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Ada Pertanyaan? Hubungi Kami Jasmine Abdurrachim, M Yasin
The Supreme Court. Photo by: RES
Despite Indonesian law stating quite clearly that the company director by law is primarily in fault as regards to corporate matters, the Supreme Court has nevertheless sentenced Wang Dong Bing, the Head of General Affairs for PT. Karawang Prima Sejahtera Steel (“PT KPSS”), to time in jail.
In his defense, Mr. Bing had cited the definition of corporate liability as laid out in Law No. 40 of 2007 on Limited Liability Companies (“PT Law”). This definition, however, was dismissed by the Supreme Court Judge who was presiding over the case. Mr. Bing was found guilty of reckless disposal of hazardous and toxic waste and environmental pollution as also confirmed by decision No. 1405K/Pid.Sus/2013 that cite him the one controlling PT KPSS.
Article 1 point 5 of the PT Law states that a company's board of directors is the authorized body in legal matters and is fully liable for management and representation of the company, both inside and outside of court. Article 98 paragraph (1) of the supports the abovementioned article by stating that, “The Board of Directors represents the company both inside and outside of court.” This article makes it quite clear that the company's board of directors should be held liable for any criminal cases that affect the company.
According to the panel of judges presiding over the hearing however, Mr. Bing, who is a Chinese citizen, is the company employee who has been responsible for controlling and regulating matters at the metal, steel and aluminum company since 2007. The company’s Board of Directors and Commissioners in contrast, are all based in China, thus leaving the day-to-day management and operation of the company in the sole charge of Mr. Bing.
Evidence incriminating the defendant revealed during the trial included signatures on a corporate agreement between the company and the Health Center Technical Implementation Unit Agency (“UPTD Puskesmas”) for free treatment for the residents of Taman Mekar village. Similarly, the prosecution also uncovered a cooperation agreement between PT Batubara Shin and CV Chasanah Jaya Abadi on B3 waste utilization, with signature of the defendant present that way made on behalf of the company’s board of directors. Other letters revealed during the trial also proved that Mr. Bing was acting in the capacity of the company’s main representative and thus responsible for its actions.
The panel of judges ruled that the company committed a criminal act in violation of Article 104 in conjunction with Article 116 paragraph (1) of Law No. 32 of 2009 on the Protection and Management of the Environment. PT KPSS has thus been found guilty of illegal waste disposal into the Kretek river in the form of combustion products from aero slag, bottom ash and fly-ash coal.
In addition, the black smoke caused by coal burning caused pollution and discomfort to the surrounding community, which is a direct result of the company’s insufficiently tall chimneys. The combustion of coal was also carried out in an open space likely to cause environmental pollution in the event of rainy weather.
Mr. Bing was sentenced to 10-months’ imprisonment and fine Rp. 500 million. After handing down the verdict, the panel of judges, led by Artidjo Alkostar, admitted that despite being in possession of only a small containment capability, the company had gone to the trouble of obtaining the necessary permit required for waste management.
Mr. Alkostar also conceded that PT KPSS had also helped the local community through a cleanup operation that involved waste transportation, and had also obtained a temporary storage permit (which was still being processed at the time of the company was under). The panel of judges was also critical of government officials assigned to oversee the company’s operations for their general lack of supervision and management.
Henry Subagyo, an environmental-law observer, stated after the conclusion of the trial that in criminal cases in which a given company as a whole is acting as the defendant, a prison sentence may not be imposed upon any employee of the company.
In such cases, Mr. Subagyo insisted, the judge should place the emphasis of his/her sentence on fines and additional penalties levied against the company. Such a sentence could take the form of cost restoring environmental damage due to the pollution, for example. In this decision, however, Mr. Subagyo affirmed that no additional punishment of this nature was imposed upon PT KPSS.
(sp/ds)
Jasmine Abdurrachim, M Yasin
The Supreme Court. Photo by: RES
Despite Indonesian law stating quite clearly that the company director by law is primarily in fault as regards to corporate matters, the Supreme Court has nevertheless sentenced Wang Dong Bing, the Head of General Affairs for PT. Karawang Prima Sejahtera Steel (“PT KPSS”), to time in jail.
In his defense, Mr. Bing had cited the definition of corporate liability as laid out in Law No. 40 of 2007 on Limited Liability Companies (“PT Law”). This definition, however, was dismissed by the Supreme Court Judge who was presiding over the case. Mr. Bing was found guilty of reckless disposal of hazardous and toxic waste and environmental pollution as also confirmed by decision No. 1405K/Pid.Sus/2013 that cite him the one controlling PT KPSS.
Article 1 point 5 of the PT Law states that a company's board of directors is the authorized body in legal matters and is fully liable for management and representation of the company, both inside and outside of court. Article 98 paragraph (1) of the supports the abovementioned article by stating that, “The Board of Directors represents the company both inside and outside of court.” This article makes it quite clear that the company's board of directors should be held liable for any criminal cases that affect the company.
According to the panel of judges presiding over the hearing however, Mr. Bing, who is a Chinese citizen, is the company employee who has been responsible for controlling and regulating matters at the metal, steel and aluminum company since 2007. The company’s Board of Directors and Commissioners in contrast, are all based in China, thus leaving the day-to-day management and operation of the company in the sole charge of Mr. Bing.
Evidence incriminating the defendant revealed during the trial included signatures on a corporate agreement between the company and the Health Center Technical Implementation Unit Agency (“UPTD Puskesmas”) for free treatment for the residents of Taman Mekar village. Similarly, the prosecution also uncovered a cooperation agreement between PT Batubara Shin and CV Chasanah Jaya Abadi on B3 waste utilization, with signature of the defendant present that way made on behalf of the company’s board of directors. Other letters revealed during the trial also proved that Mr. Bing was acting in the capacity of the company’s main representative and thus responsible for its actions.
The panel of judges ruled that the company committed a criminal act in violation of Article 104 in conjunction with Article 116 paragraph (1) of Law No. 32 of 2009 on the Protection and Management of the Environment. PT KPSS has thus been found guilty of illegal waste disposal into the Kretek river in the form of combustion products from aero slag, bottom ash and fly-ash coal.
In addition, the black smoke caused by coal burning caused pollution and discomfort to the surrounding community, which is a direct result of the company’s insufficiently tall chimneys. The combustion of coal was also carried out in an open space likely to cause environmental pollution in the event of rainy weather.
Mr. Bing was sentenced to 10-months’ imprisonment and fine Rp. 500 million. After handing down the verdict, the panel of judges, led by Artidjo Alkostar, admitted that despite being in possession of only a small containment capability, the company had gone to the trouble of obtaining the necessary permit required for waste management.
Mr. Alkostar also conceded that PT KPSS had also helped the local community through a cleanup operation that involved waste transportation, and had also obtained a temporary storage permit (which was still being processed at the time of the company was under). The panel of judges was also critical of government officials assigned to oversee the company’s operations for their general lack of supervision and management.
Henry Subagyo, an environmental-law observer, stated after the conclusion of the trial that in criminal cases in which a given company as a whole is acting as the defendant, a prison sentence may not be imposed upon any employee of the company.
In such cases, Mr. Subagyo insisted, the judge should place the emphasis of his/her sentence on fines and additional penalties levied against the company. Such a sentence could take the form of cost restoring environmental damage due to the pollution, for example. In this decision, however, Mr. Subagyo affirmed that no additional punishment of this nature was imposed upon PT KPSS.
(sp/ds)