E-ISSN 2549-0680
Vol. 6, No. 2, July 2022, pp. 166-183
doi: https://doi.org/10.24843/UJLC.2022.v06.i02.p03
This is an Open Access article, distributed under the terms of the
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166
Risk or License? Precautionary Principle’s Transition
in Genetically Modified Organisms’ Benefits After Job
Creation Law
Rudi Natamihardja*
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia
Orima Melati Davey**
Master of Law Program, Universitas Lampung, Bandar Lampung, Indonesia
Febryani Sabatira***
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia
Desia Rakhma Banjarani****
Faculty of Law, Universitas Sriwijaya, Palembang, Indonesia
Ria Wierma Putri*****
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia
Abstract
This article aims to discuss the implementation of precautionary principle on the use of
Genetically Modified Organisms (GMO) in Indonesia as well as to identify and evaluate the
changes of provisions on precautionary principles related to the use of GMOs as stipulated in
the Environmental Law and the later Job Creation Law in Indonesia. This article employs
normative legal research that descriptively examines humans, circumstances, and other
phenomena to strengthen old theories and support new theories that are still in the drafting
stage. It uses secondary data sources consisting of primary legal materials and secondary
legal materials. The result shows that the implementation of precautionary principle on the
use of GMOs is based on the Environmental Law and the Job Creation Law which can be
seen in the AMDAL. Under the Environmental Law, the implementation of precautionary
principle prioritizes the importance of a risk's impact before the activity is carried out.
Whereas in the Job Creation Law, the operation of an activity adjusts the level of risk, namely
low, medium, and high. Hence, based on Job Creation Law, a business activity that already
utilizes GMOs is allowed to conduct its operation if the risk is assessed as low. It is due to a
transition between the risk approach in the Environmental Law and the licensing approach in
the Job Creation Law. This article suggests that in GMO usage, the government should find
more specific precautionary implementation than regulations and labels since regulations
alone are too abstract to comprehend in a society.
Keywords: Environmental Law; Genetically Modified Organisms; Indonesia, Job Creation
Law; Precautionary Principle.
* Email: rudi.natamihardja@fh.unila.ac.id
** Email: orimadavey23@gmail.com
***Email/Corresponding Author: febryanisabatira@gmail.com
****Email: desiabanjarani@fh.unsri.ac.id
*****Email: ria.wierma@fh.unila.ac.id
https://doi.org/10.24843/UJLC.2022.v06.i02.p03
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mailto:rudi.natamihardja@fh.unila.ac.id
mailto:orimadavey23@gmail.com
mailto:febryanisabatira@gmail.com
mailto:desiabanjarani@fh.unsri.ac.id
mailto:ria.wierma@fh.unila.ac.id
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
167
1. INTRODUCTION
Food scarcity has motivated experts to find scientific breakthroughs in
search of solutions. One of the efforts to fulfill world hunger is through
biotechnology. Biotechnology manipulates living organisms that aim to
improve human welfare and the environment.1 Biotechnology has been
applied in simple human life; one example is yeast to make alcohol and
bread. Along with the times, traditional biotechnology has developed into
modern biotechnology involving sophisticated genetic engineering. These
genetically engineered products are known as Genetically Modified
Organisms (GMO).
GMO undergoes genetic changes or deoxyribonucleic acid (DNA)
unnaturally through natural recombination. Genetic engineering of GMOs is
a change in an organism‘s fundamental nature or characteristics, especially
plants and animals, to create new characteristics according to human will
and need. Humans, animals, plants, enzymes, and other living organisms
have changed their essential characteristics and properties through modern
scientific technology.2 In human life, GMOs are better known for food
production and health. The technology analyzes how the characteristics of
an organism can be passed on to other organisms to create new
characteristics. One example of genetic engineering is that bacteria are
introduced into a plant immune to pests.3
Foods in the form of GMOs are crops consumed by humans and
animals. The yields of genetically modified crops are successful from crops
that have been engineered to have characteristics that are resistant to
drought, pests, and herbicides.4 Some examples of GMO drugs are insulin
because bacterial insulin is genetically modified to resemble the human
insulin gene so that the protein content contained undergoes a synthesis
process. In addition, genetic engineering can be found in vaccines, such as
Hepatitis B, which is produced from yeast. A precautionary principle based
on potential risks before the natural phenomena reflects how the principle is
used with the GMO.5
As much as GMOs are essential breakthroughs, their alien and
unknown nature sparks discouragement from society. Debates on GMOs are
further complexed by the disagreement between the public and scientists.
Debates are seen through numerous studies. In 2013, the government of
1 Andrew Tylecote, ―Biotechnology as a New Techno-Economic Paradigm That Will
Help Drive the World Economy and Mitigate Climate Change,‖ Research Policy 48, no. 4
(2019): 2.
2 Asheley R. Landrum, William K. Hallman, and Kathleen Hall Jamieson,
―Examining the Impact of Expert Voices: Communicating the Scientific Consensus on
Genetically-Modified Organisms,‖ Environmental Communication 13, no. 1 (2019): 53.
3 Lilian E. Forman. Genetically Modified Foods (Minnesota: ABDO Publishing
Company, 2010), 13.
4 Stuart J. Smyth, ―Genetically Modified Crops, Regulatory Delays, and International
Trade,‖ Food and Energy Security 6, no. 2 (2017): 79.
5 Zhou Tian-meng, et.al., ―The Dilemma and Solution of the Precautionary Principle
in EU Regulation of GMO——Based on the Analysis of Case Fidenato,‖ China Biotechnology
38, no. 6 (2018): 97.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
168
Kenya supported Genetically Modified or GM cotton plantations. However, a
third of the community did not share the same opinion ten years prior.6 In
2015, the Pew Research Centre found that only 37% of Americans approve
the GMO use, a very different comparison from 88% of the American
Association for the Advancement of Science (AAAS) scientists. In 2016, a
survey in China stated that 47% of the public are not fond of using GMOs;
some even view GMOs as a bioterrorism form. In the same year, 60% of the
Poland people also despise benefiting GM products.7 Subsequently, the
precautionary principle became the ―bridge‖ between the environment and
the commercial perspective regarding GMO utilization.
The reason for such precautions is because there were many concerns
about GMO use towards human health and the environment. One of these
issues is the assumption that GMOs can cause allergies. In the United
States of America, there have been cases where people suffered an allergic
reaction after consuming GMO food. For instance, people were experiencing
nut allergies after consuming a soybean cultivar that was inserted with the
2S albumin8 gene for nutritional reasons.9 GMOs could also intervene with
the environment, especially biodiversity. One of the cases is in insecticidal
genes inserted into Bacillus thuringiensis or Bt corn pollen that fatally
affected the monarch butterfly larvae commonly found in North America.
The pollen carried by the wind contaminated the milkweed, which is the
larvae‘s source of food.10 GMOs are also considered invasive because there is
an array of unlabeled GMO products on the market. People would have
consumed these products without claiming that they have interfered with
GMO products.11 Even though most of these impacts are generalized and
supported by very few scientific studies, the potential is there, and a
precautionary aim is to press the potential consequences to zero, which
makes the principle taken into consideration.
Indonesia is one of the developing countries that accept GMO products.
From the environmental aspect, Indonesia recognizes the precautionary
principle through Article 2(f) of Law No. 32 of 2009 concerning
Environmental Protection and Management (Environmental Law). Therefore,
the use of GMOs that are in direct contact with the environment in
Indonesia must comply with the precautionary principle, which is
implemented in the form of an Analisis Dampak Mengenai Lingkungan
6 Sarah Evanega, et.al., ―The State of the ‗GMO‘ Debate - Toward an Increasingly
Favorable and Less Polarized Media Conversation on Ag-Biotech?,‖ GM Crops and Food 13,
no. 1 (2022): 38.
7 Ibid.
8 2S albumin proteins are a class of essential seed storage proteins (SSPs) that are
required by seeds at many phases of development, including germination and seed defense.
9 Angelo Vega Rodríguez, et.al., ―Myths and Realities about Genetically Modified
Food: A Risk-Benefit Analysis,‖ Applied Science 12, no. 6 (2022): 9.
10 Mehmed Fidan and Arif Ayar. Genetically Modified Organisms and Effects on
Human Health. in Research and Reviews in Health Science, ed. Cem Evereklioğlu, I (Ankara:
Gece Publishing, 2021), 106.
11 John Paull, ―Genetically Modified Organisms (GMOs) as Invasive Species,‖ Journal
of Environment Protection and Sustainable Development 4, no. 3 (2018): 33.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
169
(AMDAL) or Environmental Impact Analysis (EIA).12 The later Law No. 11 of
2020 concerning Job Creation (Job Creation Law) has changed several
provisions in the Environmental Law. These changes consist of license
application steps, licensing regulation, risk accessor, involved community
elements, support from the government, and consequences.13
The focus of this research is a precautionary principle that is connected
with licensing as a barrier to risk. Therefore, this article aims to discuss the
implementation of the precautionary principle on the use of GMOs in
Indonesia. In addition, the article identifies and evaluates the changes of
provisions regarding precautionary principle on the use of GMOs as
stipulated in the Environmental Law and the later Job Creation Law. It is
normative legal research that descriptively examines humans,
circumstances, and other phenomena to strengthen old theories and
support new theories that are still in the drafting stage.14 The data sources
used are secondary data sources consisting of primary and secondary legal
materials.
2. RESULT AND ANALYSIS
The risks of GMO products have been debated among experts for years.
Experts strongly recommend every GMO product be used according to the
precautionary principle. Therefore, the following discussion will further
describe the relationship between applying the precautionary principle and
the use of GMO products.
2.1. Correlation between Precautionary Principles in the Utilization of
Genetically Modified Organisms
Concerns have been raised concerning the safety of GMO products
using processed food, raw food ingredients, or other components. As a
result, it is essential to minimize the potential of this risk emerging through
an analysis based on the precautionary principle. The precautionary
principle serves as a criterion for GMO products to guarantee that their
utilization does not have harmful effects.
2.1.1. Precautionary Principle as a Risk Standardization
The precautionary principle is a standard-setting philosophy for
preventing serious threats to human health or the environment. It is applied
to natural occurrences that are characterized by uncertainty and a lack of
scientific information.15 The principle is used for conducting estimation and
calculation to minimize the potential risk and is considered one concept that
12 Elly Kristiani Purwendah, ―Perlindungan Lingkungan Dalam Perspektif Prinsip
Kehati-Hatian (Precautionary Principle),‖ Jurnal Media Komunikasi Pendidikan Pancasila
Dan Kewarganegaraan 1, no. 2 (2019): 85.
13 Anih Sri Suryani, ―Perizinan Lingkungan Dalam Undang-Undang Cipta Kerja Dan
Dampaknya Terhadap Kelestarian Lingkungan,‖ Info Singkat: Kajian Singkat Terhadap Isu
Aktual Dan Strategis 12, no. 20 (2020): 14.
14 Soerjono Soekanto. Pengantar Penelitian Hukum (Jakarta: Penerbit Universitas
Indonesia, 2012), 50.
15 Tian-meng, et.al., op.cit., 96.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
170
is widely outlined in various international environmental agreements, such
as:
(1) The 1992 Convention on Biological Diversity.
(2) The 1992 United Nations Framework Convention on Climate Change.
(3) The 1992 United Nations Convention on the Protection and Use of
Transboundary Watercourses and International Lakes.
(4) The 1994 Protocol to the 1979 Convention on Long-range
Transboundary Air Pollution on Further Reduction of Sulphur
Emissions.
(5) The 1995 Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982
relating to the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stock.
(6) The 1996 London Protocol to the 1972 Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter.
(7) The 2000 Cartagena Protocol on Biosafety to the Convention on
Biological Diversity.
(8) The 2001 Stockholm Convention on Persistent Organic Pollutants.
(9) The 2018 Regional Agreement on Access to Information, Public
Participation and Justice in Environmental Matters in Latin America and
the Caribbean.
Precautionary becomes a general principle of public international law,
including International Environmental Law, that is recognized and
implemented worldwide. The principle is categorized as preventive measures
that contain a careful action conducted ―before‖ an impact of a natural
phenomenon occurs. The precautionary principle comprises the following
elements:16
a. Risk Uncertainty
Precautionary measures or behavior go further than preventive
measures because the measures are given in situations where the
consequences and impacts are known,17 for example, the impact of
smoking and the use of pesticides. Preventive measures are carried out
before it is known that there is a causal relationship between the
existing technology in a product or activity and the potential damage or
danger that will be caused due to the absence of scientific evidence.18
16 Giulia Claudia Leonelli, ―Judicial Review of Compliance with the Precautionary
Principle from Paraquat to Blaise: Quantitative Thresholds, Risk Assessment, and the Gap
between Regulation and Regulatory Implementation,‖ German Law Journal 22, no. 2 (2021):
195.
17 Ante Ivčević, et.al., ―Local Risk Awareness and Precautionary Behaviour in a
Multi-Hazard Region of North Morocco,‖ International Journal of Disaster Risk Reduction 50
(2020): 4.
18 Ronald Watson and Victor Preedy, ―Genetically Modified Food: Production, Safety,
Regulation and Public Health,‖ 78.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
171
b. Scientific Assessment of Potential Risks
The scientific assessment of potential risks is vital in preventing the
precautionary principle from being misused. This element consists of two
aspects, namely, risk assessment and risk management that are usually
applied in the industrial sphere.19
c. Potential for Serious or Irreversible Damage
The precautionary principle estimates the potential for severe or
permanent damage. Oil pollution in the sea is an example of estimated
severe damage that is not necessarily permanent while the extinction of
flora, fauna and natural resources is an example of serious permanent
damage. This element can occur if natural phenomena are applied over a
long period and with high intensity.20
d. Proportionate Precautions
Prevention in the precautionary principle prioritizes public health over
the economy. The previous precautionary principle can be used to
reduce exposure, monitor, label, test before entering the market, and
conduct studies or research to reduce uncertainty decided by
policymakers. However, a product ban is a last resort when a product‘s
risk is too dangerous for a country to bear.21
e. There is a Shift in the Burden of Evidence
Shifting the burden of proof is different from a traditional proof.
Definitive evidence will generally apply the product first and, over time,
analyze its impact, while a shift in the burden of proof means the risk
must be known before the product is applied. The burden of proof is left
on the creators of the product or natural phenomenon to be responsible
for the risks that occur. The product creator must provide scientific
support that the product to be applied has zero risk.22
2.1.2. Precautionary Principle: Linking Genetically Modified Organisms
Products between Environmental and Economic Aspects
The precautionary principle, which is drawn from environmental risk
management and is used as a tool to avert a major hazard to human health
or the environment based on uncertainty or scientific knowledge
estimations, is routinely applied to GMOs. An estimate of damage can be
eliminated or decreased by employing the precautionary principle. The
19 Ibid.
20 Ibid.
21 Rajib Deb, et.al., ―Genetically Modified Crops: An Alternative Source of Livestock
Feeding,‖ in Genetically Modified Organisms in Food: Production, Safety, Regulation and
Public Health (Elsevier Inc., 2016): 490.
22 Ibid.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
172
precautionary principle can be regarded as a precautionary act that is
carried out before the impact occurs.23
Scientists have been debating the hazards of genetically modified foods.
GMOs, according to scientists, work on the precautionary principle because
the risk of GMOs is unpredictable. Distribution of health and ecosystems are
two of these two factors. GMOs have a tendency to spread out of control in
the environment, posing dangers that are difficult to assess.24 Both of these
parameters act as a risk assessment for determining the effects of GMOs.25 If
the two prerequisites are insufficient to verify a 0% GMO risk, the
precautionary principle can be used to assess the GMO risk (precautionary
measures) using the parts of the precautionary principle stated above.
The usage of GMOs in human life can be seen in the areas of food,
health, and medicine.26 GM plants have been employed as processed crops
that are consumed by humans and animals in the food industry. Crops can
be grown faster with genetic engineering techniques than with traditional
methods. The harvest can be handled in such a way that it adapts to
drought, pests, and herbicides, or has tolerance to them. The benefits of
GMOs can be divided into two categories: insect resistance and herbicide
resistance.27 Bt for short is a frequently debated pest-resistance genetic
modification. Bt is a naturally occurring pesticide that has been used as a
repellent for decades and has been approved for use by organic farms as a
pest management strategy. Toxins can be extracted and introduced into the
genes of crops, which are currently often used in maize.
Countries do not always accept the utilization of GMOs. This is due to
the risks posed by the use of GMOs. Countries are worried about the
uncertainty of GMOs, which pose a high risk to a country's sovereignty
because GMO products can spread plant or animal diseases. The risks
posed by GMO products have two aspects. These two aspects include the
distribution and impact on health and ecosystems.28 Ecologically, GMOs
have a habit of spreading out of control, creating challenges to ascertaining
risks.29 Crossbreeding of a plant species with GMOs causes an effect on
environmental systems that is very widespread, irreversible, and with
uncertain risks. In the development of the use of GMOs, the state is in a
dilemma between the commercialization of GMOs and the protection of
sovereignty. This dilemma is bridged by the precautionary principle where
23 Naveen Thayyil. Biotechnology Regulation and GMOs: Law, Technology and Public
Contestations in Europe (New Delhi, India: Edward Elgar Publishing, 2014), 65.
24 Renate Schubert. Future Bioenergy and Sustainable Land Use (London and
Sterling: Earthscan, 2010), 89.
25 M. G. Edwards and G. M. Poppy. Environmental Impact of Genetically Modified
Crops (Oxfordshire: CAB International, 2009), 72.
26 Center of Ecogenetics and Environmental Health. Fast Fact about Genetically
Modified Organisms (Washington D. C.: National Academy Press, 2013), 39.
27 Eliana M.G. Fontes, et.al., ―The Environmental Effects of Genetically Modified
Crops Resistant to Insects,‖ Neotropical Entomology 31, no. 4 (2002): 499.
28 Ashli Akins, et.al., ―The Universal Precautionary Principle: New Pillars and
Pathways for Environmental, Sociocultural, and Economic Resilience,‖ Sustainability 11,
no. 8 (2019): 13.
29 Schubert, op.cit., 149.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
173
countries can estimate potential risks before using GMOs.30 Therefore, the
study illustrates the relationship between the precautionary principle and
GMOs through the following illustration.
Illustration 1. The linkage between the Precautionary Principle and the Genetically
Modified Organisms
Based on Illustration 1, it can be seen that GMOs are the main object
of the problem. The GMOs‘ purpose is to be utilized and commercialized, but
it is hindered by the considerations of countries regarding environmental
aspects. Therefore, the application of the precautionary principle lies
between commercialization and sovereignty. The relationship of the
precautionary principle with GMOs is as a benchmark or risk basis,
meaning it acts as a liaison between the economic point of view and the
environmental point of view in utilizing GMOs.
The precautionary principle, unlike the preventative concept, does not
require certainty when determining the danger. As a result, there is a
significant distinction between preventative and precautionary actions.
Precautionary measures go beyond preventative measures because
preventive measures are used in cases where the implications and effects
are known, such as the effects of smoking, pesticide use, and so on.
Precautionary precautions, on the other hand, are taken before it is known
that there is a causal relationship between current technology in a product
or activity and the possible damage or risk that will be created due to a lack
of scientific evidence. This is especially true when it comes to GMOs,
because each GMO product is unique, posing unique dangers.
2.2. The Implementation of Precautionary Principle on Utilization of
Genetically Modified Organisms in Indonesia
Based on the data for the year 2020, Indonesia is one of the most
populous countries globally, with 273 million people.31 Indonesia is
currently faced with an agricultural land crisis and declining crop
30 Wahyu Yun Santoso, et.al., ―Signifikansi Pendekatan Kehati-Hatian Dalam
Pengaturan Organisme Transgenik Di Indonesia,‖ Jurnal Hukum Lingkungan Indonesia 4,
no. 1 (2017): 90.
31 BPS-Statistics Indonesia, ―The Indonesia Population Census 2020 Highlights,
(United Nations Expert Group Meeting, 9-12 February 2021),‖ 8.
Genetically
Modified
Organisms
Utilization and
Commercialization
Precautionary
Principle
States sovereignty
and the environment
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
174
productivity in the agricultural sector. Therefore, the use of GMOs is an
option in Indonesia to promote people‘s welfare. Even so, Indonesia‘s
dependency towards its nature makes the country very fragile to any kind of
potential risks. Hence, Indonesia‘s regulation must apply precautionary
measures in utilizing GMOs. The implementation of the precautionary
principle on the use of GMOs in Indonesia is as follows:
Table 1. Implementation of Precautionary Principles on Utilization of Genetically
Modified Organisms in Indonesian Law and Regulations
Law and Regulations
The Realization of Precautionary
Principle’s Implementation
Law No. 32 of 2009 concerning
the Environment Protection and
Management (Art. 47)
Environmental Impact Analysis
Law No. 18 of 2012 concerning
Food (Art. 77-79)
a. PRG32 should not be produced without
government approval.
b. Requirements for food containing PRG are
government regulations (Government
Regulation No. 28 of 2004).
Government Regulation No. 69 of
1996 concerning Food Labels and
Advertisements (Art. 35)
This article describes the obligation to include
―Genetic Engineering Food‖ or at least a
memorable PRG logo.
Government Regulation No. 28 of
2004 concerning Food Safety,
Quality, and Nutrition
This law outlines the requirements that must be
met by a PRG, such as genetic information,
description of donor organisms, description of
genetic modification and characterization, and
food safety information.
Government Regulation No. 21 of
2005 concerning Biosafety
There is an assignment to the Biosafety
Commission by the Minister or the Head of
Non-Departmental Government Institutions
(LPND) when providing recommendations for
the biosafety of PRGs.
Presidential Regulation No. 39 of
2010 concerning the Commission
on the Biosafety of Genetically
Engineered Products (KKH PRG)
KKH PRG also carries out assignments from the
Minister and the Head of LPND such as
technology assessment and evaluation and
examination and proof of negative impacts.
Decree of the Minister of
Agriculture No.
1038/KPTS/HK.330/11/1997
concerning the Establishment of
KKH PRG
The legal basis for the formation of the PRG
KKH. The PRG KKH has the primary function of
formulating materials to prepare guidelines for
environmental safety assessment, feed, and
monitoring of PRG utilization.
Joint Decree of the Ministers of
Agriculture, Forestry and
Plantations, Health, State Food
and Horticulture 1999 concerning
Biosafety and Food Safety of
PHRG
The contents of this joint decision include
regulations regarding classification, security
requirements, assessment procedures, rights,
obligations, and reporting on PRG security.
Regulation of the Head of BPOM33
No. HK.03.1.23.03.12.1563 of
2012 concerning Guidelines for
the Assessment of Food Safety of
Genetically Engineered Products
The Biodiversity Safety Commission carries out
the safety assessment of PRG for Genetically
Engineered Products (KKH PRG).
32 PRG stands for ―Pangan Rekayasa Genetik‖ or Genetically Engineered Food.
33 BPOM Stands for ―Badan Pengawas Obat dan National‖ or National Agency of
Food and Drugs Control.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
175
Table 1 describes the consistency, coherence, and correspondence
regarding the application of the precautionary principle on the use of GMOs
through regulations in Indonesia. The Commission on the Biosafety of
Genetically Engineered Products (Komisi Keamanan Hayati Produk
Rekayasa Genetik/KKH PRG) was established to analyze and assess the
risks of genetically engineered products. In addition, through regulations
related to GMO products, the public is asked to understand genetically
modified food products through food labeling.
2.3. Comparison of Implementation of Precautionary Principles on
Utilization of Genetically Modified Organisms According to the
Environmental Law and the Job Creation Law
Before understanding how to apply the precautionary principle to the
use of GMO according to the Environmental Law and the Job Creation Law,
the research will first describe how to apply the precautionary principle
according to each of these arrangements.
2.3.1. The Implementation of Precautionary Principles on Utilization of
Genetically Modified Organisms according to Law No. 32 of 2009
concerning Environmental Protection and Management
Environmental law in Indonesia recognizes 3 (three) principles,
namely, the polluter pays principle, the prevention principle, and the
precautionary principle. The Environmental Law regulates the precautionary
principle in Article 2(f). The precautionary principle is then applied in the
obligation to carry out an Environmental Impact Analysis (EIA) or AMDAL.34
Article 47 paragraphs (1) and (2) of the Environmental Law stipulate that
every business or activity that has the potential to have a significant impact
on the environment, threats to ecosystems and life, and human health and
safety is obligated to conduct an environmental risk analysis.35
Environmental risk analysis can be carried out through risk assessment,
management, and communication. This means that based on the
Environmental Law regulation, if the legal subject in the future will carry
out activities and businesses that utilize GMOs, then as a precautionary
measure, the risks of these activities and businesses must be reviewed
first.36
34 Martika Dini Syaputri, ―Partisipasi Masyarakat Dalam Penyusunan Analisis
Mengenai Dampak Lingkungan Berdasarkan UU No 32 Tahun 2009,‖ Varia Justicia 13, no.
2 (2017): 125.
35 Satria Sukananda and Danang Adi Nugraha, ―Urgensi Penerapan Analisis
Dampak Lingkungan (AMDAL) Sebagai Kontrol Dampak Terhadap Lingkungan Di
Indonesia,‖ Jurnal Penegakan Hukum Dan Keadilan 1, no. 2 (2020): 133.
36 Sri Maulidiah, et.al., ―Environmental Management: A Study on the Precautionary
Principle in Siak Regency of Indonesia towards Sustainable Development,‖ EM International
26, no. 3 (2020): 10856.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
176
2.3.2 Precautionary Principles’ Implementation on Utilization of
Genetically Modified Organisms according to Law No. 11 of 2020
concerning Job Creation
The Job Creation Law was enacted on November 2, 2020, which aims
to address legal issues, commencing with the overlapping of laws and
regulations or the incompatibility of rules with one another. In this case,
this study focuses on the Job Creation Law‘s substance, which consists of
79 laws with 15 chapters and 174 articles targeting 11 clusters, including
environmental issues.37 Thus, the Job Creation Law impacts the revision
and deletion of several articles carried out in the Environmental Law. One of
the highlighted problems within the Job Creation Law is the objective to
abolish Article 40, which requires an environmental license to obtain
business permits. The abolition of the license has given rise to various legal
polemics since licensing is essential in maintaining and determining an
agreement from the authorities based on the law. Based on theory, licensing
has three vital functions, namely, (1) as an instrument of development
engineering, (2) as an addition to state revenue, and (3) as a regulator of
community action. In the third function, licensing prevents community
behavior from damaging and demolishing the environment.38 Thus, business
activities must be carried out with various administrative and legal means
necessary to the government, whether conducted in concrete or legal
actions. Issuance, implementation, and enforcement of laws based on the
environmental license is a means to protect and preserve the environment
from the activities of managing natural resources and their impacts on the
environment. In this case, good governance principles must be implemented
as standards for the government.39
In order to protect and preserve the environment, documents are
required in the form of laws, EIA or AMDAL, Environment Management
Efforts, and Environment Monitoring Efforts or Upaya Pengelolaan
Lingkungan Hidup dan Upaya Pemantauan Lingkungan Hidup (UKL-UPL)
and Statement of Ability to Manage and Monitor the Environment or Surat
Pernyataan Kesanggupan Pengelolaan dan Pemantauan Lingkungan
Hidup (SPPL).40 AMDAL is an introspection procedure of the principal and
significant impacts of a planned business or activity on the environment,
which is then needed in a decision-making process regarding the
implementation of such activity. Regarding environmental protection and
management, the primary factor that evolves the foremost concern is
37 Fitri Yanni Dewi Siregar, ―Aspek Hukum Penyederhanaan Perizinan Badan Usaha
Di Bidang Lingkungan Hidup Dalam Undang-Undang Cipta Kerja,‖ Jurnal Ilmiah
Penegakan Hukum 7, no. 2 (2020): 188.
38 Roni Sulistyanto Luhukay, ―Penghapusan Izin Lingkungan Kegiatan Usaha Dalam
Undang-Undang Omnibus Law Cipta Kerja,‖ Jurnal Meta-Yuridis 4, no. 1 (2021): 112.
39 Ibid.
40 Dwi Febriyanti, et.al., ―Fungsi AMDAL Dalam Pengendalian Kerusakan Dan
Pencemaran Lingkungan Setelah Diundangkannya UU Cipta Kerja,‖ Widya Pranata
Hukum : Jurnal Kajian Dan Penelitian Hukum 3, no. 2 (2021): 122.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
177
licensing.41 The licensing factor can be used as a guide for business actors
who will manage the environment. Environmental licensing is related to the
obligation to obtain an AMDAL as an instrument for preventing ecological
pollution where this principle is contained in the form of a legal product so
that it is a necessity that must be obeyed by all parties, which means, in
order for an environmental permit to be issued and approved, it must obtain
an AMDAL.42
The concept of licensing is regulated in the Environmental Law. The
provision regarding environmental licensing is outlined in Article 1 (35) of
the Environmental Law which regulates that all parties who establish
business activities must acquire AMDAL or UKL-UPL in the context of
protection and environmental management as a prerequisite for obtaining
business and/or activity permits. Thus, a business and/or activity permit
will be granted by the agency concerned if the business owner has
environmental access. Therefore, if the environmental license is revoked, the
business and/or activity permit will be canceled. However, after the
enactment of the Job Creation Law, the abolition of environmental licenses
was determined as a form of simplification of permits which caused a
fundamental change in the implementation of the AMDAL mechanism.43
After analyzing the EIA or AMDAL as the implementation of the
precautionary principle, the research will see how the AMDAL arrangement
in the Job Creation Law. The regulation regarding AMDAL in Article 24 of
Job Creation Law has changed. The feasibility test is one of the transitions
regarding AMDAL. According to its impact on the environment, this test is
carried out at the beginning of business activities carried out before
business activities. The government conducts the feasibility test by
appointing a certified expert or institution.44 In addition, business permits
can be issued before or after issuing the environmental feasibility decree.45
Therefore, if there is a business activity that utilizes GMO products and the
risk is considered low, then the business activity can be carried out. This is
not under the precautionary principle, which prevents scientific uncertainty
about risk. The following is a comparison of the implementation of the
AMDAL between the Environmental Law and the Job Creation Law.46
41 Muhammad Al Ikhwan Bintarto and Muhammad Uwais Alqarni, ―Landasan
Filosifis, Aspek Moral Dan Aspek Keadilan Dalam Pembentukan UU Cipta Kerja,‖ Jatiswara
36, no. 3 (2021): 280.
42 Martika Dini Syaputri, op.cit., 127.
43 Siregar, loc.cit.
44 Ibid.
45 Luhukay, op.cit., 118.
46 Sukananda and Nugraha, op.cit., 131.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
178
Table 2. Comparison of AMDAL Arrangements between the Environmental Law and
the Job Creation Law
Elements Environmental Law Job Creation Law
Stages
Process environmental documents
(AMDAL or UKL-UPL), environmental
approvals, environmental permits, and
business permits
Process environmental documents
(AMDAL or UKL-UPL), environmental
approvals, business permits
Licensing Process
The impact is significant or not
significant towards the environment
Categorized into high risk, medium
risk, and low risk
AMDAL evaluator
AMDAL Assessment Commission or
Komisi Penilai AMDAL (KPA)
Feasibility Test Institute or Lembaga
Uji Kelayakan (LUK)
AMDAL Evaluator
Establisher
Minister, governor, or regent/mayor
National government
Communities
involved in
AMDAL
Communities directly affected,
environmentalists, communities
affected by decisions in the AMDAL
process
Communities directly affected
It can be seen from Table 2 that there are transitions and differences
regarding AMDAL arrangements between the Environmental Law and the
Job Creation Law. In the Environmental Law, the precautionary principle‘s
implementation prioritizes the importance of the impact of a risk before the
activity is carried out. Meanwhile, in the Job Creation Law, an activity can
be implemented if the risk is assessed as low because there is a transition
between the risk approach in the Environmental Law and the licensing
approach in the Job Creation Law. Such transition is considered to be a
threat to the future environment management system since the Job
Creation Law determined the level of risk, namely low, medium, and high.
Therefore, according to the Job Creation Law, it is possible for business
activities that already utilize GMOs to be operationalized even if the risk is
assessed as low because there is a transition between the risk approach in
the Environmental Law and the licensing approach in the Job Creation Law.
The transition from risk-based to license-based is one of the many legal
problems that have arisen since the enactment of the Job Creation Law.
Another concern from this transition is that in the Job Creation Law, the
community‘s involvement towards risk is merely preventive, whereas the
direct monitoring of the environment is managed by the license applicant.
This given role is very subjective and does not fulfill the definition of
precaution from the environmental point of view.47
Moreover, since its promulgation in 2020, the Job Creation Law has
been in the spotlight of legal critics because it is considered to have material
and formal weaknesses.48 However, beyond the reasons for the necessity for
a revision of the Job Creation Law, the environmental aspect, unfortunately,
became the aspect that was least paid attention to. In November 2021 or a
47 M Reza Baihaki, ―Persetujuan Lingkungan Sebagai Objectum Litis Hak Tanggung
Gugat Di Peradilan Tata Usaha Negara (Telaah Kritis Pergeseran Nomenklatur Izin
Lingkungan Menjadi Persetujuan Lingkungan Dalam Undang-Undang Nomor 11 Tahun
2020 Tentang Cipta Kerja),‖ Majalah Hukum Nasional: Media Pembinaan Dan Pembangunan
Hukum 51, no. 1 (2021): 13.
48 Ibid.
Risk or License? Precautionary Principle's Transition
in GMO's Benefits After Job Creation Law
Rudi Natamihardja, Orima Melati Davey,
Febryani Sabatira, Desia Rakhma Banjarani, Ria Wierma Putri
179
year of its implementation, the Job Creation Law through Decision No.
91/PUU-XVIII/2020 was declared ―conditionally unconstitutional‖ by the
Constitutional Court.49 This decision is the result of the partial approval of
the application for a formal review of the Job Creation Law. The Job
Creation Law is declared contrary to the 1945 Constitution of the Republic
of Indonesia and has no binding legal force as long as it is not amended
within two years of the decision being made. Thus, the Job Creation Law will
be declared permanently unconstitutional if improvements are not made
within the given period. The court decision might possess an adequate
opportunity for the development of environmental law in Indonesia.
Although the provisions related to environmental licensing based on the Job
Creation Law are still in effect, with a conditionally unconstitutional status,
the issue of environmental permits can be reviewed and subject to material
revisions to be included in the Job Creation Law in the future.50
3. CONCLUSION
Based on the discussion, the research concludes that the
precautionary principle‘s implementation in the use of GMOs in Indonesia is
realized in the regulations for the food, feed, and agriculture sectors. The
regulations of KKHPRG are Presidential Regulation No. 39 of 2010 on the
Commission for the Biosafety of Genetically Engineered Products and the
standardization of food labeling of genetically engineered food products
based on Government Regulation No. 69 of 1996 concerning Food Labels
and Advertising. A comparison of the implementation of the precautionary
principle on the use of GMOs according to the Environmental Law and the
Job Creation Law can be seen in the AMDAL arrangement as the
implementation of the precautionary principle. In the Environmental Law,
the implementation of precautionary principle prioritizes the importance of a
risk‘s impact before the activity is carried out. Whereas in the Job Creation
Law, the operation of an activity adjusts the level of risk, namely low,
medium, and high. This means that in the Job Creation Law, it is possible
for business activities that already utilize GMOs to be operationalized if the
risk is assessed as low because there is a transition between the risk
approach in the Environmental Law and the licensing approach in the Job
Creation Law. All in all, this article suggests the following points: (1)
regarding the usage of GMOs, the government should find precautionary
implementations that are more specific than regulations and labels, since
regulations alone are too abstract to comprehend in a society; (2)
environmental NGO institutions and the government should coordinate to
ensure business actors do not abuse the Job Creation Law‘s interpretation
as their defense on harming the environment; and (3) environmental NGO
institutions should act as a communicator between the government and
community related to GMOs usage towards the environment.
49 Constitutional Court, Decision of the Constitutional Court of the Republic of
Indonesia No.91/PUU-XVIII/2020, para [3.20.3], 413.
50 Dodi Haryono, ―Metode Tafsir Putusan Mahkamah Konstitusi Dalam Pengujian
Konstitusional Undang-Undang Cipta Kerja,‖ Jurnal Konstitusi 18, no. 4 (2022): 774.
Udayana Journal of Law and Culture
Vol. 6 No. 2, July 20222
180
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