On 21 January 2015, the Constitutional Court of the Republic of Indonesia rendered Judgment No. 18/ PUU-XII/2014 on judicial review proceedings relating to the application of environmental permits and environmental law enforcement procedures under Law No. 32 of 2009 on the Protection and Management of the Environment ("Environmental Law").
In essence, the Constitutional Court held that:
1. An application to renew / extend a permit to undertake hazardous and toxic waste (B3) management activity which is being processed by the relevant authority must be considered as having been granted. Therefore the activity may continue while the application for renewal / extension of the permit is being processed.
The Constitutional Court stated that when the delay in issuing the renewal / extension of the permit is not because of the fault or negligence of the applicant, it would be unjust for the activity to be treated as if no permit had ever been granted for it to be undertaken.
2.The enforcement of environmental law by law enforcement institutions (including Indonesian police and state attorney) must be carried out under the coordination of the Ministry of Environment.
The Constitutional Court stated that the word "may" in Article 95 of Environmental Law (quoted below) should be omitted to ensure that any investigation of an alleged environmental law violation is conducted within the spirit of "integrated law enforcement", as mandated by the Environmental Law.
"In the framework of law enforcement against the perpetrators of environmental crimes, integrated law enforcement may be performed by civil service investigators, police and prosecutors under the coordination of the Minister."
3.The enforcement of "environmental crime" provisions under the Environmental Law should be applied to both the violation of Environmental Law provisions and the violation of other provisions of law relating to activities regulated by the Environmental Law.
The Constitutional Court emphasized that investigation of "environmental crimes" under the Environmental Law should also cover crimes which are relevant to activities regulated under the Environmental Law. The Constitutional Court pointed to corruption case related to business activities regulated under Environmental Law.
The Constitutional Court Judgment was based on a petition filed by Bachtiar Abdul Fatah, former General Manager of PT Chevron Pacific Indonesia ('PT Chevron'), who was convicted for corruption by the Anti-corruption Court on account of Environmental Law breaches.
One of the grounds for the conviction was that PT Chevron had undertaken without a permit, a bioremediation project for land which it had contaminated with B3 waste. Mr. Bachtiar argued that at the time PT Chevron conducted the bioremediation project, it was waiting on the outcome of an application for a renewal of their previous permit.
Mr. Bachtiar also questioned the investigation relating to the criminal proceedings against him, which was carried out solely by the state attorney without the involvement or coordination of the Ministry of Environment. Mr. Bachtiar added that the state attorney ignored the fact that the Ministry of Environment, as the regulatory body under the Environmental Law, did not consider the bioremediation activity as violating the law.
The Constitutional Court's Judgment in this case is of importance for the enforcement of environmental law. The Court decided that parties which are processing the renewal / extension of their permits to manage B3 waste must be deemed as already having a permit. Therefore, activities undertaken while a permit renewal / extension application is being processed should not be considered as a violation of the Environmental Law. The Judgment also sent a clear message that the enforcement of the Environmental Law must be done under the coordination of the Ministry of Environment.
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