Emergency Legality of Forest Areas

Emergency Legality of Forest Areas

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Jakarta, March 12, 2012

No .:

Page: Interpretation and Implementation of Decision of the Constitutional Court. 45 / PUU-IX-2012.

Dear. Minister of Forestry

in Jakarta

With respect,

As has been understood that the Constitutional Court (MK) has decided the petition for judicial review related to Article 1 number 3, Law No. 41/1999 on Forestry. After the decision has been made, some parties have responded, especially informally through mass media, but among those who responded, the elements of the Government and the Regional Government themselves have not been the same in interpreting the implications of the Constitutional Court's decision. Therefore, the DKN needs to convey that it is deemed necessary to have an official government decision, cq. Ministry of Forestry and Local Government on the interpretation of the Constitutional Court Decision, so that all parties have the same perception in carrying out development activities related to the Constitutional Court Decision. In relation thereto, the National Forestry Council (DKN) through the fifth representative of the chamber has conducted the discussion and intends to present the results of the discussion as input to the Minister of Forestry, as summarized in the points below:

Constitutional Court Decision;

In principle the Court decided two things. First, that the phrase is appointed and or set forth in Article 1 number 3, Law No. 41/1999 is contrary to the 1945 Constitution and therefore has no binding legal force. Secondly, although Article 1 Sub-Article 3 and Article 81 of Law No. 41/1999 use the phrase designated and / or determined, but the enactment of those designated and or enacted in Article 81 shall remain valid and binding. The following Article 81 of Law No. 41/1999: Forest areas that have been designated and or stipulated in accordance with laws and regulations prevailing before the coming into effect of this law are declared to remain in full force in accordance with this law.

Legitimate and Binding Meanings;

Interpretation of the Constitutional Court's decision is that all forest areas that have been designated and or stipulated prior to the coming into effect of Law No. 41/1999 remain valid and binding. However, since the Constitutional Court's decision is read out because the Constitutional Court's decision is prospective in accordance with Article 47 of Law No 24/2003 jo No 8/2011 regarding the Constitutional Court, ie, on February 21, 2012, state forest area can be declared valid only if forest area has been determined Article 15 of Law No. 41/1999. The opinions of the Constitutional Court [3.12.2] in this case are:The mere designation of an area to become a forest area without going through a process or stages involving various stakeholders in a forest area in accordance with laws and regulations, is the exercise of an authoritarian government. The designation of forest areas is predictable, not sudden, even planned, and therefore does not require discretionary powers. It should not be a forest area that will be maintained as a permanent forest, controlling the livelihood of many people, only through appointment.

In the implementation of the determination of the area into a forest area, among others, concerning the possibility of individual rights or rights pertuanan (ulayat), so that if there is such a situation, then the boundary arrangement and mapping boundaries of forest areas to remove it from forest areas so as not to cause harm to other parties , for example people with an interest in the area to be designated as forest area.

Prior to the enactment of Law No 41/1999, there was a Spatial Planning Act (No 24/1992) which led to the alignment of forest area designation based on the TGHK and Provincial Spatial Planning (RTRWP) indicative, not definitive for the Appointment of Pure Area of ??Pure Forest, except for Central Kalimantan Province, Riau and Riau Islands. Thus, except for the three provinces, as well as some areas that have been designated as forest areas (definitive), forest area reference prior to February 21, 2012 is Forest Area Designation based on Padu Serasi map. This should be the official policy of the Ministry of Forestry, considering that the process of harmonization has been carried out with considerable resources and time sacrifices by removing forest areas for other designations and incorporating non-forest areas into forest areas.

Prior to February 21, 2012, any reference to TGHK or Padu Serasimes though legitimate and binding but indicative rather than definitive determines the status of forest areas, since there are still among others individual rights and tenuan rights (ulayat) to be issued at a later stage, and indicated on a relatively small map scale of 1: 250,000 which can not be used to establish the existence of individual rights or customary rights. Legal and binding that are indicative, thus, interpreted as temporary, namely as a basis for determining the status of individual rights and ulayat or other rights in the next stage. In practice, the definitive limits of results agreed upon by the parties concerned through the Boundary Committee should still be used as definitive boundaries.

Thus, the valid and binding indivisible of the current forest area which is new to the stage of appointment with the permission contained therein is unconstitutional and can be challenged. According to the Constitutional Court, such forest areas are normatively authoritarian and do not provide legal certainty, in the opinion of the Constitutional Court [3.13] which refers to Article 28D Paragraph (1) of the 1945 Constitution that Everyone has the right to fair recognition, guarantee, protection and legal certainty and equal treatment before the law.

Emergency Legality;

With the enforcement of the Constitutional Court's decision dated February 21, 2012, the state forest area can be declared valid only if the forest area has been stipulated in accordance with Article 15 of Law No. 41/1999, the above mentioned temporary nature shall be resolved in the shortest possible time, does not cause recurrence of future forest issues and legal uncertainties.

If the Government does not work quickly and decisions on the appointment of forest areas are sued by certain parties whose rights have been lost or harmed as a result of such appointments, the Court of Justice as a judicial reviewer may invalidate the designation of the forest area, as it may in fact be contrary to the principle of a legal state provided for in Article 1 Paragraph (3) of the 1945 Constitution. Thus, there is an emergency of legality on all forest areas that apply today.

Policy Implications;

In general, field conditions indicate claims to forest areas that can be categorized based on historical facts, social facts, legal aspects, and political-economic situation, such as indigenous peoples' existence, village development, population migration, mobilization of the period for economic and political purposes, as well as various types of permits and misleading business rights. Similarly, it has different impacts on forest functions in conservation forests, protected forests and production forests. Therefore, in elaborating Article 28D paragraph (1) of the 1945 Constitution above, it is necessaryGovernment Regulation in Lieu of Law (Perpu) or Presidential Instruction on acceleration of forest area by involving various Ministries / Institutions.

Minister of Forestry Regulation stipulates: 1). Acceleration of forest areas, including inventory and policy determination on the legal status of indigenous peoples and villages within and outside forest areas, 2). Mediation, decision-making and prevention of the development of population migration and the mobilization of the de facto occupying of forests, 3). Mediation or conflict resolution to permit holders (IUPHHK, IUPK, etc.) and the existence of other licenses or indigenous / local communities to reach forest area assurance decisions, 4). To evaluate the function and determination of zonation in conservation forest and to apply zonation in the management of protected forest so that the settlement of the settlement within the forest area can be ascertained its right without reducing the function of the area, 5). Using the definition of forest area according to the Constitutional Court's decision and its implications, revision of Government Regulation No. 44/2004 on Forestry Planning, Permenhut No 47/2010 on Boundary Planning and Permenhut No 50/2011 on Forest Area Confirmation.

Temporary suspension of new licenses on forest areas of status at the appointment stage, until completion of the process of determining forest area. To protect the status of forest area, it is necessary to accelerate the development of Forest Management Units (KPH).

Provincial, Regency / Municipal and Village Governments carry out an inventory of indigenous / local communities, village development, population migration, time mobilization of forest areas, and various types of permits and entitlements to accelerate forest lands.

The Ministry of Forestry is advised to promptly establish a Roadmap or Macro Solution Plan for the Settlement of Hutanyang Issues together with a set of tools capable of conducting conflict resolution and economic development priorities for indigenous peoples / locals as a basis for establishing ministerial programs and activities. The implementation of this Macro Plan needs to be coordinated with the National Land Agency and the Ministry of Home Affairs. This is necessary as the resolution of this issue requires policy consistency over the long term.

It is thus conveyed, on the consideration of the result of this DKN discussion, thank you.

Best regards,

National Forestry Council

Hariadi Kartodihardjo

Chairman of the Presidium

Cc to Dear. :1. Chief Justice of the Constitutional Court

2. Minister of Law and Human Rights

3. Chairman of the Presidential Work Unit of Development Supervision and Control (UKP4)

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