National Environmental Law

Weiweik Awiati, Indonesian Centre for Environmental Law (ICEL)

This discussion will focus upon the Indonesian experience in the field of environmental law. This discussion can be seen as a warning to other countries such as East Timor in the field of environmental law and the environment in general, to not repeat the mistakes of Indonesia in the environmental sphere.

I will also propose several measures which I believe can be used to prevent the same problems that occurred in Indonesia from occurring in East Timor.

Currently Indonesian laws and transitional regulations are in place in East Timor.

Indonesian National Environmental Law involves:

· General Environmental Law (GEL);

· Sectoral Environmental Law (SEL);

· Environmental Conventions that have been ratified.

General Environmental Law at the current time in Indonesia includes:

• Law No. 23/1997 UUPLH (Conservation of the environment legislation);
• Regulation No. 27 1999 AMDAL (Environmental Impact Assessment);
• Regulation No. 18/1999 > PP 85/1999 B3 (Hazardous waste management);
• Regulation No. 20/1990 (Water pollution control);
• Regulation No. 41/1999 (Air pollution control).

Sectoral Environmental Law includes:

• Law No. 11/1967 (mining management);
• Law No. 5/1984 (industry);
• Law No. 41/1999 (forestry);
• Law No. 8/1971 (oil and gas).

Problems with Indonesian environmental law

There are a number of problems associated with Indonesian environmental law. These include problems with the legislation itself, as well as inadequate implementation and enforcement.

In terms of the legislation, there are inconsistencies between GEL and SEL. A further problem is that both GEL and SEL are very centralised, and their legal mandate has not yet been devolved to local areas.

The record of implementation and enforcement of environmental laws in Indonesia is poor. This is due to the inadequate human resources capacity of environmental investigators and supervisors, and a limited budget for program implementation.

Further factors that result in poor implementation and enforcement of environmental laws include:

- capacity and effectiveness of civil society in carrying out the function of public control is weak, this involves NGO’s, institutions of higher learning, the mass media, and society;

- bureaucracies lacking in integrity, responsiveness and professionalism;

- questionable capacity of the government (both central and district) to implement transparency, public participation and accountability in management of public natural resources;

- the independence of the judiciary must be struggled for;

- the districts do not yet possess enforcement and adherence strategies (there should be a multi-approach process).

Other significant problems associated with environmental laws in Indonesia are:

- lack of political will in the development paradigm in supporting measures for the protection of ecosystems;

- lack of a solid legal framework that supports the concept of environmental sustainable development;

- no conflict resolution mechanism.

Criteria for legislative good governance

The following points address criteria for legislative good governance;

1. Empowerment, community participation and public access to information

2. Transparency

3. Democratic decentralisation

4. Recognition of the limited carrying capacity of ecosystems, and the importance of protecting them

5. Recognition of the rights of indigenous/local people

6. Consistency and harmony

7. Clarity

8. Enforceability

The prerequisites for good governance are outlined below:

1. Effective representative system;
2. Independent judiciary that is professional, and free from interference/ corruption from the executive;
3. A government apparatus (bureaucracy) that is professional with strong integrity;
4. A strong civil society that is able to carry out the role of public watchdog and apply pressure;
5. Decentralisation and strong local representation, that is supported by a strong local civil society;
6. Conflict resolution mechanisms.

The realisation of environmental governance can be measured in several ways:

1. The extent to which the Constitution includes rights related to ecological sustainability and protection of the environment;
2. The extent to which we want to and are able to translate into national policy the sustainable development principles that are incorporated in a number of international declarations, charters and conventions;
3. The extent to which environmental management institutions have effective and efficient operating structures;
4. The extent to which the community is involved in management of the environment and natural resources;
5. The extent to which are we able to follow up neglected environmental cases;

6. The extent to which the environmental budget is allocated

equitably.