ENVIRONMENTAL LAW

ADMINISTRATIVE COURT CASE ANALYSIS:

PT. KALISTA ALAM

MUHAMMAD NOOR FRIYATNA ESA1206227970

Faculty of Law

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University of IndonesiaDepok2014

I. INTRODUCTION

a. Background

The environment is the space in which mankind, alongside

other living beings, reside. Humans and the other creatures

live and interact with each other, often also depending on

each other. This life with all the interactions and

interdependencies inside comprises the ecosystem with the

environment as an essential part which could not be regarded

separately.

In order to carry out the environmental protection and

management, an environmental law should be enacted to

guarantee the harmony between those aforementioned elements.

The enactment of environmental law could be seen as the

utilization and implementation of the instruments and

sanctions in the fields of administrative law, criminal law,

and civil law in order to force the legal subjects to adhere

to the regulations of environmental law.

Indonesia is one of the countries frequently experience

fire on peatlands. The fire itself happened either through the

human intervention or through the natural process. For

example, the Indonesian people usually open up new lands

through fire, despite the fire is actually already prohibited

in the UUPPLH (The Law No. 32 / 2009 on Environmental

Protection and Management). A fire has a great impact both to

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the communities living around the fire or to the environment

which usually last for a long period of time.

The responsibility to protect the environment leads to the

responsibility to protect each and every natural resources

composing the environment for the benefit of the people itself

and the generations to come. The protection of environment and

its natural resources entails double aims, which are to serve

the public interest as a whole and also the individual

interests.1

The criminal law serves a big role on the attempt of the

enactment of law against the perpetrators of environmental

damage, however the burden on the criminal law should not

exceed the supposed capacity and we should pay attention to

the inherent boundaries on the implementation of the criminal

law, such as the legality and the blameworthiness principle.

The enactment of environmental criminal law is based on

the legality aspect both on its material or formal aspects.

The implementation of environmental criminal law is only

lawful if its material substances are based on the articles of

environmental crimes, which are mostly stipulated outside the

Criminal Code of Indonesia, or the KUHP (Kitab Undang-Undang

Hukum Pidana). The criminal law in the enactment of

environmental law stipulated under the Law No. 32 / 2009

requires further elaboration to sufficiently sustain the

formation of the environmental law regulations, in order to

create effective practical regulations. The effectivity of the

1 Koesnadi Hardjasoemantri, Hukum Tata Lingkungan, Gajahmada University Press, Yogyakarta, 1999, p. 95.

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criminal sanctions regulated under UUPPLH on the environmental

damage perpetrators did not go through the expected progress.

The enactment of environmental law, in practice, initially

started by the activity of investigation in the form of

collecting the informations, proceeded to the activities of

investigation, lawsuit, court decisions and the execution of

the court decisions. The enactment of environmental criminal

law should regard the characters and complexity of an

environmental law case. Thus, in line with the principles of

management of environment, the enactment of environmental

criminal law should be carried out integrated and coordinated

with the sectoral officers, particularly those with the

authority in the issue of permit, supervision, observation of

the environment and the enactment of administrative

environmental law.2

Whether the enforcement of criminal environmental law

could be effective or not is not only determined by its

criminal sanctions, but also by the prevailing concepts of

criminal liability. The concept of criminal liability is very

important, because the environmental damages could be led from

the activities of the legal entities which are made up of the

involvements of various people with various levels of

responsibility.

b. Research Questions

2 Hamrad Hamid H, Penegakan Hukum Lingkungan Kepidanaan, Makalah Penataran Nasional Hukum Lingkungan, Fakultas Hukum Universitas Airlangga, Surabaya, 1996, p. 1 - 2.

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1. How the Public Prosecutor determine the defendants? What

is the judge opinion on this determination?

2. Is the defendant determination correct based on the

theories of corporate criminal liability? What are the

relations of the discussion of this case to the

differentation of corporate crime and the concept of

complicity according to the Criminal Code?

3. How are the conclusions and considerations of the court

regarding the verification of the elements of crime as

imposed?

4. Could the defendants be charged on the basis of material

delict? What are the relations of the criminal

environmental law theories with the criminal articles in

the Law No. 32 / 2009?

c. Casus Positie

The PT. Kalista Alam, represented by Subianto Rusid as the

Director of the corporation, which was based on the Akta

Pendirian Perseroan Nomor 5 tahun 2008 dated 4 August 2008,

and legalized through the Decree of Law and Human Rights

Minister No. AHU – 66614.AH.01.02, cleared up a land through a

sustained fire in the time period between September 2008 to

June 2012 in the Kecamatan Darul Makmur, Kabupaten Nagan Raya,

Provinsi Aceh. The land clearing was carried out in order to

start a palm oil plantation which was supposed to be conducted

after the land clearing in 2012. The fire for the land

clearing itself lasted in the radius of ±5 hectares in the

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area of Suak Bahong plantations, which has previously not

undergo any palm oil plantation; however, the hole and

stacking for the planned palm oil plantation was already set

up. The fire lasted up until 27 March 2012, with no apparent

attempt of extinguishment from the PT Kalista Alam.

The fire also happened from 17 June 2012 to 24 June 2012

in another block of the same region, which this time the fire

leads to the north by consuming the stacking and the defective

palm oil plantations; in this occurrence, the PT Kalista Alam

once again did not attempt to extinguish the fire because they

as a matter of fact did not have the adequate system of fire

extinguishment, nor the sufficiently competent and trained

fire extinguishers. The condition was made worse by the lack

of necessary mobility access to the location and the lack of

supervisors in controlling the fire.

Because of the frequent fire, the PT Kalista Alam had

received written notifications from the Dinas Kehutanan dan

Perkebunan of Kabupaten Nagan Raya. The aerial photos taken

proves that the fire in the territories of PT Kalista Alam was

not a natural bushfire but rather a previously planned fire,

as evidenced by the regularities of the fire trails.

Based on the collected evidences, the PT Kalista Alam was

charged for the land clearing and expansion through the

planned and controlled fire. The activity violated the Art. 69

(1) point h jo. Art. 108 jo. Art. 116 (2) of the Law No. 32 /

2009 on Environmental Protection and Management. The

corporation was represented in the court by its Director, Mr.

Subianto Rusid.

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II. ANALYSIS

a. Determination of Defendant by the Public Prosecutor

The prosecutor in the case of PT. Kalista Alam

(131/Pid.B/2013) submitted the lawsuit based on the violation

of the following articles; article 108 jo article 69 (1)

alphabet (h), article 116 (1) alphabet (a), article 118 and

119 Law no. 32 year 2009 and jo. Article 64 (1) Criminal Code

and fine amounted Rp. 3.000.000.000,- towards defendant. The

prosecutor brought evidences as well such as organic material

from the burned land and administrative documents related to

the case. The lawsuit of prosecutor was responded by the legal

advisor of the defendant, which denied the criminal act, which

stated by prosecutor as well as the evidences brought by

prosecutor. To overcome the respond of the legal advisor of

the defendant, the prosecutor then brought 19 witnesses and 9

expert witnesses, which strengthen the lawsuit. The prosecutor

also brought Ir. Khamidin Yoesoef (defendant of case

133/Pid.B/2013) as a crown witness to the case.

The prosecutor brought the defendant addressed to the

trial with single lawsuit which is violating article 108 jo

article 69 (1) alphabet (h), article 116 (1) alphabet (a),

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article 118 and 119 Law no. 32 year 2009 and jo. Article 64

(1) Criminal Code. Article 64 (1) CC contains three elements

which are (1) every person, (2) clearing land by means of

burning, (3) committed by a legal entity, and (4) among acts

there is such a relationship that they have to be considered

as one continued act and the fulfillment of these elements is

discussed below which was agreed by the judge at the end.

Aside from the violation of articles mentioned before, the

prosecutor determined PT. Kalista Alam as a defendant by using

the evidences (barang bukti), which contains organic material

from the burned land and administrative documents. The organic

materials were taken from 7 (seven) extraction points. These

materials such as burned peat composite, ashes, charcoal and

others were indeed proven that there was a fire over the land

of PT. Kalista Alam. These organic materials are fulfills the

element of article 39 paragraph (1) alphabet (e) which are the

other goods that has direct relation with committed criminal

act. Moreover, it could be also considered as corpora delicti or

goods that happened as a result of criminal act. Another

evidence which are the administrative documents, which

consists of Cultivation Rights Title (HGU), AMDAL, permits and

others together along with organic materials strengthening the

lawsuit brought by the prosecutors and implemented the

function of evidence which are strengthen the position of

valid evidence (alat bukti), search and find the material truth

of the case and after the evidence being the support for valid

evidence (alat bukti), then the following evidence can strengthen

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the belief of judges over the criminal act which charged by

the prosecutor.

Claims by the Judge

The judge determined the defendant guilty on the basis

that the defendant is in violation of articles 108 jo. 69 (1)

point (h), 116 (1) point (a), 118, 119, of the law no. 32 year

2009 regarding environmental protection and management, and

article 64 (1) of the Indonesian penal code and that the

defendant fulfills the elements of the aforementioned

articles. The elements as stated include, (1) every person,

(2) clearing land by means of burning, (3) committed by a

legal entity, and (4) among acts there is such a relationship

that they have to be considered as one continued act.

The first element is fulfilled by the defendant on the

basis that the term every person refers to individuals and/or

corporations that are legal subjects to the accused act and

can be held liable. The term every person used by the law on

environmental protection and management is determined the same

as the term any person in the Indonesian penal code, which

refers to a legal subject that has committed a criminal

offense as decided in the supreme court decision no. 1398

K/Pid/1994. The second element is not elaborated in the law

no. 32 year 2009 on environmental protection and management so

then, the judge referred to article 1 (1) and 1(2) the prior

stipulates that environment is a totality of space with all

materials, resources, situations, and creatures which includes

human, and their behavior that influence the nature and the

continuation of the livelihood of humans and other creatures.

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The latter stipulates that environmental protection and

management shall be systematic and integrated efforts to

preserve functions of the environment and prevent

environmental pollution and/or destruction, which cover

planning, utilization, control, preservation, supervision, and

law enforcement. The judge believe that in regards with the

last element which is law enforcement then there has to be a

causation which is the damages done to the environment that

can start a preliminary investigation and investigation which

is done by the civil servant investigator within the

governmental institutions on environmental protection and

management.

The case started with the preliminary investigation and

investigation done by the civil servant investigator as

authorized by article 94 of the law no. 32 year 2009 on

environmental protection and management. The judge then states

that the clearing of land by means of burning must be

connected with whether or not it has caused damages to the

peat land. With the testimonies of the witnesses the judge

concluded that the defendant already knew that the clearing of

land must be done without burning and there is also a work

agreement between the witness Elvis and the defendant that has

the term zero burning regarding the clearing land of 300

acres. According to the testimonies of the witnesses that

there was a fire on the 23rd of march 2012 as big as 5 acres

and another one on the 17th of june to the 24th of june as big

as 8 acres. Ir. Khamidin Yoesoef was also legally the

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development manager that was responsible to supervise the fire

to make efforts to save the land.

With these facts the judge concluded that Ir.Khamidin

Yoesoef as the manager did not maximize the supervision on the

land even with the information that he has and also the fact

that he has warned Elvis as the contractor to be careful in

the summer. Basically the judge believes that the defendant

knew how dangerous the activity is but did not maximize

supervision on the land even with the knowledge and the

understanding that there is a high possibility of fire.

Furthermore as stipulated in article 2 of the law no. 32 year

2009 on precautionary principle (Asas Kehati-hatian), the

judge believes that the defendant failed to comply with this

article and it shows in the fact that the defendant failed to

contain and put out the fire, the judge believes that because

of this it has to be determined that the clearing of land was

done by burning.

The third element is the fact that it was committed by a

legal entity, and in this case based on the notarial deed no.

18 on the 11th of March 1980 on the establishment of PT.

Kalista Alam by Liliani Handajawati Tamsil, SH. Which is proof

that the defendant is a legal entity as stipulated in article

116 of the law no. 32 year 2009 on environmental protection

and management. As for the fourth element, the judge believes

that as stated in R. Soesilo’s book is states that a continued

act has several elements (1) it has to come from one will, (2)

the acts must me similar, and (3) the time between one and

another cannot be too long. Based on that, the judge believes

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that the fire on the 23rd of March and on the 24th of june 2012

as stated by the witnesses and experts that there was no

effort of putting it out, there was no prevention, and no

controlling efforts. The judge also stated that on the 23rd of

March the manager Ir. Khamidin Yoesoef was on leave but the

judge still felt that he should be responsible or at least

delegated the responsibility. Because of this argument the

judge felt that the defendant did not conduct their duty

properly. Based on these elements the judge decided that the

defendant is in fact, in violation of the articles provided by

the prosecutor and that the defendant did conduct a continued

criminal act.

b. The Application of Criminal Liability Theory

In the context of environmetnal cases, corporations and

individuals face exposure to prosecution under federal

environmetnal statutes, which criminalize conduct that is

typically associated only with notions of civil liability. As

if the potential of strict and negligent criminal liability is

not precarious enough and the government's utilization of the

responsible corporate officer doctrine in environmental

prosecutions can put corporate officers at risk for criminal

prosecution based on the conduct of the officer's role within

the company.3

Criminal liability theory under environmental law in

Indonesia has different types of doctrines, such as:

3 Douglas S. Brooks and Thomas C. Frongillo, “EnvironmentalProsecutions: Criminal Liability Without Mens rea and Exposureunder the Responsible Corporate Officer Doctrine,” Defense Counsel Journal (January 2004), p. 12

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1. Respondeat Superior: this doctrin allows the imposition of

corporation laibility for criminal acts performed by

officers and agents in the course of their employment,

without regard to their status in the corporation

hierarchy or if there was an absence of management

complicity. However, there are some limitations on this

doctrin for agents who commits the crim must be acting

withing the scope of his or her authority and on behalf

of the corporation.

2. Direct Liability (Doctrine of Identification): Lord Reid in Tesco

Supermarkets Ltd v Nattrass:4

“A living person has a mind which can have knowledge or

intention or be negligent and he has hands to carry out his

intentions. A corportation has none of those.. then the

person who acts is not speaking or acting for the company.

He is speaking as the company and his mind.. is the mind of

the company.”

Based on his statement in this case, he also stated that

usually the BoD, the managing director or other superior

officers of the company may carry out the function of

management and speak on behalf of the company. But, the

directors may delegate some part of their function to

representing the management of the company by full discretion

to act independently of instruction from the directors.

3. Delegation Principle: This doctrine or principle can be taken

out from an example of a case Allen v Whitehead5, which

explains that 'delegation' in this case, is an owner of a

4 [1972] A.C. 1535 [1930] 1 K.B. 211

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cafe delegates all his authority/liability to a manager

for managing the business. Under his delegation, the

manager was instructed by the owner by not permitting the

cafe to be as prostitution area based on Metropolitan

Police Act 1839 on prohibition of prostitution. According

to Pinto and Evans, the principle of delegation is an

offence that can only be committed by the office holder,

but he cannot avoid his statutory obligations by

delegating to another, and the criminalization based on

this principle can arise when a statute imposes a duty on

a particular category of person and make sbreach of the

dutty an offence.

4. Aggregation Model: criminal liability based on aggregation

of “state of mind” or “culpability” from each individual

representing their corporations. This kind of aggregation

is not based on all of the individual's “state of mind”

but rather compare the “state of mind” of the other

individuals. This doctrine can be taken out from the case

of U.S. v Bank of New England.6

5. Corporate Culture: This doctrine is applicable in Australia

and is explained by two scholars. First, Sjahdeni stated

that this approach focus more on corporate policies in

doing their business. Corporation is liable for criminal

acts done by the officers or employees that was instucted

and has been given the permission by an authorized

officer to do such criminal act. Secondly, according to

Colvin, if recklessness is required fault element of an

6 [1987] No. 87-36814

offence, that fualt element may be established by proof

that the culture of a corporation caused or encouraged

non compliance with the relevant provision. It can also

be proved that it was the policy of a corporation not to

comply with the relevant provision, as well as by proof

that the relevant knowledge was possessed by a

corporation.

In England, corporate criminal liability is distinct

between “consent” and “connivance” or “attributable neglect”,

based on Trades Description Act 1968 section 20 states:

“where an offence under this Act which has

been committed by a body corporate is proved

to have been comitted with the consent or

connivance of, or to be attributable to any

neglect on the part of, any director,

manager, secretary or other similar officer

or the body corporate or any person who was

purpoting to act in any such capacity, he as

well as the body corporate shall be guilty

of that offence.”

Attributable neglect is explained by Judge Rubin in R.

McMillan Aviation Ltd case that someone is liabile if he knew the

trade description was false, in which case he had a duty to

prevent the offence, or he had reasonable cause to suspect

that the company was applying a false trade description, in

which case he would have a duty to take steps to see if it was

false or not.

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The responsible corporate officer doctrine defines when a

corporate officer can be liable for the acts of others within

the corporation. This doctrine traces its roots and began

outside of the environmental statutory area. In United States v

Dotterweich, the Supreme Court held that coporate officers could

be held personally and criminally liable for violating strict

liabilit statutes protecting the public welfare.

Under the Law No. 32 year 2009 on Environmental Protection

and Management, corporate criminal liability is regulated

under article 116. 117, 118, and 119. According to article 116

of Environmental Act, criminal sanction can be given to a

legal entity and/or a person who has the liability of the

actions of their companies. Article 117 states that such

sanction done by a representative of a company as stated in

article 116, shall be punished in the form of imprisonment and

fine weightened by one thirds. Article 118 states that with

such crimes referred in previous articles, the sanction shall

be imposed on the legal entity represented by executives

authorized to represent the business entities inside and

outside the court in accordance with legislation as functional

executives. The functional executives in this provision means

a legal eneity or business entities. Finally, article 119

provide additional penalty of disciplinary measures aside the

penaltyp previously referred.

As the comparison to corporate criminal liability, complicity

(penyertaan) is the involvement of more than one person on a

single criminal act, both before or after the act was carried

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out. There are several types of complicity as stipulated in

the Criminal Code of Indonesia (KUHP), which are as follow:

a. Perpetrator / dader, as stipulated in the Art. 55 KUHP, is

to be punished as the perpetrators:

1. Pleger (The person who carries out the criminal act)

2. Doen pleger (The person who ordered the criminal act to

be done)

3. Medepleger (The person who participate in the criminal

act)

4. Uitlokker (The person who

encouraged/advised/motivated/persuaded for the criminal

act to be carried out)

b. Assistant / medeplichtige, as stipulated under Art. 56 and

57:

1. The person who assisted during the criminal act

2. The person who assisted before the criminal act

From the definitions of corporate crime and criminal

complicity as described above, there are obvious differences

between them, such as that the person appointed to represent

the corporation is not a separate defendant, but rather a

natural person on behalf of a legal entity (the corporation),

as the corporation itself as a legal entity could not be

punished independently as it does not have a mind or will and

as such fails to meet the requirement of blameworthiness (the

criminal intent); as opposed to the concept of criminal

complicity, which includes several persons as separate

defendants and to be punished accordingly. The differences

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also visibly lie on the requirements, elements and the

implementation of their regulating articles.

Referring to the doctrines of corporate criminal liability

in such matter the executives or the officers of the

corporation or company that are authorized to do management of

their business activity or the authorized officers who had

delegted his obligations and responsibilities of their duties

or role in managing the business activity of their corporation

shall be liabile in the criminal act caused by their actions.

These officers are liable for the sanction or punishments

caused by doing such criminal acts. As in this case, Mr.

Subiyanto as the representative of PT. Kalista Alam and as the

director of the company is liable for the actions and damage

of the environment.

However, we view that it would be better if the judge

apply the concept of criminal complicity alongside the concept

of corporate criminal liability. The concept of criminal

complicity in this case could be applied through designating

the other managements of PT Kalista Alam as the accomplices of

the criminal act; the other managements are, besides Mr.

Subianto, Mr. Sutiono as the General Manager, and Khamidin

Yoesoef as the development manager. They could fill the roles

of pleger, medepleger, and uitlokker. This becomes an interesting

point when the Public Prosecutor only punished the PT Kalista

Alam through Mr. Subianto as the defendant while disregarding

the other corporation managements. We assume that there are

lack of evidences to hold the other managements liable

alongside the corporation, so the liability was put only to

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the corporation. In our opinion, the judge should have

considered Mr. Sutiono as the directing mind and the person

who have the authority to the land development.

c. Conclusions and Considerations of the Court

The first element that is the “whosoever” element. In

each formulation of the articles of the Criminal Code and

criminal offense, the element (bestitelen) "whosoever" is an

important word in seeing the error and criminal liability. As

a word "whosoever" it requires a serious study of the

principles of criminal responsibility in error and

verification effort.

"Everyone" is the person or legal entity subject to the

law as a right and obligation to take legal actions and may

also account for his actions. In Act No. 32 of 2009 on the

Protection and Management of the Environment, used the new

terminology is "everyone", which in the general provisions

stated that every person is an individual or including

corporation, thus, of course, there must be people / humans as

subjects of law charged with an act that prohibited and

punishable by law.

Based on the decision of the Supreme Court Number 1398

K / Pid / 1994, which is meant by "everyone" is equal to

terminology the word "whosoever" is any person or individual a

natural person who performs a criminal act or subject the

perpetrator rather than a criminal act that can be held

accountable for their actions.

Thus, the elements of "anyone / everyone" is the person

if the person is found to comply with the elements of the

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offenses alleged against the accused. Elements "whoever /

anyone" can not addressed to the defendant because it

determines the elements themselves are not sufficient to

connect the defendant as an individual as a personal human or

natural person who filed as a defendant in this case, but that

meant everyone in the legislation is persons whose conduct is

legally and convincingly proven to meet all the elements of

the crime. Every person in this case is the defendant named

PT.Kallista Alam, that is represented by its Director,

Subianto Rusid; refers to the Company.

The second one is the element of “open the land with

burning”. Regarding the definition of open land element in

Law No. 32 of 2009 on the Protection of the Environment

Management is not expressly mentioned either in the trunk or

explanation, the definition of what is meant by opening

returned to the essence of the protection and management of

environmental law itself, as mentioned in Article 1 paragraph

1 of Law No. 32 of 2009 on the Protection and Environmental

Management Environmental stating that life is unity with all

things space, power, state, and living things.

In conjunction with the enforcement, then open the land

must have a causal relationship that is the destruction of the

environment. As the adoption by Article 96 of Law No. 32 in

2009 to clear land by burning must be associated with what has

caused damage to the land in this case, peat land that is

managed by defendant, PT.Kallista Alam. The defendant has

already known that opening the land by burn it is prohibited.

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After concluding of some evidence and witness testimony,

it has been damage to the environment resulting from the

burning of peat lands in land clearing in accordance with law

No. 8 years 1981 on the Law of Criminal Procedure, thus the

element of "open the land by burning" has been fulfilled.

Thirdly, the Plaintiff states the element of article 116

(a) and article 118 of Law No. 32 Year 2009 that is the crime

is conducted by legal entity. In this case, the judge

considers the form of PT. Kalista Alam that is a limited

liability company that is defined by article 1 point 1 Law No.

1 Year 1974. The judge insists that PT. Kalista Alam is a

limited liability company because it is a legal entity, has

registered in the public notary and has its own organ.

Basically, there are some characteristics for Limited

Liability Company. Those are legal entity, separate existence

as the bearer of rights and obligations, limited liability for

its organ, established based on contractual agreement, and

association of capital. The judges state in its consideration

for the elements of the crime that legal entity is an

independent subject. It means that the judges refers to the

characteristic of a limited liability company that is

separated from the founders and the PT itself can bear and

imposed by rights and obligations.

The characteristic of separate existence is supported by

article 3 paragraph 1 of Law No 40 year 2007 that shareholders

of the company shall not be responsible personally for

commitment made on behalf of the company and loss of the

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company exceeding the controlled shares7. Therefore, it means

that the organs in the company do not responsible for the

action of the company

Furthermore, for the requirement of a limited liability

company who must have its own organ, its director who is

Subianto Rusid has represented PT Kalista Alam as the

Defendant. It is written in article 98 paragraphs 1 that Board

of Directors represents the company both inside and outside

the court8. As it is with line with article 92 paragraph 1 of

Law No 40 year 2007 that states The board of directors manage

the company for the interest and appropriate with the goal and

aim of the company9. Consequently, it is clear that PT. Kalista

Alam is a legal entity that has separate existence with the

founder because the director represents it in the trial on

behalf of PT. Kalista Alam.

At the same time, the fact that PT. Kalista Alam was

represented by the Board of Director also shows that PT.

Kalista Alam as a limited liability company which has its

organ that are Board of Director, Board of Commissioner and

General Meeting of Share Holders in which each of the organ

has their own rights and obligation.

Moreover, for the requirement based on contractual

agreement, it is also fulfilled, as in the case, it is stated

that PT Kalista Alam has conducted registration for the PT. It

has its deed of establishment No. 5 Year 2008 on August 4th

7 Law No 40 Year 2007 about Limited Liability Company, article3 paragraph 1.8 Ibid, Article 98 paragraph 1.9 Ibid, Article 92 paragraph1.

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2008 that has been legalized by Minister of Law and Human

Rights No AHU – 66614 AH 01 02 year 2008 on September 22nd

2008. It is supported by article 7 paragraph 4 of Law No 40

year 2007 that the company shall secure status of statutory

body on he date when decree of the minister on ratification

of statutory body of the company is issued10. Therefore, since

PT Kalista Alam has had its deed of establishment that becomes

the foundation for its establishment also the deed of

establishment has been registered and accepted by the Minister

of Justice and Human Rights, it is obvious that PT. Kalista

Alam is a legal entity.

Moreover, before the deed of establishment was accepted

by the Minister of Law and Human Rights, PT. Kalista Alam has

been registered in the Public Notary who is Liliani Handjawati

Tamsil, SH with the notarial deed No. 18 on March 11 1980 in

which it was ammanded with the notarial deed No. 05 on August

4th with the notary is Sartono Simbolon SH and this fulfills

the requirement for PT registration as stated in article 7

paragraph 1 of Law No. 40 Year 2007 about limited liability

company that states a company is established by two people or

more with notarial deed that is made with Indonesian

language11.

Besides of the characteristic of Limited Liability

Company that PT. Kalista Alam does have, there are also some

provisions in Law No. 40 Year 2007 that support the existence

of PT. Kalista Alam as a legal subject or legal entity. In

article 2 of Law No 40 year 2007, it is stated that states

10 Ibid, article 7 paragraph 411 Ibid, article 7 paragraph 1

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every company shall have goals and objectives as well as

business activities not contraveining the provision of

legislation public order and morality also article 5 paragraph

1 and 2 of Law No 40 year 2007 that states that the company

shall hace name and domicile in the territory of The Republic

of Indonesia and the company shall have complete address in

accordance with its domicile12. In the case, It has been stated

that the company was domiciled in the Naga Raya Regency and

Darul Makmur Sub District with the scope of business for PT.

Kalista Alam is Plantation and Farming, especially plantation.

After the elaboration of those facts, the element of

done by legal entity is embodied the Defendant and the judge

is correct by stating that the Defendant has fulfilled this

third element that is done by legal entity.

Fourthly, the fourth element that is conjunction or some

actions that are related with each other so continuous action

as stated in article 64 of Indonesia Criminal Code is also

explained in the judge consideration. The judge decides

whether the element of some continuous actions is fulfilled or

not by the Defendant by referring to some of characteristics

of some continuous actions as explained by some scholars those

are Hoge Raad, Memorie van toelichting (MvT), and R. Soesilo

as stated in his book titled KUHP Serta Komentar- Komentarnya. The

characteristics of some actions that are can be defined as

continuous actions are

1. the action must be the same type

2. the actions must be connected with each other

12 Ibid, article 2 and article 5 paragraph 124

3. same intention

4. the time period of the execution of the crimes are

not long

For the first, element, that is the action must be the

same type of crime, the Defendant has conducted land peat

clearing for several times. That are on March 23rd 2012, June

17th 2012, and June 24th 2012. The action that the Defendant

done is the same that is land peat clearing in which it causes

the same result that is damage in environment such as damage

on the peat land consistency and also to the air as there are

some dangerous elements those are produced due to peat land

fire. So, the defendant has fulfilled the first element.

Then, the second element that is the action must be

connected with each other; the Defendant has fulfilled this

element, as the meaning of ‘connected’ is the same offender

does the action in the same place also. The Defendant

conducted the peat land fire in Pulo Kruet Village, Darul

Makmur Sub district, Nagan Raya Regency of Aceh Province,

that is owned and also done by PT Kalista Alam.

After that, the third element that is same intention, the

defendant showed that it conducted land clearing through peat

land fire to do palm oil plantation in much cheaper way. in

the private case decision No: 12/Pdt.G/2012/P.N. MBO between

PT. Kalista Alam and The Minister of Environment, it is

stated that by doing peat land fire, the Defendant only

needed to spend Rp. 8,000,000. The Defendant fired the peat

land only in block A, E, and F of its land with the fact that

25

the Defendant had so many blocks but only those three blocks

those are fired.

Lastly, the fourth element, the time period of the

execution of the crime is not long, the Defendant also has

fulfilled this element. As the peat land fire is conducted in

the same year that is in 2012 and the month is on March and in

June in which the gap is only 3 months.

Moreover, from the type of conjunction, the land clearing

through peat land fire that is done by the Defendant is

classified as Concursus Idealis Heterogenius, it is one action

violates several articles. In the case, it is stated that the

Plaintiff sued the Defendant because the Defendant conducted

land clearing through peat land fire and the Plaintiff sued

the Defendant based on articles 108 jo article 69 (1h), article

116 (1a), article 118, article 119 of Law No 32 year 2009

about Protection and Management of Environment jo article 64

paragraph 1 of Indonesia Criminal Code.

d. Types of Delict in Criminal Sanctions of Environmental

Protection

In this criminal case of PT Kalista Alam, the event

happened in 2012 when there was fire on their palm oil

plantation. This charge also supported by the testimony of an

expert witness, Ir. Bambang Hero Saharjo, M.Agr., that the

fire has been going for a few years, in 2009, 2010, 2011, and

2012. The prosecutor accused PT Kalista Alam for land clearing

by burning the land continoustly. Such action was done by:

26

1. On March 23rd 2012, a fire happened and there was no

attempt to stop the fire from PT Kalista Alam. The fire

happened on the land that has not been planted but has

been prepared to be planted by stacking and making

holes on the land.

2. The fire repeated on June 24th 2012, in this event there

was no attempt to stop the fire from PT Kalista Alam.

The fire happened on land that has been planted with

palm oil trees but the plant was not good. Other than

the fact there was no attempt to stop the fire, turns

out that PT Kalista Alam has no systemic procedure for

control or prevention of fire, in the sense that they

have no proper fire extinguisher equipment,

firefighters, road access which will facilitate

mobilization, and other criteria in order to control or

prevent fire.

3. According to the testimony of an expert witness, Ir.

Bambang Hero Saharjo, M.Agr., the preparation of land

was done with arson, it is clearly visible which in the

burned area it is full with charcoal and ashes from the

fire and it was still blackened on the burnt log. It

was done not only to make the next job to be easier but

also to get ashes from the fire that was full of

minerals that can be use as the substitute of

fertilizer to increase plant growth. All the facts were

clearly stated in the decision.

4. According to the conclusion of the testimony from an

expert witnesss, Ir. Bambang Hero Saharjo, M.Agr., PT

27

Kalista Alam had committed a land clearing on a

national strategic area that is protected by the

regulations in force; As mentioned before they had no

proper systemic procedure for control or prevention of

fire that reflects ; PT Kalista alam has committed land

clearing with fire planned and systematically by

letting the fire to continue especially in the area

which land clearing was being done and has been

happening for years; the fire damaged the surface of

peat with average thickness of 5-10 cm therefore

1.000.000 m2 burned and cannot be reversed which harm

the balance of ecosystem in the post fire area; the

effect of this fire produced green house gasses more

than the approved quality standard; and other costs

that should be paid in order to recover the effect of

this fire.

To complete the testimony above as facts of the charge, an

expert witness, Dr. Ir. Basuki Wasis, M.Si., gave his

testimony, which says:

1. According to the soil analysis results,

environmental damage from intentional burning has

occurred because the physical, chemical, and

biological nature of the soil has met the criteria

of standard criteria for damage.

2. According to the soil analysis results,

environmental damage from intentional burning has

occurred because the flora aspect condition has

met the criteria of standard criteria for damage.

28

3. Field observation shows that damage of fauna

aspects has occurred because of the intentional

burning, therefore the diversity of species and

population has disappeared.

According to the testimony of two expert witnesses above,

it is clear that PT Kalista Alam was intentionally burn the

area and had no good faith to protect its business area from

the threat of fire because the fire was expected in order to

prepare the land.

Based on the court decision on this case, PT Kalista Alam

has been charged with Article 108 jo Article 69 (1) h, Article

116 (1) a, Article 118, and Article 119 of Environmental

Protection and Management Law of Indonesia; and also jo

Article 64 (1) of Criminal Code. For these charges, the

director of PT Kalista Alam as the representative had been

convicted guilty in the trial in Meulaboh District Court.

There are two main articles that are used in the charge which

clearly describe the act of PT Kalista Alam, which are Article

108 jo. Article 69 of the Environmental Protection and

Management Law of Indonesia. Article 108 states that, anybody

committing land burning as referred in article 69 paragraph

(1) h, shall be subject to imprisonment for 3 years at the

minimum and 10 years at the maximum and a fine Rp.

3.000.000.000,- minimum and Rp. 10.000.000.000,- maximum.

Article 69 paragraph (1) h states that, everybody shall be

prohibited from opening land by means burning. In connection

to the chronology and expert testimonies, the act committed by

PT Kalista Alam is in accordance to what is stipulated in the

29

articles. Therefore, based on those articles, the acts

conducted by PT Kalista Alam are subject to criminal sanctions

as stated above.

Whether or not the defendant may be charged with material

delict, it is important to understand the theory of models of

criminal provision and its relation the environmental criminal

law articles in Law No. 32/2009.

There are certain models of criminal provision in

environmental law. Environmental criminal law relates to the

structure of environmental law, where there is administrative

dependence on criminal law. It is referred that way because

most environmental law punishes lack of permit and emission

standards violation. However, that doctrine has developed into

other models of criminalization of environmental pollution,

not only to punish administrative violations. There are

certain types or models of criminal provisions to protect the

environment:

1. Abstract Endangerment

To this model, the non-respect of administrative

obligations needs to be sanctioned.13 It is for

administratively dependent crimes, where the criminal

provision does not directly sanction the damage but the

violation of administrative violation. Criminal law becomes

the inclusion of the existing administrative decision on

amount and quality of emissions into environment.

2. Concrete Endangerment

13 Michael Faure, page 19630

This model refers to prerequisite of criminal liability is

some kind of endangerment of environmental values poses a

concrete threat to the environment.14 Provisions under this

model are for administratively dependent crimes that do not

require the harm to be proven (but sufficient threat of harm)

and illegal emissions to take place. Criminal provision

pointing at concrete endangerment, even if there is no

violation of administrative regulatory framework, action can

be sanctioned if the emission is illegal.15

3. Serious Environmental Pollution

This type is an administrative independent crime where it

directly punishes the pollution as result of the conduct,

without considering the violation of prior administrative

decision. The requisite in such model is the action must

caused or give rise to threat of serious environmental

pollution or damage, and criminal liability can be imposed

when there is no violation of administrative decision, thus no

unlawful element need to be proven.

4. Vague Norms

What is emphasized under this model is violation towards

duty of care. According to M. Faure and M. Visser,

If one knows or could reasonably be expected to know that by one’s actions the

environment could be harmed, one should take all the measures that can

14 Buiting (1993. pp 28-9): Hendriks and Woretshofer (1995) and Waling (1990) cited in Michael Faure, 19715 Michael Faure, page 198

31

reasonably be demanded in order to prevent danger or to limit or to eliminate its

consequences.16

This is because the obligations regarding “duty of care” is

not regulated directly in the law, thus the criminal action is

regarding the elements of material unlawful action.

We have seen the certain models of criminal provision in

environmental law, and there are types of criminal action

based on Law No. 32/2009, which relates to the difference

types of delict and its relation to quality standard.

Classification of quality standards is important for

environmental quality standards and ambient standards.

Environmental quality standard/Ambient standard is target-

based standards, as these standards will describe the

condition of certain environmental media (water, air and

soil). Emissions are transformed into ambient concentrations,

namely concentrations of pollution around us. In the other

hand, Emission Standards is what the producers or consumers

release. It is source-based standards, as it is aimed towards

the produce of waste or emission. It describes the condition

of emission that is produced without relating to the impact of

environmental condition. If damage or pollution occurs, the

government uses ambient standards. This is because emission

standard is about how much pollution can we release in the

environment. It does not tell us whether the environment is

16 M. Faure & M. Visser, 1995: 347 as cited in Reading Materials “Penegakan Hukum Pidana: Pertanggungjawaban Korporasi dan Tindak Pidana Lingkungan”

32

polluted or not. But to look for environmental parameters

(carrying capacity) is through examining the ambient.

Although there is no clear distinction between these

standards in UUPPLH, there is differentiation between the two

in the criminal provision. All quality standards in the UUPLH

are recognized as environmental quality standards. However,

the differentiation between ambient and emission standards is

seen on the environmental criminal provision. Article 98 and

99 is considered as material delict because it concerns the

result of the action in form of pollution, determined by

exceedances of ambient standards such as air or criteria of

damage. In the other hand, article 100 meddles with formal

delict as it sanctions the violations of standard quality

effluent (administratively dependent crimes). Included in the

category of formal delict is Article 101-115 UUPPLH, including

land burning as written in Article 109.

The defendant was charged with formal delict under Article

108 jo Article 69 (1) point h that prohibits land burning. The

reason why the article is a formal delict was because it

emphasizes on punishing the conduct of land burning rather

than the result of such action. Thus, if the defendant was

proven to have conducted land burning—judge might impose

sanction even without examining the consequences it has

brought to the environment. Furthermore, it can be said that

this article embodies concrete endangerment because what is

being sanctioned is the action of unlawful discharge of

substances into air that poses threat of environmental damage

or pollution.

33

To know whether the defendant action can be brought under

material delict, the action of the defendant must violate

article 98 or 99 of Law No. 32/2009. The difference between

the two article is the element of intention and negligence,

the prosecutor in this case believe that the defendant conduct

the action intentionally to achieve the effect that they

desired thus making Article 98 more fitting for the case.

According to Article 98 “Anybody intentionally committing action causing

standard quality of ambient air, water, seawater or standard criteria for

environmental damage to be surpassed shall be subject too…” thus what needs

to be proven is the surpassing of standard quality of ambient

and its causal relationship with the person intended to commit

such action.

In the case, there are data regarding the surpassing of

standard quality of ambient air and standard criteria for

environmental damage caused by land clearing by burning.

Although there is debate regarding as to whether damage has

happened, there are data that indicates the action caused the

surpassing of environmental quality standards. For example,

Greenhouse Gases was released during a fire in PT Kallista

Alam. Based on the existing quality standards, the gas is

released during fire have passed the threshold limit, which

indicates it has been polluting. The data analysis from

Laboratorium Pengaruh Hutan dan Tanah Hutan, Silvicuture Department,

IPB Faculty of Forestry that shows the standard criteria for

environmental damage based on Government Regulation No.

4/2001, Government Regulation No. 150/2000 has surpassed. The

data found in the research site that there has been

34

destruction of the environment as a result of combustion, also

damages included in criteria for environmental damage is

environmental degradation in the soil physical properties,

soil chemical properties, biological properties of the soil,

and flora aspects.

The basis of the indictment that only based on Material

Delict could weaken the prosecutor, because there must be

evidence showing that there is a violation of emission

(administrative violation), which may result environment

pollution. If it were only Material Delict, it would be easy

for the defendant to avoid even though there is pollution

because the are no violations of administrative regulatory

framework such as illegal emissions. According to Hazelwinkel-

Suringa, material unlawful action only negatively applied as a

basis of defense if an action is considered as formal unlawful

action, but it is not a Material Unlawful Action such action

is not an offense/delict. Material Unlawful Action cannot be

considered as the basis of the judgment if there is no Formal

Unlawful Action that is based on the principle of nullum

delictum. However, the indictment of Material Delict can also be

used if it is using Vague Norms model where the duty of care

is needed and since the land that is under the control of PT

Kallista Alam, thus every pollution that occurred is becoming

the responsibility of PT Kallista Alam.

III. CONCLUSION

The prosecutor determined the defendant (PT. Kalista Alam)

based on the violation of article 108 jo article 69 (1)

35

alphabet (h), article 116 (1) alphabet (a), article 118 and

119 Law no. 32 year 2009 and jo. Article 64 (1) Criminal Code.

Aside from the articles mentioned, the prosecutor also brought

the evidences which are organic material from several

extraction points, which became the location of the event of

fire as well as the administrative documents related to the

business activities of PT. KA over the burned land (peat

land). In order to strengthen the charges, the prosecutor also

brought several witnesses, including the expert witness which

has expertise on each field related to environmental damage.

Seen from the effort of prosecutor for submitting the lawsuit,

it could be considered that the lawsuit had strong and

reasonable enough to be proceeded to further process.

Basically, the judge is agreeing with the prosecutor on the

grounds that the defendant is in violation of the articles

provided by the prosecutor and fulfills the elements from the

articles as elaborated further in the analysis.

The Defendant fulfills the element of evidence that is

done by legal entity and that is why the judge declared that

the Defendant fulfilled the element. It is obvious that the

Defendant is a legal entity as it has registered in the Notary

and Minister of Justice and Human Rights, has its own organ,

deed of establishment, also has its specific purpose and

domicile. For the fourth element that is conjunction, the

Defendant also fulfilled this element as the Defendant

conducted the same act that is peat land clearing through peat

land fire in the short period of time with the intention is to

open a palm oil plantation with cheap price. Therefore, the

36

type of conjunction that the Defendant did is Concursus Idealis

Heterogenius.

Referring to the doctrines of corporate criminal liability

in such matter the executives or the officers of the

corporation or company that are authorized to do management of

their business activity or the authorized officers who had

delegted his obligations and responsibilities of their duties

or role in managing the business activity of their corporation

shall be liabile in the criminal act caused by their actions.

These officers are liable for the sanction or punishments

caused by doing such criminal acts. As in this case, Mr.

Subiyanto as the representative of PT. Kalista Alam and as

the director of the company is liable for the actions and

damage of the environment.

37

BIBLIOGRAPHYBooks

Faure, Michael. Towards a New Model of Criminalization of

Environmental Pollution: the Case of Indonesia, in: M. Faure and N.

Niessen (eds). Environmental Law in Development: Lessons from the

Indonesian Experience. Cheltenham: Edward Elgar. 2006.

Soesilo, R. Pokok-pokok Hukum Pidana. Politeia: 2010.

Law

Kitab Undang-Undang Hukum Pidana (KUHP) Indonesia.

Law No. 40 Year 2007 on Limited Liability Company.

Law No. 32 Year 2009 on Environmental Protection and

Management.

Journal

Brooks, Douglas S and Thomas C. Frongillo. “Environmental

Prosecutions: Criminal

38

Liability Without Mens rea and Exposure under the

Responsible Corporate Officer Doctrine.” Defense Counsel Journal.

(January 2004).

Hamrad Hamid H, Penegakan Hukum Lingkungan Kepidanaan, Makalah

Penataran Nasional Hukum Lingkungan, Fakultas Hukum

Universitas Airlangga, Surabaya, 1996

Cases

1. Tesco Supermarkets Ltd v Nattrass [1972] A.C. 153

2. Allen v Whitehead [1930] 1 K.B. 211

39