Factors Affecting the Enforcement of Forestry in Indonesia

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


Faculty of Law, University of March Surakarta,

Jl. Ir. Sutami No. 36 A Surakarta, Indonesia

Email: [email protected] 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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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

Documents

Factors Affecting the Enforcement of Forestry in Indonesia