By : Dwi N. Adhiasto
The term “Amicus Curiae” came into public spotlight when Megawati, as the Chairperson of the PDIP Perjuangan Party, requested the Constitutional Court to consider and take into account the principles of democracy that have been established in Indonesia when deciding the disputes of the 2024 general elections in Indonesia[1].
Amicus Curiae is a Latin term that translates to “friend of the court” in English or “Sahabat Pengadilan” in Bahasa Indonesia. In legal contexts, it refers to a person or organization that is not a party to a case but offers information, expertise, or a brief to assist the court in making a decision. The purpose of an amicus curiae brief is to provide additional perspectives, insights, or arguments that may be relevant to the case and help the court reach a fair and just decision[2]. The position of amicus curiae is not something that can interfere with the independence of judges. Amicus curiae is not a form of intervention against judges who are examining cases. Amicus Curiae is limited to providing opinions related to legal facts and legal issues related to the case that occurred[3].
Just like other law enforcement cases, wildlife-related cases are also prone to injustices. Ineffective law enforcement against wildlife-related violations can allow criminals to escape punishment or receive lenient sentences. One of the classic issues, corruption practices within the judicial system can influence court decisions, including in cases involving wildlife law violations. Although hundreds of police investigators and Civil Servant Investigator (PPNS), prosecutors, and judges have been trained to handle cases, there are still many law enforcement officers having limited understanding of wildlife protection laws and the importance of conservation can result in a lack of seriousness in handling such cases within the judicial system. This can lead to slow or obstructed legal processes that can delay decisions, allowing wildlife law violations to continue unabated.
When the situation described above occurs in handling wildlife cases, the role of Amicus Curiae is crucial to provide enlightenment to the judge in deciding the case. Judges are expected not only to execute the mandate of the laws but also to consider other factors that can provide ‘judicial confidence’ in deciding the case[4]. By considering amicus curiae briefs, judges can gain a more comprehensive understanding of the legal principles and implications at hand. Additionally, these briefs may offer information or arguments that the parties involved in the case may not have presented, thus helping the court reach a more informed and just decision.
Before Amicus Curiae was popularized by Megawati, it turns out that Amicus Curiae had been provided to judges who were going to decide important cases related to wildlife crime several times. In the first case, which occurred in May 2022, Ahmadi (former Major of Bener Meriah, Aceh) was arrested for trading Sumatran tiger skin[5]. In his defense, Ahmadi claimed that he was ‘set up’ by an undercover buyer from the Ministry of Environment and Forestry’s Law Enforcement Agency (Gakkum MoeF) to sell the tiger skin he possessed. In the context of wildlife crime, an undercover buyer is someone who pretends to be interested in purchasing illegal wildlife products, such as tiger skin, ivory, or rhino horn, in order to gather evidence and identify individuals or networks involved in illegal wildlife trafficking. According to Ahmadi’s lawyer, the undercover buyer conducted by Gakkum MoEF is invalid because the 1990 Law or other laws concerning the protection of wildlife do not regulate undercover buyers.
The use of investigation methods such as undercover operations or disguises in law enforcement can be carried out by law enforcement officers to uncover criminal acts. Article 45 of the KUHAP grants authority to investigators to take certain actions, including undercover operations, if necessary in the investigation and prosecution of a case. In addition, the action of undercover buying is regulated in Article 75 letter J of the Narcotics Law, which means narcotics and precursor narcotics investigators have the right to act as buyers directly[6]. The main consideration for using undercover buyers is due to the fact that drug crimes are considered an emergency in Indonesia, so authorities can use any necessary means to apprehend perpetrators and uncover their networks. Nevertheless, the use of these methods must be guided by applicable legal principles and not contradict human rights.
In the case of Ahmadi, his lawyer questions the legality of his client’s arrest using undercover buyer techniques. The lawyer may raise concerns about whether wildlife crime in Indonesia are severe enough to warrant law enforcement’s use of undercover buyers to apprehend Ahmadi. This question may arise in the mind of the judge when sentencing Ahmadi. Therefore, the judge needs to be enlightened on the seriousness of the wildlife crime situation in Indonesia to convince them that the undercover buyer operation conducted by Gakkum KLHK is not in violation of human rights and legal principles. At that time, a conservation practitioner sent an Amicus Curiae to the judge who would decide Ahmadi’s case. Amicus Curiae provided information about the high prevalence of wildlife crime cases in Indonesia, tens of thousands of pieces of evidence from perpetrators’ crimes, the threat of extinction to key species due to poaching and trafficking, transnational trafficking networks involving Indonesia as a source country, and the inadequate understanding and attention of law enforcement agencies to wildlife cases. This Amicus Curiae received attention from the judge in their verdict, where it was mentioned that one of the considerations for the verdict against Ahmadi was the existence of the Amicus Curiae.
The second case highlighting the importance of Amicus Curiae is the orangutan smuggling case in Aceh involving two perpetrators[7]. The perpetrators, named Bolang and Reza, were arrested by the police in Aceh in September 2023. Two orangutans were seized from the perpetrators, intended to be sold to an international network. Bolang is a repeat offender who had previously been caught selling protected wildlife. Meanwhile, Reza claimed to be a courier who admitted to only transporting the orangutans from Bolang to the buyer, who was a member of the Indonesian National Armed Forces (TNI).
The role of couriers in illegal wildlife trade networks is often considered insignificant and carries a lighter weight of crime compared to poachers, collectors, or exporters. In wildlife trafficking networks, couriers play a crucial role in the transportation and delivery of illegal wildlife products[8]. Their role is to physically transport wildlife contraband from one location to another, such as a poaching site or supplier, to the destination, which could be a market, collector, or buyer, often across borders or jurisdictions, while minimizing the risk of detection by law enforcement authorities. Couriers also often conceal the illegal wildlife products within luggage, cargo, or personal belongings to avoid detection during transit. They may use various methods of concealment, such as hidden compartments in a private vehicle, or camouflage. Couriers may maintain communication with other members of the trafficking network, such as suppliers, intermediaries, and buyers, to provide updates on the transportation process.
In the aforementioned orangutan case, the Amicus Curiae was sent to the judge, which filled the gap in information and knowledge about the importance of the courier’s role in the illegal wildlife trade network. The Amicus Curiae ultimately convinced the judge to impose a sufficiently strong penalty on the courier. Consequently, the courier (Reza) was sentenced to 2 years in prison and fined 50 million rupiah[9]. In this case, Amicus Curiae “got a place” with the judge because the judge stated that one of their considerations in the decision-making process was the presence of the Amicus Curiae submitted by an individual concerned with the case.
SCENTS has decades of experience in the wildlife conservation issues, including habitat and wildlife protection, and a deep understanding of wildlife trafficking. Our experts has assisted thousands of cases of illegal wildlife poaching and trafficking, resulting in extraordinary knowledge about wildlife crime in Indonesia. Various insights such as modus operandi, motives of perpetrators, the need for scientific evidence, relevant legislative regulations, and challenges faced in law enforcement efforts (from data collection to judicial processes) will be provided by SCENTS and can be important references for judges that handling wildlife cases.
Reflecting on the two wildlife cases above, Amicus Curiae can provide a deeper understanding to the judge about the legal issues being discussed in the wildlife crime case. This aims to assist the judge in making better and more informed decisions, considering various perspectives and relevant information that may not be fully available in the arguments presented by the directly involved parties during court trial process. In other words, the judge’s considerations and convictions in deciding a case are not solely based on the facts presented in court but may also obtained from external facts.
[1] https://www.mkri.id/index.php?page=web.Berita&id=20207
[2] https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap08.pdf
[3] https://kastara.id/28/07/2020/amicus-curiae-dan-independensi-hakim-dalam-menjatuhkan-putusan/
[4] https://www.hukumonline.com/berita/a/meninjau-ulang-peran-amicus-curiae-dalam-sistem-peradilan-pidana-di-indonesia-lt64e34a5d244d2?page=2
[5] https://news.okezone.com/read/2022/05/27/340/2601271/diduga-jual-kulit-harimau-mantan-bupati-bener-meriah-ditangkap
[6] https://peraturan.bpk.go.id/Details/38776/uu-no-35-tahun-2009
[7] https://medan.kompas.com/read/2023/10/04/054905078/tersangka-penjualan-2-orangutan-bertambah-otak-pelaku-ditangkap
[8] https://www.unodc.org/documents/data-and-analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf
[9] https://www.liputan6.com/regional/read/5536995/perdagangan-orangutan-sumatera-bolang-divonis-3-tahun-penjara-ica-2-tahun
