Abstract
In recent years, the precautionary principle has begun to enter legal decision-making in Indonesian civil courts. This introduction is in line with environmental cases that often involve much scientific evidence. This article aims to describe theoretical elaboration and, to a certain extent, legal developments in the application of the precautionary principle in the settlement of civil environmental cases in Indonesia. The precautionary principle provides a framework for environmental decision-making in the event of scientific uncertainty. The theoretical elaboration shows a wide dimension of influence of the precautionary principle on the system of liability and proof. In comparison, the court cases also show the application of the precautionary principle in the liability system and proof despite still in its weak version.
Introduction
In recent years, the precautionary principle (PP) has begun to enter the arena of legal decision-making in Indonesian civil courts. This introduction is in line with environmental cases that often involve much scientific evidence. In environmental cases, the role and status of science and technical expertise are increasingly important factors in decision-making by the court. Courtroom cases are invariably decided by factual evidence offered by witnesses and experts. The evidence is then mediated and presented by advocates speaking the language of the law to the judiciary. Although any information available contains scientific uncertainty, the court has to make a decision. Scientific uncertainty then is at the core of the precautionary principle. 1 Haritz observes that writers have started to pay attention to theapplication of PP in the context of civil law, although not much. 2
This article aims to describe theoretical elaboration and to a certain extent, legal developments related to the application of PP in the settlement of civil environmental cases. The research question is, “How is the precautionary principle theoretically elaborated and to a certain extent applied in resolving civil environmental disputes in court?”
Method
This research uses normative research methods or library law research methods, namely the methods used in legal research by examining existing library materials. Data sources are obtained from the literature collected, selected, classified, and arranged in a narrative form and analyzed qualitatively. 3 Apart from reviewing theoretical opinions, this study also analyzes court decisions in environmental civil cases that apply PP.
Table 1 shows the seven sample cases analyzed along with a brief description. These cases were analyzed using the legal reasoning method by examining legal scientific accountability that includes arguments and logical reasons for legal decisions. Comparative analyzes with other and international jurisdictions are also carried out to enrich the discussion.
Brief Description of Sample Cases
Brief Description of Sample Cases
PP and In Dubio Pro Natura
This section discusses PP and In Dubio Pro Natura principle to better understand the relationship between the two terms or principles and their international and national law recognition.
The PP formulas that are probably the most referenced are those contained in the Principle 15 of the Rio Declaration on Environment and Development 1992, which states, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. 4 Thus, according to Principle 15 of the Rio Declaration, if there is a threat of serious or irreversible damage, the absence of scientific certainty should not be used as an excuse to postpone efforts to prevent environmental degradation.
Today, the dominant opinion is that this principle has become part of customary international law. 5,6 Article 38 letter b of the Statute of the International Court of Justice (ICJ) introduces and defines “international custom” as “evidence of general practice accepted as law”. 7 The acceptance of this principle in various international legal instruments indicates its acceptance as international customary law. 8 PP is recognized in various international environmental treaties that have been ratified by Indonesia, such as the UNFCCC (Article 3 (3)) and UNCBD (Preamble Paragraph 9).
As a guide in making environmental decisions, as stated by Kriebel et al., PP has four main components, namely: taking preventive action in the face of uncertainty; shifting the burden of proof to proponents of activity, exploring alternatives for potentially dangerous actions; and increasing public participation in decision making. 9 Raffensberger and Tickner as quoted by Gardiner revealed, in their simplest formulation, PP has two triggers, namely: if there is potential harm from the activity and if there is uncertainty about the magnitude of the impact or cause and effect, then anticipatory action must be taken to avoid losses. 10
In Indonesia, the PP was later adopted in Article 2 letter f of Act 32/2009 on Environmental Protection and Management (EPMA 2009). The explanation of this article states that the purpose of the “precautionary principle” is that “uncertainty regarding the impact of a business or activity due to limited mastery of science and technology is not an excuse to postpone steps to minimize or avoid threats to environmental pollution or damage”. 11 Thus PP has become the principle of national environmental law. 12 However, this formulation is criticized since it does not include “serious or irreversible threats” as the trigger to taking precautionary measures. 13
Before entering into EPMA 2009, the PP stated in the 15th principle of the Rio Declaration had the spirit to be guided and strengthened in filling the legal vacuum in practice because Indonesia was a conference member 14 . In the case of Dedi et al. vs. Perhutani et al., the panel of judges at the Court of Cassation at the Supreme Court believes that judex pacti is not wrong to apply the law if it adopts PP as a provision of international law to fill the legal vacuum (rechts vinding). 14 Despite the opinion of the Supreme Court stating that PP is a provision of international law that has been seen as “ius cogen” 14 maybe not quite right and received criticism, 15 however, its position as a principle of environmental law is getting stronger.
Some writers mention the term in dubio pro natura as a derivative of PP,
and some other writers say it is the PP itself. Fellmeth and Horwitz mentioned in
dubio pro natura (
Imamulhadi stated that the PP had generate the principle of in dubio pro natura. If there is scientific uncertainty, the judge must make decisions that pro to the environment. The decision is meant as a PP transformation from a management and a policy level to a dispute resolution setting. The indubio pro natura principle is the main characteristic of court proceedings related to environmental disputes. 17
The term in dubio pro natura was used by Judge Herczegh in his dissenting opinion in the case of the Gabcikovo-Nagymaros Project (Hung. V. Slovk), in ICJ (1997 ICJ Rep. 7, 187). According to him, “Czechoslovakia’s interests are financial interests that are necessarily theoretical easy to compensate, while Hungary’s interest is to save the ecological balance and more difficult because it relates to the harm to the environment. In dubio pro natura”. 16
The IUCN World Declaration on the Environmental Rule of Law produced by the IUCN World Congress on Environmental Law in Rio de Janeiro, Brazil, from 26 to 29 April 2016, states the principle in dubio pro natura in Principle 5. According to the document, in terms of doubt, all cases in courts, administrative bodies, and other decision-makers must be resolved in a manner that is most pro-environmental protection and conservation, with the preference being given to the alternatives that are least harmful to the environment. Actions should not be taken wherethe potential adverse environmental impact is not proportional or excessive to the benefits derived from the actions. 18
The Supreme Court cassation panel in the case of the Minister of Environment and Forestry vs. PT Kallista Alam believes that the use of the “in dubio pro natura” doctrine in resolving civil environmental cases is not a far-fetched consideration. According to them, the Indonesian legal system is familiar with this doctrine derived from the principles listed in EPMA 2009 including PP. 19 Likewise, the guidelines for handling environmental cases (2013 Guidelines) state the application of PP, also known as in dubio pro natura, in civil cases in the environmental sector, both in the system of liability and proof. 20 These two things will be explained further in the following section.
In the case of the Minister of Environment and Forestry vs. PT Merbau Pelalawan Lestari, 12 a panel of judges at the cassation court of the Supreme Court’s emphasized that the judiciary as one of the branches of state power, namely the judicial power, is obliged to carry out its function to ensure that PP which is part of Indonesian national law is applied in the cases being tried. Judges as actors of judicial power in resolving cases at trial can and should also refer to or apply legal principles because legal principles have a higher position than legalnorms. 12
PP and Civil Liability
Christian Byk said PP and civil liability seemed contradictory. This contradiction is probably because people see PP as anticipating risks while civil liability manages the consequences. Therefore, PP is more aimed at collective risks. The direct recipients are primarily public authorities, while civil liability is primarily aimed at individual damages for which the individual is responsible. PP mobilizes new concepts: the risk of serious or irreparable damage, a lack of absolute scientific certainty, and the necessity to take preventive action. On the other hand, under civil liability, only certain future damages can be compensated. However, in fact, according to Byk, PP applies not only to public authorities. PP also influences civil liability law, although this influence does not lead to radical change. 21
According to the 2013 Guidelines, the application of the precautionary principle can be made in determining the liability (liability rule) of parties suspected of polluting or destroying the environment. There are two important things to consider in determining liability, namely negligence in liability based on fault and strict liability. 20 Meanwhile, Siham al-Babidi argued, PP brought a new vision of civil liability based on possible risk. According to him, PP overcomes the problem of probable rather than proven damage. Apart from that, PP also extends the causalrelationship. 22
The PP is used in two situations, before the occurrence of damage and after the occurrence of damage. Thus, given the dual function of the precautionary principle, the two preventive and compensatory roles can be assumed for this principle, respectively. However, the obligation to compensate for financial losses is only possible in the second case. 23
The Indonesian civil law environmental enforcement recognizes at least two liability systems, namely liability based on fault and liability without fault or strict liability. The PP’s relationship with these two types of liability will be described as follows.
PP and Liability Based on Fault
The elements of liability based on fault are that the act is against the law, there is a fault on the perpetrator, there is a loss, and there is a causal relationship between the act and the loss. Meanwhile, the category of an act can be qualified as an act against the law, according to Rosa Agustina, is: contrary to the legal obligations of the perpetrator, contrary to the subjective rights of others, contrary to decency, and contrary to propriety, thoroughness, and prudence. 24
Nicolas de Sadeleer argued that in liability based on fault, a person must be careful according to the applicable standards (duty of care). If someone has acted prudently (normal and reasonable care), then this is sufficient to free him from liability for environmental pollution and damage. 25 Regarding negligence, the 2013 Guidelines state, the person who causes the damage must be responsible if the person concerned applies the precautionary principle below the standard or applies it improperly. 20 Meanwhile, Sadeleer implied that a higher standard of caution is needed by applying the precautionary principle, which is proportional to the risks faced. 25
PP and Strict Liability
The 2013 guideline states, in terms of strict liability, someone who causes environmental damage is responsible for compensating for the damage it causes. The perpetrator must bear social costs, and in order to prevent the perpetrator from bearing high social costs, the perpetrator should take preventive measures. In this case, the perpetrator is still obliged to be responsible even though he has implemented the precautionary principle optimally. 20
Pardy argues, with the application of PP, the system of liability shifts from liability based on fault to a system of liability without fault. 26 As stated by Cameron and Abouchar, indeed, a strict liability regime in environmental matters will meet the requirements of the PP if it is understood as a guiding principle. 8
In the case of Dedi et al. vs. Perhutani et al., the panel of judges at the first level in their legal considerations stated that the proof of the element of fault is irrelevant because, with the implementation of the PP, the liability becomes strict (strict liability). 14 Likewise, in the Ministry of Environment and Forestry vs. PT How Are You Indonesia, 27 the panel of judges at the North Jakarta District Court, in their legal considerations, linked the PP with a system of strict liability. Accordingly:
“ ... , The next thing can be considered that the precautionary principle that should be adhered to is strictly and well implemented by business actors so that environmental pollution can be prevented, but in reality, there is still a risk of environmental pollution. The business actor/polluter is considered that the principle has not been heeded. Therefore, by not applying this principle and being linked to the principle of in dubio pro natura, the polluter must be strictly liable for the occurrence of environmental pollution, both payment of compensation and recovery of environmental damage, so, logically, the principle of strict liability should be applied by ignoring the elements of fault and actions that are against the law”. 27
PP and Loss
The PP encourages introducing the preventive civil liability concept with preventive measures that can be taken to prevent uncertain but possible losses. 28 The possible losses are potential (potential damage), serious, and irreversible. 22
In the case of Willy Suhartono v H. Rudy (2013), the Malang District Court argued as follows:
“That illegal acts that have the potential to harm (potential loss) to the ecosystem of springs and threaten a water crisis, which will take a long time to restore the environment and to eliminate negative impacts that continue to threaten as long as the ecosystem has not been restored; therefore the Court believes that the Reconvention Defendant’s illegal actions that have the potential to harm (potential loss) to the ecosystem must be taken into account from a futuristic point of view and precautionary measures in favor of preserving environmental functions so that ecological disasters can be prevented”. 29
Furthermore, the Malang District Court judges considered that the building permit owned by the Reconvention Defendant/Convention Plaintiff was inappropriate and had no legal force. The court based its opinion on the statement of the Hydrologist, Prof. Dr. Sudarmaji, M.Eng.Sc., who explained that: “The reduction in water discharge at the Gemulo spring is not only due to the construction of the Rayja Resort Hotel, but the construction of the Rayja Resort Hotel will increase the impact on the environmental burden.” Furthermore, by considering the PP to minimize or avoid the threat of damage to the Gemulo spring, the petitum demanding to punish the Reconvention Defendant/Convention Plaintiff to stop the construction of rest houses for The Rayja Resort is legally grounded and deserves to be granted. 29 In this case, the panel of judges has implemented preventive civil liability by taking preventive measures to prevent losses that are uncertain but possible, and these losses are potential (potential damage), serious and irreversible.
On the other hand, the use of PP after the occurrence of damage makes compensatory roles with the obligation to compensate possible. 23 In line with this concept, in the case of the Ministry of Environment and Forestry vs PT. Waringin Agro Jaya, District Court is of the opinion that the application of the PP implies that if there has been environmental damage, the lack of knowledge cannot be used as an excuse to postpone efforts to restore the damaged environment. 30
PP and Causation
The causal relationship between actions and losses is required in terms of liability based on fault and liability without fault. Sadeleer argued that the implementation of PP should consider causality problems more flexible. 25 While al-Babidi argues, PP will expand the traditional concept of cause and effect because instead of being a direct and constant relationship between risk and damage, the causal relationship will be a relative probability and a mere proportional relationship that can be concluded based on legal presumptions and factual circumstances by the judge. 22
The implementation of PP in assessing the causality relationship can be seen in the case of Minister of Environment and Forestry vs. PT. Kallista Alam, where the panel of judges at the Cassation Court at the Supreme Court believes that in determining the cause and effect between the defendant’s activities and the occurrence of land fires, between land fires and environmental losses that arise and their future consequences must be based on the doctrine of in dubio pro natura. This doctrine implies that when faced with the uncertainty of cause and effect and the amount of compensation, decision-makers, including judges in civil cases, must give considerations or assessments that prioritize the interests of environmental protection and restoration. 19 This Supreme Court decision implies a relationship between preventive loss, causation, and standard of proof with the application of PP. This relationship is also implied in the Supreme Court decision in the case of the Minister of Environment and Forestry vs. PT Surya Panen Subur. In this case the Supreme Court is of the opinion:
“The precautionary principle implies that decision-making officials, including judges as State Officials who make decisions in law enforcement or dispute resolution, if faced with “scientific uncertainty” does not mean that there are no consequences or damage to the environment that happens but on the other hand must make decisions in the interest of environmental protection or restoration (in dubio pro natura) because environmental damage is latent (not immediately visible) and often cannot be reversed.” 31
With the implementation of the PP it appears that the Supreme Court considers causality problems more flexible. The Supreme Court put the causal relationship as a relative probability and a mere proportional relationship based on legal presumptions and factual circumstances.
PP and Civil Proof
The 2013 guideline also places PP in the section of civil proof. The same can be found in the Philippine Rules of Procedure for Environmental Cases. 32 The application of PP in the proof is that it cannot prevent the judge from deciding to prevent environmental damage in the absence of sufficient reason or evidence. It is stated, in proving environmental cases and the absence of scientific evidence in determining the causal relationship between human activities and their effects on the environment, the court must apply PP. This application is associated with the constitutional right to a healthy ecology. As an example, the judge ordered in the main case the verdict that the defendant made environmental protection efforts, even though this required a higher cost than the initial plan of activity. 20
Furthermore, the 2013 Guidelines mention three standards for implementing PP. First, threats to humans or health. For example, in the activity of nuclear power plants. Second, natural resources use that do not consider the preservation of environmental functions for future generations. For example, road construction activities that cross protected forest areas. Third, carrying out activities without considering (prejudice) the environmental rights of those who receive the impact. 20
PP and Scientific Evidence
According to the 2013 Guidelines, in applying PP, judges are obliged to consider the situation and conditions that occur and decide whether a scientific opinion is based on evidence and methodology that is reliable and has been proven (valid). Evidence is considered valid if the process of collection and examination is based on the most valid, up-to-date scientific methodology and is recognized by experts in the relevant field of science. 20 Here, PP applies if the scientific evidence is not conclusive, but investigating the scientific evidence still needs to be pursued. This can also be seen in the case of differences in laboratory test results and differences in expert opinion.
If two laboratory analysis results have proven validity, the judge must consider the subject matter of the dispute in the case concerned with serious threats and dangerous activities. PP is applied if the case is related. Meanwhile, suppose the laboratory analysis results are in doubt, and a reference laboratory analysis is required. In that case, the judge is given the authority to request laboratory analysis as a comparative opinion by charging the referral laboratory analysis fee based on the parties’ agreement. 20
The 2013 Guidelines also state that in the event of differences in expert testimony and the judge is not sure, or if the defendant and plaintiff do not propose an expert, the judge can appoint another expert who is considered neutral or can apply the PP. Furthermore, it is stated that concerning scientific evidence, if there are two different expert statements, the judge can choose the information based on the judge’s conviction by providing the reasons for choosing the information given by the expert or presenting another expert by imposing a fee on the agreement of the parties or can also apply the PP. 20
The application of PP in case of differences in expert opinion can be found in Dedi et al. vs. Perhutani et al.. 14 The panel of judges at the Bale Bandung District Court stated in their legal considerations that in a state of “lack of knowledge including disagreement which excludes one another” while the environmental condition was very damaged, the court in the case chose to refer to the PP as a principle of environmental law. 14
Burden of Proof
The precautionary principle implies that precautionary measures must be taken before scientific certainty about cause and effect. According to Cooney, this means the need for evidence that an action is not dangerous, which is considered to take precedence over waiting for a change in activity when it has been proven dangerous. The “strong” version of the precautionary principle requires a shifting burden of proof by requiring the proponents of activity to prove that they will not cause harm. It implies that the public is not prepared to assume environmental risks. 33 In 1996 in India, Kuldip Singh J in Vellore Citizen Welfare Forum v Union of India declared that the PP also means that the ‘onus of proof’ is on the actor or developer or industrialist to show the actions are environmentally benign. 34
Applied in cases of unlawful acts, according to Wibisana, this means that the defendant has the burden to prove that his activities were not the cause of the plaintiff’s loss. In this case, one can refer to Garret’s study, which shows that the precautionary principle can shift the burden of proof in tort cases involving toxic tort. According to Garret, with a precautionary approach, plaintiffs still have the burden of proving that they did suffer a loss, that the identified agent could have caused the intended damage, and that the agent was released. Once the evidence about the matter has been established, the cause then shifts to the defendant, who must prove that the plaintiff has not been exposed to the agent, that the level of exposure could not have caused the plaintiff’s harm, or that there were other reasonable causes of the damage. 13
A weak version of the PP rejects the burden of proof. This version happens in the Pulp Mills on the River Uruguay (Argentina v. Uruguay), decided by the International Court of Justice (ICJ) in 2010. Argentina accused Uruguay of authorizing the construction of a pulp mill that polluted the Uruguay River, violating the countries’ treaty regarding the protection of the river. Argentina argued that Uruguay, the defendant, was responsible for proving that the mill would not cause significant harm to the environment under the precautionary principle. However, the ICJ explicitly rejected Argentina’s use of the precautionary principle to shift the burden of proof. 35 The Indonesian courts also appear to be still implementing a weak version of the PP where the PP implementation does not change the burden of proof.
Standard of Proof
Stein argues that the PP does not provide clear guidance on the extent of proof required before these principles become operational. 5 In line with that, Gullett argued, PP did not explain the required standard of proof. 36 In this case, according to Stein, the application of the concept becomes somewhat problematic. However, he argued that in using PP in the legal framework, the standard of proof of civil law on the balance of probabilities isappropriate. 5
If civil evidence requires a balance of probabilities, then in experimental science, Gullet citing Bates (2002) argues, a 95 percent confidence standard is generally required before an event can be accepted. However, he continued, this is not necessarily appropriate in the context of planning and environmental regulation where legal tests are complex mixtures of scientific standards and non-scientific standards. According to him, if the possible impact on the environment can be very dangerous, then it stands to reason that the level of evidence requires a more relaxed precautionary principle than if the likelihood of environmental hazards is smaller. 36
Bates as quoted by Jones and Bronitt suggesting that the standard of proof for opponents is ‘probability,’ something even lower than the civil standard on the balance of probabilities which means 51 out of 100 percent. In this case, only the ‘likelihood,’ as Bates suggested, would be less than 50 percent. After an opponent meets the threshold of the standard of proof, Bates suggests that the burden and standard of proof in environmental regulations for the defendant (applicant or institution) to meet a higher standard of evidence beyond a reasonable doubt. This is a very harsh standard, but perhaps one that is justified on environmental grounds because precautions are applied only when there is a possibility of serious or irreparable environmental damage. Bates argues that the standard is beyond a reasonable doubt, close to the scientific standard, which is generally set at 95 percent, that is, so that scientists can be 95 percent sure that the study results are correct. 36
Conclusion
The PP provides a framework for environmental decision-making in the event of scientific uncertainty. This principle also applies in making legal decisions in civil courts. The theoretical elaboration shows a broad dimension of the influence of the precautionary principle in the aspects of the liability system and proof of civil environmental cases. The precautionary principle has also been applied in Indonesian court decisions related to the liability system and proof in civil environmental cases. However, the courts seem to still apply a weak version of the PP without changing the burden of proof. Experience shows that the judiciary has a role in the legal development of the precautionary principle. There is still room for the court to make innovation in applying PP in the settlement of civil environmental cases, which requires decision maker creativity to change for legal reform.
Footnotes
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