Legal Protection Of Mangrove Forests: From Community Consensus To Written Law

The Consensus of the Community

Some years ago, the people of Tanakeke Island reached a consensus to protect and preserve the mangrove forest. They designated an area of the mangrove forest as protected area called Bangko Tapampang in the local language. At the time, they realized that they depended on the mangrove forest to fulfill their basic nutritional needs, such as fishes and shrimps. They were aware also that the mangrove forest would assist them to avoid certain climatic problems, such as sea level rise, storm damage, precipitation, and extreme temperature. Bangko Tapampang is an area of the mangrove forest covering ±50 hectares that was set aside as a protected area and is still preserved until today. This area is not owned by anyone. The total area of mangrove forest in Tanakeke Island has diminished from 1,776 hectares before the 80s to only about 500 hectares presently. The Bangko Tapampang area of ±50 hectares is included in the remaining 500 hectares.

Bangko Tapampang in the context of village administration previously covered only two villages. However, due to Law No. 23 of 2014 concerning Local Government, the two villages were split to become five villages. This situation will indirectly affect the existence of Bangko Tapampang as a community forest in Tanakeke because it is directly related to the administration of the villages.

According to the head of the village of Tompotana, Bangko Tapampang is only recognised by the people of Tanakeke. It has existed for some time and has become a legacy to protect the mangrove forest. The existence and the relevant regulation associated with Bangko Tapampang is still maintained until now, and has become the only no man’s land of the mangrove area. However, the people in the island who do not have land in the mangrove area are still allowed to log the wood they need as long as they obey the consensus enacting Bangko Tapampang.

It is basically divided into three zones, as follows:

• The Core Zone: This is the zone that functions as the mangrove protective zone, and all logging activities are forbidden in this zone.

• The Buffer Zone: This is the zone that functions as the limited utilization zone in accordance with the agreement about the system of Bangko Tapampang management.

• The Rehabilitation Zone: This is the zone that functions as the area for restoring the mangrove forest that has experienced damage.

The management system comprises the following regulations:

• All parties are restricted from chopping or logging any mangrove trees in the Core Zone.

• The people of the village who do not have and are incapable of buying mangrove land are allowed to chop or log the mangrove trees only in the Buffer Zone of Bangko Tapampang and are limited to a maximum of 10 logging activities per family in a year.

• After logging the mangrove forest, those involved shall plant 20 seeds in the logged area or in the Rehabilitation Zone of Bangko Tapampang.

• The planting of mangrove seeds is done collectively at least once a year in cooperation with the relevant institutions in the Rehabilitation Zone.

• The people who wish to chop the mangrove trees in Bangko Tapampang are obliged to report to the local government before and after conducting the logging activity.

A consensus similar to the one reached by the people of Tanakeke Island to set aside an area of the mangrove forest as protected area is also found in the village of Tongke-Tongke in Sinjai. The people’s consensus in Tongke-Tongke is based on three main pillars, which are as follows:

• Self-awareness

• Sincerity

• Diligence

The implementation of the three pillars is the result of past experiences, especially the beach abrasion experience of 1955 in Tongke-Tongke village, which led to the loss of about 15 meters of land per year and threatened the village along with the entire mound in the beach of Tongke-Tongke. In the 1970s, the tide was as high as 30-40cm and even reached the houses of the people. In the 1980s, beach abrasion greatly threatened the houses of the people, and some of them even had to be removed to avoid catastrophic damages. To reduce the damage, people in Tongke-Tongke coordinated by a village chief Badaruddin saved the beach by piling corals to make an embankment. The rock piling process was conducted with commitment to save the environment from the threat of abrasion.

The use of coral did not entirely save the people from abrasion. The people of Tongke-Tongke coordinated by a community leader, Muh Tayeb later developed a new solution to avoid abrasion. They started to plant mangrove seeds and influenced the mind-set of others to be more conscious of their environment. Implementing the concepts of self-awareness, sincerity, and diligence became the key to success in the planting of mangrove to save the people from the threat of abrasion.

The three pillars are the foundation of the preservation of mangrove forest by the people of Tongke-Tongke village. The consensus that one chopped tree will be replaced by 100 trees became the control tool for the people not to carelessly log the mangrove forest. At this moment, the mangrove forest in Tongke-Tongke village has reached an area of ± 170 hectares. The total area is three times the total area of Bangko Tapampang .

Affirmation of Unwritten Law as Written Law

The consensus in the village of Tongke-Tongke in Sinjai based on three pillars as mentioned above has not been formulated into a regulation at the local governmental level. In this context, the existence of a consensus in Tongke-Tongke is enough to ensure that people will have a strong commitment to guard the mangrove forest from the threat of damage. The relationship between the people and the mangrove forest has formed self-awareness among the people about the need for them to protect the mangrove forest in order to prevent the threat of abrasion, similar to what happened in 1970.

This is entirely different from what happened in Tanakeke Island. The affirmation process of unwritten law as written law was conducted in Tanakeke Island. Inspired by the consensus of Bangko Tapampang, the four villages in Tanakeke Island, namely Balandatu, Maccini-Baji, Rewataya, and Tompotana, initiated a village regulation – called Peraturan Desa or PerDes for short– concerning mangrove management.

The four villages in Tanakeke Island realized that they needed the mangrove forest to prevent abrasion and to serve as a place for fish reproduction and a source of aquatic resources. They realized also that the mangrove forest management needs to be controlled wisely in order to guarantee proper and sustainable usage for the benefit of future generations. The village government initiated PerDes in cooperation with some NGOs ( Yayasan Konservasi Laut Makassar [Makassar Sea Conservation Foundation] and the Makassar Mangrove Action Plan).

The four regulations stipulated above basically do not have any substantive difference (same norms) from one another. Article 7 of the village regulation, for example, regulates the mangrove management and consists of the following provisions:

• Mangrove logging in other people’s land requires the permission of the land owner through the village government.

• For every logging referred to in Article 1, it is obligatory to spare some trees as the core trees.

• Every mangrove land that has a transferred management right, either by selling or granting, must re-regiser their land to the village government.

• The land owner or the village government is recommended to conduct a rehabilitation exercise in the abandoned land.

• Control and surveillance of the mangrove forest are conducted completely by the village government and the villagers.

The norms in Article 7 are essentially an affirmation of Bangko Tapampang that are translated into written law. This affirmation is expected to control the awareness and behavior of the community in order to protect the mangrove forest and use it as wisely as possible. The need for affirmation of the Bangko Tapampang concept into Peraturan Desa (written law) is to ensure that the people in Tanakeke Island do not harm the mangrove forest. It is expected that people will extend the same treatment of the mangrove forest outside Bangko Tapampang as they treat Bangko Tapampang .

However, people in the Island tend to harm the mangrove forest because of certain problems that arise daily, such as weather conditions, debt, and lack of money. To deal with these problems, they switch their jobs in accordance with the conditions in the Island at a particular time. For example, if the production of seaweed is decreasing, the people will turn to the production of charcoal primarily made from mangrove wood. The average age of the mangroves cut down by charcoal makers is nine years, and they usually grow in very dense stands (up to 10,000 stems per hectare) and exhibit low individual volumes per tree. This condition extremely threatens the existence of mangrove forest, but the people do not really have any other option than to cut down the forest uncontrollably for their subsistence.

Another problem that harms the mangrove forest in Tanakeke Island is conversion from mangrove forest to brackish water pond ( Tambak ). As known, Tambak is one of the most common features of land use in Tanakeke Island. The conversion of land has decreased the size of the mangrove forest compared with its size at the beginning of 1980.

Peraturan Desa ( PerDes ) as a written law has been enacted in four villages in the Tanakeke Island. However, there has been a gradual tendency for the people to disobey and ignore the PerDes . According to Blue Forest, only Balandatu village is still consistent and effective in protecting the mangrove forest. Blue Forest has initiated a new village regulation on mangrove forest management to complement the previous regulation since the end of 2016.

The new village regulation was created to involve the villagers actively. Its sanction provisions are wider than the sanction in the prior PerDes . The prior sanction of PerDes for illegal mangrove cutters was Rp. 100,000/tree. However, the sanction provisions of the new regulation are as follows:

• The mangrove cutters shall replant the mangroves that he/she cut; it is the first warning.

• The mangrove cutters shall pay Rp. 250,000 /tree; it is the second warning.

• The mangrove cutters shall pay Rp. 500,000 /tree; it is the third warning.

• The mangrove cutters shall be arrested by the police if they ignore the third warning.

The new regulation basically applies the concept of bottom-up participation, which involves the villagers actively. The villagers are expected to be more responsible in protecting the mangrove forest.

Analysis on the Forms of Legal Protection of Mangrove Forest in Tanakeke Island and Tongke-Tongke Village

The consensus intiated by the people is basically one of the forms of community participation. As mentioned previously, achieving community development relies heavily on the role of government and the participation of the people in creating a developed society. Without community participation, the development conducted by the government will not run optimally.

Community involvement is necessary because it creates a policy that is in accordance with the potentials, aspirations, and interests of the people. A policy based on the potentials of the people will accelerate the involvement of the community in utilizing and protecting the natural resources.

Involving the community also allows for extended benefits. First, accomodating the community’s aspiration to protect the mangrove forest will stimulate the villagers to participate in the management of the mangrove forest. If this is done, it is expected that the management process of the mangrove forest will become easier. Second, it gives the community the opportunity to take responsibility for the preservation of the mangrove forest. In addition, the most important thing is prosperity, which is the essence of the interest of the people.

In this context, community involvement in protecting the mangrove forest, especially in Tanakeke Island, is discussed in Musrenbang which is a forum of consultation for all stakeholders to produce an agreement for the development plan in the areas concerned in accordance with their regional level. At the level of the village or sub-district, the function of Musrenbang is to approve the prioritized regional issues, programs and activities that will be funded by the Village Allocation Fund (ADD) and will then be recommended to the Regional Expenditure Budget (APBD) or the programs will be executed through NGOs and the Village Expenditure Budget (APBDesa). Musrenbang at this level also selects the representatives or delegation that will participate in Musrenbang at the district level.

The consensus reached by the community both in Tanakeke Island and in the village of Tonkge-Tongke is a concrete manifestation of community involvement in the process of both saving the life of the community and saving the mangrove forest. Community participation in the form of consensus is an optimization of the plan to build a strong self awareness amongst the community. Geddesian (Sumarno, 2005) explains that, basically, the community may be actively involved from the beginning of the planning process. The involvement of the community may come in the following forms: (1) training programs, (2) active participation in gathering information, and (3) participation in the context of providing alternative plans and recommendations to the government.

In relation to the consensus reached by the community, from the historical and functional perspectives, Bangko Tapampang could be recommended by the Tanakeke Village Forum to the Takalar government to be recognized as a conservation area. The aim of the conservation area is to protect Tanakeke Island in order to achieve the required development. From the regulation perspective, the Takalar government has established the Local Law No. 6/2012 concerning Spatial Plans (RTRW). The RTRW law has generally provided protection to the mangrove forest in Tanakeke Island. The government has also established the conservation area in the coastal areas and small islands as stated in Article 31, Paragraph 7. In the Draft of the Law of RTRW Province of South Sulawesi, the district of Takalar is included in the development of Mamminasata City Area, which is a pilot project for the development of integrated spatial planning in Indonesia, as governed in the Presidential Decree No. 55/ 2012.

The Government of South Sulawesi had initiated the Draft of the Local Regulation on the Plan on Coastal Areas and Small Islands (RZWP-3-K). The issue of mangorve forest in the draft is located in the Chapter of Mangroves particular in articles 26, 27, and 28. The draft states that Tanakeke Island and the village of Tongke-Tongke are classified as preservation zones and the mangrove forest zone in the coastal areas of South Sulawesi should be maximized.

Consensus is perceived not only as a form of community involvement and participation but also as a form of personification of local values, particularly collectivism, which enhances the “power and spirit” of the villagers. Several factors, therefore, have become the focus of local value personification, and they are as follows:

• The mangrove forest management at the local level shall be conducted in line with local methods.

• The government shall involve local communities in the mangrove forest management.

• The forestry resources management shall involve multiple-stakeholders in the same area of the mangroves.

• The mangrove forest management shall be simultaneously connected to the environmental, economic, and socio-cultural purposes.

A state as a mandate holder is philosophically responsible for providing a public service as an attempt to accomodate the fundamental rights of the people. In this context, the state is a public servant of the public users, while the community has the right to use the public service provided by the state (Dwiyanto, 2005). In relation to democratic practices, the community has the right to participate in every governance attempt to implement democratic values.

The importance of community empowerment by the establishment of local government in the system of the Unitary State of Indonesia (NKRI) is also stipulated in the consideration (b) of Law No. 23/2014, which states that the establishment of local government is arranged to quicken the realization of community prosperity by increasing services, empowerment, community involvement, and increasing the local competitiveness with regards to democratic principles, equality, justice, and local uniqueness in the system of NKRI. It can, therefore, be summarized that the philosophical basis of the importance of community involvement is that it is a manifestation of democractic principle.

The relation between government and community in a democratic state can be explained as follows: The government has the authority to govern its people ( sturen ) and also to apply sanctions if there are violations of certain rules that have been established by the government. Furthermore, in the concept of democratic development, a state holds several functions, which include regulator, provider, entrepeneur, and empire. As a public service provider to the people, a state (in this instance the local government) is obliged to provide prime services to the people as stipulated in Law No. 23/2014. The quality of local governance and services provided for the people must be proportionate to the minimum standard of the service established by the central government in accordance with Law No. 25/2009 concerning Public Services. Finally, it can be concluded that the consensus reached by the community both in Tanakeke Island and in Tongke-Tongke village is a form of community participation in taking a protective measure.

In relation to the affirmation of unwritten law as written law ( Peraturan Desa ), it should be understood that the affirmation is basically an attempt to regulate the existing unwritten norms, like Bangko Tapampang practised in Tanakeke Island and the three pillars of the people of Tongke-Tongke village. The affirmation ( Peraturan Desa ) must be sited in the hierarchy of laws as mentioned in Law No. 12/2011 concerning the Formation of Laws.

Affirming an unwritten law as a written law is a sign and characteristic of modern law, which regulates and serves the needs of the modern era. According to Satjipto Rahardjo (2014), written law is created in order to achieve the following:

• Regulate an issue such that the regulation can easily be known by the people;

• Put people in the same position to access the laws. It means that every person, except for those who cannot read, can have an equal access to law;

• Guarantee certainty for the people. It means that people’s knowledge in regards to the law can always be chekced with what has been written;

• Develop the law itself. It means that the written law will provide easy access to laws.

It cannot be guaranteed that the written law will always create justice. In this context, it must be understood that the written law is not related to the quality of justice. It is just a matter of the form of justice. Therefore, in some instances, the unwritten law may be more effective than the written law. In this regard, the consensus of the people can create a better order to protect the mangrove forest than the written law as stipulated in the form of Peraturan Desa (Hadjon et al., 1993).

Law No. 12/2011 does not mention the existence of Peraturan Desa as a part of the hierarchy. The lowest part of the hierarchy as stipulated in Law No. 12/2011 is local regulation ( Peraturan Daerah ). In this context, of course, it is understood that Peraturan Desa was made by all four villages in Tanakeke Island as a structured effort to direct the norms of mangrove forest, which are regulated in accordance with Law No. 12/2011 – called Peraturan Daerah (Bruggink, 1999).

Therefore, the most important consideration in formulating Peraturan Desa is that it must be based on the principles of formation of law, which includes the following:

• The principle of clear purpose - Every law must have a clear goal to be achieved.

• The principle of institution - Every type of law must be made by authorized institutions or authorized officials. The laws can be cancelled or aborted for the sake of the rule of law if it was made by an unauthorized institution or an unauthorized official.

• The principle of proportionality between the types and the contents of the laws - In order to ensure the rule of law, the content of laws must be in accordance with the types of laws.

• The principle of feasibility - Every law must consider the effectiveness of the rule of law in the community philosophically, legally, and sociologically.

• The principle of empowerment and benefit - Every law is made because it is really needed and has the benefit of regulating the life of the citizen, nation, and the state.

• The principle of clear formulation - Every regulation must fulfill the requirements and technical procedures of the rule of law. So, the system, choice of words or terminology, and its legal language shall be clear and easy to understand in order to avoid any different interpretation in its practice.

• The principle of transparency - Every planning process, preparation, procedure and discussion must be transparent in nature. Thus, every layer of the community will have a huge opportunity to provide input for the process of making the law (Laode, Maskun, & Latif, 2015).