PALMOILMAGAZINE, JAKARTA – The Indonesian government has issued Presidential Regulation No. 5 of 2025 on the Regulation of Forest Areas (Perpres 5/2025). Broadly speaking, this regulation aims to address overlapping uses of forest areas by various sectors—such as mining, plantations, and infrastructure—that operate without fully legal forestry permits. The goal is clear: to reassert state control over forest lands and plug the leak of potential state revenues.
However, good intentions alone are not enough. Care must be taken to ensure that enforcement does not violate legal principles or harm communities.
The regulation introduces three primary instruments of enforcement: administrative fines (dwangsom), forced reclamation of forest areas (bestuursdwang), and asset recovery. These apply to any parties operating within conservation and protected forest areas without valid permits. The penalties vary depending on the nature of the offense—from minor permit issues to completely unauthorized or illegally obtained permits.
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A multi-sector task force will be formed to enforce the regulation, involving prosecutors, academics, and community leaders. However, this raises several critical concerns:
First, the process of designating forest areas is not as straightforward as it may seem. According to Law No. 41 of 1999 on Forestry, the status of a “forest area” is not legally valid based solely on designation. There are four formal stages that must be followed: designation, boundary demarcation, mapping, and official gazettement. This was reaffirmed by Constitutional Court Decision No. 45/PUU-IX/2011. If any of these steps are skipped, the legal status of the area is questionable.
Unfortunately, many areas have only been designated without official confirmation. If the Task Force seizes or seals off such land, what is the legal basis? Seizure and sealing are actions typically reserved for criminal law, not administrative measures. This is not a trivial technicality but a core legal issue that touches on the principle of legality in law enforcement.
Second, as a regulation, a Presidential Regulation sits below laws and government regulations in Indonesia’s legal hierarchy. Yet, two higher-ranking regulations—Government Regulation (PP) No. 24/2021 on Administrative Sanctions in the Forestry Sector and PP No. 43/2021 on Spatial Planning Discrepancy Resolution—do not contain any provisions regarding seizure or sealing of land. This suggests that Perpres 5/2025 may be overstepping its authority. If enforced as-is, Task Force actions could be legally challenged in the Administrative Court or deemed unlawful acts (onrechtmatige overheidsdaad).
Third, inconsistencies in this regulation could lead to legal uncertainty in practice. Investors may hesitate, businesses could feel threatened, and smallholders—many of whom occupy land with unclear legal status—could become unintended victims. This is especially troubling given the important role sectors like palm oil plantations play in contributing to GDP, job creation, and regional development.
Perpres 5/2025 does offer valuable tools to improve forest governance. But without careful implementation and alignment with higher laws, it could unintentionally spark new problems instead of resolving existing ones.
What’s the way forward? The government must ensure that enforcement is limited strictly to areas that have undergone full and official confirmation as forest zones. Moreover, a clear distinction must be maintained between administrative and criminal penalties. The Task Force also needs robust legal and technical guidelines to avoid missteps in the field.
Upholding the law requires more than good intentions. Legal certainty and procedural fairness must go hand in hand. Without them, Perpres 5/2025 risks becoming a cautionary tale of how a well-meaning policy can falter when detached from solid legal foundations. (*)
By: Prof. Dr. Ermanto Fahamsyah, S.H., M.H. – Permanent Lecturer, Faculty of Law, University of Jember
Disclaimer: The article reflects the personal opinion of the author.
