Discussion “New Direction of Law Enforcement Policies on the Conservation of Biological Resources and Their Ecosystems”

Discussion “New Direction of Law Enforcement Policies on the Conservation of Biological Resources and Their Ecosystems”

Jakarta | The Indonesian Center for Environmental Law (ICEL), Sumatran Tropical Forest Conservation Action (TFCA), and the Communication Forum for the Indonesian Community of Forestry (FKKM) held a “New Direction of Law Enforcement Policies on the Conservation of Biological Resources and Their Ecosystems”. The purpose of this event was to discuss conservation law enforcement issues and projected future needs. The results of this discussion were expected to be an input for the government of the 2020-2024 period and the House of Representatives for the upcoming 2020-2024 period in drafting relevant laws and regulations, as well as other law enforcement technical policies. Jakarta (25/11/2019).

“Law enforcement of Conservation of Natural Resources and Ecosystems (KSDAHE) is the last goal for the protection of Indonesia’s biodiversity. There are so many challenges that Indonesia still faces in this law enforcement sector. Biodiversity which is a wealth of Indonesia as a mega-biodiversity country continues to face the threat of organised crime in a mode that is constantly evolving and sophisticated. The losses incurred from this crime are fantastic. Not only at the level of species, but also genetic and ecosystem which will have a strategic position both now and in the future.” Said Executive Director of ICEL Henri Subagiyo in his opening.

Henri continued “Objectively, one of the crucial issues in law enforcement is that our legal basis for Law 5/1990 has expired. This law is not sharp enough to ensnare intellectual perpetrator/boss/mastermind and criminal networks, but rather sharp for field actors who are generally small communities. The law is not yet oriented towards remedying the impact of crime, it still focuses on physical punishment and fines that are on average very low.

“Moreover, when compared to the impact of crime and the cost of recovery that must be borne by the State, this law has not been sufficient to accommodate the protection status at all levels (genetic, species and ecosystem), taking into account the existence of stocks in nature with the needs of utilisation by the community, especially traditional communities. This law also has not yet optimised opportunities for strengthening conservation from various groups, both at home and abroad, which can still be improved. However, biodiversity will later become one of the important pillars of present and future life. Unfortunately, so far efforts to strengthen the legal basis through the Revision of Law 5/1990 have not yet crystallised,” said Henri again.

Meanwhile ICEL Researcher Rika Fajrini said that there had been concrete evidence before the eyes, one of which was the latest news from Malaysia which reported that the last rhino in Malaysia had died. So that its status had become extinct.

“This proves that now it is no longer a secret that the illegal trade in protected plants and animals is a transnational organised crime, but its handling still seems like a small, fragmented crime. In order to ensnare illegal trade in protected plants and animals as organised crime, special strategies such as the use of money laundering instruments, the regulation on authority to conduct various special investigative techniques, the formulation of offenses that ensnare the role of each member in organised crime, the imposition of sanctions and transnational collaboration in law enforcement.”

Out of Date, Revision of Law No. 5 of 1990 Needed

The Director of Criminal Law Enforcement of the Ministry of Environment and Forestry Yazid Nurhuda, S.H., M.A in the projected future needs for conservation law enforcement stated that there needed to be a revision of Law No. 5 of 1990 concerning Conservation of Biological Natural Resources and their Ecosystems (KSDAHE) in order to be able to follow the evolving motives and modus operandi and development of the era. In addition, future projections that are also needed in saving KSDAHE are a collaboration with academics and practitioners in the field of digital forensics, collaborating with experts/researchers related to genetic resources, and placing Forestry Police (POLHUT) together with relevant agencies in Customs territory.

“Usually the characteristics of plant and animal crime (TSL) are that they are highly organised, high profit, low risk, involving poachers, collectors, utilising information technology. At present we really need synergy between law enforcement officers. Therefore, the government has homework on how to improve the community’s economy so that poachers can switch professions. Besides that, it also needs an increase in the capacity of Law Enforcement Officials and the need to strengthen criminal articles because so far the criminal punishment has not been enough to provide a deterrent effect,” Yazid said again.

Still in Yazid’s statement “The current problem with the enforcement of conservation law now lies in the provision of Article 39 of Law no. 5 of 1990 concerning Conservation of Biological Natural Resources and their Ecosystems (KSDAHE) does not regulate the authority to arrest, and detention, so that it often becomes an obstacle in forced efforts against organised suspects and transnational crime networks. In addition, electronic evidence cannot be used as legal evidence in every handling of crimes of biodiversity (plant and wildlife) crime.”

Another problem raised by Yazid was that he did not currently have the authority in terms of tracking the suspect’s financial transactions and crime networks. And in terms of genetic resources, it is a crime with a growing modus operandi that often occurs such as the circulation and smuggling of eggs, blood, body tissue, embryos, cement and so on. It is very difficult for investigators to accuse perpetrators with the articles contained in Law No. 5 of 1990 concerning Conservation of Biological Natural Resources and their Ecosystems (KSDAHE).

On the same occasion, AKBP Sugeng Irianto from the Criminal Investigation Agency stated that in principle regarding wildlife trade, based on Interpol research, wildlife trade was on the third rank after illegal trade, firearms, and drugs. “The development of the illegal animal traffickers is one step ahead of investigators in recent years, they are transforming, circumventing and outsmarting law enforcement. For example in 2015, 2016 and 2017 are still via text messages, phone calls. It turned out that it was closed by law enforcement, they changed the concept to be online. Why change? Their answer: we don’t need to pay for a place, we don’t need direct communication.”

“From several law enforcement agencies, the National Police have arrested 2700 cases. From the results of the characteristics we have examined regarding online trade, sales are individual, at high prices, are secretive/confidential and animals that are classified as exotic animals. For example, there are 7 Komodo dragons that are abroad, the Philippines, Malaysia and Thailand. Then green Python snakes which originally lived in Raja Ampat but now in Australia. It’s easy to send them by post which is disguised as shipping shoes.” Said Sugeng again.

Sugeng continued that there were also conventional ones which were usually carried out en masse, traded animals such as parrots, and birds of paradise. We have mapped from Sabang to Merauke related to endemic animals or native animals in certain areas, and later the results of mapping these endemic animals will be published to the public (such as Komodo dragons which are endemic animals from the Nusa Tenggara Islands). The National Police has complemented the latest technology. Finally, use direct finder. Tracking until the exact position. Then check post technology, where the accurate position is.

Optimisation of Electronic Evidence

During the discussion, also present the Supreme Court Clerk of the Criminal Court Sudharmawatiningsih S.H., M.Hum, who also agreed that Law No. 5 of 1990 was to be revised together with the provisions covering the scope, type of crime, investigation and prosecution, the length of time for completion and evidentiary trials.

“Environmental crime is increasingly developing, so we must also be able to prove it scientifically, the hope is that scientific evidence can be turned into legal evidence. Because this is very necessary to be conveyed at the trial by looking at the facts from the field. Since sometimes only skin of so many animals that are victims of crime (certain species) are found, and it has become white narcotics (for cases of pangolin skin) which is very difficult to prove and in the process often constrained by the presence of experts in this field.” Said Dharmawati.

Plus, this crime has grown as an IT-based one, both online trading and so on. But when it is needed in an investigation, this electronic evidence cannot be optimised yet. Therefore, more efforts are needed to optimise electronic evidence.

Sudharmawatiningsih also stated that a common difficulty encountered in ensnaring conservation crimes was prosecution using a single indictment. This is inseparable from the weaknesses of Law No.5 / 1990 which includes various criminal acts with different qualifications in one article, so that if there are perpetrators who commit more than one action, the perpetrators can only be charged with one article. Sudharmawatiningsih added that cases often involving motives involving organized crime were difficult to prosecute because they were not yet regulated, and despite how many cases were charged under Article 55 of the Criminal Code concerning inclusion, ultimately the network of perpetrators could not be charged under all.

Difficulties in constructing penalties are also experienced by the Public Prosecutor, “We have difficulty in constructing what is meant as negligence in Law No.5/1990, also how to construct conservation crimes as organised crime, because organised crime is more than just criminal inclusion, but the Law No.5/1990 does not provide clear definitions and provisions,” said the Member of the Natural Resources-Overseas Task Force (SDA-LN) Attorney General Heru Prasetyo, S.H. when delivering a response.

Regarding the dynamics that occur in the formulation of SDAHE conservation policy, Professor of the Faculty of Economics and Business, University of Indonesia Prof. Dr. Drs. Emil Salim, M.A. who were present at the meeting expressed the urgency to identify the interests involved. “The problem is the holding of candidates for political figures, so that missing development policies that prioritize long-term sustainability, are urged by short-term management interests that are exploitative and produced to meet the short-term needs of the hostage taker,” concluded Emil Salim. (Dona)