The Controversial Detention of MT Arman 114: Legal Implications and Analysis

 The Controversial Detention of MT Arman 114: Legal Implications and Analysis

Jakarta August, 22 June 2024

By : Rear Admiral (Ret) Adv Soleman B. Ponto, ST, SH, MH, CPR, Carb

The MT Arman 114, a vessel sailing within the Indonesian EEZ, was detained by Bakamla. After approximately four months, the ship was handed over to the investigators from the Ministry of Environment and Forestry, and subsequently to the Prosecutor's Office. The ship's captain, Mr. Machmud, is charged under Article 98 of Law No. 32/2009 concerning Environmental Protection and Management.

Overview of Article 98

(1) Any person who intentionally commits an act that results in exceeding the ambient air quality standards, water quality standards, seawater quality standards, or environmental damage criteria, shall be punished with imprisonment for a minimum of 3 (three) years and a maximum of 10 (ten) years, and a fine of at least Rp3,000,000,000.00 (three billion rupiah) and at most Rp10,000,000,000.00 (ten billion rupiah).

Article 98 stipulates severe penalties for any person who intentionally engages in activities that exceed established environmental quality standards. The penalties include imprisonment ranging from 3 to 10 years and fines between IDR 3 billion and IDR 10 billion.

Key Elements of the Article

"Every Person": The term encompasses all individuals and legal entities, including companies, organizations, and institutions. This implies that both Indonesian citizens and foreigners within Indonesia's jurisdiction can be held accountable.

Legal Capacity: The law applies to legally competent individuals, typically adults, who can understand and control their actions. Those not legally competent (e.g., minors or individuals with mental disorders) may have different legal considerations, but their guardians or legal representatives may still be held responsible.

Intentional Action: The mens rea or required intent is "intentional." This means the perpetrator must have a deliberate intention to commit the act, not merely negligence.

Consequential Action: There must be a direct causal link between the act and the resulting environmental harm. In the context of MT Arman 114, there needs to be a clear connection between Mr. Machmud's actions and the environmental damage.

Exceeding Environmental Standards: Violations pertain to established standards for ambient air quality, water quality, marine water quality, or environmental damage criteria. The prosecution must prove that Mr. Machmud's actions led to exceeding these standards.

Penalties: The law prescribes significant imprisonment terms and hefty fines to act as a deterrent against environmental violations.

Legal Analysis of the Detention

1. Focus on "Every Person":
• The law targets individuals (in this case, Mr. Machmud) and does not establish a direct link between the individual and the vessel as a culpable entity. The ship is merely the location where the alleged crime occurred, implying that the vessel should not be detained.
2. Violation of Environmental Standards:
• Article 98 emphasizes actions resulting in exceeded environmental standards. Without conclusive evidence that these standards were breached, enforcing criminal penalties under this article is challenging.
3. No Provision for Ship Detention:
• Law No. 32/2009 does not provide specific regulations for detaining ships. The article does not address the source of pollution, only whether environmental standards were exceeded. This implies that detaining MT Arman 114 as evidence is unjustified.
• Necessary evidence includes certified laboratory analysis of water samples taken by certified personnel to confirm if environmental standards were exceeded.

Conclusion

The detention of MT Arman 114 appears legally unfounded based on Law No. 32/2009. The law focuses on whether environmental standards were violated, not on the source of pollution or the vessel itself. Therefore, the detention of the ship is considered an act against the law, equated to piracy or hostage-taking. Consequently, MT Arman 114 should be promptly returned to its owner without awaiting a court decision.