MANAGEMENT ACT
4. COMMENTS ON SEVERAL RULES OF THE ENVIRONMENTAL MANAGEMENT ACT OF 1997
From the explanation of the dispositions contained in the various conventions discussed above, the subsequent identification of related rules and acts in Indonesia and Indonesian experience with transboundary pollution cases, including other countries’ experiences, several comments can be formulated with respect to the need to revise the Environmental Management Act in Indonesia:
4.1. The Improvement of Several General Provisions
The general provisions, especially the definitions and the terms adopted from international conventions, should be formulated in a simple and interpretable
manner. Among terms that still need a definition and more precision are:
ecological damages, environmental threats, danger to human health, sustain- able development law, and certainty related to the legal regime.
4.2. Improvement of Basic Principles
An assessment and implementation of international conventions should lead to further improvement in the new laws that relate to the field of environmental law. Some of those new principles are the precautionary principle, common but differentiated responsibilities, the principle of prior notification, the strict liability principle in compensation, etc.9
4.3. Institutional Arrangements
Several measures have to be taken to improve the institutional arrangements with respect to environmental law and policy. These institutional arrangements then have to function as policy formulation, they have to set national goals and objectives, promote and facilitate coordination, cooperation and designate institutional responsibilities, including delegated authority of regional agen- cies. Because of decentralization in Indonesia, the definition and scope of responsible authorities and the relationship between them as well as the distri- bution of powers are seen in this light. The decentralization idea equally has its importance for other issues, like relations with other countries, the avail- ability of experts and of community and institutional capacity.10Also the rela- tionship with international organizations or institutions, either as a focal point of international and regional programmes or as project executor of national, regional and institutional programmes that are funded by international organi- zations or institutions needs to be clarified in institutional arrangements.
4.4. Legal Instruments
There is another issue to be taken into account in the revision of the Environmental Management Act: the relationship between Environmental Impact Assessment (EIA) and Environmental Risk Assessment (ERA). The EIA needs to be simplified. The new Environmental Management Act should provide a stronger and clearer legal base for EIA and should also include the development of an ERA policy and procedure. A clear relationship between
9 See on the importance of incorporating general principles into the Indonesian Environmental Management Act also the contribution by Wibisana to this volume.
10 On the importance of the decentralization issue for the revision of the Environmental Management Act in Indonesia, see Chapter 7 of this volume.
the EIA, environmental audit and the ERA needs to be elaborated in the new EMA. A clear legal concept of EIA, ERA and environmental audit could improve the development of substance, procedures and institutions through acts, government regulations, regional regulations, ministrial decrees as well as technical guidance. Moreover, guidelines and lists of activity that should have an EIA or an ERA, and guidelines for environmental audit should be developed.
A further point for consideration is the assessment and adjustment of envi- ronment quality standards, including standards relating to the marine environ- ment as an adjustment to international conventions (conservation, protection area, application of if clausessuch as an ‘escape clause or review clause’ on mining based on available technology assessment, and transnational aspect of hazardous waste and toxic activities, reception facilities regulation, seashore management).
Also important is the formulation of certification and licences (integrated with the environmental audit system including the drafting of a Master Plan of Development of Seashore and Special, Strategic Areas) and simple procedures applicable at the regional level, including the possibility of cancelling a certi- fication or a licence when the holders failed to meet the professional require- ments.
There need to be improvements to technical advisory committees and peer- groups, with qualifications of expert with special expertise; the criteria for lists of expert groups witness as a base for expert appointment.
Attention should also be paid to aspects of legal procedure. Indeed a specific procedure for environmental disputes may have to be developed as lex specialisfor environmental cases. This is felt to be needed due to the contro- versial debate concerning Article 35 (strict liability) and Article 39 of the current Environmental Management Act related to the existing law of proce- dure for the application of strict liability in Indonesia.11 Strict liability for environmental harm should be implemented as a requirement of the interna- tional conventions, specifically in environmental cases.
Also instruments of environmental funding have to be installed. When
11 Currently Article 35 of the Environmental Management Act of 1997 provides for a strict liability role: ‘The party responsible for a business and/or activity which gives rise to a large impact on the environment, which uses hazardous and toxic mate- rials, and/or produces hazardous and toxic waste, is strictly liable for losses which are given rise to, with the obligation to pay compensation directly and immediately upon occurrence of environmental pollution and/or damage’. (See on this strict liability regime in Indonesian environmental law). Article 39 of the Environmental Management Act, however, stipulates: ‘Procedures for the submission of legal actions in environmental problems by individuals, the community, and/or environmental orga- nizations refers to the applicable civil procedures law in CPNL’.
installing these instruments, international conventions on the environment, particularly those related to the protection of the marine environment, need to be taken into account. In this respect we refer more particularly to the obliga- tion contained in many international conventions (as for instance the conven- tion on civil liability for oil pollution damage, the so-called CLC Convention) to impose insurance or other financial guarantees to make sure that compen- sation to victims will be awarded. Since Indonesia is, as we stated clearly above, an archipelagic state, the guarantee of such funding for damages is especially important in marine environmental cases. Therefore, when redraft- ing the Indonesian Environmental Management Act, it seems important that the funding mechanisms provided for in international conventions and in inter- national standards are also incorporated in Indonesian law.
Finally, an environmental tribunal should also be installed to take responsi- bility for the administrative review of administrative decisions.12 Moreover, one might equally consider the setting-up of ad hoc tribunals to deal with envi- ronmental cases.