Court Decision Upsets Plantation Companies

The Jakarta Post, Jakarta | Sat, 03/03/2012 7:35 PM

The Constitutional Court’s recent decision to approve a request from a
number of local governments to change an article in the Forestry Law
has raised uncertainties over the legal status of land owned by
plantation companies and forest concession owners.

The chairman of the Indonesian Forestry Businessmen Association
(APHI), Nanang Rofandi, said in Jakarta on Friday that with the
court’s decision, the association’s members felt that the status of
their land had become uncertain.

“The ruling raises a lot of questions and confusion among us and we
now have no certainty in carrying out our business,” Nanang told The
Jakarta Post.

On Feb. 21, the court issued a ruling to drop the phrase “allocated
and/or”, which appears in the third paragraph of the Forestry Law’s
first article, at the request of regents from five regencies in
Central Kalimantan on the ground that the phrase made the article
contrary to the 1945 Constitution.

The regents also argued that the full sentence, which reads: “A
forested area is a certain area that is ‘allocated and/or’ determined
by the government as a permanent forest area”, gave an absolute
authority to the central government to declare some of their areas as
permanent forests.

With the original article, the plaintiff said, the central government
had the power to determine non-forest areas, which are already owned
by local people, to become forest areas. But legal experts say that
the removal of the phrase could lend even more power to the government
in determining forest areas.

Legal expert Hikmahanto Juwana, who is also the dean of the University
of Indonesia’s Law Faculty, said the deletion of the phrase did not
really change the meaning because there was no explanation on the
legal implication of the change.

“When we talk about the government, which government are we talking
about? The word ‘government’ is misleading because it can mean the
central government or the local government,” Hikmahanto told the Post.

He said that both central and local governments should sit together
and discuss further about the forestry issue. He also said that the
ruling still needed to make an explanation in order to make everything
clear.

“We discussed this issue at the Forestry Ministry today. We want them
to issue circulars that will help us to retain legality in our
business,” he said.

In line with the APHI, the Indonesian Palm Oil Producers’ Association
(GAPKI) also said that the legality of palm oil business activity in
Indonesia has become unclear following the courts’ decision.

“The ruling brings a lot of problems. We are going to consult with
legal experts about this issue in order to get some clarity for our
business,” GAPKI’s executive director, Fadhil Hasan, told the Post.

In a separate interview, Greenomics Indonesia executive director
Elfian Effendi said that all the Forestry Ministry’s decrees on
provincial forestry area allocations issued after Sept. 30, 1999, no
longer had a legal base as one of the reasons why the court decided to
change the article was because it contravened the Constitution.

Elfian added that the court’s ruling also effectively delegitimized
the presidential decrees on new permits and prime forest management,
and the forest spatial management plan (RTRW) in Sumatra, Kalimantan
and Sulawesi by removing their legal foundation.

“This is because the RTRW uses map attachments from a ministerial
decree that was issued after Sept. 30, 1999,” he said.

In addition, Greenomics said the ruling would also affect the Master
Plan for the Acceleration and Expansion of Indonesia’s Economic
Development (MP3EI) because some of the economic programs included in
the MP3EI were based on ministerial decrees issued after Sept. 30,
1999, when the Forestry Law became effective.

In a separate interview, Forestry Minister Zulkifli Hasan said that
the ruling did not disadvantage any party, including businesspeople.“There is no party that is disadvantaged by the ruling,” Zulkifli told the Post.

He said the ruling benefited the government because it could help
speed up the program to establish forest boundaries in the country.
“This will strengthen efforts in establishing the forest land-use plan
[TGHK],” he said.

The minister added that the TGHK was very important for Indonesia as
the country possessed some 95 million hectares of forested land — the
largest amount in Southeast Asia — and played an important role in the
global fight against climate change and reducing gas emissions.

In addition, he said he had urged all regents across the country to
make an extra effort to accelerate the establishment of forest
boundary areas in their respective regions. He gave local governments
three months to complete the task.

According to Tahrir Fathoni, the ministry’s human resources
development chief, the ministry has requested assistance from
consultants and academics to help accelerate the task.

Tahrir said the ministry had outsourced more than 1,000 people to get
the job done.Normally, it takes a full year to obtain the results of a boundary area. (nfo)
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