UNIT KERJA PRESIDEN PENGAWASAN DAN PENGENDALIAN PEMBANGUNAN. Crimes Related Natural Resources In Indonesia Dr. Yunus Husein, SH, LLM

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1 UNIT KERJA PRESIDEN PENGAWASAN DAN PENGENDALIAN PEMBANGUNAN Crimes Related Natural Resources In Indonesia Dr. Yunus Husein, SH, LLM

2 Natural Recourses Policy Forestry Law Number 41 Year 1999 concerning Forestry Minerals, Coal, Oil, and Gas Plantation Marine Resources Biological Resources Law Number 4 Year 2009 concerning Mineral and Coal; Law Number 22 Year 2001 concerning Oil and Gas Law Number 18 Year 2004 concerning Plantation Law Number 6 Year 1996 concerning Indonesian Waters and Law Number 31 Year 2004 concerning Fishery Law Number 5 Year 1990 cocerning Conservation of Natural Resources and Ecosystems Environmental Law Number 32 Year 2009 concerning Management and Environmental Protection. Maintained by at least 6 Ministries and Local Governments in all 33 provinces, 398 districts, 93 cities, 1 and 5 City District Administration. As well as in certain areas with the legeslatif approval. 2

3 INDONESIA S FOREST Indonesia s total land area ±188 million ha: Area with forest cover :±99 million ha(52,4%) Area without forest cover :±89 million ha(45,7%) -Ministry Indonesia s of Forestry, tropical forests are of global importance, covering over 98 million hectares - Orangutan Foundation International- Over half of tropical rain forest lies in Brazil, which holds about one-third of the world's remaining tropical rainforests. Another 20 percent of the world's remaining rainforest exists in Indonesia and Congo Basin, while the balance of the world's rainforests are scattered around the globe in tropical regions - Mongabay,

4 INDONESIA S FOREST Indonesia s total land area ±188 million ha: Area with forest cover :±99 million ha(52,4%) Area without forest cover :±89 million ha(45,7%) -Ministry Indonesia s of Forestry, tropical forests are of global importance, covering over 98 million hectares - Orangutan Foundation International- Over half of tropical rain forest lies in Brazil, which holds about one-third of the world's remaining tropical rainforests. Another 20 percent of the world's remaining rainforest exists in Indonesia and Congo Basin, while the balance of the world's rainforests are scattered around the globe in tropical regions - Mongabay,

5 INDONESIA S FOREST Indonesia s total land area ±188 million ha: Area with forest cover :±99 million ha(52,4%) Area without forest cover :±89 million ha(45,7%) -Ministry Indonesia s of Forestry, tropical forests are of global importance, covering over 98 million hectares - Orangutan Foundation International- Over half of tropical rain forest lies in Brazil, which holds about one-third of the world's remaining tropical rainforests. Another 20 percent of the world's remaining rainforest exists in Indonesia and Congo Basin, while the balance of the world's rainforests are scattered around the globe in tropical regions - Mongabay,

6 CURRENT FOREST CONDITION Map of Indonesia s forest coverage 2009, Ministry of Forestry Indonesia s forests represent 10% of the world s remaining tropical rainforests. In the 32 years to 2011, Indonesia had lost 40 million hectares of forest, which is equivalent to the combined size of Germany and the Netherlands. The current rate of forest loss is now decelerating. Indonesia is one of the five most species-diverse countries in the world, home to 12% of all mammal species, 16% of all reptile and amphibian species, and 17% of all bird species. It also contains 33% of insect species, 24% of fungi species, and 10% of higher plant species. Tanjung Puting National Park, site of Camp Leakey, is home to more than 230 bird species, at least 17 reptile species, and 29 mammal species.

7 PEATLANDS & MANGROVE IN INDONESIA Peatland areas (in million hectares) 1981 : 27 million hectares 2001 : 21 million hectares 2011 : 15 million hectares Indonesia s Mangrove 3,2 mil ha (22,6% of mangroves all over the world) (Wetlands, 2012) Mangrove has the ability to store carbon 4 times the amount stored by Tropical Rainforest : ton/ha (CIFOR & USDA) Mangrove in indo-pacific stores approximately 1023 ton carbon/ha or 3750 ton CO2/ha (CIFOR, 2011) Deforestation and mangrove degradation emitted 10% of the global deforestation (Wetlands, 2012)

8 REDD+ NATIONAL STRATEGY Institutions and Processes Inclusion/Involvement of Stakeholders Legal and Regulatory Framework Changes to Work Paradigm and Culture Strategic Programs REDD+ National Strategy Indonesian REDD+ Task Force June

9 Review land rights and accelerate spatial planning Provide incentives for the private sectors Legal and Regulatory Framework Improve law enforcement and prevent corruption REDD+ National Strategy Indonesian REDD+ Task Force June 2012 Improve data and permit issuance systems for forests and peatland Enforce 2 years moratorium on issuance of new permits for the exploitation of forest and peatland 9

10 DOWNSIDES OF THE CURRENT LEGAL FRAMEWORK Legislation gives too much discretion to Gov. to designate ertain areas for non-forest activity and to grant permits for concessions with no adequate checks and balances Laws & regulations (in different sectors) have many flaws, loopholes, overlaps and are often amended all of which can be used to grant and or to conduct unsustainable practices Laws & regulations are not supportive to the implementation of good governance in decision making process (e.g in permit, program and policy making) Legislation is not supportive to the survival of the forest dependant people including Indigenous Peoples

11 ENFORCEMENT: UPSIDES & DOWNSIDES > Integrated law enforcement team improves coordination among law enforcement agencies; > Supreme Court to certify judges who specialize in environmental and natural resources related court cases; > Acknowledging widespread corruption within judicial system led to the establishment of Special Task Force to combat forest & peat land related crime by REDD+ Task Force, AGO, Polices, MoF and MoE. > National Strategy on Anti-Corruption outlines the plan to improve standards of integrity within the judicial system. > The existence of guidelines on multi-door approach for enforcement officers endorsed by ACC, FIU, AGO, MoF, MoE and Police > Widespread corruption in the judicial system, executive and legeslative; > Lack of capacity & capability to conduct creative enforcement in forest area (including using corruption and money laundering provisions to prosecute intellectual perpetrators); > Although legislation may prosecute functional perpetrators, corporate criminal liability provisions are seldom applied by enforcement officers. > Politico-business nexus, which is widespread, potentially block effective enforcement practices. 11

12 Legal Basis: Law 48/2009 on Judicial Power Criminal Law Procedural Codes (KUHAP) MoU between MoE and Supreme Court on Strengthening Green Bench Judges Capacity Supreme Court Decree No.134/KMA/SK/IX/2011 on Green Bench Judges Certification Authority: Adjudicate Forest and Peat Lands related cases. Legal Basis: Art 4 & 6 of Criminal Law Procedural Codes (KUHAP) Laws and regulations related to Natural Resources and Environmental Authority: Handling Forest and Peat Lands related cases. Task Force for natural resources related crimes in CID (Natural Resources : 14 personnel, Environmental : 14 personnel) Legal Basis: Art 6 of Criminal Law Procedural Codes (KUHAP) Art. 77 of Forestry Law Authority: Handling Forestry related crimes under Forestry Law. 773 Forestry Investigators all over Indonesia Court Prosecutor Police MoE Investigator Forestry Investigator Legal Basis: Law 16/2004 on Attorney General of RI Junior Attorney General Development Letter No: B-60/E/Ejp/01/2002 on Judicial Techniques Guidelines of Environmental Cases Prosecution Authority: Prosecute Forest and Peat Lands related cases (excluding cases that has been prosecuted by KPK) Establishment of Special Task Force for Natural Resources and Deputy Attorney General for General Crimes. (The 15 main prosecutors are supported by all prosecutors all over Indonesia). Legal Basis: Art 6 of Criminal Law Procedural Codes (KUHAP) Art. 94 & 95 of Environmental Law Authority: Handling Environmental including Mangroves & Peat Lands related crimes 398 MoE Investigators all over Indonesia

13 MODUS OPERANDI: FOREST AND PEATLANDS RELATED CRIMES (in Forestry, Mining and Plantation Sector) Permits Illegal Issuance Issuance of permits although lacking of a proper set of required documents as regulated under laws and regulations Issuance of permits in areas that shall not be used for mining or plantation activities (granting concessions above primary forest and peat lands) Illegal Activities Mining or Plantation activities conducted in forest area without Decree of Forest Release (Izin Pelepasan KH) or Land Use of Forest Area permit (Izin Pinjam Pakai) Mining or Plantation activities without any mining permit (IUPerkebunan) or plantation permit (IUPertambangan) Activities outside concession areas Other Manipulating or avoiding payment of Forest Resource Rent Provision (PSDH-Provisi Sumber Daya Hutan) and Reforestation Fund (DR-Dana Reboisasi) Logging without a proper permit (IPK-Timber Use Permit)

14 MoE Investigator conducted investigation in Aceh Polices conducted investigation in Kalimantan Prof. Bambang Hero (Expert) conducted forest fires analysis Public Complaints REDD+ Task Force Coordinator conducted field checking 14

15 SPECIAL TASK FORCE + MULTI-DOOR APPROACH REDD+ Joint Enforcement Team: 6 AGO, 32 Polices, 19 MoF, and 6 MoE to conduct investigation on forestry and peat land related cases in pilot provinces (Back Up by KPK, PPATK and DJP) Forestry Law Old Approach Protecting Forest With Anti- Corruption Law? Money Laundering Law Anti- Corruption Law Forestry Law New Approach Natural Resources Law Environmental Law New Approach : > capacity building > publication of the enforcement guidebook > signing of MoU the use of guidebook > promoting green prosecutors and green bench Taxation Law Mining Law Plantation Law Spatial Planning Law 15

16 GREEN BENCH: CERTIFIED JUDGES 2009 > Supreme Court and Ministry of Environment enter into a MoU to strengthen Green Bench Judges Capacity 2011 > Supreme Court Decree No.134/KMA/SK/IX/201 1 on Green Bench Judges Certification > Selection process: 1. Registration 2. Pre-selection process - Administrative - Competence - Integrity Assessment 3. Training 4. Post-test > Green Bench Judges will be certified after passing the post-test > Monitoring, reward and punishment system 2012 > The beginning of the selection process > Selection team: - Supreme Court - MoE - ICEL/Indonesian Centre for Environmental Law > Target: 100 Green Bench Certified Judges > Only certified judges that have the authority to adjudicate forest and peat lands related crimes Enhance the effectiveness of Adjudication Process (Forest and Peat lands related Crimes) Improving Environmental Law and Enforcement System 16

17 CONCLUSION Combating crime related to natural resources and the environment requires an extraordinary way, include: Improvement of regulations to support the eradication of crime in the natural resource sector and the environment. Increase the ability of law enforcement officers to understand the modus operandi of a crime related to natural resources and the environment; Support infrastructure and an adequate budget Effective coordination and cooperation between agencies and law enforcement officials; New approaches such as the use of different regimes of legislation (multidoor approach); Implementation of corporate crime to ensnare the intellectual perpetrators of crimes related natural resources and the environment 17