Introduction
The precautionary principle is one of the principles of protection and management of environment as set forth under the Law No. 32 of 2009 on Protection and Management of Environment. This principle means that uncertainty regarding the environmental impact of a business and/or activity, due to limited scientific or technological knowledge, is no reason to delay steps to minimise or avoid threat to contamination and/or damage of environment.
The same principle is further outlined in the Head of Supreme Court Decree No. 36 of 2013 on the Enforcement of Environmental Issue Guideline. It states that this principle is equal to the prudence principle in the general principles of good governance in the scope of administrative dispute. The prudence principle set forth under government administration law explains that any decision and/or action must be based on complete information and documents to support its legality so that the decision and/or action is prepared for prior to its determination or implementation.
The Supreme Court decree further explains that this principle is derived from the fifteenth principle of the Rio Declaration which states that “if there is a threat of serious or irreversible damage, the non-availability of scientific evidence cannot be used as grounds to delay prevention efforts of environmental function”. For this reason, the Supreme Court provides that the judge must consider a possible situation and decide whether the scientific evidence is based on a trustworthy and tested evidence and methodology (legitimate and valid). The Supreme Court further differentiates the meaning of “legitimate” and “valid”. “Legitimate” refers to the pro justice criminal procedural law under the criminal procedural law code, and “valid” refers to the most truthful and the newest methodology that experts in the relevant science sector acknowledge. The Court subsequently explains that the application of precautionary principle is useful in determining liability based on negligence and strict liability.
Mandalawangi
In decision No. 456/Pdt G-LH/2016/PN Jkt Sel, the panel of judges referred to the Mandalawangi case1 when analysing the connection between the strict liability and precautionary principle. In Mandalawangi, the Supreme Court judges considered that the application of precautionary principle in environmental law filled the legal vacuum.2
The panel of judges of case 456 considered the precautionary principle to be early prevention that is used when:
- the science is lacking;
- there is conflicting opinion; or
- the environmental condition is severely damaged.
When looking at the precautionary principle, the judges further considered the following three points:
1. The threat of environmental damage is very serious and irreversible. A serious treatment is necessary for the subsequent circumstance or implication for the current and future generation, or in the circumstance that there is no substitute of resources used;
2. uncertainty of scientific evidence, a circumstance where the emerged consequence of an activity is not certainly foreseeable due the nature of problem, causer, or the potential consequence of that activity;
3. the prevention efforts of environmental damage includes prevention efforts to cost effectiveness.
Comment
The Supreme Court decree on the standard of evidence in environmental cases provides guidance for when there is no scientific evidence in determining the causality relationship between human activity and its impact on the environment. In these cases, the court must apply the precautionary principle as the constitutional right of healthy ecology.
The precautionary principle is an important principle in environmental law, not only in Indonesia but internationally. From the consideration of the panel of judges, it is evident that several elements are required to apply for this principle, namely:
- very serious and irreversible threat of environmental damage;
- uncertain scientific evidence; and
- prevention effort to minimise or avoid the damage.
For further information on this topic please contact Eddy Leks at Leks & Co by email (eddy.leks@lekslawyer.com). The Leks & Co website can be accessed at www.lekslawyer.com.
