Volume 04 Issue 06-2024
6
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
06
P
AGES
:
6-16
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This document explores the intricacies of Indonesian public policy with a focus on criminal guidelines, foundational
legal frameworks, and environmental transformation. It provides a comprehensive analysis of the criminal justice
system, detailing the techniques and procedures employed to maintain law and order. The groundwork section delves
into the underlying principles and legislative bases that shape public policy in Indonesia. Additionally, the document
examines the intersection of these policies with environmental changes, assessing how legal measures adapt to and
influence ecological transformations. By integrating criminal justice and environmental considerations, this study aims
to offer a holistic understanding of Indonesian public policy's role in shaping a sustainable and just society.
KEYWORDS
Indonesian public policy, Criminal guidelines, Legal frameworks, Environmental transformation, Criminal justice
system, Legislative principles, Law and order.
INTRODUCTION
The earth and everything on it are in jeopardy as a
result of climate change brought on by global
warming, which is currently in an alarming phase. A
condition with many dimensions and a lot of
complexity has been affected by climate change.
According to James C. Wood's paper Deni Bram (2016),
the accumulation of greenhouse gases in the
atmosphere layer resulting from human activities is the
cause of global warming. The term "human action"
refers to a wide range of human endeavors, including
Research Article
INDONESIAN PUBLIC POLICY: CRIMINAL GUIDELINES, FOUNDATIONS,
AND ENVIRONMENTAL TRANSFORMATION
Submission Date:
June 05, 2024,
Accepted Date:
June 10, 2024,
Published Date:
June 15, 2024
Farrel Slamet
Head of Master of Law Department Program, Warmadewa University, Denpasar, Bali-Indonesia
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 06-2024
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International Journal Of Law And Criminology
(ISSN
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VOLUME
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ISSUE
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Publisher:
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energy production processes, industrial activities,
plantations, and forestry, all of which have the
potential to contribute to future climate change. The
transfer of land functions that humans perform today
can also contribute to climate change. The conversion
of protected forest lands into housing, the conversion
of rice fields into storehouses, and the reclamation of
beaches and lakes for hotel development all
contributed to climate change, which in turn led to
global warming.
"Some of the impacts in the same time dimension now
indicate that developing countries have far greater
vulnerabilities than more advanced countries,"
according to Deni Bram's writing. Deni Bram adds,
"Currently developing two (two) models of
commitment in climate change mitigation measures
are commitments that rely on top down models and
commitments that rely on bottom up models." From a
fairness and efficiency standpoint, the Kyoto
Protocol's commitment formation model's top-down
approach is a failure. This definitely prompts an
absence of lucidity concerning whether the emanation
decrease responsibilities in the Kyoto Convention
depend on the objectives set out in the UNFCCC
system, which is to accomplish stable ozone harming
substance preservation at a protected level. This
failure is made worse by the United States, one of the
largest emitters, not ratifying the Kyoto Protocol and
by some countries not meeting the emission reduction
goals set by the Kyoto Protocol.
According to the description, it is evident that civil,
state, and criminal laws must be used against
individuals or legal entities that transfer land functions
affecting climate change in Indonesia when
establishing legal arrangements to anticipate
violations. If it has been demonstrated that illegal
development activities that affect climate change
intentionally should be punished severely, a criminal
penalty is required.
"it is known that approximately 15% of the energy
consumed in Ecuador is used for the operation of
climate conditioning equipment and, on the other
hand, the majority of the Existing technology operates
on the basis of the use of refrigerant gases are invasive
to the azone layer," wrote Galvin A. Toala Arcentalis,
Reinaldo Guillen Gordin, Antonia Vazquez Perez, and
Alfredo Zambrano Rodfiquez.
This paper examines climate change in terms of the
formulation of norms or substance of criminal law that
is still blank legal (blanc norm of law), particularly in
terms of qualifications of types of criminal acts, errors,
criminal responsibility, and the penal system. Because
climate change has such a significant impact on human
life, this formulation is required to regulate the legal
aspects of climate change as a problem that must be
addressed to protect the earth, water, and air, all of
which are truly beneficial to the lives of all people and
the Indonesian people in particular.
Based on the above background then formulated legal
issues (legal issue) as follows:
1.
What qualifies sorts of acts, wrongs and
discipline frameworks for land transformation that
adversely influence environmental have a significant
impact on in a public point of view?
2.
From a national point of view, how is the
criminal law regulation of land conversion that has a
negative impact on climate change sanctioned?
METHOD
The Juridical-Normative style of writing is employed in
this journal. According to Peter Mahmud Marzuki, the
following are examples of normative approach-based
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International Journal Of Law And Criminology
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research: statute, case, historical, comparative and
conceptual approaches are all options. While J. Ibrahim
concurs with Peter Mahmud Marzuki, he adds the
analytical (analytical) and philosophical (philosophical)
approaches once more. Legislative, conceptual,
historical, analytical, and philosophical approaches are
all used in the approach.
Valerine J.L. Kriekhoff, a resigned High Court Equity of
the Republic of Indonesia composed that: The
Application of Normative Law Research to Criminal
Law applies normative law research to the following
areas of criminal law research:
1.
Learning targets in every layers of legitimate
schooling
2.
Within this scope of criminal law research, legal
research coverage includes:
a. Legal concepts like "right of self determination" and
"whistleblower," as well as research on legal principles
like "presumption of innocence." b. Historical research
like legal history (d.h.i. criminal law) or history of
legislation;
c. Case studies, using the "Legal Discourse Theory" or
"Theory of Legal Argumentation to trace the
"decidendi ratios" in decisions or examine the
existence of "heteronomy" or "autonomy" in a
decision.
d. Studies that compare laws, such as the Juvenile
Justice Act and Money Laundering, and law
enforcement agencies in particular nations (such as the
KPK);
e. Analytical research, for instance, examines the
concept of "discretion" in corruption committed by
state officials or the Criminal Concept of FMD in
environmental crime cases;
f. Theoretical approaches, like exploration on the
hypothesis of discipline (or which can be joined with
philosophical and near research-as in the common
regulation and custom-based regulation systems.
According to Peter Mahmud Marzuki, Johny Ibrahim,
and Valerine J.L. Kriekhoff, this journal was written
using the juridical-normative writing method, which is
confirmed by the description.
RESULTS
a. Types of Criminal Acts in the Field of Climate Change
in the National Perspective Article 4 of the Indonesian
Criminal Code states that "every person, whether an
Indonesian citizen, or a foreign national who commits
a crime as referred to in this Article, even outside of
Indonesia may be subject to Indonesian criminal
provisions." Qualification of types of acts, errors, and
punishment systems for land conversion that Impact
Climate Change in a National Perspective
The
depiction
of
capability/sort
of
criminal
demonstration that recognizes the infringement as
coincidental deeds and wrongdoing as purposeful
demonstrations, according to the offense, the culpa
and dolus will be controlled in Section, Article of
Criminal Arrangements directing explicitly the crook
demonstrations of environmental change which
jeopardize the existence of humanity.
The Environmental and Spatial Planning Act actually
regulates the criminal acts of environmental pollution
and spatial abuse, but the negative effects of climate
change that harm humans are not yet regulated by law.
In fact, there is a lot of misuse of spatial planning and
pollution of the environment, such as using laserdiscs
to break clouds, using greenhouses too much,
changing land uses from rice fields to homes or shop
houses, protected forests to hotels or factories, marine
reclamation and lakes for industrial development or
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hotels, and other systemized deeds in favor of
development.
In light of Article 1 passage (19) of Law of the Republic
of Indonesia Number Long term 2003 on Ecological
Security and that's what the executives confirms:
"Climate change is the change in the climate that is
directly or indirectly caused by human activity,"
according to Wikipedia. "It also refers to changes in
natural climate variability that has been observed over
comparable time periods."
In accordance with the provisions of Indonesian Law
No. Long term 2007 on Spatial Preparation (LN Year
2007 No. 84, TLN No. 4725 in the form of not adhering
to the land use plan and the authorized official's spatial
use permit, both of which led to the deaths of
everyone involved.
The theory of state power supports the theory
regarding the authority to classify such crimes and
offenses. According to this theory, the executive and
legislative powers have the authority to make laws,
while the judicial powers have the authority to rule. The
legislative, executive, and judicial authorities are all
referred to in the theory of separation of powers,
which is based on the teachings of Montesquieu's Tries
Politics (1689-1755). In practice, this theory has not
been fully adopted in Indonesia; consequently, it needs
to be equipped with checks and balances based on the
principle of cheking power with power so that it
remains intact as the fundamentals of the state.
Using Hans Kelsen's Pure Theory of Law theory, the
study and legal analysis of the Authority Theory also
include the following:
"Regarding Regulations, Both Positive and Negative:
Positive
and
Negative
Rules:
Commanding,
Authorizing, Permitting, and the Structural Structure
of the Legal Order, which describes the positive law
that must be distinguished by moral, economic, social,
and cultural Order/The legal order's hierarchical
structure.
Paul Scholten opposed Hans Kelsen's viewpoint for the
following reasons:
"The logical processing of positive materials, such as
laws, verdicts, and so forth, constitutes legal
judgments." These beneficial materials, according to
Paul Scholten, are socially and historically influenced. A
set of socially determined facts lead to the enactment
of a law, which is a historical event. As a result, the
material of pure jurisprudence always contains
something impure. Paul Scholten claims that "the
science of law will become a creature without blood" if
this is not done.
Referring to Paul Scholten's viewpoint, the
formulation of criminal sanctions with due regard to
legal materials in the form of laws, verdicts, and legal
theories of pure, Attention to the ability of the
community, particularly the perpetrators of criminal
acts in the field of climate change in terms of economic,
cultural, and sociological aspects is necessary for
setting the qualification of violations and crimes
against the Criminal Actors in the field of climate
change in Indonesia.
John Rawls emphasizes the connection between the
distribution of rights and responsibilities and justice.
The opinion demonstrates that when formulating
criminal sanctions against criminals in the context of
the environment and organization of City Territory, the
rights and responsibilities of the criminals should be
taken into account, particularly in terms of their
economic ability to carry out the punishment.
In light of the depiction, Simon Nahak composes that:
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"Against perpetrators of general or special crimes,
three (three) dimensions are used to reveal their
crimes: First, the culprits: any legal person or entity
that commits a series of offenses in the form of an act
of doing or not doing something that is punishable by
law. An offense is one that is punishable by law if the
act is unlawful (Civil, Administration, and Criminal) or
contrary to the law that exists in society. It can take the
form of a structured or systemized action, an accident,
or something that happens because of need (by need).
Second, evidence: The use of legal or other evidence to
determine the faults of the defendant, as well as the
tools that may be used to support a party's arguments
in court, such as: writing, testimony, presumption, and
oath as evidence; Third, Casualty: a person or group of
people who are harmed physically, mentally, or
financially as a result of a crime (according to Article 1
paragraph 2 of RI Law No. 13 of 2006 on the Safety of
Victims and Witnesses).
Criminal acts in the field of climate change in the form
of a series of criminal acts usually carried out in a
structured, systematic, and coordinated manner by
each individual or group of individuals. A transitional
crime of land use by a legal entity resulting in climate
change that has a negative impact on humans by a
huge company transacting nationally with a large
capital to dominate the global (international) economy
is one example of an environmental crime.
b. Crime and Criminal Accountability against Criminal
Aspects of Climate Change According to Moeljatno,
the question of "whether in doing an act, a person has
a fault" is the concept of "accountability" in the
criminal law. In terms of criminal law, the principle of
accountability states that a person cannot be punished
if they did nothing wrong (geenstrafzonderschuld; sir
rea), actus non facitreum
The evil spirit of a person or legal div (mens rea) and
the actual act of physical contact (actus reus), or
Opzet, which can be translated as "deliberately
commit crime," are used to determine whether a
person is guilty and proven to be unlawful. Opzet is one
aspect of the offense in criminal law. Because the
essence of opzet in the Criminal Code is unclear, the
following two theories are used to examine the
solution:
1) There must be dewiltheorie, or the theory of will; The
action in question is required or prohibited by law;
2) The theory of selection; Theory of expectation, hope
has not occurred, people only estimate or anticipate
the realization of an action, but the action's result is
not definitively realized; consequently, the theory of
expectations
According to the theory, the party that can be held
liable is the legal subject (legal subject), who is the
carrier or owner of rights and obligations in legal
relations. The legal subject can be a person or
natuurlijkpersoon (menselijkpersoon), but it can also
be a legal entity (legal subject). Rechtspersoon is
typically referred to as a persona ficta, or a person
designated by law as a person. Every individual and
corporate legal entity with a legal subject and a legal
subject is liable for a criminal offense in the land sector
as a party to which criminal responsibility is liable.
The description of criminal liability can be explained as
follows:
1)
Individual obligation
The meaning of the subject of wrongdoing
incorporates two things, to be specific who carried out
the lawbreaker acts (the culprits of criminal
demonstrations), and who can be responsible. This is
influenced by the legislative system of accountability.
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A very
fundamental accountability, individual
responsibility means that if a person commits a crime
in the law, they are responsible for their actions. The
legal subject individual or legal entity's responsibility
for the city's environment and layout can be divided
into several stages:
The initial phase: on the investigation process and as a
suspect to be included in the examination proceedings
(BAP).
Second Period: In their capacity as defendants, legal
subjects are always required to be present at every
Court trial.
Third Period: Accountability for a criminal law subject
who has been found guilty; the judge will then deliver
the verdict (verdict).
Traditional theory distinguishes between two types of
accountability:
(1) Accountability that is based on fault;
(2) The concept of absolute responsibility
The most recent legal methods require a distinction
between cases in which an individual's planned action
is intended to have certain effects on the act and other
cases in which an individual's unplanned action harms
the victim.
The responsibility for environmental crime and the City
Area Arrangement is a liability based on fault or
culpability, as described above.
2) Liability of a legal entity Other than individuals, a
legal entity can be held criminally liable for land and
investment-related crimes, such as the following:
Organization,
Organization,
Assortment,
Establishment or Helpful. As a legal entity,
corporations fall under criminal law, so their definition
is more expansive than the definition of a corporation
in civil law. The term "corporation" can refer to either
a legal or non-legal entity, as defined by criminal law.
There are three models of corporate accountability for
a crime committed by a corporation in relation to
corporate liability:
1.
Administrators as well as management as the
perpetrators
2.
Corporations as accountable administrators
and perpetrators
3.
Corporations as both the culprits and those
accountable.
On the basis of the preceding, criminal liability or
criminal law consists of the following three conditions:
1.
The perpetrator's capacity for accountability or
responsibility.
2.
The perpetrator's mental state is connected to
the behavior, which indicates the existence of illegal
acts: Purposeful and inadvertent or undesirable
demeanor - the heart or careless.
3.
There is no support or excuse that kills criminal
obligation regarding the offender.
3)
Criminal Approvals and Punishments against
Criminal Entertainers in the part of Environmental
Change
The term Criminal regulation contains a few
implications, or rather it is said that the criminal
regulation can be seen from a few points, in particular:
First from the place of criminal regulation from an
emotional perspective and from the mark of criminal
regulation from an objective perspective. Criminal
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regulation in the goal sense or called iuspoenale that is
various guidelines containing preclusions or objectives
where the infringement can be compromised by
regulation. IusPoenale can be broken down into
criminal law and material criminal. The fundamental
criminal law stipulates the following:
a.
Punishments
that
can
be
enforced
(strafbaargeiten);
b. Who is responsible for enforcing criminal law and
who can be punished;
c. What is the penalty for violating a law, also known as
penitentiary law? Even though the Environmental
Protection and Management Act on Climate Change
has regulations, the criminal sanctions and penalties in
the field of climate change law have not been
regulated. As a result, when there is a crime related to
climate change, the provisions in articles 97 to 120 of
Act no. 32 of 2009 on environmental protection and
pengelolahan
People
who
intentionally
or
unintentionally commit environmental crimes that
cause harm to humans and the environment are
typically outlined in criminal provisions. The licensors
—
in this case, the environmental licensing officer
—
as
well as the person in charge of the business are
included in the criminal provisions if a person violates
environmental regulations by circulating genetic
engineering or by producing B3 waste without being
held accountable.
More on environmental law enforcement, as has
occurred in some instances whenever environmental
crime is most closely associated with corporate crime.
If corporations in this case are alleged to have engaged
in destructive, reducing, or altering activities within
predetermined limits, they may also be subject to
environmental criminal provisions. If a corporation is
found to have committed a serious environmental
crime, the environmental criminal law's rules apply.
However, if the corporation's actions are more focused
on other responsibilities, civil law and administrative
legal tools may be used.
Article 55 of the first book of the Criminal Code, which
threatens those who do (pleger), who enjoined
(doenpleger), who also did (medepleger), and the
persuade (uitlokker), reveals who is responsible for the
corporation's climate change crime. Accordingly, in
accordance with Article 55 of the Criminal Code (Penal
Code), the sanction can begin with the corporation's
leader and continue through the individuals who
engage in activities that essentially constitute
environmental crimes.
It ought to be perceived that the arrangements of
criminal regulation instruments are unequivocally
impacted by the capacity of responsibility and the
component of mistake, so that in strafbaarfeit alludes
to the way of behaving of people figured out in the law,
which is illegal, and hence ought to be condemned.
According to experts of pompe and vost, who adhere
to a lawless understanding that is frequently translated
as "in strijd met het recht," or conceivably in violation
of the law? Things that are not only against the law but
also decency are judged as such.
In addition, the connection between strafbaarfeit and
environmental law can be questioned if one examines
its meaning. In response to the question of how
strafbaarfeit and environmental law are connected,
HerminHadiatiKoeswadji says that there are two
important factors:
The word "feit" in strafbaarfeit refers to actual,
perceivable behavior that takes place in the real world.
That the meaning of strafbaarfeit refers to the person
who was responsible for the behavior, i.e., being in the
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depths of the heart or not being sensed with the
senses, is related to the behavior.
When viewed from the perspective of the first
element, it is abundantly clear that the actions that can
be considered environmental crimes include the
destruction of forests, the pollution of water supplies,
and any other actions. As a result, these two essential
elements are simple to demonstrate. Regarding the
second aspect, the mistake that a person makes that is
related to his inner mood is that the person knows and
feels that the action is against his inner self.
In the event that a corporation is found guilty of
committing a crime, the corporation can face a fine
that is three times the amount of the previous fine in
addition to being imprisoned and subject to a fine for
its commission. In addition to the above-mentioned
criminal penalty, the company may be subject to the
following additional criminal sanctions: revocation of
the legal entity status and/or the business license.
It is important to understand that the capacity for
accountability and the possibility of error have a
significant impact on the provisions of the criminal law
instrument. As a result, the term "strafbaarfeit" refers
to actions that are against the law and should be
punished. According to experts of pompe and vost,
who adhere to a lawless understanding that is
frequently translated as "in strijd met het recht," or
conceivably in violation of the law? In spite of the law
isn't just decided as issues in opposition to the law
however with the goodness.
The formulation of criminal law sanctions in the related
field is the ultimate remedy, where expressly its use
must be considered from the economic and financial
aspects to advance the prosperity of criminal victims in
the field of climate change. Criminal penalties should
not be used to punish non-harmful acts.
The Criminal Hypothesis used to dissect this
conversation is the Consolidated Hypothesis of
Compensation by Vos depicted in Bambang Poernomo,
making sense of that in the joined hypothesis there are
3 (three) streams, in particular:
1. Theories that combine the criminal nature of
retaliation in order to safeguard the rule of law with an
emphasis on revenge. In this regard, Zeven Bergen
asserts that the criminal's nature is retaliation for the
protection of lawful order and government respect.
Thus, the penalty is essentially only an "Ultimate
Remedium" (which, in the end, can heal that may be
used as a last resort if there is no other option);
2. Unified theory that places an emphasis on
maintaining public order. Simons subscribes to this
theory, proposing that public prevention lies in the
horror of crime, as well as in its repair and destruction,
and that the punishment must, in absolute terms, be
adapted to the legal consciousness of society's
members.
3. Unified theory that places an emphasis on equal
retaliation and public interest protection. This
adherent is De Pinto, to whom Vos explained that the
criminal law must be structured in such a way as to be
fair, with the idea of retaliation not being neglected in
any way
—
positive or negative
—
because, in general, a
criminal must satisfy society.
The character of criminal law that demonstrates
certainty is the validity of the retroactive principle of
legality. Based on these two principles, it is guaranteed
that criminal law, the ultimate auxiliary tool, is certain
(UltimateRemedium). Article 10 of the Criminal Code
states that the punishment system is based on the First
Book of Chapter II Punishments: Punishments are,
head disciplines, capital punishment, detainment,
detainment,
fine.
Extra
punishments:
the
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announcement of a judge's verdict, the revocation of
particular rights, and the appropriation of particular
goods.
Criminal
sanctions
regulation
of
land
conversion that impact climate change in national
perspective
The Environmental Protection and Management Act
and the Spatial Planning Act define criminal sanctions
arrangements for environmental damages. However,
the Special Criminal Climate Change Arrangement has
not been regulated, so the author believes that it
should be governed by a separate law. Even if it is not
regulated by a separate statute, it ought to be
incorporated into the Environmental Protection and
Management Act or the Spatial Planning Act by
incorporating the following sentence into the plan:
The theory of lawfulness is used to analyze the absence
of legal norms, according to J.J.H. Brugink, who writes
that: "Anyone who deliberately opposes the law is to
take action which causes the climate change either as
a direct or indirect result of human activity resulting in
a change in the composition of the atmosphere
globally and in addition to changes in natural climate
variability observed in comparable periods, Shall be
subject to imprisonment of a minimum of 4 (four) years
and a maximum of 15 (f There are three types of law
enforcement, which are as follows:
1. The regulating or formal legitimacy of law and order,
to be specific jiika a standard is important for an
arrangement of specific legitimate guidelines where
there are rules of regulation are pointing at one
another. As a result, the system of the rule of law
consists of a whole hierarchy of specific legal rules that
are based on general law rules, with lower specific legal
rules derived from higher general law rules;
2. The effectiveness of the rule of law, or the factual or
empirical validity of the rule of law, if citizens adhere to
the rule of law for each rule of law that applies.
Empirical research can assess this situation, and the
rule of law is said to have factual validity if it is actually
followed by citizens and authorized officials and is
sincerely enforced. Because it successfully influences
the actions of both citizens and government officials,
the rule of law is said to be effective. The way that
there is authentic legitimacy can be analyzed in
humanism
of
regulation
through
strategies
predominant in the sociologies. In the point of view of
the humanism of regulation, the law shows up as das
sollen and sein, persuaded of the humanistic reality
(genuine social conduct truly of the genuine society)
which alludes to regularizing goals (rules);
3. The rule of law based on its content is regarded as
valuable because of its evaluative validity. It is possible
to approach the issue of evaluative validity empirically
and with conviction.
CONCLUSION
Some examples of criminal climate change-related
actions include: the excessive use of greenhouses, the
conversion of rice fields into homes and shops, the
conversion of protected forest land into hotels and
factories, the use of laserdiscs to break clouds, the
reclamation of lakes and marine areas, and other
systematic acts in the name of development Criminal
obligation depends on mistake hypothesis (risk in light
of issue or culpability). Criminal and criminal
punishments under Criminal arrangements in the
Natural Security and The board Act. a legal system
based on the Criminal Procedure Code and a penalty
system based on Article 10 of the Criminal Code.
Suggestions 1) Due to the nature of the crime of
climate change as an act that endangers the safety of
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Servi
mankind, it should be nationally necessary to explicitly
justify the type of criminal act in the aspect of climate
change, so that after known can definitely be handled
with the regulation of criminal law. The regulation of
criminal sanctions is formulated in the Criminal
provisions that any person who intentionally violates
the law by taking actions that cause climate change
either directly or indirectly causes a change in the
composition of the atmosphere globally but, in
addition, causes changes in
2) Despite the fact that the Law on Environmental
Protection and Management has regulated climate
change-related criminal sanctions, the Criminal
Provisions on Climate Change have not. As a result,
future amendments to the Law on Environmental
Protection and Management will need to be governed
by the formulation of Criminal Provisions "Climate
Change" with the appropriate formula.
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16
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2771-2214)
VOLUME
04
ISSUE
06
P
AGES
:
6-16
OCLC
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