POLRI ROLE REFORM IN THE SOLUTION OF ENVIRONMENTAL SETTLEMENTS IN GLOBALIZATIONAL ERA BASED ON PROGRESSIVE LAW. Poniman

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1 POLRI ROLE REFORM IN THE SOLUTION OF ENVIRONMENTAL SETTLEMENTS IN GLOBALIZATIONAL ERA BASED ON PROGRESSIVE LAW Poniman Faculty of Law Diponegoro University Abstract Research on the reform of the role of POLRI in the settlement of environmental disputes in the era of globalization is important because of the background of the facts of the community (in the research area), that the community insists on asking the POLRI to settle the dispute (civil) of the environment in a mediation outside the court from the disputing parties With miners of companies / PT) that result in pollution and large-scale environmental damage. Law enforcement POLRI reality has been built with modern law in the era of globalization with the enforcement of criminal law (penal) in solving all cases including environmental (civil) disputes, in searching for justice (searching for justice). Apparently it can not always be done, because it is hampered by local evidence and local wisdom. Issues raised are 1) Why do communities entrust POLRI as a mediator of environmental disputes outside the court?, 2). Is there any legal basis for POLRI as a mediator of environmental disputes outside the court? And 3) What is the ideal role of POLRI in resolving environmental disputes out of court?. To answer that problem, the Progressive Law Theory of Satjipto Rahardjo, punished with the aim of achieving substantial justice by not leaving the community. Research with Post-Positivism paradigm from observation and experience. Reviewed socio-legally, not reviewing legislation only, but also behavior (behavior), with inductive approach, studied qualitatively, prioritizing the depth of data from the results. The conclusion is; (1). Society believes, because the culture has grown the belief that POLRI can solve all problems in the community, (2) the legal basis is: Environmental Law (UU.NRI No.32 Year 2009), Police Act (3) This study provides an Academic Recommendation that it is necessary to conduct a reform study of the role of POLRI that is not just law enforcement, But also encourage the achievement of substantial justice, not just formal justice. Keywords: Reform of Role of POLRI, Environment, Outside Court, Globalization Era, Progressive Law 1. Introduction a. Background Research on the reform of the role of POLRI in the settlement of civil disputes in the era of globalization is important because there is something 222

2 unique / interesting, that the community (in the study area) wishes / even insists on demanding POLRI to resolve the civil disputes by way of " Mediation "outside the court (such a thing is unusual for POLRI, because the POLRI as an environmental crime investigator), because of the demands of the public. POLRI still serves as its function as a custodian of the kamtibmas. The public requested that POLRI resolve the dispute (civil) by means of mediation outside the court, because the POLRI mindset is always patterned by using penal law in every law enforcement, in fact it can not be done on civil disputes, because the case is civil and constrained On proof, there is a deadlock law, the desire of community justice is not achieved. Law enforcement of criminal acts of environmental damage is declared constrained on the evidence, because the investigator can not show material evidence of the damage to the crime of environmental damage that occurred, is also constrained on the local wisdom of the citizens who are deliberate in the punishment that does not eliminate the relationship in every case settlement Environmental (civil) disputes. With such enforcement (necessarily by criminal law) it is not always possible in every case. Because the investigation of civil disputes can not be criminalized, thus the public's expectation of achieving justice is not achieved, let alone long-standing, rigid, symptomatic investigations, tedious bureaucracies, people's impacts away from litigation, consequently people seek their own law / play (Eigenreching), situations (research area) becomes uncertain (chaos), unorder (unorder), harmony amongst disturbed citizens, decreased cohesion, horizontal disputes between miners and miners (PT) and vertically between Community, PT and local government (PEMDA). 1 1 The facts of the society that occurred (in the study area) illustrate that the reality of the society does not understand the main task of the police (as a criminal law enforcement) written in the provisions of criminal procedural law (KUHAP) that POLRI as investigator and investigator of crime as Article 5 and Article 6 KUHAP, If there is a crime, whether it be criminal, civil or social problems reported by the police directly to overcome the incident, such phenomena are sometimes not understood by law enforcers, so the community much disappointed, because it is not responded and for the troubled (victims) are disappointed because it is not To obtain justice, that way society 223

3 The phenomenon occurred in Tegal regency. The position of the case, a dispute over the mining of rocks, sand in the River Kaligung District Lebaksiu Tegal regency (July 2013) between citizens with companies (PT) miners. The presence of PT miners using heavy equipment, environmentally disturbing and unethical, unpopular to the community for not obeying the customs of local people and local wisdom that used to preserve the environment and the settlement of cases by customary law. The presence of PT precisely misbehaved the community, because the community lost livelihood besides that PT violated the provisions of the Regional Regulation (PERDA) for without permission (illegal). The phenomenon of longstanding dispute, the enforcement of POLRI law repressively with the enforcement of criminal law, never finished because of the old process and convoluted in the bureaucracy, the people seeking their own law, represented by the Free NGO (LSM Merdeka) Jakarta joined the NGO Tegal District demanded in writing Addressed to the President of Jakarta, copies of the Chief of Police of the Republic of Indonesia (Kapolri), demanded that the dispute (civil) be resolved quickly and fairly through mediation outside the court and punish the Chief of Resort Police for committing the crime of environmental damage. Letters from NGOs in the Police Chief's response to mediated mediation of civil disputes and the outcome is an agreement and beneficial to the community, the community responds well to the Criminal Police (POLRI) action, so the public believes POLRI is able to act quickly and Fair, as people expect. This study examines the reforms that are interpreted as "change" to become better (especially the enforcement of POLRI law on environmental dispute (civil) outside court). 2 The role of POLRI is interpreted as the role of POLRI as stipulated in the provisions of the Police Act. Environmental gets away from litigation and seek its own law (eigenrechting), in order to reach their desire to reach justice 2 Editorial Team Dictionary Bahasa Indonesia Department of National Language Education / Balai Pustaka 3rd Edition, 2003 pp

4 Law (UU Law No.32 of 2009) Chapter I General Provisions Article 1 point 25, disputes are defined as disputes from two parties / groups or more of potential and / or impacting activities on the environment. The definition of environmental disputes in the Criminal Code / Penal Code (UU NRI No.1 Year 1946) is classified in book three, chapter "violation", because there is no crime yet, there is still potential to impact on the environment Or a police hazard situation, is still a priori / possible influence on the sustainability of the environment, such a situation with light criminal sanctions and minor disadvantages, as in the provision of Alternative Despute Resolution (ADR) resolution, but in seriously punished criminal cases Can be resolved by ADR if there is an agreement / request from both parties in dispute. The reality of the development of the dispute referred gradually to environmental crime (crime), pollution and environmental damage, and the victim (victim of human and the environment) itself. Physical facts have occurred disputes / disputes, between citizens with the PT. The juridical facts of the people do not get justice, the public demands that law enforcers (POLRI) be able to use the law as an instrument in order not to leave the customs of society in punishment, achieved the environment situation remains as sustainable as before and the society gets justice. The socio-cultural facts related to the inter-community relations of the villagers are not harmonious, cohesion declines, economic facts are inequality, many unemployed because people lose their livelihoods. The Company (PT) no longer buys the mining products of the community, because the Company is directly mining. As described above that the law of globalization which rely on modern law on formal legality simply does not work, people do not get justice because the normative way merely pursues legal certainty. This study is studied with Progressive Law Theory, a Progressive way of punishment that is grounded in human progressiveness, that man is in fact good, empathetic 225

5 and affectionate. 3 From the background, the researcher took the title "Reform of Role of POLRI in Environmental Dispute Settlement in Progressive Law-Based Globalization Era (Case Study of Civil Dispute Settlement in Tegal District) b. Questions Researcher Based on the above mentioned background, the main issues raised and studied in this dissertation research are; 1). Why does the public entrust POLRI to act as a mediator in the settlement of environmental disputes outside the court?; 2). Is there any legal basis for POLRI as a meditor on environmental disputes outside the court?; 3). What is the ideal role of POLRI in resolving environmental disputes out of court?. c. Research methods This study, using the Post Positivism paradigm, is so called because its assessment is based on the reality of Fact / Experience and observation, falsifying the Positivism view which states that the reality of the research object is reduced and broken into subtests / objects of research and observed Together, the results must be the same and generalizable, the Post- Positivism paradigm wants to prove whether the certainty built in the Positivism paradigm is true, does not mean the paradigm of Positivism is not true, but the Post-Positivism paradigm wants to study in another paradigm to complement the legal research discourse. 4 Research within a given paradigm should be based on ontological, epistemological, methodological consistency. Ontologically in this study, the rules / laws are conceptualized as a reality that is not understood merely a rule that has fulfilled aspects in the philosophical teachings of Positivism but will be studied its effectiveness and effectiveness to solve cases of environmental (civil) dispute, epistemology See how the researcher's 3 Satjipto Rahardjo 1980, Benefit of Social Studies of the Law, Speech inauguration of Professor in the subject of Sociology of Law at UNDIP Law Faculty Semarang 1980, pp Adji Samekto.2012, Law Science In The Development Of Thought Towards Post- Modernism, Indepth Publishing.Bandar Lampung, pp

6 relationship with the research object and the methodology looks at how the research should be done. This research is done by inductive approach in qualitative research that is research that does not rely on the amount of data, but rely on data depth. To obtain data (empirical data) in depth conducted field research, with interviews and resource persons who are considered competent in their field. This research is legal research with socio-legal study area, socio-legal approach conceptualize law not only rules or norms but also behavior. Conception of law as the norm consequences that law contains abstract values that can not be concretized, but has become the main doctrine in law. The values that lie behind the written norm are not in question. Therefore socio-legal studies on the one hand require an understanding of the doctrines, legal teachings as well as the prevailing positive laws and the values behind the doctrine or the rule of law. On the other hand, socio-legal studies require an understanding of the empirical theories of law, the theory of legal psychology, the theory of legal responsiveness, the workings of law in society, the theory of the legal system, and others related to this research Results and Discussion POLRI as caretaker of Kamtibmas, law enforcers, patrons, guards and public servants are required to improve the performance of serving the interests of the community, enforcing the law quickly and fairly. In this regard, POLRI has made reforms in the field of instruments, structures and cultures, so POLRI in reforming instruments in the field of facilities and infrastructures, both infrastructures and logical infrastructure (Police and other regulations that regulate the field Mediation and supporting regulations), leading to the success of reform in realizing the wishes of the community both in the field of law enforcement, and in other fields. In the field of POLRI structural reforms by reducing the organizational structure and developing with many functions, remove the regional police structure (Polwil) and expand the police functions. The function of criminal 5 Ibid, page

7 detective unit (reskrim) is reformed into general reskrim function, special reskrim and drug reskrim with different director of reskrim. In the field of culture as the POLRI's determination to reform the actions of the police does not always rely on repressive actions (rubbing, seizing, arresting, detaining and others) who act as militaristic rulers but reformed into proactive "CivPol". 6 The case of civil disputes (civil) is very important to be studied and studied because the environment is a place where human beings and other living creatures are domiciled, so people / people are entitled to a good and healthy environment, this is a Human Rights as mandated Article 28H of the Constitution of the Republic of Indonesia. The national economic development as mandated by the 1945 Constitution of the Republic of Indonesia, organized on the principle of sustainable development and environmental insight and declining environmental quality has threatened the survival of human life and other living creatures as well as increasing global warming leading to climate change, which exacerbates the deterioration of environmental quality Life, so it needs to do the protection and management of the environment a genuine and consistent by all stakeholders. The enforcement of environmental law in Indonesia is necessary because the result of illegal mining indefinitely is calculated by PT. In Kabuaten Tegal, 43 disputes and environmental crimes have not been handled properly (the community has not yet received justice), at the level of Central Java Province Central Java Regional Legal Territory within 3 years (2013- July 2016) only investigate 12 cases, 4 cases Ready for trial and 8 cases terminated for "insufficient evidence". From these data, there needs to be an alternative settlement outside the court in order to avoid legal fraud in the settlement of environmental cases. 6 Police Law (UU.NRI No.2 Year 2002) Article 13 in its explanation there is a reform of police law enforcement action that adapts to the situation and condition of the society. 7 Article 28H of the Constitution of the Republic of Indonesia Year 1945 paragraph (1) Everyone shall have the right to live in physical and spiritual prosperity, to live and to obtain a healthy and healthy environment and be entitled to receive health services 228

8 Environmental Law (UU NRI No. 32 of 2009) Article 84 provides that "environmental disputes may be settled in court and out of court" and Article 85 paragraph (1) is written as follows: "An environmental dispute settlement out of court is conducted to reach agreement on; a. The shape and magnitude of the indemnity; b. Recovery as a result of pollution and / or destruction c. Certain actions to ensure no repeated contamination and / or destruction and / or d. Measures to prevent negative impacts on the environment Paragraph (2) The settlement of disputes outside the court shall not apply to environmental crimes as provided in this law. Paragraph (3) In the settlement of environmental disputes outside the court may be used the services of mediators and / or arbitrators to help resolve environmental disputes ". Article 86 of the Environmental Law, a provision which gives people freedom in establishing dispute mediator service providers, while the Government / local government (PEMDA) can facilitate the establishment of a mediator service provider institution. Article 87 of the perpetrator's responsibility, that any person in charge of business andlor activities that is doing legal deeds in the form of pollution and / or environmental activities that cause harm to others or the environment shall pay compensation and / or make environmental improvement. The provisions on the transfer of hands, the alteration of the nature and form of business andlor activities of a business entity which is unlawful shall not relieve the legal liability and / or obligations of that entity. Enforcement of environmental law can be done by criminal, civil and state administrative sanctions. Administrative sanctions on environmental laws are exemplified in Article 100 in particular violations of the quality standard of waste water, emission quality standards or impaired criminal convictions, with 3 years imprisonment and 3 billion rupiah fine, such 229

9 offenses may be imposed if the administrative sanction has not been complied with or Violation done more than once. The mediation of civil disputes within civil society by POLRI is based on an alternative way of settlement outside the court as provided in the Chief of Police Chief on ADR. Although the ADR case is limited by light criminal sanctions and minor disadvantages and disputes incurred with substantial losses, ADR remains to be used as long as the two sides agree to achieve justice, as Frederick Von Savigny states that the law is reflected from the legal consciousness of society (volkgeist). 8 From the basic facts of such a society, POLRI can act as a mediator of disputes prioritizing deliberations before the court proceedings. The role of POLRI is determined in the Police Act provisions Article 5 paragraph (1) states that; "The State Police of the Republic of Indonesia is a state instrument that plays a role in maintaining security and public order, enforcing the law, and providing protection, protection and service to the community in the framework of maintaining internal security". And the explanation of Article 13 states "The main task formulation is not a priority sequence, all three are equally important, while in the implementation the main task which will be put forward highly depends on the situation of the society and the environment encountered because basically the three main tasks are implemented simultaneously and can be combined. In addition, in the implementation of this task should be based on legal norms, heed the norms of religion, politeness and decency, and uphold human rights ". Klausulla's article above the police reform is done by changing the mindset and culture set of POLRI become POLRI which proactively prioritize prevention from repressive oppressive, for the achievement of 8 Esmi Warassih, 2005, Legal Practice A Sociological Review, PT Suryandaru Utama, Semarang, p20 230

10 justice of society as POLRI ideals as "civil police". In order to realize these ideals the Chief of Police with his Decree using community policing strategy (polmas). 9 Community policing is done by empowering the power of the community as the core strength of the community with the legal awareness of the community who views the problem of kamtibmas not only the police but the problems of all citizens. The community is no longer the target / object of forming kamtibmas but as the joint subject of POLRI partner (partner) in carrying out the function of the police, realizing the situation kamtibmas conducive and serve and realize the interests of society. Polmas strategy is done by using the potential of the community's power in preventing, overcoming the disruption kamtibams / crimes that occur and view the village as the spearhead incident disorder kamtibmas / crime as perioritas enforcement of humanist law (from proactive hearts of care) and complete early that is not accessible The occurrence of widespread crime (contingency). The role of the core power of the law-aware society (darkum) is made possible in the form of POLRI-Masyarakat Forum (FKPM) in the form of Community Police Partnership Center (BKPM) which functions as legal services and kamtibmas from crime / other kamtibmas incidents in village / District level. With the success of community policing strategy increasingly believe that POLRI able to improve the performance of professional, independent, advanced and moral in the era of globalization in the face of civil society. 10 Potential event of POLRI to do polmas strategy is a creative breakthrough of POLRI toward "civil police" ready for use by the community. To strengthen the polmas statements used Progressive Law 9 Skip Kapolri No.Pol: 737 / X / 2005 dated 13 Oktobr 2005 on Policies and Strategies for Implementation of Community Policing Model (Polmas) in the implementation of POLRI duties. 10 ibid 231

11 Theory of Satjipto Rahardjo, 11 states philosophically that human beings are good, affectionate and empathetic towards each other, good punishment is punishment that does not leave the society (customs, local wisdom, living law), The law is not the final legal proceeding and the law aims to reach the nine societies. Furthermore, Satjipto Rahardjo taught the Pattern of punishment, by way of Progressive punishment states that modern law influenced positivism law, which is the form of positive law (European origin), illustrates that when the law has lost its natural law, the law is difficult to enforce and do not get justice, Law enforcement is no longer aimed at realizing substantive justice, but to justice procedures in the application of the article, by enforcing the law in accordance with the procedure it is considered to have achieved justice. The strategy of "Polmas" as the political strategy of POLRI with the consideration of the number of POLRI compared to the community is not equal 1: 2000, ideally 1: 300 (Kapolda: 2016 and Center for Police Studies UNDIP Semarang), in addition to the accumulation of cases at the level of investigation POLRI and Supreme Court (MA). Whereas the achievement of the ideal number of POLRI-the community is not necessarily the realization of the POLRI's duties desired by the community, hence the "POLRI" policing strategy in partnership with the community in the hope of being able to realize the POLRI duties maximally (society as the measurement of the success of POLRI's duty). 12 Samuel Walker 13 enlarged broadly from "The Police In America An Introduction" the need for basic principles of Community Policing (Polmas) in order to achieve the professional, independent, advanced and modern Policemen who are loved by the community by taking the following steps; 11 Satjipto Rahardjo, Holistic Approach to Law, Progressive Law Journal.Volume: 1 / Number 2 / October 2005, UNDIP Semarang 2005 pd 6 12 Speech of the Central Java Police Chief on the Birthday (HUT) Bhayangkara Year 2016 on Page Mapolda Central Java. 13 Samuel Walker 1992, The Police In America An Introduction, Mc Graw-Hill,Inc New York,part

12 The basic principle of community policing call for the following steps on the part of the police: 1. Deemphasize responding to calls for service 2. Deemphasize crime - fighting 3. Concentrate on neighborhood-level disorder 4. Develop closer ties with citizen as co-producer of police services 5. Develop closer ties with other gov- ernment agencies which have responscibilities for community problems 6. Redefine the police role in terms of problem solving and community organizing In the view of Walker, the United States Police (USA) acknowledges that the task of the Police is not separated from the community, by carrying out Police duties that always respond to reports and serve the community, Police fight crime and always concentrate on evil development, always develop relationships between citizens, related government agencies With responsibility to the community. In the State of Indonesia community organizing referred to is strategy community policing in problem solving. The role of POLRI as a mediator of environmental disputes outside the court mentioned above may be justified on the basis of the following three basic legal values: 1. Based on Philosophical Reason: The handling of environmental disputes outside the court by playing the POLRI as a mediator, still aims to bring about justice, contextually related to its case. 2. Pursuant to Juridical reasons: The settlement of environmental disputes outside the court is possible, under the provisions of Article 84, Article 85. Article 86, Article 87 of the Environmental Law (UU NRI No. 32 Year 2009) 3. Based on the Sociological Reason: The fact that there is an involvement of POLRI to act as a mediator if it can be justified ethically and jurisically will be able to develop patterns related to the role of POLRI in the future, along with the complexity of 233

13 environmental issues Due to mining activities of the company (PT) that affect the environment, there is pollution and environmental damage. To answer the problem to the three researchers using the Laurence M Friedman Law Systems Theory, which divides into three components of Substance, structure and culture. Substances related to environmental legislation (NRI Act No.32 of 2009) Article 84, Article 85, Article 86 and Article 87 synergized with Kapolri Skeptic (community policing strategy) by developing FKPM function as the core strength of the police at BKPM as The embodiment of POLRI partnering with the community in implementing and realizing the function of the police in realizing a steady and conducive kamtibmas. Structure or institution by developing FKPM function in polmas as POLRI strategy in developing future tasks to achieve POLRI's duty not only as keeper of kamtibmas, law enforcement, protection, protection and public service but also POLRI and society function in serving social problems, As the demands of civil society in the era of globalization in the face of modern society. Culturally, there is a change of mindset set and culture set of POLRI in law enforcement / reform of legal culture, from the behavior of ruling militaristic apparatus relying repressive action to "proactive civil police" by promoting the synergy of polmas, POLRI together with society in carrying out police function, - the same in preventing and overcoming the disorder kamtibmas / crime so as to create a safe situation, orderly and conducive, thus achieved ideally POLRI in carrying out the task of law enforcement services Conclusion a. The community believes that POLRI can act as a mediator because culturally it has grown the belief that POLRI can be relied upon to deal 14 SKEP KAPOLRI No.Pol: B / 346 / VI / 2011, dated June 21, 2011, on the Road Map of RBP wave II (Partners Ship Building) in 2011 up to tahun

14 with all issues (including environmental issues and disputes) in the community, even if the case / dispute is within the civil law domain; b. The legal basis that could be the basis of the National Police to act as a mediator is: the State Police Law (UU NRI No.2 Year 2002) with community policing strategy, Police Chief Decree on Alternatieve Despute Resolution (ADR) resolution; Environmental Law (NU Law No.32Tahun 2009) c. Ideally substantially, structurally and culturally. The substance of the synergy of the Environmental Law with the Kapolri Skeptic (community policing strategy) by developing the function of FKPM as the core strength of the police in BKPM as the embodiment of POLRI in partnership with the community in implementing and realizing the police function in realizing a steady and conducive kamtibmas. Structure or institution by developing FKPM function in polmas as POLRI strategy in developing the task in the future. Culturally, there is a change of mindset set and culture set of POLRI in law enforcement / legal culture reform, from the behavior of military authorities that rely on repressive action to be a proactive "civil police" by promoting community policing synergy. Reference Rahardjo, Satjipto, Holistic Approach to Law, Progressive Law Journal. Volume: 1 / Number 2 / October 2005, UNDIP Semarang , Benefits of Social Studies Against the Law, Speech inauguration of Professors in the subject of Sociology of Law at the Faculty of Law UNDIP Semarang Samekto, Adji, Law Science In The Development Of Thought Toward Post- Modernism, Indepth Publishing.Bandar Lampung. Walker, Samuel, 1992, The Police In America An Introduction, Mc Graw-Hill, Inc. New York. 235

15 Warassih, Esmi, 2005, Pranata Hukum A Sociological Study, PT Suryandaru Utama, Semarang. Editorial Team Dictionary Indonesian Language Department of National Language Education / Balai Pustaka 3rd Edition, Skip Kapolri 1. Skol Kapolri No.Pol: 737 / X / 2005 dated 13 Oktobr 2005 on Policies and Strategies for Implementation of Community Policing Model (Polmas) in the implementation of POLRI duties. 2. Skol Kapolri No.Pol: B / 346 / VI / 2011, dated June 21, 2011, on the Road Map of RBP wave II (Partner Ship Building) in 2011 up to tahun Constitution 1. Police Act (UU.NRI No.2 Year 2002) Article 13 in its explanation there is a reform of police law enforcement action that adapts to the situation and condition of the society. 2. Article 28H of the Constitution of the Republic of Indonesia Year 1945 paragraph (1) Everyone shall have the right to live in physical and spiritual prosperity, to live and to obtain a healthy and healthy environment and be entitled to receive health services Welcome Speech of Central Java Police Chief at the Anniversary Ceremony (HUT) Bhayangkara July 1, 2016 on Page Mapolda Central Java. 236