Citizen Lawsuit in Environmental Cases

The citizen law suit is one of the effective alternatives for the environmental law enforcement. The citizen lawsuit in environmental disputes has been regulated in the PPLH Law specifically Article 91 paragraph (1) and the Chief Justice of the Indonesian Supreme Court Number 36/KMA/SK/II/2013 concerning the Implementation of Guidelines for Handling Environmental Cases. However, there are no specific rules governing citizen lawsuits in Indonesia because it’s not widely known in the Indonesian legal system. This paper argues that there are three main constraints to the practice of citizen lawsuits in environmental cases, namely: (1) the absence of legal rules that specifically regulate citizen lawsuits, especially the reading mechanism; (2) lack of understanding of law enforcement officials (especially judges) regarding citizen lawsuits; and (3) lack of environmental-certified judges in Indonesia, especially in regions.


I. INTRODUCTION
A good and healthy environment is the constitutional right of every citizen. The guarantee and protection of a healthy and good environment in Indonesia is regulated in the provisions of Article 28H paragraph (1) and Article 33 paragraph (4) of the 1945 Constitution of Indonesia (UUD 1945). Article 28H paragraph (1) of the 1945 Constitution states that "everyone has the right to live in physical and spiritual prosperity, to live and obtain a good and healthy environment and the right to receive health services." Whereas Article 33 paragraph (4) of the 1945 Constitution states that "the national economy is organized based on economic democracy with the principle of togetherness, efficiency with justice, sustainability, environmentally oriented, independence, and by maintaining a balance of progress and unity of the national economy." The two articles provide the basis for constitutional arguments for the fulfillment of a good and healthy environment for every citizen of Indonesia.
The inclusion of environmental issues in the constitution provides an acknowledgment of environmental protection and becomes a new concept: green constitution. This concept was popularized by Jimly Asshiddiqie. 1 Principally, green constitution tries to elevate the degree of environmental protection norms to the level of the constitution. Thus, the importance of the principles of environmentally sustainable development and protection of the environment has a strong basis in legislation. On that lawsuit was submitted due to negligence carried out by four (4) state agencies, namely the East Java Provincial Government, the Ministry of Environment and Forestry, the Ministry of Public Works and Public Housing, and the Brantas River Regional Office. The government's negligence in this case was a result of government failure to control the disposal of single-use diaper waste (pospak) into the Brantas river. This case is registered with case number 130/Pdt.G/2019/PN.Sby. 6 The huge number of environmental disputes that use citizen law suit is to be examined through the study of law, especially by using the perspective of the legal system in Indonesia. The practice of citizen lawsuits in Indonesia occur in both the District Court and the State Administrative Court, although it has not been formally regulated yet. This step is taken by citizens as an alternative method to demand the fulfillment of the government's responsibility for a good and healthy environment. The main problem in this study is first, what form of legal regulation is related to citizen lawsuits in environmental cases? Second, what obstacles arise in filing citizen lawsuits?
This research employs a socio-legal research approach. Socio-legal is actually an 'umbrella concept', covering all approaches to law, legal processes, and the legal system. The socio-legal approach is a combination of approaches in the social sciences, including other sciences that are combined with approaches known in law, such as learning about principles, doctrines and hierarchies of legislation. 7 The socio-legal approach is an attempt to further explore a problem by not fulfilling the study of related legal norms or doctrines, but also seeing in full context a norm and its application. A combined approach is expected to strengthen the search for truth and exploration of problems that occur. The socio-legal approach is a liberating approach. 8 The socio-legal approach was chosen to be used in this study to answer the two key questions regarding citizen lawsuits in environmental cases in Indonesia.

| Citizen Lawsuit in Environmental Cases
to the laws and regulations or violates the general principles of good governance. 10 Second, civil environmental dispute. This type of dispute usually arises because of pollution and environmental damage. The procedure used can be in the form of class action through organizational lawsuits, citizen lawsuits, and government lawsuits (but, in most cases of environmental disputes, government agencies actually become part of the defendant and/or co-defendant). Third, criminal environmental dispute. In this context, criminal sanctions are put forward, by fighting in court between the perpetrators of environmental crimes and the state as represented by the public prosecutor. 11 The dispute referred to by the author is a contentious dispute 12 in the practice of a civil suit in a public court, not a dispute in an administrative court or even criminal court. Settlement of environmental disputes as stipulated in UUPPLH Article 84 paragraph (1) can be reached through a court (in court settlement) or out of court (out court settlement). Settlement of environmental disputes through a court can be filed using a lawsuit against the extant law (PMH) (some also refer to the lawsuits against illegal acts) by requesting compensation and/or policy changes for environmental recovery, as is the concept of Article 1365 BW. 13 The lawsuit may be filed with any of the following mechanisms: conventional or regular lawsuit; class action; organizational lawsuit (legal standing organization); and the citizen lawsuit Conventional or ordinary lawsuits are basically submitted by everyone (natuurlijk persoon) or legal entities (recht persoon) who become victims directly as a result of environmental cases. This mechanism uses the general procedural law. Contrastingly, the class action mechanism is submitted by a group of victims represented by a representative group (class representative), andprocedural law is based on Supreme Court Regulation No. 1 of 2002. Legal standing organization is a claim mechanism for environmental disputes that can be submitted by organizations or NGOs incorporated as legal entities. In their Articles of Association it must be stated that one of the organization's institutional activities is related/engaged in environmental management and protection. The organization's lawsuit does not require the status of a victim in the environmental case. The last mechanism is a citizen lawsuit (citizen lawsuit / actio popularis). The difference in the four claim mechanisms can be seen from the following  Of the four mechanisms above, the citizen lawsuit is rarely used in the practice of environmental disputes.

III. CITIZEN LAWSUIT IN ENVIRONMENTAL CASES
Citizen lawsuit is a lawsuit against the state or the government with the plaintiff is a citizen who does not have a causal relationship with losses caused by the state/government. 15 The first citizen lawsuit in Indonesia was submitted in the case of handling the deportation of migrant workers from Malaysia in Nunukan North Kalimantan in 2003, Case No. 28 / Pdt.G / 2003 / PN. Jkt. Pst, which then gives recognition of citizen lawsuit in Indonesia. According to Dhabi K. Gumayra, 16 a citizen lawsuit was first filed only against environmental problems. However, in the development of citizen lawsuits, they are no longer only submitted in environmental cases, but in all fields where the state is considered negligent in fulfilling the rights of citizens (including the rights for a good and healthy environment). Basically, citizen lawsuit is the access of every citizen to the whole public interest including the interests of a healthy and good environment, by filing a lawsuit in court to demand that the government enforces the required law to or compensates the public loss that occurred.
Citizen lawsuit is also known as a public lawsuit (actio pupularis). The problem of the public lawsuit (actio pupularis) according to Nieuwenhuis in commenting on the verdict (arrest) on the famous Hoge Raad of the Netherlands which is arrest nieuwe meer (a new problem). 17 In the United States, this model of citizen lawsuit in the field of environment is defined as the rights granted by law to citizens to sue other people, countries, other parties or a combination of the three to protect the environment. Citizen lawsuits can be submitted if there is a violation of the law or a threat to the environment. 18 Citizen lawsuit was once submitted by the Wahana Lingkungan Hidup (Walhi) Foundation to PT. Indorayon at the Medan District Court. However, the lawsuit was deemed unacceptable (niet ontvankelijk). 19 Consequently, Decision 28 / Pdt.G / 2003 / PN. JKT. PST can be used as basis for citizen lawsuit in Indonesia.
In the case of current environmental disputes, citizen lawsuit is one of the mechanisms chosen by several plaintiffs. Based on the author's notes there are four cases that use citizen lawsuit within the last five years in cases of environmental disputes: (1)  of the Brantas River Regional Office. In detail, the four cases above are summarized in the table below: coordinate immediately to make an information system related to the prohibition of building on river boundary land which serves as a protection for the preservation of river functions to anticipate floods and landslides; d. Punish and order the defendants to coordinate according to the duties of their authority and responsibility to make preventive efforts towards the transfer of the function of river stripping in Surabaya by providing information by installing information boards and giving written warnings to the perpetrators of violations on the use of the river in Surabaya. e. Punish and order the defendants to coordinate and determine the priority of the demarcation of river border locations on river segments that have environmental damage due to land use that are not in accordance with government regulations and cause environmental disturbances, congestion, flooding and river pollution in the area, among others: a. kab gresik: desa cangkir and desa bambe b.kab sidoarjo: kelurahan along tawangsari and pereng c Surabaya: Kelurahan Warung Gunung, Karang Pilah, and Kebonsari f. Punish and order the defendants to immediately conduct a study with the relevant agencies, including the government of gresik, Regional Irrigation Service. East Java province and the environmental agency of East Java province to make adjustments related to the construction of shops and warehousing PT.Graha Mitra Niaga Investindo in the border of Surabaya River. g. Punish and order the defendants to coordinate to collaborate with the provincial government and the central government in protecting the Brantas river and the issuance of activities for the use of river boundaries that disrupt river protection functions and eliminate the function of river borders as water catchment. h. Punish and order defendant IV to recover the river by making a green open space / biodiversity park and planting rare plants and maintaining plants in the protection 295 | LENTERA HUKUM and management of rivers along the Surabaya riverbanks in the region: a. Wringinanom sub-district b. driyorejo sub-district. i. Punish and order the defendants to coordinate as soon as possible to carry out rehabilitation and restoration related to the river borders of Surabaya river related to illegal buildings along the Brantas watershed. j. Punish and order the defendants to always coordinate routine monitoring by involving community participation in protection and management related to utilization river border area Surabaya k. punish and order the defendants to carry out evaluations regarding all construction permits in the Surabaya border area and take action in accordance with the laws and regulations. l. punish the defendants to return the river boundary land in the proper condition for the protection and preservation of functions according to the applicable laws and regulations. m. states that the verdict in this case can be carried out first even though there are attempts to refute the appeal or cassation. n. ordered the defendants to pay the court fees. o. Urge the defendants to write a written apology regarding the negligence of management and environmental protection which was announced through 1 (one) regional television station 1 (one) radio station 1 (one) national print media and 3 (three) regional print media for two days consecutively the contents read as follows: "we the minister of public works, the governor of east java, the regent of gresik, and the brantas river region apologized profusely to all the residents of kab gresik for acts that were against the law that we did related to negligence and or negligence on the construction of shop houses and a warehouse above the Surabaya river border , respect (to respect) and meet (to fulfil) the rights of PLAINTIFF as citizens and other citizens, namely the right to a good and healthy environment, the right to work and rights for a safe, peaceful and prosperous life; 1. Declare the actions of the ACCUSED who do not provide protection for the right to a good and healthy environment and the rights to the economy, social and culture are against the law; 2. Sentencing ACCUSED I and ACCUSED II to return the Case Object in its original form; 3. Order Defendant I and/or Defendant II to issue a policy that is to maintain and conserve objects of dispute in which there is protection for a good and proper environment: 1. Publish and / or make changes to the Regional Regulation of Surabaya concerning regional spatial plans (RTRW) by entering object of dispute as a protected area; Brantas river and East Java citizens who were published in national and electronic print media respectively 5 media. In this case the format and contents are determined by plaintiff. 4. Ordered ACCUSED to carry out the installation of 2,020 CCTV in the river bridge of the Brantas watershed area to improve the SUPERVISION function of POSPAK dumpers.

| Citizen Lawsuit in Environmental Cases
5. Ordered the ACCUSED people to conduct an independent examination of all DLH in East Java Province, both the provincial DLH and the district/city DLH which involved elements of society, academics, environmental consultants and NGOs in the field of waste management and the environment. 6. Ordered the ACCUSED PARA to build a 2020 Free Post River Monument (POSPAK) in the upstream, middle and downstream areas of the Brantas watershed with images and measures in determining the involvement of the community. 7. Ordered the defendant to issue a warning against the people of East Java, especially the people who lived in the Brantas watershed area which contained one of their statements, namely BRANTAS, NOT A PLACE TO WASTE POPTS. 8. Ordered the defendant to take legal action in the form of an administrative sanction for the community based on the CCTV installed and the POSPAK manufacturer who did not withdraw the product when POSPAK was cleared on the river. 9. Ordered the defendant to establish an SOP policy related to POSPAK waste handling in East Java. 10. Ordered the defendant to clean up POSPAK garbage scattered in the environmental media, especially the Brantas watershed in East Java. 11. Ordered the defendant to carry out a campaign and education on the use of clodi to PKK organizations in East Java especially the people inhabiting the Brantas river area. 12. Ordered the defendant to hold POSPAK Evacuation Monthly Work. 13. Order the District/City DLH to coordinate with POSPAK producers and POSPAK user communities in the procedure for returning POSPAK which is the responsibility between the producers and the community.
14. Ordered defendant to install POSPAK related information systems on each river bridge in East Java. 15. Punish the defendant to pay all costs arising from this case. 16. Declare this decision can be carried out first before any attempt to appeal, verzet, cassation or reconsideration.
From the four cases above, valuable information can be obtained. The four lawsuits were filed without an adequate legal basis regarding citizen lawsuit. This was possible because there are no regulations that specifically apply to citizen lawsuits, therefore in the environmental cases there are no arrangements related to the citizen lawsuits. The plaintiffs deliberately utilize the legal principle of ius curia novit (the judge must not reject the case) as the door to file this lawsuit. Despite the absence of legal basis, the cases above are proof that a citizen's lawsuit has become the preferred alternative for people or groups who notably are a citizen (citizen) to dispute the environmental cases due to state negligence. This is an opportunity that has been built for national legal reform. In the Indonesian legal system, a citizen lawsuit is not formally known; therefore, in the Indonesian judicial system there is no right to citizen lawsuit.
One interesting thing to study through a socio-legal lens is filing processes in environmental cases. Filing a lawsuit in some environmental cases is accomplished by educated society on behalf of citizens at large with support from multiple parties. Often, this lawsuit is driven by environmental activists, academics and NGOs. Starting with case discussions involving many parties, academic studies, case degrees, and the process of annotations from public lawyers, new submissions and registrations were conducted at the Court. For now, the filing of a citizen lawsuit (actio popularization) in Indonesia is included in the field of environmental disputes, and four of the cases above, are based or guided by the decision of the Central Jakarta District Court No. 28 / Pdt.G / 2003 / PN. Jkt. Pst, because there are no legal rules that regulate the procedure of proceedings by using a citizen lawsuit in Indonesia. This has become an obstacle in the enforcement of environmental law, especially civil disputes.
However, currently the citizen lawsuit for environmental cases receives legality and recognition, as well as guarantees from the Supreme Court of the Republic of Indonesia. This can be found in the Decree of the Chief of the Supreme Court of the Republic of Indonesia No. 36 / KMA / SK / II / 2013 concerning the Application of Guidelines for Handling Environmental Cases. This basis can be the guarantee for citizens to sue the government/state for their negligence in obtaining citizens' rights for a healthy and good environment.
In terms of legislation, citizen lawsuits in environmental cases should be regulatory (regeling) rather than deciding or provisional. Then it should be the Republic of Indonesia Supreme Court Regulation (Perma). However, Decree of the Chief Justice of the Supreme Court No. 36 / KMA / SK / II / 2013 has contributed to filling the legal vacuum created by regulations over citizen lawsuits or the lack thereof. In that Decree, the Chief of the Supreme Court recognized citizen lawsuits as one of the legal mechanisms to handle environmental problems. There is no longer sufficient reason for the judge to make a decision by saying that the lawsuit is unacceptable due to the absence of guideline as in the case of Walhi's lawsuit against PT. Indorayon. Citizen lawsuits ( Citizen lawsuit (actio popularis) in cases of environmental disputes filed in general court with the basic state negligence concerning environmental problems, omissions can be categorized as acts against the law so that the type of lawsuit filed is lawsuit for violating the law (PMH). In a citizen lawsuit (actio popularis), the government acts as the defendant and citizens act as the plaintiff. Citizens here are proven by the existence of an Identity Card (KTP) that contains the Population Registration Number, Passport, and / or proof of paying tax (taxpayer). The procedure for filing a citizen claim is as a civil procedure law that generally distinguishes the standing of the plaintiff and the notification from the plaintiff to the defendant.  In filing a citizen lawsuit, there is specificity in petitum, which also applies to an environmental dispute. Petition for the decision of a citizen law suit must: 24 (1) not ask for material compensation, because citizens who sue are not groups that are materially disadvantaged and have the same loss and similarity in legal facts as the class action; (2) contain a request that the state issue a general regulation policy so that illegal acts in the form of negligence in fulfilling the rights of citizens in the future will not occur or repeat itself; (3) not be a cancellation of the decision of state officials (administrative decision) which is concrete, individual and final because it is under the authority of the State Administrative Court (PTUN); (4) not be a cancellation of an enactment law (UU) because it is the authority of the Constitutional Court (MK). In addition, citizen law suits may not ask for cancellation of laws and regulations under the law because this is the authority of the Supreme Court (MA) based on Judicial Review.
By observing several cases or cases of environmental disputes using the mechanism of citizen law suits above using socio legal approach, it is interesting to find that the lawsuits do not have a solid basis. This is due to the absence of legal institutions in the form of regulations that regulate the submission of citizen lawsuits, especially environmental disputes.
Based on the facts of the Plaintiffs, there are still many reports that the plaintiff's lawsuit is not in accordance with the Chief Justice of the Indonesian Supreme Court No. 36 / KMA / SK / II / 2013 concerning the Implementation of Guidelines for Handling Environmental Cases for several reasons. For example, there are still requests for material compensation and do not ask for new policies, and those that are petitioned for are technical. Accordingly, many citizen lawsuits were rejected by judges and usually based on: 1. Article 28H paragraph (1) of the 1945 Constitution concerning the basic rights of every Indonesian citizen to obtain a good and healthy environment. Covenant. 4. Article 65 paragraph (1) of the PPLH Law which reads "everyone has the right to a good and healthy environment as part of human rights."