in the Netherlands has its roots in what is known as the "opportunity principle", or "the principle of discretionary prosecution. "Under the opportunity principle, the public prosecutor may decide not to prosecute the case if the prosecution is inappropriate, undesirable, or if it poses greater harm to the public or the government than to nonprosecution decision. In contrast to this, under the "legality principle", or the principle of mandatory prosecution, the public prosecutor almost always has to commit any case to the court for its adjudication.48
France has applied the opportunity principle since the years of the revolution. It was then followed by several continental countries such as the Netherlands, Belgium,49 Norway,50 Sweden and later adopted in Japan, Republic of Korea, Indonesia,51 and Israel. Italy, Australia, and Germany, on the other hand, have chosen the legality principle. In Italy and Austria only the court may drop the procedure at the request of the public prosecutor after considering the circumstances of the offence or the offender.52 Whereas Germany, after having applied this principle very strictly, eventually gave room for the exceptions as can be seen in articles 152, 153153e, 154154e of the Strafprozessordnung.53
In Germany, for example, the public prosecutor, may drop the cases (including of house breaking, white collar offences and nonviolent sexual assault on children, saves those serious crimes such as murder, robbery, arson, and rape), if "he thinks that the degree of guilt is low and that public interest does not require a prosecution."54 In the event that the dropping of procedure needs confirmation of the court, the court will almost always give it.55
Within the context of environmental offences, practically the public prosecutor of Germany has wide discretion too. It is interesting enough that most of environmental offences, economic offences and not serious offences (petty offences, or contraventions) are stipulated in Ordnungswidrigkeiten; consequently, the public prosecutor of Germany may drop such cases. In other words, German prosecutors may apply discretionary prosecution, or the opportunity principle in handling nonpenal code offences.56
In the jurisdictions of common law, the decision to prosecute or not to prosecute (including the decision of choosing either summary procedure or indictment procedure) is the domain of Crown Attorney,57 which in England, for example, is called "Crown Prosecutor". To some extent he applies a variation of the opportunity principle even though the principle is not officially known.58
In the United States, the district attorney is almost always autonomous in exercising prosecutorial discretion.59 He may drop the procedure or use "pleabargaining" to dispose cases.60 In many jurisdictions, generally American prosecutor even "determines the level of punishment in nonjury and nontrial cases."61
3.6 More Measures of Diversion
European prosecutor (e.g. in Sweden, Denmark, Norway, and the Netherlands) are vested with power to levy the maximum amount of fines for settling of cases out of court; and especially in Sweden, the payment of fines is a legal alternative to a six month prison sentence.62 In the Netherlands, this procedure is called transactie, or "transaction", and may be used in settling even serious cases,63 since fine as criminal sanction is available for all penal code offences. This diversion measure is also used widely in Denmark and is increasingly used in Norway.64 Again in Norway prosecutors may dispose penal sanction without court intervention, called as patale unnlatese; the approval of the Attorney General is not necessary, unless the measure is to be used for disposing more serious offences.65
As has been noted, the opportunity principle has been practised in the Netherlands for a long period of time. The Officier van Justitie, Dutch prosecutor, may decide to prosecute or not to prosecute with or without conditions.66 The dropping of procedure by Dutch prosecutors may be based on three ways. First, charges are dropped for reasons of policy (trivial offence, old age, damage settled). Second, charges are dropped for reasons of technicality (over 90 per cent usually due to lack of evidence). Third, the case is combined with other case of the defendant already being prosecuted.67
Those three ways of disposing cases are used widely in Japan too. We have discussed earlier the role of Japanese prosecutors in relation with the opportunity principle.68 As a matter of fact, diversion measures are known in every stage of criminal justice administration in Japan.
3.7 Police Discretion
In several jurisdictions discretion is even used at earlier stage of enforcement. For example, the police in the Netherlands may offer transaction for violators of minor traffic offences. In Sweden, the police may impose fines for minor offences.69 Ticketing procedure for minor traffic offences is practised by the police in Japan, Singapore, and Indonesia as well.
These kinds of diversion will be appropriate to be extended to minor environmental offences too. It has been a practice in Canada where the environmental inspectors may institute a ticketing procedure.70
3.8 Indonesian Experience
The opportunity principle has been the law in Indonesia for a long period of time,71 and yet in practice, it is very rarely exercised by the Attorney General. In Indonesia, only the Attorney General may drop cases for reasons of policy.72 As a result, the public prosecutor who wants to drop a case for reasons of policy has to ask the Attorney General to exercise the power. We are of the opinion that Indonesian prosecutors should be equipped with the same power, especially if the offence is trivial, the offender is very old, and the victim is cooperative. Unless the case to be dropped is serious or sensitive, the consent of the Attorney General is not necessary either.
It is interesting to note, that diversion measure known as transaction in several European countries was used widely by public prosecutors in Indonesia during the 1950s and the 1960s. That practice was used under the 1955 Economic Crimes Act. It will be appropriate if it is extended to less serious environmental offences too.
4 INCARCERATION SANCTION AS THE ULTIMUM REMEDIUM IN THE ENFORCEMENT OF ENVIRONMENTAL LAW
4.1 Alternatives to Incarceration
Since its inception the United Nations has showed its global interest in motivating all nations of the world to enhance the prevention of crime. Its impacts may be seen, for example, in many efforts done by several countries and pursued by some conferences and seminars at international and regional level focusing on the treatment of offenders, e. g. the alternatives to incarceration as criminal sanction.
As Fogel pointed out, fines (as alternatives to incarceration) are still dominant in the Continental system as well as in the Anglo-American system.73 Next, probation plays a significant role even though it shows a great variations.74 Some innovative diversions in the post Word War II should also be mentioned, inter alia in the forms of suspension of prosecution,75 declaration of guilt, suspension of sentence pronouncement and guilt pronouncement, no declaration of a sentence,76 and even the abolishing of incarceration.
4.2 Fines as Criminal Sanction
Within the context of environmental law enforcement, there are a variety of fines, viz. : conventional fines, daily fines, day fines, and conditional fines.77
Conventional fine is the one known for a long period of time. They are fixed mainly in penal codes of many countries.
Daily fine may be imposed by criminal court "as a lump sum or for every day the offender delays in performing its obligations (i. e. operating in violation of relevant permits)."78 The longer the violator delays compliance with the court order, the bigger the financial sanction pay. It has been stipulated in France, Belgium, and with variation in England.79
Day fine is the one determined by using a multiplier factor based on the monthly income of the offender and on the gravity of the offence.80 It has been the rules in Germany, Austria, Sweden, Denmark, and Finland.81
Conditional fines is the one which may be combined with particular conditions, viz. :the reparation of environmental damage and the payment of victim compensation.82 It has been known in Germany, Sweden, and with certain modifications in the Netherlands, Belgium, and France. The fine will not be enforced unless the violator commit another offence during the probation period.83
In theory, conditional fine can be applied also in Indonesia pursuant to general rules stipulated under the Book I of the Indonesian Penal Code. In practice, it is almost never used.
4.3 Probation System
Probation in the Continental System followed the Belgian model. In Belgium, a conditional sentence called in French sursis has been stipulated since 1888.84 It is then adapted in France, Italy, Germany, Austria, Sweden, Norway,85 and the Netherlands; later it is adapted in Japan, Republic of Korea, and Indonesia.
Again in Belgium, there is a probation system before trial and it is imposed by public prosecutor. This prosecutorial probation is adapted in Germany, to be instituted by German prosecutors by refraining from prosecution relating certain offences.86 These kinds of pretrial probation are widely used in the United States, and it is called "diversion".87
In the Continental system of probation the determination of guilt is essential and the imprisonment sentence is not executed under certain conditions. The convicted is put in the community during the probation period with or without supervision.88 On the other hand, in the Anglo-American system of probation, especially in most American jurisdictions, probation is not a penal sanction, and the guilt determination is not essential. If the offender is found guilty, the pronouncement of sentence will be suspended. Since the penal sanction is not yet pronounced, the offender is at liberty supervised by a probation officer with or without conditions.89 And in both systems probation is of course revokable.
In the meantime, some efforts have been taken to abolish incarceration as criminal sanction. In Finland, for example, the use of imprisonment was reduced through decriminalization of offences, reformulation of criminal rules for other offences, and further development of the alternatives to penal sanction.90
4.4 Incarceration as Ultimum Remedium
After all the alternatives to be applied to a particular case have been explored, but the enforcement agent fails to find the most appropriate one, the case should be committed to court for adjudication. If the guilt then is found it is for the judge to consider the most appropriate sanction for the offender.
There are a variety of criminal sanctions to be chosen, e. g. conventional fine, daily fine, day fine, and conditional fine. The next choice is suspension of guilt pronouncement or sentence pronouncement with conditions. If the sentence is pronounced,either fine sanction or incarceration sanction or both may be suspended with conditions. With regard to environmental offences the possible conditions are inter alia, the restoration of environmental damage, the payment of victim compensation, or the posting of deposits.
In any event, imprisonment or incarceration as criminal sanction, especially in relation with environmental offences, should be the last resort, or the ultimum remedium.91
Within the context of Indonesian penal system, alternatives to incarceration as criminal sanction for the environmental offences may be elaborated through conventional fines and conditional fines, and mainly through conditional imprisonment with or without supervision. Under a probation scheme a special condition may be imposed with a suspended sentence. The special condition is the restoration of environmental damage.
5 CLOSING REMARKS
5.1 More Severe Penal Sanctions
The trend of industrial countries has indicated the moving towards more severe incarceration as penal sanction for offences relating to environment.92
Still, innovative alternatives to incarceration are more and more available in the Continental system and in the Anglo-American system as well. David Fogel's study or Skoler and Sullivan's report for example, mentioned about court warning, punitive warning, no declaration of a sentence, community service order, abolishing of incarceration, posting of deposits, conventional fines, daily fines, day fines, conditional fines, application of funds from fines to restore environmental pollution, prohibition on the practice of profession, disqualification of the offender, or declared as being ineligible for government grant, loan, and contracts, closing of firm, publication of conviction that may damage the reputation of the relevant enterprise.93
5.2 Prosecutorial Discretion
We have seen in both opportunity and legality principle that it is not impossible for public prosecutor to exercise his discretion in disposing cases. In many criminal justice systems the public prosecutor is indeed a semi judge. Accordingly, he may drop the charge or the procedure with or without conditions; he may offer transaction, the waiver of prosecution,94 and pretrial probation, or prosecutorial probation; even he may imposed penal order with or without the consent of criminal court.
Those diversion measures will be of great significance in terms of effectiveness and efficiency when they are applied to environmental offences.
5.3 Some Notes On Indonesia
Unfortunately, the role of Indonesian prosecutors in using the opportunity principle is not very dominant. In the future, the power to drop cases for reasons of policy should be vested to all prosecutors. Some are at the same time even trying to end the prosecutorial discretion and suggesting that Indonesia adhere the legality principle. Most of them do not know, however, that even in the legality principle there is room for prosecutorial discretion as we have seen in Germany. Moreover, many of them are confused about the legality principle under procedural criminal law and the legality principle under substantive criminal law.95
There are some more legal hampers yet to be overcome in Indonesia. For example, under commune crime rules the corporate criminal liability is still de lege feranda, or ius contituendum. As a result, according to Indonesian criminal law a legal person is not punishable unless it commits economic offence.96 Therefore, some are advocating the efforts to corporate environmental offences into the 1955 Economic Crimes Act, like it has been the law in the Netherlands. Within the next five to ten years, when the draft of new penal code is enacted, corporations will be also punishable in Indonesia. In fact it is possible to insert new article into the present penal code stipulating the liability of legal person.97
In addition, there are some environmental provisions which are too abstract in terms of definition and sanction as well. The role of judges is of decisive importance to avoid multi interpretable situations. Therefore, workshops and discussions on innovative sanctions for the Indonesian judges should be organized too. The Indonesian legal drafters, on the other hand, should be more aware of not prescribing ambiguous or abstract provisions and definitions.98
Finally, lack of good laboratories is another problem in Indonesia and it has resulted in several dismissal and acquittal judgments for very serious or sensitive environmental cases. Thus, scientific evidence plays a very important role to answer whether or not pollution has occurred.
5.4 Conclusion
The adage of ultimum remedium is not relevant to the criminal law instrument as a response to a particular environmental law violation, but to the imposing incarceration as a sanction to the particular environmental law violation.98a
The enforcement of environmental law needs expertise and special technical skills. It is only natural if the office of public prosecutor has special department relating to environmental offences staffed by special trained public prosecutors, like those offices in the Republic of Korea, the Netherlands, Canada, and in the near future may be in Indonesia.
Again, a good enforcement of environmental law needs good legislation, good knowledge of law, good administration, and enough capacity of infrastructure. Notes/References
REFERENCES
1 Kusnadi Hardjasoemantri, Environmental Legislation in Indonesia, 2nd ed. (Yogyakarta: Gajah Mada University Press, 1989), p. 7; cf. Siti Sundari Rangkuti, Hukum Lingkungan dan Kebijakan Lingkungan Dalam Proses Pengembangan Hukum Nasional Indonesia (Surabaya: Airlangga University Press, 1987), p. 117; see also Act No. 4 of 1982 concerning Basic Provisions for Management of Living Environment, general elucidation.
2 Munadjat Danusaputro, Environmental Legislation & Administration in Indonesia (Bandung: Alumni, 1972), pp. 3640; also Munadjat Danusaputro, Hukum Lingkungan, Buku II, cet. ke2 (Jakarta: Binacipta, 1985), p. 38.
3 Danusaputro, Hukum Lingkungan, p. 38.
4 Ibid.
5 cf. Compliance and Enforcement of Environmental Law: Sanction and Strategies, mimeographed (1989), pp. 12.
6 L. J. van Apeldoorn, Inleiding tot de studie van het Nederlands recht, rev. J. C. M. Leyten, 17th prnt. (Zwolle: W. E. J. Tjeenk Willink, 1972), p. 1.
7 Th. G. Drupsteen, "Inleiding," in Milieurecht, eds. W. Brussaard et al. (Zwolle: W. E. J. Tjeenk Willink, 1989), p. 4. 8 Ibid. , p. 2.
9 Ibid. , p. 3
10 Ibid. , p. 4.
11 Ibid. , p. 3
12 Ibid. , p. 5.
13 Ibid.
14 cf. "Foreword [of] Professor Emil Salim [(Minister of Environment of the Republic of Indonesia)], "in Promoting Environmental Study Centres in Indonesia in Support of Sustainable Development, Mohamad Soerjani (Jakarta (?) : n. p. , 1989), p. v; also cf. Edwin W. Tucker, Text, Cases and Problems on Legal Regulation on the Environment (N. p. : West Publishing Co, 1972), p. 1.
15 As formulated in Bruntland Report; see WCED, Hari Depan Kita Bersama, trans. Bambang Sumantri (Jakarta: PT Gramedia, 1988), p. 12; and also VROM, National Environmental Policy Plan ( 's Gravenhage: SDU Uitgeverij, 1989), p. 7.
16 cf. J. Schreurs et al. , Environmental Law, Course Module, trans. M. A. G. Wennekers (Rijkshogeschool IJsselland, 1990), p. 4.
17 C. J. Kleijs-Wijnnobel, "Handhaving van Milieurecht," in Milieurecht, eds. W. Brussaard et al. (Zwolle: W. E. J. Tjeenk Willink, 1989), p. 399; H. E. van Helten, "Environmental Enforcement and the Police," in Proceedings II: International Enforcement Workshop, the Netherlands VROM and the United States EPA, p. 25; and cf. B. Ter Haar, "International Inspections: The Example of the Chemical Weapons Convention," in Proceedings I: International Enforcement Workshop, the Netherlands VROM and the United States EPA, p. 321.
18 G. E. Tulp et al, "The Phases of Enforcement Process," Course Module, trans. M. A. G. Wennekers (Rijkshogeschool IJsselland, 1990), p. 3.
19 Hans J. A. Schaap, "Small Business Compliance, the Role of Local Community," in Proceedings I: International Enforcement Workshop, the Netherlands VROM and the United States EPA, pp. 8891.
20 cf. Gustaaf Bieseveld and Emiel van den Berg, "Priorities For Environmental Legislation in the Republic [sic] Indonesia," Expert Report, VROM, 1990, pp. 2427: see infra pp. 3536. 21 For the Netherlands, see G. E. Tulp and J. Schreurs, "Instruments for Environmental Law Enforcement," Course Module, trans. M. A. G. Wennekers (Rijkshogeschool IJsselland, 1990), p. 28 and for the United States, see Edward E. Reich and Quinland J. Shea III, "A Survey of U. S. Environmental Enforcement Authorities, Tools and Remedies," in Proceedings I: International Enforcement Workshop, the Netherlands VROM and the United States EPA, p. 65. For Canada and other countries, see Compliance, p. 38 and p. 50
22 cf. Tulp and Schreurs, p. 26; also cf. Hans Fangman, "Criminal Enforcement of Environmental Legislation," in Proceedings I: International Enforcement Workshop, the Netherlands VROM and the United States EPA, p. 131.
23 Kleijs-Wijnnobel, pp. 410411; see also the Netherlands Municipality Act (Gemeentewet), arts. 152 and 210 as well as the Netherlands Province Act (Provinciewet), art. 116.
24 See Act No. 5 of 1974 concerning Basic Provisions for Regional Administration [in Indonesia], art. 42 and its elucidation.
25 Reich and Shea III, p. 67.
26 Compliance, pp. 4344.
27 Kleijs-Winnobel, p. 418.
28 Reich and Shea III, p. 72; "criminal daily fine", see infra n. 78. 29 Compliance, p. 44.
30 Budiarti et al. , "Terjemahan UndangUndang Nomor 5 Tahun 1986 tentang Peradilan Tata Usaha Negara. " (Jakarta: Badan Pembinaan Hukum Nasional, 1988).
30a cf. Indroharto, Usaha Memahami UndangUndang Tentang Peradilan Tata Usaha Negara. (Jakarta: Pustaka Sinar Harapan, 1991), pp. 307312.
30b Similar to the present practice in the Netherlands; see Fangman, pp. 130131.
31 Compliance, p. 52. Also see Tulp and Schreurs, p. 29.
32 For the Netherlands, see Fangman, p. 131; for the United States and other European countries, see Daniel L. Skoler and Katherine McG. Sullivan, "Criminal Enforcement of Environmental Laws European Experience and Perspective," in Environmental Enforcement, eds. Katherine McG. Sullivan (Washington, D. C. : American Bar Association, 1978), pp. 2829.
33 Wilhelm Schneider, "Criminal Law Relating to Environmental Offences," in Prevention of Crime and Treatment of Offenders, Bundesminister der Justiz, 1990, p. 19.
34 Schneider, p. 19.
35 Ibid. , p. 21.
36 Ibid. , p. 19.
37 Ibid. , p. 21.
38 See Fangman, p. 131.
39 Compliance, p. 31. In fact, the proposal of Germany to strengthen the criminal law relating to environmental offences is not in contrast with the general opinion of the delegates to the Seventy First UNAFEI International Seminar on Promotion of Innovation in Criminal Justice Administration for the Prevention of New Criminality held in Tokyo, Japan (Feb. March, 1986) stating that in addition to narcotics and drug offence, economic crime, white collar crime, corruption, computer crime, and international terrorism, environmental offence is identified as a new dimension of criminality; see UNAFEI Report No. 30, December 1980, pp. 105106; pp. 111 112; and pp. 118119.
40 Compliance, p. 22.
41 Tulp and Schreurs, p. 18.
42 Fangman, p. 130.
43 For Germany, see Hartmuth Horskotte, "Decision Making by the Police, the Prosecutor and the Court," Lecture 1, UNAFEI, 1980, p. 31; for the United States, see Delmar Karlen, Geofrey Sawer, and Edmond M. Wise, Anglo-American Criminal Justice (New York and Oxford: Oxford University Press, 1967), p. 28.
44 R M Surachman, "The Prosecutorial Discretion," work paper submitted to the Cairo Conference on the Law of the Word (1983), p. 6.
45 Takeshi Satsumae, "Suspension of Prosecution: A Japanese Long standing Practice Designed to Screen Out Offenders from Penal Process," UNAFEI Report No. 15, November 1978, pp. 100115; cf. Japanese Code of Criminal Procedure, art. 248; see also infra n. 68.
46 Koichi Miyazawa, "Crime and Victimization of Elderly in Japan," paper submitted to Bali International Conference on Criminology (1990), p. 3; see also infra n. 68.
47 Horskotte, p. 29 and p. 32.
48 Satsumae, p. 101 and Horskotte, p. 29. It is noteworthy that the legality principle is also known in substantive criminal law. Within this context, the legality principle means that no one will be pronounced guilty of any criminal offence for his actions which did not constitute a criminal offence at the moment of his actions. This rule is in harmony with the maxim of nullum delictum, nulla poena, sine praevia lege poenali. In other words, it is in contradiction with ex post facto laws. Whereas within the context of criminal procedure, the legality principle (mandatory prosecution principle) is opposed to the opportunity principle (discretionary prosecution principle); see also infra n. 95.
49 Although it may be true, Mulder pointed out that the opportunity principle is not officially known in Belgium and France. The prosecution service of both countries, however, may drop a case as what they call it in French as classer sans suite; see A. Mulder, "Doelstellingen en middelen van strafvervolging," in Tussen Misdaad en Straf, eds. H. Bianchi et al. (Nijkerk: Uitgeverij intro, 1991), p. 45.
50 In Norway, the opportunity principle, which has been the law since 1887, provides the Norwegian public prosecutors with very wide discretionary powers more than those of the Nether lands or of Japan; see Helge Röstad, "Criminal Law, Crime and Punishment in Norway A Brief Sketch," UNAFEI Report No. 30, December 1986, pp. 143145.
51 See Surachman, p. 8; and infra nn. 7172.
52 Surachman, p. 8; see also Horskotte, pp. 3032.
53 As discussed by Professor Koya Matsuo in his lecture at UNAFEI, Tokyo, Japan, on June 8, 1982; see also David Fogel, On Doing Less Harm (Chicago: UIC Office of International Criminal Justice, 1988), p. 238: see also infra n. 86. 54 Horskotte, p. 30; see also infra n. 86.
55 Horskotte, p. 31.
56 Mulder, pp. 4445; also cf. Fogel, p. 196; and infra n. 86.
57 Compliance, p. 31.
58 cf. John Wood, "Prosecution Policy in England and Wales," The Asian Journal of Crime Prevention and Criminal Justice No. 8, 1990, p. 41, p. 43, and pp. 4647.
59 James L. LeGrande, The Basic Processes of Criminal Justice (New York and Beverly Hills: Glencoe Press, 1973), p. 74.
60 Ibid. , p. 73; see also Paul B. Weston and Kenneth M. Wells, The Administration of Justice, 2nd ed. (Englewood Cliffs: Prentice Hall, Inc. , 1973), pp. 7980.
61 Fogel, p. 237.
62 Ibid.
63 Ibid. , p. 116 and p. 238.
64 Ibid. , 237; for Norway, see Röstad, p. 147.
65 Fogel, p. 237.
66 The Court System in the Netherlands (N. P. : Ministry of Justice, 1990), p. 4.
67 Ibid. , pp. 45; also cf. Fangman, p. 129.
68 Supra nn. 4546.
69 Fogel, p. 40.
70 Compliance, p. 19.
71 Prior to 1961 Indonesian prosecutors like their counterparts in Japan and in the Netherlands were vested with power to drop cases for reasons of policy i. e. if the prosecution would harm either the government, the state or the public; cf. Surachman, p. 7 and p. 25.
72 The 1961 Prosecution Service Act, art. 8 and the elucidation of art. 77 of the 1981 Code of Criminal Procedure. The power was endorsed recently under art. 32 (1) c of the 1991 Prosecution Service Act. Still, the elucidation of that article implies that the power will not be used widely.
73 Fogel, p. 12.
74 Ibid. , p. 13.
75 In Japan, it is practised since the preWorld War I. 76 Fogel, p. 13.
77 Skoler and Sullivan, p. 30 and p. 32.
78 Ibid. p. 30.
79 Ibid.
80 Ibid. ; see also Fogel, p. 203.
81 Fogel, p. 203.
82 Skoler and Sullivan, p. 30.
83 Ibid.
84 Fogel, p. 13.
85 See Röstad, pp. 142143 in relation to Norway.
86 Fogel, p. 238, p. 196 and p. 199; see also supra nn. 5356.
87 Fogel, p. 238.
88 Ibid. , p. 13.
89 Ibid. , p. 12 and p. 119.
90 Professor Matti Joutsen, of the Research Institute of Helsinki, credited the neo classicists with such efforts; see Fogel, p. 33.
91 For example, the Italian court imposed prison sentence upon the five Icmesa executives. On appeal, however, four of the sentences were overturned and the fifth sentence was suspended; see Ved P. Nanda and Bruce Bailey, "Challenges for International Environmental Law," work paper submitted to the Seoul Conference on the Law of the World (1987), p. 6.
92 Whereas efforts have been done to abolish incarceration in relation with most offences, severe penal sanctions have been introduced in many countries (e. g. Swiss since 1976). Other efforts covered the introducing of corporate criminal liability (the Netherlands, for economic offences, since 1950 and for commune offences, since 1976); and "criminalization" of culpa offences exposing human life and health to danger (Hungary, since 1976). Again, severe penalties stipulated in Federal environmental Protection Act of Germany (since 1974) introducing fines of up to 100,000 DM and prison sentences of up to ten years; and in the 1990 Conservation of BioNatural Resources Act of Indonesia introducing fines of up to 200 million rupiahs and prison sentences of up to ten years; cf. Skoler and Sullivan, p. 31 and p. 32 and Loebby Loqman, "Pertanggungan Jwab Pidana Bagi Korporasi Dalam Tindak Pidana Lingkungan Hidup," in Prosiding (Jakarta: Skrep & Walhi, n. d),
93 See Skoler and Sullivan, passim; and Fogel, p. 13.
94 For the "waiver of prosecution" in Scandinavia, see Fogel, p. 30, pp. 4445, and p. 238; the practice in Norway, see stad, pp. 144145.
95 See supra n. 48.
96 See Andi Hamzah, Hukum Pidana Ekonomi, rev. ed. (Jakarta: Penerbit Erlangga, 1986), pp. 2628; and Andi Hamzah, "Tanggung Jawab Korporasi dalam Tindak Pidana Lingkungan Hidup," in Prosiding (Jakarta: Skrep & Walhi, n. d. ), pp. 8283.
97 It can be inserted into Chapter III (Book I) of the present Code.
98 These phenomena also exist in relation with economic crimes acts and regulations in general "leaving much discretion to those trying to enforce the law"; see Matti Joutsen, "'Civilizing the Control of Economic Crime: Alternatives to the Criminal Justice System in the Prevention and Control of Economic Crime," UNAFEI Report No. 31, April 1987, p. 160.
98a cf. Joutsen, p. 171 and passim in relation with economic crimes.
99 As discussed by Professor Th. G. Drupsteen in his lecture at the Attorney General's Office in Jakarta, Indonesia, on 27 October 1990.