Forest fires: Will sanctions be effective?

By Suwiryo Ismail

JAKARTA (JP): The government's decision to revoke hundreds of licenses belonging to 29 forestry and plantation companies last month might not be effective.

The first reason is because the timber utilization licenses, or IPK, which total 151 of the licenses being revoked are only one of many other licenses.

Besides licenses from the Ministry of Forestry, an estate company is also required to own licenses issued by the regional administration, the Ministry of Agriculture and other agencies.

This means that the revocation of an IPK cannot be considered a final punitive action. A company whose IPK has been revoked still possesses other licenses. This explains why many of the companies sanctioned are still in control of their land, despite the punishment.

The authority to grant and revoke an estate business license rests with the Ministry of Agriculture. The Ministry of Forestry, which is authorized to issue timber estate licenses and forest concession rights, has no authority to revoke an estate business license.

Another irony is that some companies appear to enjoy creating panic among their own laborers by threatening that they will lose their jobs following the government's revocation of their license.

Also, press reports on these businesses' licenses may help divert the public from pinning down investigation into the real cause of the forest fires.

The reports will also shift the "field of conflict" from a conflict of interest between the community and forest concessionaires, estate companies and the bureaucracy on the one hand, to one between society concerned with environmental safety and laborers.

If the government is serious in imposing a penalty, it must be done with transparency and involve representatives of the prosecutor's office and the police as well as the appropriate legal instruments to net the perpetrators.

The fact that before revoking the licenses, the Ministry of Forestry allowed the companies they had accused 15 days to give their counter arguments to prove that they were not guilty of forest burning, indicates that the process of imposing the sanction was less than transparent.

Why, for example, did not the ministry state that forest burning was a criminal act when imposing the sanction so that the legal process would be transparent to the public?

If this case had been handled on the basis of law No. 23/1997 on environmental management, the treatment of the case would have been more transparent because the public would have been entitled to monitor the legal process.

Furthermore, the revocation of the licenses would also be more appropriate because it would be based on the country's legislation on environmental management, while the government would have been entitled to claim for environmental compensation expenses from the companies engaged in forest and land destruction.

Obviously, there are three basic problems related to this incident. Firstly, inadequate handling of this incident was linked to the fact that most of the companies perpetrating forest burning were owned by big businessmen who have established very close relationships with the powers that be and enjoy excessive state protection.

Secondly, the fact that the forest fires had become extensive correlated with the tendency on the part of the government to relax its control over companies granted forest concessions or the rights to manage land and natural resources.

This relaxed control might result from the state's excessive protection of companies granted licenses to manage natural resources, particularly those in the forestry and estate sectors.

The government also has no adequate instruments or personnel to supervise the activities of forest concessions and plantation companies. Therefore, if there are irregularities, for example, land clearing through burning practices, the government is incapable of handling these irregularities immediately.

Thirdly, the public have no adequate rights to supervise the management of natural resources. The public's right to exercise supervision is reduced because, on the one hand, their access to forests and natural resources is systematically restricted and, on the other, protection is extended to groups enjoying the state's mandate to manage natural resources.

The right of the public to supervise is effectively undermined by a concept based on a handful of the state's legal instruments including its "right of control over natural resources" as stipulated in Article 33 of the 1945 Constitution, Law No. 5/1960 on agrarian principles, Law No. 11/1967 on forestry, Law No. 5/1967 on mining and Law No. 23/1997 on environmental management.

Using this concept, the state will render the concept of communal property rights (locally known as ulayat), still prevailing in some regions, ineffective and even turn it into "the state communal property right".

In practice, these two concepts are used as the state's "unlimited" source of legitimacy to allocate forests and natural resources to economic forces supporting the existence of the political power.

The writer is head of the division of environmental affairs at the Indonesian Legal Aid Institute Foundation.