The expansion of oil palm plantations in Indonesia over the past two decades has significantly contributed to national economic growth, particularly in terms of foreign exchange earnings and employment. However, many plantations have been established within forest areas without valid forestry permits, creating overlapping land tenure and complex legal issues. In this research, the term forest occupation refers to the factual condition in which business actors have settled and cultivated forest areas. The inconsistency between legal maps (de jure) and field realities (de facto) has placed thousands of oil palm plantation actors, both individuals and corporations, in a “grey area” of law. To address this issue, the government enacted Law No. 6 of 2023 (Job Creation Law), which introduced Articles 110A and 110B as administrative mechanisms for legalization and fines. However, the issuance of Presidential Regulation No. 5 of 2025 introduced a new approach through the establishment of the Forest Area Enforcement Task Force (Satgas PKH) involving the military, police, and the Attorney General’s Office, with powers to evict land and impose criminal sanctions—later supported by Ministerial Decree No. 36 of 2025. This policy is considered to violate the constitutional rights of business actors and disregard the principle of lex superior derogat legi inferiori, which holds that lower regulations must not contradict higher laws. This study employs both normative and empirical legal approaches to analyze the normative conflict between regulations. The findings highlight that resolving forest occupation disputes by oil palm enterprises must prioritize the principles of legality, substantive justice, reinforcement of due process of law, and transparency through the One Map Policy to ensure legal certainty and protection for bona fide business actors.
Indonesia is known as one of the countries with the largest tropical forests in the world. Forest areas function as ecological buffers, carbon sinks, and sources of biodiversity, while also having strategic economic value. However, in practice, the management of forest areas often leads to legal conflicts, especially when land has long since been converted into oil palm plantations.
Data from the Ministry of Environment and Forestry (MoEF) in 2023 shows that there are around 3.37 million hectares of oil palm plantations in forest areas, consisting of: 1.55 million ha in production forests, 0.97 million ha in protected forests, and 0.85 million ha in conservation areas. This situation creates a grey area of law: many business entities and communities operate factually (de facto) in forest areas that have been carried out for decades, but have no formal legal basis (de jure). Likewise, in terms of the country's economy, palm oil contributes greatly to the national foreign exchange (around US$ 23-25 billion per year) and absorbs millions of workers, but is formally considered illegal because it is located in forest areas.
In the context of this study, the term forest control refers to the factual conditions under which individuals or business entities have occupied and cultivated forest areas. The incompatibility between the legal map (de jure) and the reality on the ground (de facto) has caused thousands of oil palm plantation business actors, both individually and legal entities, to be in a position of gray area of law. This phenomenon reflects the dualism of norms that trigger legal uncertainty as well as potential social conflicts.
To answer this problem, the government issued Law No. 6 of 2023 (Job Creation). Through Articles 110A and 110B, this Law provides an administrative settlement mechanism for palm oil businesses that are already in forest areas, with the obligation to pay fines and complete forestry permits. This approach emphasizes the principle of ultimum remedium, namely that criminal sanctions are only taken as a last resort.
However, the policy direction changed with the issuance of Presidential Regulation No. 5 of 2025 concerning the Forest Area Control Task Force (PKH). This task force is centered in the Attorney General's Office with the support of the TNI and the National Police, given repressive authority in the form of land clearance and criminal recommendations. This policy is considered counterproductive to the investment climate and sustainability of the palm oil industry, and is even considered contrary to the principle of lex superior derogat legi inferiori, because the Presidential Regulation as a legal product under the law must not deviate from the provisions of the Job Creation Law.
This was followed by the issuance of the Minister's Decree No. 36 of 2025 which contains a list of legal subjects of oil palm plantations that have been built in forest areas without forestry permits, both those that are still in the process of legalization and whose applications have been rejected, as a follow-up to Presidential Decree 5/2025 on forest area control. This decree is seen as a juridical defect, because it is only based on administrative appointments without going through the four stages of inauguration of forest areas as stipulated in Article 15 of Law No. 41 of 1999 and strengthened by the Constitutional Court
Decision No. 45/PUU-IX/2011. With a legal basis that is not final, the repressive actions of the PKH Task Force have the potential to violate the principle of legality (nullum crimen sine lege) and harm the csommunity and business actors who have been operating for a long time.
Public criticism has also strengthened. Sawit Nusantara (WSN) reporters assessed that the process of inaugurating forest areas was carried out unilaterally without community participation, especially in Riau. The Alliance of Indigenous Peoples of the Archipelago (AMAN) through Muhammad Arman assessed that the approach of the PKH Task Force tends to be "militaristic" and has the potential to cause evictions, criminalization, and violations of people's rights.
Thus, the palm oil-forest conflict in Indonesia is not only concerned with the administrative aspect of licensing, but also the conflict of legal norms, social legitimacy, and the sustainability of national development.
There is a conflict of norms between the Job Creation Law No. 6 of 2023 and Presidential Regulation No. 5 of 2025.
Potential
because lower regulations (Perpres) actually override the administrative protection that has been guaranteed by law.
Risk
(3) of the 1945 Constitution)
The juridical weakness of the Ministerial Decree No. 36 of 2025 which only relies on administrative appointments without going through the stages of inaugurating forest areas as per Article 15 of the Forestry Law.
The potential
repressive approach of the PKH Task Force.
The socio-economic impact is in the form of the risk of layoffs, loss of palm oil exchange, and threats to the vision of Golden Indonesia 2045.
Institutional criticism that the PKH Task Force exceeds the authority of the Ministry of Environment and Forestry and causes dualism in governance.
What is the legal status of the control of forest areas by oil palm plantation business actors without forestry permits from the perspective of the Job Creation Law No. 6 of 2023 and Presidential Regulation No. 5 of 2025?
How is the implementation of the different settlement approaches in the Job Creation Law and Presidential Regulation No. 5 of 2025 on legal certainty, substantive justice, and the rights of business actors?
Analyzing the legal status of forest area control by palm oil business actors without forestry permits based on the Job Creation Law and Presidential Regulation No. 5 of 2025.
Evaluate the implementation of the difference between the
administrative approach (
approach in Presidential Regulation No. 5/2025 towards legal certainty, substantive justice, and protection of people's rights.
Examining the juridical weaknesses of the Ministerial Decree No. 36 of 2025 in the perspective of Article 15 of the Forestry Law and the Constitutional Court's Decision No. 45/PUU-IX/2011.
Enriching the study of agrarian and forestry law, especially related to the conflict of norms between laws and regulations.
Contributed to the development of legal theories about
It is an input for policymakers in revising Presidential Regulation No. 5/2025 to be more consistent with the Job Creation Law and the principle of legal hierarchy.
Provide recommendations for a fairer resolution of palm oil-forest conflicts for farmers, companies, and indigenous peoples.
Supporting the sustainability of the palm oil industry as the largest non- oil and gas foreign exchange contributor without neglecting the ecological function of forests.
It became a reference for civil society advocacy in fighting for the customary rights and rights of smallholder oil palm farmers.
Deepen understanding of the interaction between formal law, executive policy, and social realities in the context of agrarian and forestry conflicts.
Presidential Regulation 5/2025, and Decree 36/2025 creates vulnerability to criminalization and reduces investment certainty.
palm oil business actors in a position of uncertainty, even though they have been working on land for decades.
has not been optimal, even though the Constitutional Court Decision No. 35/PUU-X/2012 has affirmed the recognition of customary rights.
The legal literature affirms that the existence of a norm cannot be separated from the fundamental principles that govern it. Hans Kelsen through the theory of Stufenbau des Recht states that the legal system is hierarchical, where low norms obtain validity from higher norms (Indrati, 2007). In the Indonesian context, the principle of lex superior derogat legi inferiori emphasizes that the Presidential Regulation must not conflict with the Law.
In addition, the principle of ultimum remedium explains that criminal charges are only used as a last resort, this principle is in line with Articles 110A- 110B of the Job Creation Law which prioritizes administrative mechanisms. On the contrary, Presidential Regulation No. 5 of 2025 actually presents a repressive approach.
The due process theory of law emphasizes the need for fair and transparent legal procedures. Criticism of the PKH Task Force shows the risk of violating this principle, especially when land clearance is carried out only based on the decree of designation of forest areas.
Law No. 41 of 1999 Article 15 states four stages of inauguration of forest areas: designation, boundary arrangement, mapping, and determination. The Constitutional Court Decision No. 45/PUU-IX/2011 emphasizes that the designation and determination of forest areas by the Government is part of the process that must be passed so that a forest area has legal certainty. However, the Ministerial Decree No. 36 of 2025 is only based on administrative appointments, so it is juridical defective if used as a basis for regulation.
Job Creation Law No. 6 of 2023 offers an administrative mechanism in the form of legalization and fines. On the contrary, Presidential Regulation No. 5 of 2025 establishes the PKH Task Force with repressive authority, namely land clearance to the imposition of criminal sanctions. This task force is centered at the Attorney General's Office, involving the TNI and the National Police. The disharmony of this norm creates legal uncertainty.
Research in the field shows how the palm-forest conflict gives rise to a gray area of law. Public criticism has also strengthened, which considers the PKH Task Force's approach to be "militaristic" and has the potential to support evictions and criminalization of the community.
The results of field interviews with the people of Toro Jaya Village, Riau show the anxiety of smallholder oil palm farmers who feel criminalized even though they have been working on land for generations. This condition
illustrates the gap between legal norms (de jure) and field reality (de facto), which creates legal uncertainty.
A number of previous studies have discussed agrarian and forestry law, examined forestry law conflicts after the enactment of the Job Creation Law, assessed the effectiveness of the PKH Task Force and highlighted the juridical weaknesses of the Minister of Forestry Decree No. 36 of 2025.
However, there has been no research that comprehensively analyzes the conflict of norms between the Job Creation Law vs Presidential Regulation 5/2025 with the relevance of the Minister of Forestry Decree 36/2025, using a normative-empirical juridical approach and emphasizing the gray area of law due to de jure and de facto incompatibility. Thus, this study offers novelty in the form of:
Analysis of regulatory disharmony (Law, Presidential Regulation, Decree of the Minister of Finance).
Criticism of the juridical weaknesses of the Ministerial Decree 36/2025 in the perspective of Article 15 of the Forestry Law and the Constitutional Court's Decision No. 45/2011.
Recommendations based on legal harmonization, One Map Policy, and public participation.
This study discusses conflicts of legal norms related to the control of forest areas that have changed their function to oil palm plantations. The main focus is directed to analyze the legal status of forest tenure by palm oil business actors based on Law No. 6 of 2023 (Job Creation) and Presidential Regulation No. 5 of 2025, by also examining the juridical weaknesses of the Minister of Forestry Decree No. 36 of 2025 which only relies on administrative appointments.
The scope includes:
palm land ownership, as well as its implications for indigenous peoples and smallholder oil palm farmers and oil palm plantation business entities
5/2025 and Decree 36/2025 on legal certainty, substantive justice, and national economic stability.
The type of research used is normative-empirical juridical (applied legal research):
decisions of the Constitutional Court.
To deepen the analysis, several approaches are used in legal research:
inferiori, ultimum remedium, due process of law, and grey area de jure vs de facto.
Kalimantan) and PT Sari Aditya Loka (Jambi) as illustrations of weak community participation and protection of customary rights.
in Brazil (Terra Legal Program), Malaysia (Environmental Court), and the Philippines (CBFM).
1945 Constitution.
Law No. 5/1960 on UUPA.
Law No. 41/1999 on Forestry.
Law No. 39/2014 on Plantations.
Law No. 6/2023 on Job Creation.
Government Regulation No. 23/2021 concerning Forestry Implementation.
Government Regulation No. 24/2021 concerning Procedures for the Imposition of Administrative Sanctions.
Presidential Decree No. 5/2025 concerning the Control of Forest Areas.
Decree of the Minister of Forestry No. 36/2025.
Constitutional Court Decision No. 45/PUU-IX/2011 & Constitutional Court Decision No. 35/PUU-X/2012.
Legal literature (books by Gustav Radbruch, Hans Kelsen, Lon L. Fuller, Satjipto Rahardjo).
Journal articles on agrarian and forestry conflicts.
Previous research from Firdaus (2019), Kusnadi (2025), Rahman & Lestari (2024), Tan & Lee (2021).
Reports by GAPKI, AMAN, WSN, HRW, Walhi, Greenpeace, and the Ministry of Environment and Forestry.
Legal dictionary
Legal encyclopedia
Indonesian forestry statistics (MoEF, 2023).
analysis of regulations, books, journals, official reports, and NGO documents.
Carried out with officials of the Ministry of Environment and Forestry, GAPKI, affected communities
It was carried out in Riau and North Sumatra to identify oil palm control practices in forest areas and responses to the PKH Task Force.
Over the past two decades, the expansion of oil palm plantations has contributed greatly to national economic growth, especially in terms of foreign exchange and labor absorption. Palm oil contributes USD 23-25 billion in foreign exchange per year and absorbs more than 17 million workers, both directly and indirectly.
The problem arises when most of the oil palm plantations stand on areas that are still legally forest areas. Data from the Ministry of Environment and Forestry (2023) shows that ±3.37 million hectares of oil palm plantations are within forest areas:
1.55 million ha in production forests,
0.97 million ha in protected forests,
0.85 million ha in conservation forests.
De
The Job Creation Law through Articles 110A and 110B provides a solution with an administrative mechanism. Business actors who already control forest areas can:
Pay administrative fines.
Complete forestry permits.
Carrying out environmental obligations
The principle held is the
This Presidential Regulation establishes the Forest Area Control Task Force (PKH) with the mandate to repressively control forest areas. The Task Force is led by the Attorney General's Office with the support of the TNI and the National Police, with the authority:
Conduct field verification.
Vacating land without permission.
Provide recommendations for criminal action.
This approach focuses on
The state of law demands not only legal certainty, but also justice and utility. Repressive Presidential Regulations tend to give birth to substantive injustice, because they ignore the administrative procedures that have been determined by the Job Creation Law.
without a legal basis have the potential to violate this principle.
The Job Creation Law is closer to substantive justice (giving room for legalization). The Presidential Regulation emphasizes formal justice (rigid enforcement of norms).
The legal system is pyramid-shaped. Because the Job Creation Law is higher than the Presidential Regulation, the Presidential Regulation should not ignore the norms in the Job Creation Law.
of Law No. 41 of 1999 which requires four stages:
Designation of forest areas.
Arrangement of forest area boundaries.
Mapping of forest areas.
Determination of forest areas.
Constitutional Court Decision No. 45/PUU-IX/2011 affirms that forest areas only have permanent legal force after determination, not just appointment. Thus, the use of the Minister of Forestry Decree No. 36 of 2025 as the basis for regulation is considered juridically flawed. Impact:
The status of the forest area that is used as the basis of the PKH Task Force is not final.
Second, repressive actions have the potential to violate the
principle of legality (
Third, the use of the appointment decree is contrary to the Constitutional Court's Decision and raises the potential for legal action.
Many oil palm lands are de
Smallholder oil palm farmers often only "control" the land without having a formal basis of rights.
The state still holds the "Right of Control from the State" (HMN) over the forest area.
1) As a result, business actors, both individually and plantation business entities, are in a vulnerable position to criminalization.
This phenomenon is called
Law No. 6 of 2023 (Job Creation) emphasizes administrative
settlement through Articles 110A and 110B, in line with the
principle
On the contrary, Presidential Regulation No. 5 of 2025 establishes the PKH Task Force with repressive powers, including land clearance and criminal recommendations.
Business actors do not know which norms must be followed, because there is no legal certainty.
Repressive actions have the potential to ignore the constitutional rights of business actors.
From the perspective of the basic
Presidential Regulation must not contradict the higher Law. Thus, the application of a repressive approach through the Presidential Regulation can be seen as beyond authority (ultra vires).
This decree is only based on
Constitutional Court Decision No. 45/PUU-IX/2011 affirms that
forest areas are only legally valid after the determination.
Therefore, the Ministerial Decree 36/2025 is not strong enough
as a basis for regulation because it is still an appointment and
has the potential to be contrary to the principle of legality
(
The inconsistency between the legal map
position
This creates legal uncertainty that is detrimental to
smallholder oil palm farmers, indigenous peoples, and
companies holding business use rights.
This condition puts smallholder oil palm farmers and oil
palm plantation business entities in a vulnerable position
to criminalization, even though the land has been managed
for decades in fact.
The repressive policies of the PKH Task Force raise
concerns that it will hinder the palm oil industry,
criminalize, trigger mass layoffs, lose palm oil foreign
exchange, create social instability and violate the rights
of oil palm plantation business actors.
In its implementation, the government is not firm in recognizing customary forests in the community, thereby increasing legal uncertainty and weakening the position of indigenous peoples in dealing with agrarian conflicts.
An approach that tends
Brasil (
Malaysia (
The Philippines (
To ensure legal certainty, substantive justice, and the sustainability of the palm oil industry, this study recommends:
Revision of Presidential Regulation No. 5/2025 to be in
line with the Job Creation Law (Law No. 6/2023) and
Government Regulation No. 24/2021.
Strengthening the principle of
the president's policy does not exceed or contradict the Law.
Implement administrative sanctions (fines, recovery,
legalization of permits) as a priority.
Criminal prosecution should be the last resort, only
enforced for
Carry out a moratorium on the implementation of the
Ministerial Decree No. 36/2025 until all stages of Article
15 of the Forestry Law are met.
Smallholder and long-managed oil palm lands need to be
legalized through
Involve indigenous peoples and local farmers and business
entities in the process of inaugurating forest areas.
Implement plasma schemes and land redistribution through
program and social forestry.
The rights of indigenous peoples to customary forests
need to be recognized as affirmed in the Constitutional
Court Decision No. 35/PUU-X/2012.
Publish data on forest areas in an open way.
It is necessary to provide an administrative objection
and
Return the main authority for forest area management to
the Ministry of Environment and Forestry.
Establish an independent special commission for the
settlement of palm oil-forest disputes.
Accelerate the implementation of
more overlap of agrarian and forestry data.
Further study should focus on developing a balanced regulatory
framework that harmonizes the Job Creation Law with subordinate
regulations, ensuring that the principle of
can be adapted to Indonesia’s legal and socio-political context. Finally, interdisciplinary research combining legal, social, economic, and human rights perspectives is crucial to ensure that palm oil governance promotes both legal certainty and social justice.