Judges’ Considerations in Deciding Mangrove Timber Smuggling Cases

Mangrove forests in Indonesia constitute 23% of the world’s mangrove ecosystem. This has an impact on the high rate of mangrove production in Indonesia which triggers export smuggling. In fact, the prohibition on export smuggling has been regulated in Article 102A letter e of the Customs Law. Accordingly, this study aims to analyze the judges’ considerations in deciding mangrove export smuggling cases. This doctrinal legal research applied a case approach and used secondary data obtained from library materials through literature study. The collected data were then analyzed deductively. Analysis of the verdict on mangrove export smuggling cases found that the judges’ considerations had paid attention to the preservation of natural resources, but were not yet oriented towards the preservation of mangrove ecosystem, and the penalties applied were still minimum.


Introduction
Indonesia has a mangrove area of 3,489,140.68 ha. This amount is equivalent to 23% of the world's mangrove ecosystem, from a total area of 16,530,000 ha. 1 Mangroves are used as raw material for charcoal and for other purposes. 2 In addition to the economic benefits, mangroves also provide ecological and social benefits, namely as alternative tourist attractions (ecotourism) 3 , prevent erosion/abrasion 4 , as a habitat for sea creatures (shrimp and fish) 5 , as raw materials for drugs (pharmaceutical preparations) 6 , as well as absorb and store carbon substances. 7 Besides, several products from non-timber forest products originating from mangroves can be used for alternative foods, drinks, soaps, and cosmetics. 8 Due to the high demand and the expensive prices, there is a lot of mangrove illegal logging, trading, and even smuggling, especially in areas adjacent to Singapore and Malaysia. 9 In fact, acts of export smuggling have been prohibited in Article 102A of the Law of the Republic of Indonesia No. 17 of 2006 on Amendments to the Law of the Republic of Indonesia of 1995 on Customs, stating that "A person who: a. export goods without submitting customs manifest; b. intentionally notifies wrong type and/or volume of export goods in customs manifest as meant in Article 11A Paragraph (1) that results in un-fulfillment of state levies on export; c. loads export goods outside a customs area without permission of head of customs office as meant in Article 11A Paragraph (3); d. unloads export goods in customs area without permission of head of customs office; or e. transports export goods without being protected by valid documents in accordance with customs manifest as meant in Article 9A Paragraph (1), is penalized due to smuggling charges by imprisonment of at least 1 (one) year and maximum 10 (ten) years and monetary charge of at least IDR 50,000,000.00 (fifty million rupiah) and maximum of IDR 5,000,000,000.00 (five billion rupiah)".
Due to the relatively high economic value, mangrove export smuggling continues to increase. On Thursday (04/02/2021), Riau Regional Office of Directorate General of Customs and Excise thwarted the smuggling of 5,700 mangrove timbers from Meranti Islands Regency, Riau Province to Malaysia. 10 On Friday (25/7/2021), Sub Directorate IV of Special Criminal Investigation Directorate of Riau Islands Police thwarted a smuggling attempt of 18,991 mangrove timbers to Singapore which were transported using 3 large motor boats. It was estimated that the total loss to the State is IDR 234 million. On Monday (18/10/2021), Marine Patrol Task Force of Directorate General of Customs and Excise of Riau Islands thwarted a smuggling attempt of 21,186 mangrove timbers to Malaysia. In 2021, the rate of mangrove timber smuggling has increased by 280%. 11 The increasing number of mangrove smuggling requires efforts involving all relevant agencies (forestry, police, customs, navy, etc.) 12 . However, the application of criminal penalties and judges' considerations in smuggling cases greatly influence the enforcement of customs law, especially mangrove export smuggling. Hence, an analysis of judges' considerations in deciding mangrove export smuggling cases is needed. The rise of mangrove timber export smuggling has an impact on the country's economy and the availability of domestic mangrove timber commodities. Hence, knowing the factors triggering the rampant cases of mangrove timber export smuggling is crucial. One of the factors triggering mangrove timber export smuggling is the minimum criminal penalties applied so as to provide a low deterrent effect. Besides, the judge's considerations are not yet oriented towards the preservation of mangrove ecosystems in Indonesia.

Research Methods
This doctrinal legal research applied a case approach and used secondary data obtained from library materials through literature study. The collected data were then analyzed deductively.

Results and Discussion
According to Baharuddin Lopa, smuggling is an act of importing, exporting, or transporting goods by not complying with applicable laws and regulations, or not fulfilling customs formalities stipulated by laws and regulations. Douaneformaliteiten are customs requirements to be completed in terms of importing or exporting goods, including interinsular trade. 13 The General Indonesian Dictionary states that smuggling comes from the word "smuggle". The word "smuggle" is defined as sneaking, shoving, entering surreptitiously or illegally. Meanwhile, smuggling is defined as importing goods illegally to avoid import duty or for prohibited goods. 14 Moreover, in Black's Law Dictionary it is stated, "smuggling is the crime of importing or exporting illegal articles or articles on which duties have not been paid." 15 From an economic point of view, the criminal act of mangrove export smuggling is detrimental to state finances. Meanwhile, from a commodity perspective, it will affect domestic production and availability. Hence, efforts to overcome smuggling cases are crucially needed. However, in fact, eradicating timber smuggling completely in Indonesia is difficult due to several factors, including; 1) timber export permits are regulated by government agencies, such as ETPIK (Registered Exporter of Forestry Industry Products) and BRIK (Forestry Industry Revitalization Agency) which are APKINDO heirs; 2) complicated export bureaucracy; 3) export procedures require high transaction costs; 4) small and medium scale operators do not want to do this; 5) weak cooperation between agencies (forestry, police, customs, navy, etc.) to monitor and enforce the law; 6) limited bilateral cooperation; and 7) limited capacity to monitor the border area. 16 Other factors contributing to the increasing mangrove exports smuggling cases are persons involved in illegal logging, the administrative disincentives, and the application of less stringent trade regulations in border areas. 17 Besides, the application of punishment and the judges' considerations in case decisions can also contribute to the increasing mangrove exports smuggling cases. It is important as the judge's decision is the climax of law enforcement process against a criminal case. The judges' considerations contained in a decision must be based on sufficient evidence and the judge's belief in the legal event. In addition to evidence and belief, judges are also required to consider social values to take fair decisions.
The judges' consideration or ratio decidendi are the arguments or reasons used by judges to be taken into consideration in making a decision on a case. According to Rusli Muhammad, 18 judges' considerations are divided into 2 (two) types, namely: 1) juridical considerations -considerations based on juridical facts revealed in court and determined by law as matters that must be contained in a decision consisting of public prosecutor's indictment, evidence, and violated Article; and 2) non-juridical considerations -in the form of defendant's background, consequences of defendant's actions, and condition of defendant which are included in aggravating or mitigating considerations. The following table shows judges' consideration in case decisions. From the decisions presented in Table 1, it is clear that none of the decisions apply rejuvenation measures that must be carried out by the defendant as a rehabilitation effort to preserve mangrove ecosystem. In fact, the criminal acts of smuggling, which previously started with illegal logging, will have an impact on the destruction of mangrove ecosystems and the loss of various species of flora and fauna. Besides, one of the decisions even did not make mangrove exploitation an aggravating factor, as seen in Decision No. 38/Pid.B/2017/PN.Bls. Even though, in non-juridical considerations, the consequences of the defendant's actions are a matter of consideration that will aggravate the defendant. Further, the maximum penalty applied was 3 (three) years with an average fine of IDR 50,000,000.00 (fifty million rupiah). Even though Article 102A of the Customs Law states that export smugglers will be subject to imprisonment of at least 1 (one) year and maximum 10 (ten) years and a monetary charge of at least IDR 50,000,000.00 (fifty million rupiah) and maximum IDR 5,000,000,000.00 (five billion rupiah). Hence, it can be concluded that the above decisions apply minimum penalties.
These penalties will certainly have an impact on the number of mangrove timber export smuggling which continues to increase due to the low deterrent effect given to the application of criminal penalties. In addition, there is no action given to the defendant, such as an instruction to rejuvenate mangrove forests. In fact, this action is important for mangrove ecosystem because rehabilitation, such as reforestation/greening, aims to renew mangrove ecosystem so that it returns to its natural function. 19

Conclusion
None of the decisions applies rejuvenation measures that must be carried out by the defendant as a rehabilitation effort to preserve mangrove ecosystem. In fact, one of the decisions even does not make mangrove exploitation an aggravating factor for the defendant. Besides, the penalties applied are still minimum so that the deterrent effect given is low.

Suggestion
The Supreme Court must provide training to judges at all levels of court to increase their capacity in dealing with environmental issues.