YEAR 2014 ON REGIONAL GOVERNMENT
Zeli Supardiawan,* Gatot Dwi Hendro Wibowo,** Sahnan **
*Postgraduate program Legal Study and Notaries, Mataram University, Indonesia
**Lecture of Law Faculty Mataram University, Indonesia Email correspondence: [email protected]
Abstract: This study aims to analyze the existence of community forest after the implementation of Law Number 23 Year 2014 on Regional Government. This research is normative law research, Community Forest which hereinafter called HKm is; State forest utilization is primarily aimed at empowering local communities. The empowerment of local communities is an effort to enhance the capability and independence of local communities to benefit optimally and equitably from forest resources through capacity building and access provision in the context of improving the welfare of local communities. Community empowerment is also to overcome the problem of poverty, the community get the assurance of access to manage forest area, HKm able to change the paradigm of centralized forest management, which has caused deforestation, marginalization of community rights, marginalization of culture and poverty, and HKm expected to solve conflicts forestry, by providing access and management rights related to community claims in the forest area, the context of the sustainability of economic transformation, the culture of the community in forest areas that require recognition and certainty. Community Forestry Arrangement and Implementation which is one of the policies of granting forest rights to groups is not actually community-based, Community Forest is a unit of patterns compiled from groups based on modern management, and management models these groups are not recognized by the community in the history of forest management, and the existence of Community Forest after the enactment of Law No. 23 of 2014 is still very far when compared with the Government target that has targeted the achievement of social forest at least 12.7 million hectares until 2019 .
Keywords: community forest, operation, management of HKm
5888 INTRODUCTION
Forests have a position and a very important role in encouraging national development, the foundation of forestry development is Article 33 Paragraph 3 of the 1945 Constitution of the State of the Republic of Indonesia namely; Earth and water and the natural resources contained therein are controlled by the state and used for the greatest prosperity of the people.1
11776 The 1945 Constitution of the State of the Republic of Indonesia which has been amended by his
The existence of Community Forest After the enactment of Law Number 23 Year 2014 on Regional Government
Understanding is not master owned, but an understanding that contains obligations and authority in public law. namely the right of the state to; Implement and manage the planning, designation, provision and use of the forest in accordance with its function in providing benefits to the people and the state, regulating forest management in a broad sense, and defining and regulating legal relationships between persons or legal entities with forests, legal acts concerning forests.2
Forest management systems in Indonesia are more profitable for the country than timber sales. This, in turn, makes the government have enormous powers in regulating and controlling the use of forests, only those licensed by the government may use forest products, and those parties are limited to private companies or state enterprises. However, on the other hand, the community considers forest to be the common property of this nation, thus the community should be able to take direct advantage of the forest.
Communities in forest areas are generally classified as a class of disadvantaged people, the socioeconomic conditions of this class of people are generally poor. Forest utilization by holders of Forest Management Rights (HPH) often ignores the community's interest in forest areas over forest resources, which makes the population's access to forest benefits very limited.
So the economic status gap between the local indigenous population and the outsiders is getting higher. The enactment of Law Number 41 Year 1999 on Forestry is one of the efforts to improve the old system of forest management in Indonesia. Where communities are said to have the right, even greater obligation, to engage in forest management. Therefore, through the Community Forest or abbreviated HKm as one of the policy frameworks issued by the Ministry of Forestry to reduce deforestation rate in Indonesia by involving the community, many people view this policy as a state recognition of forest management by the people who have been neglected.
Community Forest or HKm is a state forest whose utilization is primarily aimed at empowering local communities, while the empowerment of local communities is an effort to improve the ability and independence of local communities to benefit optimally and equitably from the forest resources through capacity building and access provision in order to improve the welfare of the community local.3
HKm in addition to aiming for community empowerment also to overcome the problem of poverty by opening access and space forest area for the community. Through HKm, communities gain assurance of access to participate in managing forest areas, becoming a source of livelihood, the availability of water utilized for households and agriculture. for the government, HKm can contribute indirectly by the community through self-help/self-directed rehabilitation and forest protection, while for the forest itself the function of habitat restoration, crop diversity, the maintenance of ecological and hydrological functions, and preserve the natural wealth of flora, fauna that has been there before, in addition, HKm is expected to change the paradigm of centralized forest management, which has led to deforestation, marginalization of community rights, marginalization of culture and poverty, and also HKm, is expected to resolve forest conflicts by granting access and the right to manage related to community claims in the control of forest area.
In that context, HKm is expected to ensure the sustainability and transformation of the economy and culture of the community in forest areas that require recognition and certainty.
512 Salim, HS. Dasar - Dasar Hukum Kehutanan, Edisi Revisi, The fifth edition 2013, Sinar Grafika, Jakarta 2013, p.
0 Regulation of the Minister of Forestry of the Republic of Indonesia Number: P.88 / Menhut-II / 2014 About Community Forest.
The existence of Community Forest After the enactment of Law Number 23 Year 2014 on Regional Government
Related to that, in the implementation of HKm, there are still many problems and challenges that occur in the practice of implementation, such as the process of determining the working area of HKm and IUPHKM longer than the time specified according to the rules and the absence of strict sanctions on the delay of the process, centralization to obtain IUPHKM, HKm recognition and licensing process, Regulations on HKM that are not synchronized, high requirements that must be fulfilled in preparing the general plan (RU) and operational plan (RO), Forest area administration policy until now there is no clarity of rights of society to manage forest areas, and land legality conflicts have not been resolved. Of the many problems that arise in the implementation of HKm so far and that has not been resolved, then faced with shifting transfer of authority of the central government, provincial and district / city, with the withdrawal of Law Number 32 Year 2004 with all its changes, replaced by the Act Number 23 Year 2014 About Local Government. The matter of government affairs consists of absolute, concurrent and general government affairs, in the division of the affairs provides a distinction with the previous law especially in the administration of government affairs in the field of forestry, there is a drastic change related to the authority of the Regency / City Government in the affairs of the forestry field. District / municipal governments have only one authority or affairs, namely the Implementation of Forest Park Management (Tahura), and become part of the sub-affairs of conservation of biological natural resources and their ecosystem. This indicates that forestry affairs again become centralized, although there are provincial governments that still have considerable authority. But the provincial government is actually an extension of the central government through the concept of DE concentration. This is inversely proportional to the forest management orientation set forth in Law No. 41 of 1999 on Forestry, which expressly states that the government handed over some authority to the local government.
Based on the complex problems occurring in the field of forestry, particularly in the management of community access rights through Community Forest after the enactment of Law Number 23 Year 2014 on Regional Government, there is a tendency to recall or centralize the authority of district / municipal governments by the central government through intermediaries provincial government that became an extension of central government. This indicates some overlapping of regulation between Sector Act i.e.; (Law No. 41 of 1999 on Forestry with Law No. 23 of 2014 on Regional Government).
From the description above, the writer wants to see the existence of Community Forest after the enactment of Law Number 23 Year 2014 About Local Government. This research is normative law research Problem approach used is Statutory Approach, Conceptual Approach, Historical Approach and Case Approach.
0 DISCUSSION
Indonesia is known as a country. Which has the last tropical rainforest (tropical rain forest) forest area in Indonesia is experiencing serious degradation. This is in addition to the fact that the number of people who rely on forests as a source of livelihood continues to increase, as well as the government has consciously exploited forest resources as the most dependable source of income and state revenues after natural resources of oil and gas in terms of economic development. The exploitation of forest resources by the government has contributed to economic growth in Indonesia. Through the policy of granting Forest Concession Right (HPH) of Forest Product Harvesting Rights (HPHH) or Industrial Timber Estate (HTI), the government is able to boost national economic growth, increase revenues and foreign exchange, absorb labor, drive the economy and increase local revenue. But on the other hand the destruction of forest
The existence of Community Forest After the enactment of Law Number 23 Year 2014 on Regional Government
resources due to uncontrolled and uncontrolled exploitation consistently, causing ecological costs also caused social and cultural damage, including restrictions on access and displacement of community rights and the emergence of conflicts over the utilization of forest resources in the region.
Government's forest resources exploitation policy proves that degradation of forest resources in Indonesia is not solely due to population density, low level of economic prosperity of the community, which tends to be associated with community life around forest areas that have shifting cultivation traditions. However, the damage to forest resources is precisely because of the choice of state-based development paradigm, the use of centralized development management and solely economic growth oriented, supported by repressive law and policy instruments.
Starting from the New Order government through the development of national economy oriented to pursue economic growth (Economic Growth Development). to realize the rapid rate of economic growth, the government issued a policy to open economic opportunities and business opportunities by inviting investors to invest in Indonesia and the government consciously exploit forest resources and other natural resources, especially oil and gas, as a source of income and foreign exchange state (state revenue) to finance national development. To support the implementation of capital-oriented development policies (oriented capita) and oriented to pursue economic growth alone by prioritizing the achievement of certain growth targets, the government created a legal instrument (legal instrument) which begins with the ratification of Law No. 1 of 1967 on Planting Foreign Capital (PMA), then followed by Law Number: 6 of 1968 on Domestic Investment (PMDN), Immediately after the PMA Law is invited by the Government, To support the increase of foreign investment and domestic capital in the exploitation sector forestry, the government establishes a legal instrument beginning with the establishment of Law Number 5 Year 1967 on Basic Forestry Provisions.
To implement the provisions concerning forestry concessions underlying the policy of granting forest resource exploitation concessions, the Government Regulation No. 18/1975 on the Rights of Forest Exploitation and Forest Product Harvesting Rights (HPH and HPHH) is issued. After this Government Regulation is issued, massive forest resource exploitation activities are initiated by the government through the granting of HPH concessions and HPHH to foreign and domestic capital owners in the form of BUMS, BUMN. From the economic point of view of giving HPH and HPHH concessions to BUMS, SOEs actually contributed positively to the improvement of Indonesia's economic growth. However, from another aspect of the policy of granting non-open and non-selective forest concessions, it contains elements of KKN so that concessions are controlled by certain people or foundations that have strong access to the ruling elite, coupled with weak controls, and law enforcement, there is an uncontrolled and untouchable exploitation of forest resources by logging concessionaires and HPHH concessionaires.
Ecological consequences occur in the degradation of quantity and quality of tropical forests in various regions in Indonesia, from the economic side there are limitations and the loss of local community life sources, from the socio-cultural point of view, local community groups, especially the people who are hereditary live and live around the forest. Victims of development, displaced and neglected and freezing access and their rights to forest resources, there have been prolonged conflicts over the management and utilization of forest resources between local communities and governments and concessionaire’s forestry.
Reform era can be observed that the phenomenon of the law of management of forest resources that are produced ideologically has not changed, legal products in the form of
The existence of Community Forest After the enactment of Law Number 23 Year 2014 on Regional Government
Government Regulation Number 6 Year 1999 About Forest Exploitation and Production Forest Production contains the content of soul, spirit and substance which in principle is not different with Government Regulation Number 21 Year 1970 regarding HPH and HPHH. The legal products of the legislative and executive institutions in the reform era in the form of Law Number 41 Year 1999 on Forestry, ideologically and substantially are not much different from Law Number 5 Year 1967 as the product of forestry law of the New Order era. Centralized, and merely oriented to economic growth.
The Community Forestry Policy was issued in 1995 through Decree of the Minister of Forestry Issuance No. 622 / Kpts-Il / l995 of its follow-up, the Director General of Forest Utilization, supported by NGOs, Universities and International Institutions, trials in various places in forest concession management involving local community. Until 1997 HKM recognition form is still very small, then the Minister of Forestry issued a Decision Number. 677 0Kpts-II / 1997 by amending Decision Number. 622 / Kpts-II / 1995. This regulation provides a space for the granting of forest utilization rights to communities known as Community Forestry Rights (HPHKm) which are limited to non-timber forest utilization. The promotion of HKm forms is an approach that can minimize forest degradation and improve the level of the community's economy. The Minister of Forestry is amended by issuing the Minister of Forestry Decree No. 31 / KPTS-II / 2001 with the existence of this decision; the community is given greater flexibility as the main actors in forest management. The policy was further refined through Minister of Forestry Regulation No. P.37 / Menhut-II / 2007 on Community Forests and subsequently followed by its amendments (Minister of Forestry Regulation No. P.18 / Menhut-II 12009 Permenhut Nomor: P.13 / Menhut-2010 to Permenhut Number: P.52 / Menhut-II / 2011) and subsequently refined by the Minister of Forestry Number. P.88 / Menhut-ll / 2014 about Community Forest. In the regulation, the government explains the technical guidance regarding the procedures for obtaining HKm's rights, including details of the licensing process and the granting of Permit for Utilization of Community Forest Management (IUPHKm).
There are three main issues that must be considered in the management and utilization of forests that involve the community in order to build forests, namely:4
0 This effort should be directed (targeted) means that what is done is directed directly to those who need and according to their needs designed to solve the problem.
1 Must directly engage or engage the community in the management and utilization of the targeted forest, with the objectives in accordance with their will, capabilities, and needs, to continuously improve empowering communities with experience and designing, implementing, managing, and sustainable.
2 Using a group approach, because if individually the community is difficult to solve the problems it faces.
Expectations through the pattern of land management in the forest area of forest sustainability are maintained and the improvement of forest functions can be improved, and the benefits of multipurpose plant system (multi-purpose trees species can improve the welfare of the community).5
0Otto Soemarwoto, Atur diri sendiri, Paradigma Baru Pengelolaan Lingkungan Hidup, Gajah Mada University Press, Yogyakarta, 2001. p.27.
1 Dodik Ridho Nurrochmat, Strategi Pengelolaan Hutan, Upaya Menyelamatkan yang Tersisa, PustakaPelajar.
The existence of Community Forest After the enactment of Law Number 23 Year 2014 on Regional Government
The existences of Community Forest there are several benefits that can be obtained for the community, the government and the forest functions, namely:6
0 For HKm community can
Provide certainty of access to participate in managing forest area.
Be a source of livelihood.
The availability of water that can be utilized for households and farms is maintained. and Good relationship between government and other related parties.
1 For HKm government can:
Indirect contributions by communities through self-help and self-directed rehabilitation.
HKm activities have an impact on forest observation.
2 For forest functions and habitat restoration Establishment of plant diversity.
The maintenance of ecological and hydrological functions, through mixed cropping patterns and technical conservation of applied lands.
Maintain natural wealth of pre-existing flora and fauna.
In the implementation of HKm the existence of Tenurial Conflict, this emerged as a result of specific policy conflicts namely forestry law No. 41 of 1999 and UUPA Number: 5 Year 1960.
On the other hand forest tenure conflict is also caused by sectorial policies, gap between ownership and control, fragmentation of customary forests, or the difficulty of recognizing customary forest based on the rules of Forestry Law Number 41 Year 1999. Differences of stakeholders' perceptions, regulatory conflicts between formal and informal, and horizontal conflicts between communities.7
Community Forest is part of the application of the concept of Social Forestry; the goal of this social Forestry is divided into long-term, short-term goals.
0 Long-term goals, social forestry are improving critical land conditions, active participation of local communities in forestry development, improving the welfare of local communities, providing the needs of local communities, from within forests and conservation of natural resources.
1 The short-term goal, social forestry is for the establishment of forest farmer groups (KTH) for improved crops (forestry and agriculture) and increased income for members of forest farmer groups.8
The legal certainty that the government gives to the people in the management of Community Forest is a concrete form of government concern for the welfare of the people around the forest. Community Forest management efforts in principle can prosper the community, the forest must be sustainable, and that principle must be inherent, based on the mandate of the legislation.
2.1 Implementation and Implementation of Law Number; 23 of 2014 on Regional Governance of Forest Management
6 Maria,S.W Soemarjono, Kebijakan Pertanahan Antara Regulasi dan Implementasi, Book Publishers Kompass:
Jakarta 2001. p 12.
0Ibid.
1Arif Arifin, Hutan dan Kehutanan, Kansius, Yogyakarta, 2001. p 22.