New Legal Initiatives for Natural Resource Management in a Changing Indonesia: The

Promise, the Fear and the Unknown

by Jason M. Patlis1
Introduction
Much has been written about the impacts of regional autonomy on natural resource
management in Indonesia. While a survey of the literature generally will tout the benefits of
decentralized management in the form of greater responsiveness, greater efficiency, greater
transparency, greater accountability, and so on, the literature on decentralization in Indonesia
particularly as it relates to natural resource management has been much less sanguine,
portraying a system of governance that has moved rapidly towards greater exploitation at the
regional level, with almost daily reports in local papers of corruption among regional
parliaments, and little transparency among regional administrative offices (e.g., Bnte, 2004).
At the same time, some districts and provinces have undertaken some excellent initiatives
and enacted some excellent regulations in order to better promote sustainable management,
and clarify and enhance the administrative structure for more transparent natural resource
management decisions, and the question is now one of implementation of those regulations
(Asia Foundation, 2003).
Regardless of the direction, regional governments in Indonesia for the most part have
fulfilled one universal truth of decentralization: they have been much quicker and responsive
in exercising their new-found authorities than the central government has been in providing
guidance or standards for those authorities. The central government has only this year
almost five years since the original decentralization laws was enacted into law enacted
revisions to those laws, and is still developing a series of laws to better address natural
resource management specifically. This new generation of laws comprises a long list,
including two newly enacted statutes on regional autonomy, one on developing new laws,
and one on fisheries, and pending bills not yet enacted on natural resource management,
coastal resource management, maritime affairs, spatial planning, mining, and agrarian
reform. This new generation of laws certainly holds a great deal of promise for the future.
However, there is a great fear that, with the many systemic issues and weaknesses in the legal
framework, regardless of how those laws are prepared, and regardless of what they say, it
may be difficult to realize their promise and expectations.
This paper is comprised of five parts: (1) a critical view of certain conventional
wisdoms and perceived myths regarding Indonesian law that often cloud the laypersons view
of the legal system; (2) an overview of the major legal issues pervading decentralization,
with a preliminary analysis of the new regional autonomy statute enacted last month to revise
Act No. 22/1999; (3) an analysis of how natural resource management laws fit into this
decentralized framework; (4) a discussion of the new generation of natural resource
initiatives at the central level; and (5) a diagnosis and prognosis of these initiatives, to answer
whether they bode significant change or another version of the status quo for Indonesian
1

The author currently serves as Senior Legal Advisor for the Coastal Resources Management Project. The
views expressed in this paper are his own personal views, and do not reflect the positions of CRMP, or any other
institution. The author welcomes comments and can be reached at jason@yourearth.net.

natural resource management. Given the limitations of space, this paper offers some broad
provocative statements, together with specific but limited detailed insights, into the
development of natural resource laws in a changing Indonesia, with the hope that this paper
will stimulate further research by the reader.
I.

Conventional Wisdoms and Myths

This paper begins with some target practice. It will look to shoot down two myths
that have been long associated with the Indonesian legal system. The first is that Indonesia
has good laws that are just not implemented. This is an observation that is repeated in
development reports (ADB, 2002), as well as informally: splendid laws on paper as many
have said. This is an oxymoron. If a good law is enacted but not implemented, it is not a
good law. A good law, by its definition, is one that is implemented by both the governing
body and is followed by the society. Seidman (2001) states that [a] law always addresses
two sets of persons: the laws primary addressees whose behaviors the law-makers
principally propose to change, and those who work for the agency responsible for
implementing the law. One cannot ignore the application of the law to the implementing
agency in addition to the regulated public, so that any failure on the part of the law with
respect to the implementing agency reflects a failure on the law itself. The reasons as to this
failure may vary, with the usual suspects listed as lack of political will, accountability,
capacity, training, funding, etc. (Smeru, 2002). In discussing the prognosis for the new bills
currently being developed (in section V), this paper will contend that the reasons for this
failure are due to systemic problems in the legislative framework, and that are not merely
questions of implementation on the part of regulatory and enforcement agencies. The point
to stress for the moment is that one cannot evaluate a law as it exists on paper and stop there;
one must evaluate a law as it is applied because one can conclude whether it is splendid or
not.
The second myth to be discarded is the notion that Indonesia fails to abide by a rule
of law. Bell (2001), for example, queries, [a]fter all, we all know that the Indonesian legal
system is inefficient and that there is virtually no Rule of Law[so w]hat is the point in
trying to find inconsistencies and poor drafting in laws, since the laws will not be followed
that closely? The expression rule of law commonly describes a society in which there is a
predictive, rational system of laws, rather than arbitrary or capricious laws (Dicey, 1958).
The history, definition and import of a rule of law cannot be done justice in a single treatise,
never mind a single paragraph. Suffice to say, with jurisprudes dating to Aristotle having
espoused on the subject, one can tease three or four generic characteristics from the
generations of discourse:
First, state power must be exercised through previously announced rules of general applicability.
Second, the rules must be justified by legal rather than extra-legal reasons. Power may not be
exercised through ad hoc individual decisions grounded in personal will. . .Third, rules must bind all
members of government. Fourth, the laws must be administered by an independent and impartial
judiciary. (Tarlock, 2002)

The rule of law is often cited as the panacea to the panoply of problems facing the legal
systems of developing countries. It is not. Apart from modern theories that seek to recast the

iconoclastic notion of a rule of law into a more pragmatic construct (Radin, 2003), even
looking at the four characteristics quoted above, one can conclude that, after a cursory review
of the Indonesian system of government, a rule of law very much exists, even if it suffers
from a variety of aspects many of which will be discussed later. Even taking the most
egregious challenge to Indonesias rule of law pervasive corruption one must be
cognizant of the operation of a set of generally understood principles, norms and standards
that govern social behavior connected with corruption. These may not be expressed in the
form of black-letter law, but consistent with the characteristics of a rule of law they are
generally applied, understood, and carried out, with the acquiescence of a society that readily
abides by them. As an example (although one fiercely disputed by government
representatives), one public interest organization published a report that listed a very standard
set of fees or bribes associated with a variety of government services (Indonesia Corruption
Watch, 2003 find cite) an indication that while corruption is pervasive, it is neither ad hoc
nor unpredictable. Many of the weaknesses in the Indonesian legal system will be discussed
below (in section V), but they are not, as many claim, the result of a lack of a rule of law.
II.

An Overview of Regional Autonomy

In one of the final acts of a lame-duck legislature, the National Peoples Assembly
(Dewan Perwakilan Rakyat, or DPR), enacted two long-awaited statutes that revised the
decentralization framework for Indonesia. These two statutes Act No. 32/2004 and Act No.
3_/2004 supercede the original two statutes of Act No 22 and Act No. 25 of 1999. Many of
the basic provisions in both the laws of 1999 and the laws of 2004 are similar. Districts and
municipalities maintain authority to manage their affairs pursuant to their needs, goals and
capacities. This is spelled out in Articles 2 and 10 in Act No. 32/2004, and in Article 4 in Act
22/1999. The central government, as stated in Article 10(3) in the new law and Article 7(1)
of the original law, reserves certain subjects for itself, including foreign affairs, security,
judiciary matters, national monetary and fiscal policy, and religion.
These are the broad provisions cited by regional governments as they exercised their
new-found authorities. They ignored what one could consider the fine print of the laws.
Under the original Act No. 22/1999, this fine print included: Article 7(2), providing the
central government with authority to make policies, standards and guidelines for natural
resource management and conservation; Article 9, providing provinces with a broad role for
interjurisdictional issues and issues in which the district is not able or not willing to manage;
Article 10, authorizing regional governments to manage natural resources in accordance with
existing laws; and Articles 114-116, which provide that the central government can review
and reject regional laws violative of existng laws. Under Article 7 of the implementing
Regulation No. 25/2000, the central government can take administrative action against a
regional government for failures or violations in the enforcement of existing laws. Taking
these provisions together, regional governments have been given the authority to manage
resources, but with the responsibility to do so consistent with the existing framework.
Moreover, they have an obligation to enforce that framework.
Representing a half-century of centrist, sectoral and exploitative laws, however, the
existing framework profoundly contradicts the broad premise, spirit and letter of the regional

autonomy laws. Relying on the amendments explicitly providing for regional autonomy in
Articles 18, 18A and 18B of the Constitution, and by applying the principles governing
statutory construction generally (see Posner, 1983), there are good arguments to be made that
Act No. 22/1999 trumps the pre-existing centrist laws. Although there is the notion that Act
No. 22/1999 is an umbrella law -- indeed, Bell (2001) argues that it is constitutional in
nature, in that it regulates functions and administration of government -- it is no higher in
authority than other statutes, and its provisions do not transcend those of other statutes.
Furthermore, laws at the statutory level are studiously vague and broad, with specific
direction to be given at the lower levels of the legal hierarchy (ADB, 2002). The vagueness
of Act 22/1999 and Act No. 25/1999 was compounded by the fact that they went into effect a
fast 19 months after enactment, with precious little guidance emerging during this period
(Hofman and Kaiser, 2002). Without such guidance, their interpretation was up for grabs,
and districts won the early rounds by moving more quickly to implement their own vision.
Districts have certainly exhibited ingenuity, guile and speed in enacting new regional
laws, many taking advantage of rent-seeking opportunities in management of natural
resources. A few examples suffice. Despite the fact that Regulation No. 6/1999 and
implementing decrees by the Minister of Forestry provided for district-issued harvesting
permits to be limited to 100 hectares, the District head in Malinau, East Kalimantan, issued
permits that covered as many as 5,000 hectares, allowed for clear-cutting and cutting of
protected species of trees, all in violation of central law (Barr et al., 2002). Other districts in
East and Central Kalimantan enacted regional laws that provided for a levy or tax on illegally
transported timber passing through their jurisdictions (Casson, 2001; McCarthy, 2001).
These examples of illegalities and legal fictions have posed the greatest challenge to
sustainable management, and have tested the central governments ability to respond to
districts ultra virus laws (Patlis, 2002).
At the same time, however, some districts and municipalities have sought to develop
a clear, meaningful legislative framework for management, especially where rent-seeking
opportunities are not so readily available. In North Sulawesi, for example, the Minahasa
District enacted Regulation No. 2 in 2001 on Integrated Community-Based Coastal
Management, Indonesias first coastal management regulation. This regulation clarified the
institutional responsibilities for integrated coastal management by assigning the District
Fisheries Department as lead agency and establishing an advisory inter-agency council for
coastal management. More importantly, it transferred the districts authorities under Act No.
22/1999 for planning, management, and regulation, to the villages within the district, and
allowed for formal authorization and recognition of four village-based marine protected areas
within the districts four mile marine area (Patlis, Tangkalisan, et al, 2003). This ultimately
facilitated the development of 21 more protected areas in the Kecamatan of Lingkupan
(Tulungen et al.,2003). The District of Wonosobo in Central Java has also enacted a muchlauded regulation No. 22/2001 on regional natural resource management and community
participation.
The central government has been slow to respond to these regional initiatives. As of
last year, the Ministry of Home Affairs had recommended that more than 200 regional
regulations be rejected. Districts themselves had rescinded 123 regulations based on these

recommendations (GTZ, 2003). But this is a drop in the bucket. The Ministry has reviewed
only 1,528 perda, and there are an estimated 7,000 that are violative of law (GTZ, 2003).
The newly enacted Act No. 32/2004 clarifies many of the questions, ambiguities and
inconsistencies wrought by Act No. 22/1999. Much of the basic framework has been carried
forth in the new law. Article 2 and 10(1) of Act No. 32/2004 provide the broad authority for
regional governments to manage their own affairs. The scope of this is covered in Article 13
for provinces and Article 14 for districts and municipalities, and includes spatial planning,
community affairs, monitoring the environment, and a host of other subjects. Rights for
regional governments (both provinces and districts) include developing revenues from
natural resource management (Article 21), and responsibilities include protecting and
conserving the environment (Article 22). Provinces maintain the ability to address interdistrict issues (Article 13), and the central government can still reject regional regulations
inconsistent with central laws (Articles 136, 145). District heads are directly elected, and
villages are given much greater responsibility in managing their affairs, although still must
answer to districts (Article 200 et seq.).
The new law does a better job than Act 22/1999 of incorporating the rhetoric of good
governance. Traditional rights are to be respected and followed, consistent with principles of
the nation (Article 2). Principles of sound management, accountability, efficiency are to be
the basis of government actions (Article 11). Natural resource management is to be done in a
manner that is fair and harmonious (Article 2(6)). Communities have a right to be involved
in the development of regional regulations (Article 139(1)). There is clear language that
regional regulations must comply with the existing legal framework (Articles 139(2), 145).
The new law clarifies in Article 11(4) that the central government is responsible for
minimum performance standards. The Ministry of Home Affairs has engaged in a major
effort to develop minimum performance standards (Ministry of Home Affairs, 2003), but this
is still strictly along sectoral lines, and there is still only a loose discussion about the need to
link compliance with these SPMs (standar pelayanan minimal) to the regional financial
distributions (Donor SMP Working Group, 2002). The significance of these SPMs to
sustainable resource management cannot be overstated. This link between standards and
performance is the missing link in Indonesias decentralized governance, and this will be the
key to the future success or failure of decentralized resource management. This was also the
missing link between Act No. 22 and Act No. 25. If Act 22 was the vehicle for
decentralization, then Act 25 was the engine that makes it run. And in the same way,
standards and performance by the districts must be tied to funding for the districts. The
money that districts receive from natural resource revenues must be reinvested in those
resources in order to maintain adequate levels of funding for sustainable management.
However, regional autonomy is a Pandoras Box it will be almost impossible to attach
strings to the authority that has already been freely delegated.
III.

Natural Resource Management in a Decentralized Framework

With this overview on regional autonomy, lets look more closely at the framework
specifically for natural resource management, both vertically and horizontally. Vertically,
there is a much greater emphasis on the relationship between central and regional
governments, rather than authority of regional governments, in natural resource management.
This is a crucial, although as yet undefined, shift in the paradigm and epistemology of
decentralized natural resource management. For example, Article 2(4) of Act 32/2004
provides that, in conducting the affairs of the government, regional governments have a
connection (hubungan) with the central government and other regional governments. Article
2(5) elaborates that this connection includes one in authority, finance, general services, and
natural resource development. The elucidation of Act No. 32/2004 describes this relationship
as a partnership (kemitraan). Specifically addressing natural resource management, Article
17 refers to these two sections in Article 2, and states that the connection between the
governments includes authority, responsibility, development, conservation, monitoring,
cultivation and sustainability. Article 17 also specifically provides for cooperation among
regional governments.
Act No. 32/2001 (Article 18) retains the regional sea delimitations established in Act
No. 22/1999 (Article 3 and 10), of 12 nautical miles seaward from shoreline for provincial
waters, and four nautical miles seaward from shoreline for district and municipality waters.
The fact that this provision remains in the revised version, after four years of rumors and
drafts to delete the provision (e.g., Hoessein, 2001), is a victory for localized integrated
coastal management. In fact, Act 32/2004 is a vast improvement over Act No. 22/1999 with
respect to marine resource management. Act No. 22/1999 had a number of ambiguous
aspects: districts had managerial authority over their marine area (Article 3), while provinces
had jurisdiction over their marine area (Article 10), with no clear meaning of either; no
provision was made for the use of the seabed, assuming that it would remain under central
government control; furthermore, no provision was made for designation of marine areas,
cadastery, spatial planning, and other aspects vital to determining the nature and scope of
regional marine authority. Under Act 32/2004, both regional governments are given a broad
and clear authority for management within their marine areas (wilayah laut) (Article 18(1)).
This includes exploration, exploitation, conservation and management of marine resources;
spatial planning; enforcement of laws (Article 18(3)). Regional governments will share in
the benefits of management of the seabed in their marine areas (Article 18(2)). Guidelines
are provided for cadastery, or marine boundary determination (Article 18(4) and (5)).
Horizontally, natural resource management can be summed up as, in a word, sectoral.
While this is a characteristic found universally, in Indonesia, sectoral management is more
deeply entrenched in the legislative process. Pursuant to the newly enacted statute on
developing laws, Act No. 10/2004, as well as its lower-level predecessor, Presidential Decree
188/1999, each agency essentially manages its own statute, from the initial scoping and
drafting stages, to the research and consultation stages, and finally serving as the Presidents
representative before the National Peoples Assembly as it considers the bill for enactment.
Each agency thus champions its own statute, whether in fisheries, forestry, mining, tourism,
agriculture, industry, and so, so that rather than laws serving the national interest, they are
developed to serve the administrative bureaucracy. There are more than 24 statutes
governing natural resources, with several hundred implementing regulations involved. This

has led to a framework that is replete with gaps, inconsistencies, redundancies and, generally,
disconnects (Patlis, 2003). Up until now, very little research has looked at these
disconnects beyond the statutory level, although there is a new project spearheaded by the
National Development and Planning Board, the Ministry of Marine Affairs, and the Ministry
of Home Affairs, and facilitated by the Coastal Resources Management Project II, to conduct
a comprehensive review.
A few examples of these disconnects will suffice to underscore the magnitude of the
problem. In Indonesian lawmaking, as in most jurisdictions, a law will comprise several
basic components: (1) the preambular provisions goals, principles, scope, etc.; (2)
definitions; (3) administrative and institutional provisions; (4) regulatory and management
provisions; and (5) enforcement, monitoring, sanctions and penalties. Act No. 10/2004 on
the Establishment of Laws contains an attachment in which it identifies, as the components
of a law, (1) general provisions (ketentuan umum); (2) material to be regulated (materi pokok
yang diatur); (3) sanctions (ketentuan pidana); (4) transitional and closing provisions
(ketentuan peralihan dan penutup).
Beginning with the general provisions, or definitions, one can find many
inconsistencies. For example, there are two statutes that define natural resources (sumber
daya alam). In Act No. 5/1990 on the Conservation of Natural Living Resources, the
definition includes living and non-living resources (hayati and non-hayati), at the organism
level. The definition in Act No. 5/1994, ratifying the Convention on Biological Diversity,
has two differences: it does not include non-living elements, and it does include genetic
aspects. The term ecosystem is defined in three statutes Act No. 5/1990, Act No. 5/1994,
and Act No. 23/1997 on Environmental Management. In the first two, it is defined as a
functional system of biotic and abiotic elements. In Act No. 23/1997, it is defined in the
subjective terms of a balanced, stable and productive human environment. The term
conservation also differs among these three statutes. It is unlikely that differences among
definitions affect implementation, but they confuse the legal framework.
In terms of management measures, the examples are numerous. The most famous
example is the allowance of mining in national parks and other protected areas. Pursuant to
the Basic Mining Law, Act No. 11/1967, all lands within the Republic of Indonesia may be
used for mining. However, a number of subsequent laws have regulated activities in national
parks and protected areas, notably Act No. 5/1990, and Presidential Decree 132/1990. It
wasnt until Act No. 41/1999 on Forestry that specific language was provided explicitly
prohibiting open- cast mining in protection forests (Article 37). Coastal setbacks are another
source of confusion. Under Article 50 of Act 41/1999, no harvesting may occur within an
area 130 times the difference between the highest and the lowest tide, measured from the
coastline. Tourism regulations provide a coastal greenbelt of 100 meters from the coastline
(cite?). These all have their origin in sectoral laws that do not conform with each other. Act
No. 24/1992 on Spatial Planning contains no such provisions for coastal areas, and it is
unclear how many provincial or district/municipal spatial plans provide for this greenbelt.
Provisions on sanctions perhaps present the greatest range of disconnects, in terms of
standards of liability (strict, intentional, negligent), and in terms of fines. To be sure, one can

generalize: earlier laws have lower fines, smaller sentences, and more ambiguous standards
of liability. Act No. 41/1999, which provides fines of 10-15 years and up to five billion
rupiah for intentionally destroying or burning forests, and 5 years and 1.5 billion rupiah for
negligent acts. The overarching and vague Act No. 23/1997 on Environmental Management
has a full range of fines from 10-15 years or 500-750 million rupiah for intentional
destruction of the environment, and 3-5 years, or 100-150 million rupiah, for negligent acts.
Act No. 5/1990 on Living Resources provides for a range of 5-10 years, or 100-200 million
rupiah, for intentional violations, and one year, or 50-100 million for negligent acts. The
newly enacted fisheries statute provides for fines of up to 10 years or two billion rupiah for
intentionally damaging fisheries habitat. This allows for forum-shopping and cherry-picking
by both defense attorneys and prosecutors as to what laws to use, what crimes to charge, and
in what jurisdictions to file.
This short discussion does not begin to scratch the surface. Because the statutes are
so vague and broad, the majority of conflicts do not arise until the regulatory level. There is
a growing realization and concern -- among all stakeholders as to the problematic
consequences of these disconnects. Two years ago, the Peoples Consultative Assembly
(Majelis Perwakilan Rakyat, or MPR) adopted TAP MPR IX/2001 a decree that calls for
integration and harmonization of laws, public participation and transparency, a clearer legal
hierarchy, and a greater recognition of customary laws.
This growing realization of the need to harmonize laws is also evident in the spate of
new bills relating to natural resource issues that are in various stages of development: (1)
natural resource management; (2) coastal management; (3) fisheries; (4) maritime issues; (5)
environmental management; (6) mining; (7) spatial planning; and (8) agrarian reform.
IV.

A New Generation of Laws for Natural Resource Management

This section will look at only a few of the particular provisions of the bills being
drafted, as well as the process. For the most part, they are too inchoate in order to offer any
meaningful insights into their content. Only two -- the coastal management bill, and the
natural resources management bill together with the newly enacted fisheries law, have
sufficient detail and progress in their development to warrant analysis at this point. This
section will first look at the process in developing these bills, and then will turn to their
substance.
In general, the processes in developing the bills on natural resource management and
coastal resource management have been quite impressive. The consultation processes have
been sophisticated in their design and extensive in their reach. The executive branch is also
working more closely with the National Parliament, bringing in members informally and
early in the process. In the case of the bill on natural resource management, this has included
informal meetings among National Peoples Assembly members, attendance of National
Peoples Assembly members to workshops; in the case of the bill on coastal management,
this has included the attendance of National Peoples Assembly members at public
consultations, as well as to workshops and conferences. These are major innovations in a

system that had been characterized as rigidly fixed on legislative and executive tracks, with
little interaction between the two branches until the very end of the process.
In terms of the bill on natural resource management, the process has been remarkable.
Begun in 2000, it has seen a number of fits and starts, each time over disputes between the
NGO community and the leadership of the State Ministry of the Environment. The National
Management and Planning Board is also integrally involved. The process has largely been
driven by the NGO community, which has combined the best elements of grass roots support,
with funding and coordination shaped at the national level. The NGOs, largely through
UNDP and other grants, have put in 3.5 billion rupiah into the process thus far, and they are
gelling into a strong collective voice. The consortium among the National Management and
Planning Board, the Ministry of the Environment and the NGOs collaborated in hiring and
training regional facilitators, who worked with local NGOs, and compiled a record of 141
consultations over 26 provinces. The close collaboration between the two government
agencies has also worked to help keep the process somewhat transparent.
The bill on coastal management has also seen a revolutionary process. Begun in late
2000, it was one of the early priorities of the newly established Ministry of Marine Affairs
and Fisheries. It first developed an Academic Study to justify the law. This is normally a
perfunctory requirement in developing statutes, as provided originally by Presidential Decree
188/1999, and more recently by Act No. 10/2004. The Ministry of Marine Affairs and
Fisheries used the opportunity, however, to produce the first treatise on Indonesian coastal
resources their status, their threats, and the legal and institutional framework governing
them (Ministry of Marine Affairs and Fisheries, 2001). It then embarked on a two year
consultation process designed by the NGOs and adopted by the Ministry. This was a threetrack approach that relied on formal consultations; informal meetings sponsored by NGOs
that would feed the formal process; and a mass media campaign (Idris et al., 2003). In
December 2003, the Ministry received the permit from the President to proceed (ijin
prakarsa), and has been hosting a series of interdepartmental meetings in order to obtain
their approval and receive the final approval of the President (Amanat Presiden) before it can
be transmitted to the National Peoples Assembly. The development of the bill has been an
example of a successful iterative process of drafting, public consultations, drafting, interagency consultations and drafting (Patlis, Knight, et al., 2003a). The Ministry of Marine
Affairs and Fisheries has recently begun coordinating with staff of the Legislative Body
(Badan Legislatif) within the National Peoples Assembly an administrative body
established in 1999 to provide expertise on drafting issues for the Assembly for advice on
drafting. This is a very positive step.
The fisheries law saw only a fraction of the effort towards transparency and
consultation enjoyed by the other two bills. There were a series of consultations that were
sponsored by regional branches of the Ministry of Marine Affairs and Fisheries, but the
documentation of these, and their utilization by the drafters of the bill, are unknown. While
technical expertise was provided by the Food and Agricultural Organization on the drafting
(Gillet, 2001), none was provided on procedural safeguards.

In terms of substance, several general observations can be made among the fisheries
law and the two bills, along the structural components of a law discussed earlier. (1) In terms
of preambular language, there has been a marked increase in rhetoric regarding sustainability,
coordination and integration, participation and transparency the pillars of good governance
although little by way of substantive provisions to support them. (2) Institutionally, each of
them sets up interagency bodies or councils to redress the heavily sectoral nature of the legal
framework. (3) In terms of management, all have a strong emphasis on both permitting and
prohibitions as a means of management. Despite the emphasis on prohibitions against
destroying or damaging natural resources, there is still a great deal of ambiguity in what this
means pending additional regulations. Community and traditional rights receive significant
attention in each one. (4) In terms of enforcement, all contain a long litany of heavy fines
and sanctions, and place a greater emphasis on adjudicatory processes and conflict resolution,
including clarification of standing and authorization of class action suits.
Now lets consider each one in a little more detail. The new fisheries law provides for
an extensive permitting system. It sets up a several councils to manage coastal areas,
including fisheries, areas and species. It explicitly provides for Ministry management over
protected marine habitats and species, including marine national parks, which had previously
been under the Ministry of Forestry. This is a very significant step in consolidating authority
and improving administrative decision-making for marine resource management. It also sets
up an administrative court to hear disputes; while this is a welcome alternative to a
challenged judiciary, there is some question as to the legitimacy of this provision.
The bill for natural resource management is still being negotiated. At his point,
however, it provides for management on a bio-regional approach, dividing Indonesia into 7
bio-regions (but with a possibility that this will be doubled to 14), for purposes of inventory
of species, planning and monitoring. An extensive institutional network is established with a
national council, bio-regional councils and subcouncils. Recognition of traditional
community rights is very prominent and very broad. The draft law also sets up a Bioregion
Trust Fund to ensure funding. However, it is worth noting that Act No. 23/1997 also sets up
a Trust Fund that has yet to come into existence.
The bill for coastal management focuses more on securing an open, transparent and
science-based process rather than particular outcomes, which are likely to vary too much by
region. It focuses on planning, providing for a relatively rigid hierarchy of strategy plans,
management plans, spatial plans and action plans. It also recognizes traditional rights, but
the criteria are much stricter than in the draft law for natural resources. It provides for a
system of management for protected areas. It authorizes an inter-agency council without
mandating it, leaving the possibility that the existing Indonesian Maritime Board can fulfil
this role, or that a new council would be established. The most unique aspect of the draft law
is that it sets up an accreditation program -- a voluntary-based incentive program, where
provinces and districts would receive financial and technical assistance if they were to
comply with the standards and criteria established by the central government. Such a
program would fulfill the vision of minimum performance standards mentioned earlier.
Despite its good intentions, the draft law may not have a significant reach its ability to better
integrate coastal management decisions, because of the extremely narrow definition of

10

coastal area, which goes only to the high-tide mark. This decision is a very deliberate
political one, so as not to encroach into other agencies jurisdictions, which would jeopardize
its likelihood of enactment.
IV.

Diagnosis and Prognosis

One of the most promising aspects of the new bills under development is the
transparency and participative nature of their evolution. The processes of the draft laws on
coastal resource management and natural resource management have been truly innovative
and visionary in their design and their emphasis on public participation. The bill on natural
resource management, for example, has seen an unprecedented reach to the local level, and
coordination among regions and central government (Suwarno et al., 2003). The bill on
coastal management has gone through an extremely transparent process, with a consultation
process designed by the NGO community to increase their engagement (Patlis, Tangkalisan,
et al., 2003).
Coupled with this has been much greater information flow, in both directions. The
groundwork in developing these laws is stronger, more solid, with a detailed paper trail that
creates a process of lawmaking that is significantly more accountable than in the past. Both
bills have detailed minutes of all of the consultations, and NGOs, development projects and
the ministries themselves have provided relatively good access to those minutes, making
them available online, electronically on disk, and in limited instances, in hardcopy. The
Ministry of Marine Affairs and Fisheries published and widely disseminated its Academic
Study.
While each bill still in formally in the administrative stage of development, prior to
its formal transmittal to the National Peoples Assembly, there has been greater interaction
with the National Peoples Assembly. As provided in the Constitution, statutory lawmaking
can be initiated either by the President (Article 5), or by the National Peoples Assembly
(Article 20), which has evolved into two very formal and independent tracks (hak eksekutif or
hak legislatif). These two tracks, and the associated formal exchange of transmittals and
hearings, have been maintained in Act No. 10/2004 (Article 17 et seq.). However, at least on
an informal level, these tracks are finally beginning to converge in earlier stages of
negotiation and drafting.
These three developments greater information flow, greater public involvement, and
greater legislative engagement with the executive branch are creating a system of checks
and balances within the lawmaking process that will improve the substance of the laws, and
ultimately their implementation, enforcement and oversight. There is one caveat: the two
initiatives to enact a new natural resource law and a new coastal management law have seen
significant funding on the part of the United Nations Development Program in the case of the
natural resource bill, and on the part of the U.S. Agency for International Development in the
case of the coastal resource bill. This raises immediate questions as to the sustainability of
the efforts if the funding were to disappear, and as to the replication of process for other bills
that might not have such funding and technical support. Asia Foundation (2004) observes a
slow but steady general trend towards greater participation.

11

In addition to the caveats, there are many problems in the context of the bills
themselves, and in their place in the larger legal framework. The particular provisions of the
bills need to be better coordinated. At this point, each of two bills and the fisheries law
provide for very similar, overlapping and even inconsistent provisions. In one example, each
one sets up a new inter-agency body for integrated, coordinated decision-making. These new
bodies, even before they are established, trip all over themselves in setting up a super-ego
government sitting alongside the line ministries, as well as with the pre-existing coordinating
ministries. The treatment of traditional rights provides another example: in the natural
resource bill, there are very broad provisions for recognizing traditional rights; in the coastal
bill, there is also a large chapter dedicated to recognizing traditional rights, but the standards
are more stringent; in the fisheries law, there is community empowerment, but no recognition
of traditional rights. These laws which are supposed to transcend sectoral management
are not even consistent with each other. Despite their lofty rhetoric to the contrary, they are
still very much sectoral in nature, and as they are currently being developed and drafted, will
further perpetuate a highly sectoral governance structure.
This is both a function of the particular processes used for each bill, as well as the
larger systemic foundation of lawmaking. It is the State Ministry of Environment that is
championing the bills on natural resource and environmental management, and it is the
Ministry of Marine Affairs and Fisheries that is championing the bills on coastal resource
management, maritime affairs, and fisheries. There is very little coordination in these efforts.
One reason is institutional laziness, but another reason has its roots in the foundations of the
legal system. For example, it is a requirement in Act 10/2004 (Pasal 18), as well as its
predecessors, that each bill be spearheaded by a specific line ministry, in drafting,
negotiation, and even in representing the President before the National Peoples Assembly.
This results in laws serving the institution, rather than the nation. The ADB (2002) states that
[r]egulations are more often issued and designed to empower the agency issuing them than
to provide reliable and fair guidance to people or entities subject to the legislation, which is
true enough, but it does not state that is firmly rooted by design in the lawmaking
requirements.
There are a host of issues relating to statutory construction, that have already affected
the shape of the otherwise bills, and that will impede their implementation if they are
enacted. There are three issues of primary significance. First, is the tradition of vagueness
and overbreadth that plagues all laws at all levels in Indonesia. Much of this is a deliberate
effort to obfuscate the corpus of laws so that they can be freely interpreted as necessary for
the moment, which for a half-century suited the autocratic government and corporate
interests at the center of Indonesian politics. Again, ADB (2002) observes that:
issued regulations often include catch-all clauses allowing the regulating agency to
add requirements ad hoc and at will, while at the same time the power of
interpretation is with the regulating agency.Where the law itself is ambiguous or
vague, as is often the case in Indonesia, regulatory agencies have immense and
virtually uncontrolled power.

12

Even as the lawmaking process is being improved through greater transparency, vagueness
and overbreadth still remains a stubborn aspect of legal drafting. Much of it is a misplaced
intention in maintaining the characteristics of the legal hierarchy, and much of it is just plain
poor drafting. Indeed, the early drafts of the coastal resource bill, with the advice of the
Coastal Resources Management Project of US AID, contained detailed articles of programs,
standards and management measures. They have all but been deleted under pressure from
both the public and other agencies who claimed that the language was too technical and
administrative, more suited for regulations. The Ministry of Marine Affairs and Fisheries
agreed to delete them for political expediency. The results of this vagueness and
overbreadth, whether deliberate or not, are devastating, creating a vast gray area within the
law allowing for profound uncertainty, or worse, manipulation (Patlis, 2002).
The second is the ubiquitous case of the implied repeal. This is a legislative device
by which one law supercedes another. Consider these two examples. An explicit repeal
states that one law supercedes another specific law. An implicit repeal states that all existing
laws remain in full force and effect unless contradicted by the new law. The questions are
immediate: what is a contradiction? Who decides? Through what process? In many
jurisdictions throughout the world, implied repeals are narrowly construed and rarely used
(Petroski, 2004). In Indonesian statutory construction, it is the rule. Consider Act No.
41/1999. Article 83 explicitly repeals two laws, including the preceding forestry statute, by
stating that at the time this Act takes effect, the following Acts shall be declared voidAct
Number 5 Year 1967 on Basic Provisions on Forestry. On the other hand, Article 82 provides
that [a]ll existing rules of implementation pertaining to forestry shall remain in effect,
insofar they do not conflict with this Act, until the issuance of the rules of implementation
based on this Act.
The third is the prevalent practice again a vestige of the Suharto era of resolving
conflicts between two laws by promulgating a third law. The judicial institutions of stare
decisis and res judicata essentially the use of past precedent to guide decsions is very
weak. Even today, resolution of conflicts among laws is accomplished by additional
lawmaking. This paper earlier discussed the conflict between mining and protection forests.
The issue was not adjudicated; rather, the President issued an emergency regulation in lieu of
a statute (peraturan pemerintah mengganti undang-undang), allowing certain mines to
continue activities within protection parks, while other mines were required to comply with
the prohibition.
Money politics is as strong as ever, not just in enforcement but in lawmaking as well.
The sharp increase in DPRD members cited in corruption cases demonstrates not only the
new-found voice of the legislature, but the payments that occur in purchasing that voice. It is
telling that both the State Ministry of the Environment and the Ministry of Marine Affairs
chose to pursue lawmaking along the administrative track, because the uncertainties of the
legislative track were too great. Even the administrative process is unclear: while the very
rough budgets spent by the Ministries of Environment, Marine Affairs and Forestry may be
known, the specific expenditures are not.
Conclusion

13

This paper has sought to identify some broad themes and specific examples in the
evolution of natural resource governance in a changing Indonesia, especially with respect to
the new generation of statutes currently underway. Participation among NGOs and regional
governments is much greater. Parliamentary and administrative branches are working more
closely together, albeit informally. With regard to processes, the doors into the process of
lawmaking the front end of law -- have been thrown open in a significant way, which will
bring along accountability as the civil society takes a greater interest.
In terms of substance, however, there is much that is still lacking in the new laws and
bills. Although they all promote more integrated frameworks, they need to be better
coordinated themselves, even in the drafting stages. To ensure meaningful implementation at
the local level, they need to establish the vital need to link of performance and standards with
funding, and to require reinvestment of those natural resource revenues back into natural
resource management. The enforcement and adjudication of laws the back end of law -remains rife with intractable problems. Law remains very much a contextual phenomenon,
where what is legal depends on a communitys perception of what is legal. It can be
considered word-of-mouth law versus black-letter law. Although the new bills and laws
attempt to address these problems with more detailed provisions on standing and litigation,
and they contain much heavier fines and penalties, there is no indication that these will be
lead to improved enforcement and adjudication.
Systemic issues in legal drafting, statutory construction and implementation will be
dispositive in the success or failure of these new laws and bills being developed. There needs
to be an overhaul in how laws are drafted and how they are interpreted. Vagueness and
overbreadth must be reduced as much as possible, and should be explicitly attacked in the
regulations to be prepared in implementing Act No. 10/2004. The technical expertise of the
Legislative Body within the National Peoples Assembly, and a greater role of the Cabinet
Secretary, directly below the President, can be instrumental in this regard. The use of
implied repeals needs to be eliminated. There needs to be a more consistent means of
statutory construction. Returning to the concept of umbrella laws, there needs to be both an
administrative procedure act and a freedom of information act.
In sum, there are many positive aspects to this new generation of bills and laws
governing natural resources, but there are also many reasons to expect that these laws will
not fulfill their potential. There are two reasons that they may fail: the first is that they
themselves may suffer from deficiencies or weaknesses, either in how they are drafted, or
what they provide; the second is that, even if they are adequate in their own right, they
cannot fulfill this potential given the systemic failings of the Indonesian legal system. This
new generation thus represents both the hopes and fears of the future of natural resource
management in Indonesia, but how they will fare is entirely unknown, resting on the larger,
deeper issues of law and governance reform. These larger issues are not simply questions of
whether there are good laws on paper that are not enforced, or whether there exists a rule of
law. It is a question of knowing specific details as to how the legal system exists as a
complicit partner in perpetuating that status quo. It is a question of undertaking not merely a
new generation of natural resource laws, but true legal reform.

14

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