Administrative and Environmental Law Review is a journal published by Faculty of Law, Universitas Lampung, under a Creative Commons Attribution-ShareAlike 4.0 International License.
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/aelr P-ISSN: 2723-2484
E-ISSN: 2745-9330
Job Creation Law’s Risks Towards Investment Efficiency and Business Convenience Regarding The Environment
Asnita Tresia Sitompul
Universitas Tarumanegara, Indonesia [email protected]
Article’s Information Abstract
Keywords:
Ciptaker Law; Risks; Environment.
DOI :
https://doi.org/10.25041/aelr.v3i1.2339
Abstract
From the beginning, in the form of a Draft Law until it was issued and passed into a Law, the Omnibus Law Cipta Kerja has caused a lot of controversy. Behind the efficiency of investment and convenience offered, UU Cipta Kerja is considered a threat to environmental sustainability and risks weakening law enforcement related to the environment.
Therefore, this study aims to analyze and describe the risks posed by the UU Cipta Kerja on the environment from a legal perspective.
The type of research used by the writer is descriptive exploratory research with a qualitative approach that aims to describe the nature of something that is taking place when research is carried out and examine the causes of a particular phenomenon and to describe the state of a phenomenon. To obtain data, the data collection method was carried out by means of a literature review by collecting data based on reading materials such as books and websites.
As such, the authors find it easier to find data and information needed from various sources.
Submitted: Jun 03, 2021; Reviewed: Jun 23, 2021; Accepted: Jun 28, 2022
A. Introduction
UU No. 11 Year 2020 Cipta Kerja adalah the first omnibus law passed in Indonesian law.1 The recently ratified Job Creation Law regulates at least 11 (eleven) clusters, including simplification of permits; investment requirements; employment; convenience, empowerment, and protection of MSMEs; ease of doing business; research and innovation support; government administration; imposition of sanctions; the land acquisition; investments and projects government; as well as economic area.2 The Job Creation Law issuance is the main instrument to encourage economic transformation and national economic recovery.3 The many overlapping laws in Indonesia are trying to be resolved through the Omnibus Law. The government considers this concept the right solution to address the problem of overlapping several legal rules in Indonesia.4
The presence and ratification of the Job Creation Law changed more than 70 regulations in the State of Indonesia, including the Environmental Protection and Management Law and the Forestry Law.5 However, the Job Creation Law continues to be in the spotlight and even protests and critics from various parties. One of the reasons is that there is an assumption that the Job Creation Law is considered to have the potential to hurt the environment, considered only concerned with investment and corporations and risks weakening law enforcement related to the environment.6 In the draft regulation, which changes the permit-based approach to a risk- based approach, the Environmental Permit is no longer valid as a business license requirement.
During the threat of global warming and the climate crisis, the environment becomes the foundation and entry point for development. Companies in the world use environmental principles to stimulate the economy without affecting environmental disasters, and the costs of environmental disasters far exceed the price of economics and progress. According to the vital issue, the monitoring in the forest and environment sector is to determine the function of the forest to distinguish it from the category of forest area. Forest areas can be changed for various purposes without determining forest functions. Regulation of forest functions will sustainably protect forests even though circumstances change.
Even though the State of Indonesia is the largest tropical rainforest in the world and natural resources are abundant, it should be an obligation for all Indonesian citizens to protect the environment.7 The Job Creation Law provides an opportunity to change the function of forest areas because they are too inclined to invest. However, changes in legislation, such as the Job Creation Law, are very worrying and threaten Indonesia's environment. One of the things that are a concern in the Job Creation Law is the environmental licensing regulations for business actors. Various provisions in the decree cut a lot of bureaucracy in investments related to the environment. Now, investment licensing is no longer uniform but based on risk. Likewise, there are many changes in the AMDAL (Environmental Impact Analysis) assessment process.
1 Agnes Fitryantica, “Harmonisasi Peraturan PerUUan Indonesia Melalui Konsep Omnibus Law,” Gema Keadilan 6, no. 3 (December 14, 2019): 300–316, https://doi.org/10.14710/GK.6.3.300-316.
2 Adhi Setyo Prabowo, Andhika Nugraha Triputra, and Yoyok Junaidi, “Politik Hukum Omnibus Law Di Indonesia,” Pamator Journal 13, no. 1 (April 4, 2020): 1–6, https://doi.org/10.21107/pamator.v13i1.6923.
3 Suwandi Arham, Ahmad Saleh, and Kata Kunci, “Omnibus Law Dalam Perspektif Hukum Indonesia,” PETITUM 7, no. 2 (October 31, 2019): 72–81, https://doi.org/10.1234/jh.v7i2%20Oktober.652.
4 Diya Ul Akmal. "Dinamika Konsep Omnibus Law: Menegaskan Tujuan Hukum Dalam Konstruksi Legislasi Nasional".
Jurnal Hukum Mimbar Justitia 7 no. 1 (2021) : 17-40. https://jurnal.unsur.ac.id/jmj/article/view/1176.
5 Antoni Putra, “Penerapan Omnibus Law Dalam Upaya Reformasi RegulasI,” Legislasi Indonesia 17, no. 1 (2020), https://e- jurnal.peraturan.go.id/index.php/jli/article/view/602.
6 Andhika and Yuli Rimbawan, “Omnibus Law Dan Dampaknya Pada Agraria Dan Lingkungan Hidup,” Rechtmatig: Jurnal
Hukum Tata Negara 6, no. 2 (December 30, 2020): 19–28,
https://www.journalfhunsa.com/index.php/rechtmatig/article/view/6.
7 Muhammad Ilham Nur, Natasha Fraiskam, Renti Friska Pangaribuan, Edo Clarita Samad. "Persetujuan Lingkungan Dalam Undang-Undang Cipta Kerja Dan Dampak Dari UU Ciptaker Bagi Lingkungan". Jurnal Syntax Admiration 2, no.
AMDAL studies the significant impact of a planned business and/or activity on the environment, which is required for the decision-making process regarding the implementation of the business and/or activity.8
The author examines the efficiency of the work copyright law, which regulates the impact, and risk of the presence of the work copyright law. This research is expected to contribute to the job creation law's formation, implementation, and feasibility in terms of environmental risks. This research's novelty is expected to significantly contribute to the community, especially the government, to determine the impact and risk on environmental comfort.
Moving on to the background that has been described, the problems to be discussed are formulated as “What are the risks that arise to the environment due to investment efficiency and ease of doing business based on the Job Creation Act? In this article, the author will use the method of writing through a qualitative approach and descriptive research.
B. Discussion
Since drafting the Job Creation Law, civil society organizations, environmental organizations, human rights, indigenous peoples' movements, communities, labor and other sectors have raised many objections and protests. Environmental organizations consider that the law can damage the environment. The provisions in the omnibus law, which eliminate the involvement of environmentalists such as organizations, indicate a weakening of environmental supervision and control, considering that the omnibus law legislation's intent and purpose is to improve the economy by increasing the investment ecosystem and increasing employment opportunities.9 Several provisions in the law that guarantee environmental security have been removed on the pretext of facilitating investment.
There are several crucial articles in the Ciptaker Law, and their impact is quite worrying.
As a small example, before the Employment Creation Act, companies had to apply for many permits related environmental permits to carry out their business activities. Still, after the Employment Copyright Law was enacted, entrepreneurs only needed to take care of business permits. In the Job Creation Act, there is no longer any article concerning the company's requirement to apply for an environmental permit before operating.
1. Comparison of the PPLH Law and the Job Creation Law
Since it was approved as a law, the Ciptaker Law has continued to receive rejection from various elements of society, both in terms of the process of its formation and its substance.Until the peak several times, the public had held demonstrations to criticize and even reject the law's ratification even amid the increasingly critical Covid-19 pandemic.10 One of the substances criticized is the regulation of the environmental sector in the Ciptaker Law which is considered no better than Law no. 32 of 2009 concerning Environmental Protection and Management (UU PPLH). The following is a comparison of the PPLH Law and the Job Creation Act:
8 Endang Susilowati, Sukriyah Kustanti Moerad. "Perubahan Persepsi Melalui Pelibatan Masyarakat dalam Proses Analisis Mengenai Dampak Lingkungan (AMDAL) PLTGU Perak". Jurnal Sosial Humaniora (JSH) 9, no. 2 (2016) : 139-155, https://iptek.its.ac.id/index.php/jsh/article/view/1623/1399.
9 Miftahol Fajar Sodik,Dimas Bima Setiyawan. "Undang-Undang Nomor 11 Tahun 2020 Tentang Cipta Kerja Prespektif Siyāsah Dustūriyah Dan Fikih Lingkungan (Klaster Lingkungan Hidup)". Jurnal Darussalam 13,nNo. 1 (2021) : 173-192, https://doi.org/10.30739/darussalam.v13i1.1305.
10 Rizal Irvan Amin. "Pendekatan Sosiologi Hukum Dalam Memahami Konflik Peraturan Perundang-Undangan Di Indonesia".
Jurnal Hukum Dan Pembangunan Ekonomi 8, no. 2 (2020) : 156-169. https://jurnal.uns.ac.id/hpe/article/view/49764/30586.
a. Environmental Permit Article 40 PPLH Law
1) An environmental permit is a requirement to obtain a business and/or activity permit.
2) The business and/or activity permit is canceled if the environmental permit is revoked.
3) If the business and/or activity changes, the person in charge of the business and/or activity is obliged to renew the environmental permit.
However, in Article 40 of the Job Creation Law, the environmental permit has been removed.
b. Involvement in Amdal Preparation
In the Job Creation Law, preparing the Environmental Impact Analysis (Amdal) document is considered to severely limit or narrow community participation or involvement in the context of optimal environmental protection. This is because the definition of the people involved is only limited to those affected. Meanwhile, the previous PPLH Law that involved environmentalists or those who were influenced by various forms of decisions in the EIA process was omitted. The following reads Article 26 of the PPLH Law:
1) The Amdal document, as referred to in Article 22, is prepared by the initiator by involving the community.
2) Community involvement must be carried out based on the principle of providing transparent and complete information and being notified before activities are carried out.
3) The community, as referred to in paragraph (1), includes:
a) affected;
b) environmentalists; and/or
c) affected by all forms of decisions in the amdal process.
4) The community, as referred to in paragraph (1), may file an objection to the amdal document. Meanwhile, it reads in the Job Creation Law:
a) The EIA document, as referred to in article 22, is prepared by the initiator by involving the community.
b) The preparation of the Amdal document is carried out by involving the community who are directly affected by the planned business and/or activity.
c) Further provisions regarding the community involvement process, as referred to in paragraph (2), shall be regulated in government regulation.
c. B3 Waste Responsibilities
Article 88 of the Job Creation Law removes the part of absolute responsibility for losses that occur without proving the element of error. Article 88 of the PPLH Law reads: "Everyone whose actions, business, and/or activities use B3, generates and/or manages B3 waste, and/or poses a serious threat to the environment is responsible for the losses that occur without the need for proof of elements error." Meanwhile, Article 88 of the Job Creation Law reads:
"Everyone whose actions, business, and/or activities use B3, generates and/or manages B3 waste, and/or poses a serious threat to the environment, is responsible for the losses that occur from the business and/or its activities.”
d. Freezing or Revocation of Permits
Articles governing the freezing and revocation of environmental permits were removed in the Omnibus Law on Job Creation. The following reads Article 79 of the PPLH Law: "The imposition of administrative sanctions in the form of freezing or revocation of environmental permits as referred to in Article 76 paragraph (2) letters c and d is carried out if the person in
charge of the business and/or activity does not carry out government coercion." Meanwhile, Article 79 was deleted from the Job Creation Act.
2. Impact or Risks Incurred
The Job Creation Law has the potential to damage forests and the environment.
Designating forest areas no longer goes through the stages of delimitation and determination.
This condition, he said, threatens the existence and fulfillment of the rights of indigenous peoples, local communities, farmers and traditional fishermen.
Article 22 of the "Law on Job Creation" changes significantly to Law no. 32 of 2009. This includes eliminating the authority of local governments to assess and determine the environmental impact assessment of companies. This is because too much investment will change the licensing framework, weak environmental compliance monitoring, public consultation, and sanctions regimes. Coordination with local governments (e.g., electricity for natural gas and natural areas, special economic zones) is also cut off.
Amdal is no longer an absolute requirement for the issuance of environmental permits.
Because according to the Copyright Act, a business license is only an administrative document.
Similarly, the AMDAL becomes the due diligence team. The weakening of the role of the public (society) makes the government a "stigma". Environmental organizations have limited space to participate in environmental impact monitoring, and economic interests become more critical, so environmental organizations that are not directly related to economic interests are marginalized.
From a legal perspective, Indonesia already has regulations that guarantee and protect the work of environmental defenders, namely Law Number 32 of 2009 concerning Environmental Protection and Management (PPLH). Article 66 of the Law states that anyone who fights for the right to a good and healthy environment cannot be prosecuted criminally or be sued civilly.
However, the fact is that environmental defenders always experience physical violence and criminalization, both criminally and civilly. The presence of the Job Creation Law, which is a draconian law, which is the law that is more perceived as repression, abolition of rights, and more concerned with the power of its formation, is expected to exacerbate protection efforts for environmental defenders.
After the enactment of the 2020 Job Creation Law, the protection of environmental defenders will be weaker, mainly because:
a) Strengthening impunity for companies
The Job Creation Act is designed to give corporations or companies 'impunity'. This means that companies proven to damage the environment or even engage in recruiting thugs will be less and less likely to be held accountable before the law. For example, environmental defenders will find it increasingly challenging to bring corporations involved in forest and land fires (karhutla) to justice.
b) Loss of public role.
In the Job Creation Law, an Environmental Impact Analysis (AMDAL) is not the basis for an environmental permit but only an administrative document. In addition, the AMDAL Assessment Commission is a Feasibility Test Team that does not involve the role of local communities, environmental organizations, and academics. The loss of public roles will add new conflicts and potentially increase the risk of intimidation, threats of criminalization, and violence in the affected communities.
c) Limited protection institutions for activists.
State administrative institutions such as the Witness and Victim Protection Agency (LPSK) and the National Human Rights Commission (Komnas HAM) have limited functions as supervisors of power. Apart from being unable to exercise their legal authority freely, these two institutions have minimal funding to carry out their functions fully. This makes it difficult for environmental defenders with limited power and legal protection to advocate and demand environmental law enforcement.
Authority is only in the hands of the central government. The condition worsens when all permits no longer involve the role or participation of the community, including the granting or extension of plantation or mining permits. The Ciptaker Omnibus Law also seeks to eliminate public participation in determining environmental rights by removing environmental permits.
C. Conclusion
Since it was approved as a law, the Ciptaker Law has continued to receive rejection from various elements of society, both in terms of the process of its formation and its substance. Due to excessive investment impacting changes in the licensing framework, weak monitoring of environmental compliance, public consultation, and the sanctions system, there are concerns about the environmental risk of the Ciptaker Law. There is a high risk to the environment behind the investment efficiency and ease of doing business under the Job Creation Act. The strengthening of impunity for companies, the loss of public roles, and the limited institutions for protecting activists are clear evidence of the weakening of protection for environmental defenders. The community is the party most affected by environmental damage caused by regional changes. Community involvement in getting a healthy living environment is actuated in the Job Creation Law. The community also urges the Government to continue to disseminate and disseminate environmental licensing based on the Job Creation Law so that there are no misinformation and interpretations that further trigger public concerns about environmental sustainability. The government should also immediately compile implementing regulations, including PP, regarding risk-based Business Licensing, environmental feasibility tests, and the process of community involvement in the preparation of environmental permits.
The conclusion consists of a description that answers the research's purposes. Please provide a clear and brief conclusion. Do not repeat the abstract or illustrate the result of the research. Describe the explanation of possible applications and suggestions regarding your Article’s findings.
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