01whole.pdf (2.18 MB)
A framework for the establishment of an environmental court in Indonesia: opportunities and challenges
thesisposted on 2022-03-28, 09:15 authored by Windu Kisworo
Environmental cases are widely known to be multidimensional and scientifically sophisticated, and to involve uncertainty. Science, economics and technology are changing faster than the law, which makes it difficult for the judiciary to adjudicate complex environmental cases. Traditional processes of adjudication are insufficient for handling many environmental cases efficiently and effectively. Recently, there has been a significant move in favour of environmental courts and tribunals (ECTs) worldwide, which have unique characteristics and different level s of success and challenges. However, despite the challenges of judicial specialisation, ECTs are acknowledged to be the mechanism that can best protect environmental rights and achieve sustainable development. Given the current environmental issues, challenges and progress in adjudicating environmental cases in Indonesia, this thesis proposes the creation of a specialised environmental court for Indonesia and develops a framework for its establishment. The thesis examines select ed ECTs and their unique features, success es and challenges to deduce instructive lessons for Indonesia, and it tailors relevant international experience to suit the country's unique and special features. Thus, this study analyses (a) the relevance and applicability of foreign experience in the Indonesian context and (b) the problems and prospects of establishing an environmental court in Indonesia. The thesis identifies and draws upon the features of the most effective model of an environmental court that best suits Indonesia 's legal culture, judicial system and specific environmental goals to determine a framework for the establishment of a specialised environmental court. This thesis concludes that an environmental court would essentially be a specialised environmental court (pengadilan khusus lingkungan) within the general and administrative courts, which can offer a better forum to effectively facilitate the adjudication of complex environmental cases in Indonesia. A specialised environmental court under the general court would adjudicate civil and criminal matters, whereas a specialised environmental court under the administrative court would adjudicate administrative matters. Some preconditions must exist within and outside the Indonesian judiciary to realise the creation of a specialised environmental court. The Indonesian Government must take a step-by-step approach to establish a specialised environmental court. To this end, this thesis recommends some essential and sequential steps for policymakers to take as a foundation for developing a strategic plan for the creation of an environmental court. This plan will assist the Indonesian Government to measure its progress towards establishing a specialised environmental court. The outcome of this research will contribute to (a) the existing literature on environmental courts, (b) the modernisation and reform of the Indonesian judiciary and (c) the creation of a domino effect on other countries that are desirous of establishing ECTs amid challenges and conditions similar to those in Indonesia.