On 21 January 2015, the Constitutional Court issued Decision No. 18/PUU-XII/2014 on the judicial review of Article 59 paragraph (4) and Article 95 paragraph (1) of Law No. 32 of 2009 on the Protection and Management of the Environment (“Law No. 32/2009”) in respect of its compliance with the 1945 Constitution (“1945 Constitution”). The party who submitted the Petition was Bachtiar Abdul Fatah, a former General Manager of PT Chevron Pacific Indonesia (“Petitioner”). He was prosecuted for corruption and was convicted by the Anticorruption Court on account of breaches of Law No.32/2009. One of the reasons was that a bioremediation project for land contaminated by hazardous and poisonous waste (“B3-classified waste”) produced by PT Chevron Pacific Indonesia was conducted without a permit, even though at the time the company had submitted an application for a renewal of their previous permit and was awaiting its issuance by the relevant authority.
The statutory provisions that were reviewed by the Constitutional Court in the case were as follows:
Article 59 paragraph (4) of Law No. 32/2009
“The management of B3-classified wastes must obtain a permit from the minister, governor or regent/mayor in accordance with their respective authority”
Article 95 paragraph (1) Law No. 32/2009
“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.”
2. Petitioner’s Arguments
The Petition for the Judicial Review of Article 59 paragraph (4) and Article 95 paragraph (1) of Law No. 32/2009 was based upon the following reasons:
3. Constitutional Court’s Decision
After examining the case, the Constitutional Court issued its decision on 21 January 2015, which may be summarized as follows:
4. Constitutional Court’s Reasoning
The decision of the Constitutional Court was based on the following reasons:
5. Implications of the Decision
The Constitutional Court’s decision in this case is of paramount importance to the enforcement of environmental law, where parties that are processing the renewal of their permits for the management of B3-classified waste in accordance with the law must be deemed as already having a permit. This means that they cannot be prosecuted (including on the ground of corruption by conducting waste management without a permit). We would like to see this decision serve as an important precedent so that the law enforcement authorities apply the reasoning and principles contained in the Decision to other sectors. In furtherance of the Decision and for the sake of legal certainty, parties that are in good faith renewing their permits before their expiration date, but the relevant permits have yet to be issued, should no longer be prosecuted on the ground of conducting activities without a permit.
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