Local policy-making mechanisms - Forest Climate Center

3LEGAL ANALYSIS OF TANJUNG JABUNG BARAT(TANJABBAR) DISTRICT’S FORESTRY REGULATIONS3.1 Analysis of TanjabbarDistrict’s Authorityunder the New RegionalRegulationsThe introductory considerations of the DistrictRegulations (Perda) on IPHHI (No. 21/2000on Forest By-Products Collection Permits)and RHH (No 15/2002 on Forest ProductTaxation) state that the basis upon which theyhave been created is consistent with nationalregulations 15 .The District Regulation on IPHHI clearlystates that the taxation of by-products fromforestry operations is to be regulated by thedistrict 16 . Legally, policies setting out thedistrict’s authority to collect fees should beprovided with Penjelasan Umum or a generalelaboration that provides a detailed legal basisfor the authorities. However, none of the threedistrict regulations under study provide such anelaboration. In the absence of this legislationin Tanjabbar, there is technically no legalbasis for the authority implied in its three newregulations on forestry. This indicates that thesedistrict regulations were formulated withoutdue understanding of the need for a firm legalbasis for drafting new policies.Furthermore, to implement DistrictRegulation IPHH No. 13/2002, the TanjabbarDistrict Government issued District Head’sDecree No. 189/2003 on 22 April 2003. Thedecree provides guidelines on the processesfor applying for small-scale concessions 17 .This means that whilst the forestry districtregulations were approved by the districtparliament and publicized in the district gazette,the regulations cannot be implemented withoutthe District Head’s decree as the operationalbasis for their implementation.In the hierarchy of national laws, a DistrictHead’s decree is positioned below a districtregulation 18 . A district regulation is legallybinding as it is passed by the parliamentand publicized in the district gazette 19 . TheDistrict Head’s decree should rely on a districtregulation 20 before it can be implemented, andnot vice versa.In the meantime, of the three regulationsconcerning forestry activities in Tanjabbar(District Regulations on IPHHI, IPHH andRHH), only District Regulation IPHH No.13/2002 has been officially implemented, asit is supported by District Head Decree No.189/2003. The two other district regulationswere passed three years ago, but technicallythey cannot be implemented as District Headdecrees have yet to be formulated to guide theirimplementation.In addition to identifying the absence ofappropriate legal references and supportingpolicies for each of the new forestry policies,our analysis highlighted the following formalweaknesses in the drafting of the new policies:a. District Regulations No. 21 IPHHI and No.15 RHH refer to higher, central regulationsas the basis upon which they have beenformulated. However, these higher legalregulations are no longer in force. Forexample, the introductory considerationslisted in the new district regulations citethe Minister for Home Affairs’ DecreeNo. 119/1998, which has been superseded11