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8/10/2019 Factors Affecting the Enforcement of Forestry in Indonesia
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FACTORS AFFECTING THE ENFORCEMENT OF FORESTRY IN INDONESIA
I Gusti Ayu Ketut Rachmi Handayani
EKOSAINS Journal | Vol. IV | No. 2 | July 2012
FACTORS AFFECTING THE ENFORCEMENT OF
FORESTRY IN INDONESIA
I Gusti Ayu Ketut Rachmi Handayani
Faculty of Law, University of March Surakarta,
Jl. Ir. Sutami No. 36 A Surakarta, Indonesia
Email: ayu_igk@yahoo.com Phone: +628156705773
AbstractActivities of forest protection and forest areas is an activity that is very important and the
main due to the fact shows that deforestation in Indonesia has been entered on a scale which is
very worrying and therefore very appropriate if the government is paying attention to the
protection of forests. Forest protection stipulated in Law No. 41 Year 1999 on Forestry and
PP 45 of 2004 on the Protection of Forests. Forest protection activities is an integral part of
forest management. Law enforcement (law enforcement) in operation is not something that
stands alone but rather deals with various aspects / factors. Law enforcement is not only
related to the law itself, but also with human, as both law enforcement and the community.
There are three factors that affect forest law enforcement that law enforcement officials, laws
and regulations and legal budya society.
Keywords: Law Enforcement, Law of Forestry, Indonesia
INTRODUCTION
Forests are public goods. Public goods
are goods that do not have a counter (non-
rivalry) in consumption and/or benefits can
not be separated (non-excludable). Forests
can provide positive and negative
externalities, giving rise to
interdependence or dependence Atar
district in the upstream and downstream
districts (Kartodihardjo, 2006). Forest
resources in Indonesia contains a huge
potential to be developed as a source of
development funding. Such enormous
potential, based on the fact that Indonesia
is known as a country that has the largest
lowland tropical forests ketigadi world,
after Saire and Brazil. Indonesian forest
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ecosystems ranging from lowland tropical
forests and highlands to the peat swamp
forest, freshwater marsh and mangrove
forests (mangroves), in addition to the
Indonesian state is 10 (ten) countries in the
world's largest forest owner.
Activities of forest protection and
forest areas is an activity that is very
important and the main due to the fact
shows that deforestation in Indonesia has
been entered on a scale which is very
worrying and therefore very appropriate if
the government is paying attention to the
protection of forests. Forest protection
stipulated in Law No. 41 Year 1999 on
Forestry and PP 45 of 2004 on the
Protection of Forests. Forest protection
activities is an integral part of forest
management. It is in Article 2 of
Regulation No. 45 of 2004 stated that
forest protection is a part of forest
management activities. Forest protection
activities referred to in paragraph (1) shall
be implemented in forest areas in the form
of units or entity Production Forest
Management (KPHP).Law enforcement (law enforcement) in
operation is not something that stands
alone but rather deals with various
aspects/factors. Law enforcement is not
only related to the law itself, but also with
human, as both law enforcement and the
community. In the discussion of law
enforcement can not be separated from the
concept of Lawrence Meir Friedman was
quoted Ahmad Ali on three elements Legal
system (Three Elements of Legal System)
(Ahmad Ali, 2002). Three elements of the
law system consists of:
a. Structure of Law (Legal Structure)
b.
Substance Law (Legal Substance)
c. Culture Law (Legal Culture)
LAW ENFORCEMENT AUTHORITIES
In Indonesia, when speaking about the
structure of the legal system, including the
structures or institutions that define the
rule of law, such as the police, including in
the case of forestry forest police,
prosecutors and courts. The structure is
like a machine. In terms of forest
management that can be managed by the
provincial government, city and county,
the leading sector in the field of forestry in
the region is the Forest Service. Therefore,
investigators and police forestry plays an
important role in forest law enforcement.
According to the provisions of Law
No. 32 Year 2004 on RegionalGovernment, known three (3) the principle
of governance in the region, namely the
principle of decentralization,
deconcentration, and the principle of co-
administration. Principles of
Decentralization is the devolution of
government power by the government of
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the autonomous regions in the framework
of the Unitary Republic of Indonesia. The
principle of deconcentration is the
delegation of authority from the
Government to the Governor as
representatives of governments and/or
devices in the center of the area, while the
principle Assistance is the assignment of
the government to the regions and villages,
and of the area to the village to carry out
certain tasks, along with financing, advice,
infrastructure and human resources with
the obligation to report and be accountable
for the implementation of such task.
According to the explanation of Law
No. 32 Year 2004 on Regional
Government there is some principle of
local autonomy are used as guidelines in
the establishment and operation of
autonomous regions, namely:
a. Implementation aspects of
democracy, justice, equity and the
potential and regional diversity;
b. Implementation of regional
autonomy based on broad
autonomy, real and responsible;c. Wide implementation of regional
autonomy and the whole placed on
the District and Regional,
Provincial whereas a limited
autonomy;
d. Implementation of regional
autonomy should be in accordance
with the state constitution
guaranteed a harmonious
relationship between the central
and regional and inter-regional;
e.
Implementation of regional
autonomy should further enhance
the independence of the
Autonomous Region.
Factors affecting law enforcement are
also related to human resources, facilities
or facilities of law enforcement officers in
their duties. Law enforcement requires
human resources, facilities or adequate
facilities both in terms of quantity and
quality. The lack of quantity and poor
quality of human resources, as well as
limited means or facilities owned by local
governments (in this case the
investigators), police, prosecutors, and the
courts must be able to inhibit the forest law
enforcement.
REGULATION OF LEGISLATION
The substance of the law are rules,
norms and patterns of human behavior are
evident in the legal system, which is that inIndonesia the substance of the law is a
product produced by the legislature,
including court decisions. The substance is
what is done and produced by the engine.
To achieve the goals that have been and
are set, so it can be realized in the
community needed some means. One of
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them is the law of the various forms of
legislation that exists. Thus "Effectively
law legitimmates policy" or in other words
"proper attention to the use of law in public
policy formulation and implementation
requires an awareness of the conditions
under roomates law as effective"
(Bambang Sunggono, 1994: 15).
Community development is
characterized by the changes, and the law
as a means that can be used to make
changes in society. Thus the law is
increasingly important role as a means to
realize the government's policies. Law is a
set of tools for the realization of
government policy. (Lawrence, Friedman
1984: 5). Seidman, said that policy makers
have only one tool he can use to influence
the activities of stakeholders, is the rule
that he has made. The law gives legitimacy
to implementing government policy and
legislation as has been proved
that he is one of the tools to implement the
policy. In this regard, Hans Kelsen taught
that the regulations promulgated by the
power law in a modern state has a dualaspect, namely:
1)
That the legislation was drawn to
the citizens and directs that act in
certain ways;
2)
That those rules as well as
addressed to the judge to impose
sanctions when there are citizens
violate the rules.
In order to organize and direct the
public in accordance with the desired
destination, then the use of law as a
instrument of wisdom are very important.
Law is a norm that directs people to
achieve goals and specific circumstances
with no ignoring the world reality.
Therefore, the law is mainly made with full
awareness by the state and used to achieve
a particular goal (Sudikno Mertokusumo,
2001: 18).
Enforcement of the law as a means to
achieve this goal because it is technically
legal to provide or do the following things.
a.
Law is a means to ensure certainty
and provide predictability in their
lives;
b. Law is a means to enforce
sanctions;
c. Law is often used as a means to
protect the government against
criticism;
d. Law can be used as a means for
distributing the sources of power(CJM Schuit, 1983).
The law generally defined as the
overall regulation or kaedah in common
life, the whole of behavior that apply in a
common life that can be imposed
observance with a sanction (Sudikno,
1986: 37).
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Various notions of law suggests that
the law has many dimensions that are
difficult to put together, considering each
dimension has a different method. Broadly
speaking, the legal sense can be grouped
into three (3) basic understanding (Satjipto
Rahardjo, 1986, 5-6), namely: first, the law
is seen as a collection or abstract values;
the second law seen as a system of abstract
rules; Third, the law is understood as a
means / tools to organize society.
The legal basis function (Hoebel, in
Esmi Warasih, 2005: 26) as follows:
1) Establish relationships between the
members of the community, by
showing the types of behavior what
is allowed and what is forbidden.
2) Determine the distribution of
powers and specify who should
make any coercion and who must
obey them and also choose the
sanctions are appropriate and
effective.
3) Resolving disputes
4) Maintain the ability of communities
to adapt to the conditions of life arechanging, that is by reformulating
the essential relationships between
members of the community.
In addition, the law requires that
citizens behave in accordance with the
expectations of society or a social control
function is to regard the law as a
mechanism of social control of a general
nature.
Moreover, Lon L. Fuller (Esmi
Warassih 2005, 31) argues that to know the
law as a system, it must examine whether it
meets the eight (8) principle or principles
of legality following:
1.
The legal system must contain the
regulations means that he must not
contain decisions merely ad hoc.
2. The regulations that have made it to
be announced.
3. Regulation should not apply
retroactively.
4. The rules are arranged in a formula
that can be understood.
5.
A system should not contain
regulations that contradict each
other.
6. Regulations should not contain the
demands that exceed what can be
done.
7. Regulation should not be often
permuted.
8. There should be a match between
the regulations promulgated by theday-to-day implementation.
When talking about the law as a norm
it is not apart of Hans Kelsen's doctrine
regarding Stufenbau the theory which
states that a norm created by a higher
norm, the norm higher even this was made
according to the norms of higher again,
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and so on until we stop the norm the
highest that is not made by the norm again
but determined first by the community or
the people (Esmi Warassih, 2005; 31).
In connection with the substance of the
law governing forest management in
Indonesia PP 2 of 2008 which regulates the
compensation value of mining in protected
forest area and forest production received a
negative response from the Environment
observers. This Regulation provides for the
granting of mining permits in protected
forests and forest production. PP is very
detrimental to the communities living
around the forest. In its report Arif Ahmad
stated that the presence of foreign mining
companies in Indonesia, more often
displays misery and squalor. Areal works
contract mining company in the hundreds
of thousands of hectares, displacing the
economic and social activities of local
communities. Eviction legalized by the
state. Millions of displaced communities
from their own communal land, so there is
a mining company. One example of that is
invisible to the eye is experienced Sakaitribe in Riau. They were expelled after
Chevron Paciic Indonesia (PT CPI) to
build oil and gas empire over their
traditional territory. This is partly due to
land acquisition sold by the Sakai, mostly
taken for granted with very low
compensation or no compensation.
However, above all it is actually rooted in
the failure of the state to protect citizens
Sakai as native citizens. The presence of a
gold mining company in Central
Kalimantan, East Kalimantan, Sulawesi,
NTB, other danprovinsi also has put local
communities that traditionally mined
suddenly changed its status to become
looters in their own land.
LEGAL CULTURE
Legal culture or cultures of human
attitudes toward law is the law and the
legal system, beliefs, judgments and
expectations of society against the law. So
in other words, the legal culture is an
atmosphere of social thought and social
forces that determine how the law was
used, ihindari or even abused, including by
law enforcement itself. Legal culture is
anything or anyone who decides to turn on
and turn off the engine and decide how the
machines are used. Abstract law is in a
state of static and helpless anything
without any human action. Law seems to
do something and therefore their mutualinteraction behavior and human action.
The law itself can not behave. Operation of
law in society relies heavily on human
action. Legal provisions often can not be
implemented because of human actions.
Conceptually core and meaning of the
rule of law lies in harmonizing the
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activities that span the 'hierarchy of values
in kaedah-kaedah steady and attitude acts
as a series of translation of the final stages
of creating, maintaining and sustaining
peace social life. Conception that has the
base isiologi require further clarification so
that it becomes concrete. Furthermore
Soerjono Soekarno explained that the
concrete elaboration occurs in the form of
kaedah-legal norms, which may contain
the messenger, prohibition or skill. In the
specific actions, a legal norms then a
guideline or benchmark for behavior or
attitudes that are considered inappropriate
acts or should. Behavior or attitude of the
offense intended to create, require and
maintain peace. Thus konkritisasi of law
enforcement conceptually.
In addition, Soerjono Soekarno
suggests factors that affect law
enforcement are as follows:
1. Factors own law, the Act;
2. Law Enforcement factors, namely
those that form and apply the law;
3. Factors means or facilities to
support law enforcement;4. Factors society, ie the environment
in which the law applies and
determined;
5. Cultural factors, as a result of
works, creativity and taste that is
based on human initiative in social
life.
Forest destruction in Indonesia almost
certainly 70 to 80 percent is the result of
human activity. Therefore, in PP 45 of
2004 on the protection of forests has been
set on the man as one of the causation of
damage forest. Forest protection is the
responsibility of the government and local
governments as the duty of the State to
organize, protect and welfare of its people.
CONCLUSION
Based on the description above can be
concluded forest law enforcement in
Indonesia, influenced by the structure or
law enforcement agencies (police, forestry
police, investigators, prosecutors, judges,
lawyers); substance (material) contained in
the Law 41 of 199 of Forestry and legal
culture that developed in Indonesian
society.
Government each year to evaluate the
deforestation and forest areas, well done
due to deliberate or unintentional.
To address the prevention of forest
keusakan good security is required by law
enforcers, regulatory support and goodculture of forest management.
REFERENCES
Ali, Achmad. (2002). Legal
deterioration in Indonesia (Causes
and Solutions). Jakarta: Ghalia,
Indonesia, p.7.
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I Gusti Ayu Ketut Rachmi Handayani
EKOSAINS Journal | Vol. IV | No. 2 | July 2012
Arif Ahmad. (2008). Benefits of
Forests, Mines and Power of The
Displaced People, Jakarta:
Compass, p. 40.
Esmi Warasih. (2005). Legal
institutions: A Sociological Study,
Semarang: PT Suryandaru Main.
Friedman, Lawrence. (1986). Legal
Culture and The Welfare State , in
Gunther Teubner. Dilemmas of
Law in the Welfare State. New
York: Waiter de Gruyter &Co.
Friedman, Lawrence. (1986). The
Legal System: A Social Science
Perspective, New York: Russel
Sage Foundation.
Kartodihardjo. H. (2006)
Economics and Institute of Forest
Management. Advanced Study
Policy Analysis Forestry
Enterprises. Bogor: Ideal Press.
Soerjono, Soekarno. (1986).
Factors Affecting Law
Enforcement. Jakarta: Eagle Press,
Indonesia, p. 3.
Sudikno, Mertokusumo. (1996).
Know Law: An Introduction,
London: Liberty, Indonesia.
William J. Chamblis & Robert B.
Seidman. Law, Order and Power,
Reading, Mass: Addison-Wesly.
1971. P. 5-13. See Robert B
Seidman. Law and Development. A
General Model, in Law and Society
Review. No. V, 1972.
LAWS AND REGULATIONS
Law 41 Year 1999 on Forestry
PP 45 of 2004 on the Protection of
Forests
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