Forest fires: Will sanctions be effective?

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 A company whose IPK has been revoked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.