4. Rationalizing the policy and legal environment

It is often assumed that if laws were strictly enforced, all would be well in the forest sector. However, due to a number of policy and legal failures, stricter forest law enforcement does not always contribute to legal and sustainable forestry. Before identifying ways to build institutional capacity to foster better law compliance (Chapter 5), this chapter provides guidelines and examples of best practices to develop a sound policy and legal framework with provisions to reduce the attractiveness of illegal and corrupt practices for operators in the forest sector.

ASSESSING THE UNDERLYING CAUSES OF NON-COMPLIANCE

Assessing the complex social, economic, cultural and political causes of forest law violation will enable the root causes of the problem to be addressed rather than its symptoms.

Why do people break the law?

There are many reasons why people break the law, and motivations will vary extensively depending on the actors involved and the activities they are engaged in. Powerful actors may engage in lucrative illegal logging on a wide scale because they know that in certain settings they can get away with it. Poor farmers may commit minor illegal acts on a daily basis because they feel they have no choice. There may be any number of other contributing factors: unclear and/or discriminatory land tenure systems contributing to a lack of local responsibility for sustainable forest stewardship; prohibition of subsistence use by people whose livelihoods depend on forest products; cumbersome bureaucratic procedures and complex legal demands; policy and legal failures making illegal operations more profitable than legal activities; weak law enforcement and low penalties for illegal operators when caught; and unfeasible provisions creating the perception among forest users that the law is unfair and out of touch with reality. Forestry-related laws and regulations might be difficult to respect in some cases, especially for small producers and disadvantaged rural communities, who may not have the means to follow costly and complex legal requirements or who are excluded from benefits of nearby forests.

Impact analysis of the regulatory framework

An important task in strengthening forest law compliance is to examine the policy and legal framework governing the forest sector and to eliminate requirements that are impossible to comply with or contradictory. This task must be based on an analysis of how regulations affect actors in the forest sector, in terms of their financial, technical and managerial ability to follow legal requirements and in terms of their needs. The financial impacts of regulation on the main stakeholders can be analysed using standard economic analysis techniques. In cases where regulations reduce profitability thereby precluding realistic compliance, such as in the Bolivian example (Box 11), the government may consider support in the form of financial incentives and/or compensation to induce forest operators to comply with the law on a voluntary basis (see section below on increasing the profitability of legal operations).

Impact of the regulatory framework on the rural poor

Forest-dependent communities are less likely to comply with forest laws if they think that to do so will endanger their livelihoods. Policies designed to control illegal activities in the forest sector, such as logging bans, have sometimes proven counter-productive because powerful political interests continue to find means to log the forests while more vulnerable poor and small-scale forest producers have been unable to find alternative livelihoods (Molnar et al ., 2003). Consequently, further impact analyses should be carried out to investigate the possible effect of the law on the livelihoods of the poor (Box 12). Many of these impacts will not be covered in the financial analyses mentioned above simply because many of the forest products that are essential for the livelihoods of poor populations do not enter formal markets and therefore do not have market prices. Controls on trade in illegally harvested timber and forest products may result in communities finding that their subsistence and commercial activities are not recognized or permitted, undermining their incentives for sustainable and legal forest use.

Mozambique has made a remarkable effort in recent years to analyse the forest and wildlife law in the context of poverty alleviation. Poverty reduction is one of the main overall objectives of Mozambican society. Like all other sectors, the forest and wildlife subsector has designed its policy and development strategy based on this national objective. Improving forest law enforcement should, therefore, have a positive impact on poverty reduction although this assumption should not always be taken for granted (Box 13).

Impact of the regulatory framework on big business

Legal forestry operators often fear being undermined by less scrupulous competitors and government pressure. Moreover, large companies operating illegally are sometimes found to be linked to the funding of conflicts and the provision of arms to governments or rebel groups in the countries in which they operate (Global Witness, 2004b). Any company prepared to tackle vested interests may be threatened with having its concessions terminated and awarded to less scrupulous competitors.

However, recent research shows that if all exports associated with illegally harvested logs were phased out by 2007, international roundwood, lumber, and wood panel prices would rise by 19 percent, 7 percent, and 16 percent, respectively, and companies operating legally would significantly increase their earnings (Seneca Creek Associates and Wood Resources International, 2004).

It is therefore crucial to ensure that the regulatory frameworks strengthen the government's control over its natural resources and the domestic timber industry by integrating transparency and accountability into the industry's operations and by working with the international community to ensure that the government has adequate capacity to manage the logging industry and phase illegal operators out of the marketplace.

INCREASING CLARITY, TRANSPARENCY AND CONSISTENCY OF FOREST AND FOREST-RELATED LEGISLATION

Establishing a sound and coherent forest policy prior to law-making

As mentioned earlier, a sound and coherent policy framework is a prerequisite to the development of clear, transparent and consistent legislation. Laws are only instruments to implement an overall strategy, and it might be necessary to conduct an all-encompassing review of the forest policies in place before drafting or redrafting forest and forest-related laws. In 1998-1999, Ecuador conducted a multistakeholder process to develop a sound forest policy with a set of objectives and five general priorities, which now provide an overall framework for the development of forest laws (Box 14).

Promoting clarity and understanding

One of the fundamentals of good legislation is that laws are communicated to and understood by those stakeholders most affected by them. Legal clarity contributes to compliance, reduces the possibility of arbitrary interpretation of the law by government officials and facilitates the task of the judiciary. Clarity will be achieved by:

• establishing a clear forest policy framework;
• drafting legislation that is simple, unambiguous, based on tested approaches and containing minimal discretionary powers;
• harmonizing legal/forest-related definitions;
• ensuring clear demarcation between national, regional and local authorities over the allocation and control of forest resources;
• raising awareness about the regulatory framework.

Establishing mechanisms for participatory law-making

Ensuring a participatory approach to forest law-making will promote transparency, reduce the potential for corruption, ensure greater equity, minimize the undue influence of privileged groups and encourage parties to follow legal requirements. It will also enable stakeholder groups to voice their concerns and protect their rights from arbitrary unilateral decisions by governments. In Honduras and Ecuador for example (Box 15), a conscious effort to ensure the integration of various points of view was carried out by favouring a participatory process in the design of the new forestry laws and technical norms. Public involvement in forestry policy is essential in order to formulate a policy that acknowledges people's needs and capacities.

Making sure the law includes feasible and meaningful opportunities for genuine participation by different stakeholders in management and decision-making

Stakeholder participation will take different forms according to socio-economic and institutional contexts, but the following general guidelines for developing a legal framework for participation can be applied and adapted to most situations (Lindsay, 2004).

• Ensure the law provides ways for local people to acquire genuine rights over local forest resources in appropriate situations (see section in this chapter on securing tenure rights).
• Clarify, secure and enforce the rights for participating groups.
• Ensure the law provides for local input into forest decision-making and resource allocation.
• Establish easy and flexible ways by which people can form participatory forestry groups.
• Promote public participation and transparency in forestry decision-making at the national level (see Box 16).
• Ensure the law is realistic, easy to understand and well known by stakeholders.
• Develop flexibility in the legal framework in order to allow approaches appropriate for the local context.

Ensuring transparency

Transparency is a key factor in reducing corruption and preventing the willful participation of government officials in illegal activities. In the forest sector, lack of transparency primarily affects the awarding and monitoring of concession contracts, decisions on procurement contracts, staff responsibilities and calculation and collection of fines for illegal activities. Consequently, transparency will be greatly improved through policy reforms related to the granting and monitoring of concessions and subsidies and to issues of accountability in forest administration.

Ensuring full and mandatory disclosure of documents of public interest concerning the forest sector will enable people to contribute directly to law enforcement by equipping them with a knowledge of which forest operations in their local area are legal, and who to talk to if they are not. These steps can improve law compliance by giving public credibility to the decisions and actions of the forest administration. The following information should therefore be in the public domain:

• all forest-related legislation and associated rules, regulations, decisions and decrees (Box 17);
• a forest inventory which shows how much forest there is, what type of forest it is, its location and a value assessment (see Chapter 6);
• a map based on the above studies showing forest use such as protection, community forests and commercial forests as well as concession maps with boundaries and current cutting coupes;
• concession and investment agreements, showing the social and environmental responsibilities of the title holders, and including the explicit right of forest control agents and independent forest monitors to inspect the forest/sawmill at any time;
• details of ownership of concession holders, permits for cutting, transportation licences, collection, export of forest products etc.;
• the structure of forest departments and the contact details and roles of forest department personnel;
• a registry of business interests and familial links to the logging industry for all government officials;
• lists of companies that have been found to operate illegally (Box 18), including an explicit ban on participating in subsequent auctions or concession allocation processes.

These documents should, to the extent possible, be made available on the Internet, while printed copies should also be made available through the forest administrations.

Other specific best practices include:

• establishing clear roles and responsibilities of forest department personnel and the extent of staff authority (who can sign which documents, who is accountable for which decisions, etc.) as well as the role of other stakeholders;
• ensuring the process of appointing high officials in the forest administration follows clear and transparent rules (Box 19);
• establishing open and transparent bidding processes/competitions with well- publicized rules and conditions for the award of procurement contracts and concessions (Box 20) - which should include a report after the bidding on which lots were awarded to whom, how much was paid for them, and why some lots, if any, were not awarded;
• reducing the control of concessions by political elites through new legislation to prevent concessions and possibly the forest industry being held/controlled by politicians or senior forestry appointees, their family and nominees;
• initiating independent forest monitoring visits to strengthen official controls and audits. Inspections which are carried out by independent bodies with no vested interests in the audited party or the regulatory authority add significant public credibility to law enforcement and regulatory practices (see Box 21 and section on independent forest monitors in Chapter 5);
• organizing seminars, workshops and public hearings to provide information on forest-related rules and regulations to all interested parties (extension services to small and large operators, processing industry, traders, NGOs, etc.);
• ensuring transparency in the process of prosecuting key offenders - in many cases, even if apprehended, offenders with the means to influence the judiciary avoid prosecution (see also section on the role of the judiciary in Chapter 4).

Encouraging consistency of the regulatory framework

Consistency means that one legal provision should not directly contradict another. A forest law needs to be consistent internally and with other instruments (e.g. land tenure, public property administration, subsidies, infrastructure, trade regulations) used to achieve a relevant policy.

A forest law may contribute to policy convergence with other sectors, but it is too much to expect that a law alone will reconcile all policy conflicts and contradictions (Christy, 2004). An adequate architecture of the forest sector legal framework must therefore include a sound analysis of legal linkages (see section on cross-sectoral linkages and collaboration in Chapter 4). Some countries, such as Honduras (Box 22) and Cambodia (Box 23) are progressing along these lines by dedicating considerable efforts to harmonizing forest-related legislation.

MINIMIZING BUREAUCRACY, STREAMLINING LEGAL PROCEDURES AND SIMPLIFYING REGULATIONS

Decentralization

Decentralization can - if carried out under the right conditions - contribute to simplifying bureaucratic procedures. It can also lead to greater transparency in governance provided it is designed and implemented so that procedures and decisions are open to scrutiny and local officials are genuinely accountable to local populations. Many countries, including Bolivia and India, are empowering local authorities to make routine decisions in order to reduce the bureaucratic load forest operators face to obtain government permits and approvals (Box 24). Needless to say, the decentralization process must go hand in hand with capacity-building of decentralized institutions and sound funding of local government budgets for forest law implementation and enforcement (see Chapter 5 for more details). Decentralization is not a certain remedy for local corruption but may help in building more accountable and transparent decision-making in the forestry sector.

Simplifying and rationalizing forest regulations

Avoiding regulatory proliferation. Several of the case studies already referred to show that there is often a correlation between how numerous regulations are, and how big corruption and the "informal" (or illegal) economy are (see Figure 3). Developing countries tend to have an overabundance of regulations (World Bank, 2004). Regulatory proliferation is often an indicator of a weak policy framework which does not adequately address the long-term vision for the forestry sector. This multiplies the risk of legal inconsistencies, contradictions and overlapping jurisdictions and complicates the understanding of the regulatory regime affecting the sector. All of this in turn allows for more discretionary decisions and, therefore, increased opportunities for corruption.

The following guidelines may assist governments in limiting regulatory proliferation, overlaps and inconsistencies:

• Ensure that a coherent and sound forest policy is in place prior to law-making, in order to guide the formulation of legislation.
• Carry out a comprehensive legal analysis to identify opportunities for simplifying the legal framework.
• Reduce the number of rules in response to the legal analysis which will have identified overlaps and inconsistencies. Where an official decision or some other bureaucratic action called for in the law or regulations is not obviously and directly related to achieving a policy objective, it should be eliminated (Box 25).
• Adapt the remaining rules to ensure consistency with other existing laws, including among different departments and sectors (land tenure, forest, agriculture, wildlife management, environmental protection, rights of indigenous peoples, trade, etc.).
• Translate new legislative acts into working norms and regulations as soon as possible after new laws have been approved.

It is worth noting that sometimes a complete review and redrafting of the entire forest legislation might be the best approach.

Simplifying forest regulations concerning management planning. Simplifying forest rules and regulations, including requirements for management plans for small holders, will greatly increase law compliance and reduce opportunities for discretionary decisions and subjective interpretations of the law by government officials and forest operators. Appropriate legislation supporting simpler forest management plans for small-scale or community-based forest operators has been developed in many countries including: Argentina, Bhutan, Bolivia, Brazil, Cameroon, Cambodia, Chile, Ecuador, Gambia, Guatemala, Indonesia, Kenya, the Lao People's Democratic Republic, Malawi, Mexico, Mozambique, Myanmar, Nepal, Paraguay, the Philippines, Senegal, the United Republic of Tanzania and Viet Nam (FAO, 2004a).

The use of simpler criteria and requirements for planning, harvest and resource assessments greatly facilitates compliance and eases enforcement and monitoring by forest guards (Boxes 26 and 27). However, forest extension services need to play a key role in this process as facilitators, communicators and technicians, assisting local communities and small-scale operators to develop their forest management capacity.

Rules and regulations can also be simplified for the system of concession and logging fees (Box 28).

SECURING FOREST LAND OWNERSHIP RIGHTS

Illegal forest operations are often the result of poor or non-existent control over resources. Security of tenure is therefore one of the most important mechanisms to ensure accountability and control of forestry operations at the local level. Tenure rights need to be supported by adequate capacity and an empowering legal framework.

In recent years, stronger tenure rights in forests for local people have been promoted for a number of reasons - most prominently as a way of improving local livelihoods and recognizing legitimate local claims to rights over land and resources, and as part of a general trend towards devolving or decentralizing various governance functions.

It is also increasingly recognized that unless local people have a significant stake in the management of local forest resources, the efforts of under-staffed and poorly financed forest officials to patrol and protect forests will often be futile. The absence of such a stake both reduces the incentives of local people to comply with the law, and prevents them from insisting on the compliance of outsiders, including government officials themselves.

Throughout history, national legislation has generally been unfriendly to local forest tenure rights. In many parts of the world, the overall trend has been an inexorable assertion of governments' legal control over forests at the expense of local practices and local perceptions. While local usage rights have frequently been given some recognition, forest laws have provided little scope for local people to play a meaningful part in the planning, management and allocation of forest resources on which they may have depended for generations - and which, in numerous cases, they may have actively managed and protected on a de facto basis, even though they have no de jure rights to do so. Frequently, the state has taken on the management role itself through the creation of state forests. In other contexts, national law may have left the tenure status of forest areas unclear, giving little or no legal protection to existing community-based systems and providing no alternative mechanisms through which local groups or individuals might assert effective control. Furthermore, given that state institutions are frequently ill-equipped or unmotivated to exercise the legal power they have assumed, the result is often an open-access situation. Recent legal changes have taken many forms, including the following (Lindsay et al ., 2002).

• Recognizing community or indigenous groups' ownership or permanent tenure over forest land (Box 29). In recent years, some countries have accorded increasing recognition to the historical land or territorial claims of local peoples. The 1997 Indigenous Peoples' Rights Act from the Philippines is an example of this trend, and the rights of indigenous communities figure prominently in several Latin American laws. A number of other countries, including Canada, Australia, South Africa and several countries in central and eastern Europe, are engaged in restoring the lands of dispossessed communities and individuals, some of which include natural forests or commercial plantations. In Gambia, permanent tenure for communities is secured after the participating communities successfully comply with an agreed management plan for a probation period. Recent forestry and land laws in Tanzania also envisage the possible creation of forests owned and registered in the name of villages.
• Transferring management of selected state forest areas to local user groups. The community forestry programme in Nepal is well-known for using this approach. A forest user group is formed by the people themselves. In consultation with the forest department, they develop a management plan. They are then entrusted with managing the forest according to the plan. Ownership of the land remains with the state, and the forest department has right of veto if management rules are transgressed, but the user group has the right to harvest and to benefit from all products set out in the management plan.
• Joint management or co-management of state forest land. This is a variant on the first approach, and differs from it only in that the role of the forest department in ongoing management is more clearly spelled out. Joint forest management has been pioneered in India, in the form of agreements between forest departments and local groups, in which management responsibilities and benefits are shared according to different formula and conditions, and over time-frames that differ significantly from state to state. Various forms of co-management are found all over the world, from the Philippines to Canada (British Columbia), from South Africa to Mexico.
• Limited rights of access and use permitted in state-owned protected areas or buffer zones. This is not specifically a forest management model, but refers to the fact that in protected area legislation in many parts of the world (perhaps most notably in Latin America but also elsewhere), there are increasing examples of people being given limited access and use rights either in protected areas themselves or in the surrounding buffer zones.
• Leasing of state land for forestry purposes. This is an approach used in the Philippines, Nepal and a number of other countries, with the leaseholders either being individuals or local groups. This system is followed in China, where long-term leases and transferability of contracts have enabled the realization of most of the benefits of secure land tenure. This is often seen by governments as a means of replanting degraded land (e.g. in Viet Nam, Nepal, Sri Lanka, Uganda), although it may also be considered for productive, well-stocked forests.
• Community concessions. This option involves reforming public forest concession policy in order to encompass indigenous and other local communities. The Guatemalan government has piloted the granting of timber concessions to local communities rather than large industries (Box 30). In the Lao Peoples Democratic Republic, the government has launched a similar participatory concession management pilot programme; early experience shows that the quality of management has improved, illegal activities have declined and royalty payments to the government have increased, although the share of income from forests destined for local people remains low.

It should be noted that the emergence of new legal techniques in a number of countries to support greater local tenure rights in forests has not always resulted in more robust rights in practice. Where legal frameworks have been reformed, the results have often been ambiguous, technically unsound, contradictory and/or not supported by enough political and social will to make a substantial difference on the ground. Where political, social, economic and ecological conditions are unfavourable for motivating and sustaining local management, a supportive legal framework may not make much difference. And of course, community members themselves are not inherently immune to temptations to engage in corrupt or destructive activities, and the strengthening of property rights or other stakes in forest management may not always be sufficient to dispel such temptations. Nonetheless, despite the mixed track record of community-based initiatives over the last decade or so, the underlying rationale for real local involvement remains persuasive and urgent.

ENSURING THAT IN-COUNTRY INDUSTRIAL CAPACITY DOES NOT EXCEED SUSTAINABLE SUPPLIES

The Cambodian and Indonesian experiences show that the expansion of the wood processing capacity well beyond the available national supplies of raw material provides an incentive for forest crime. In some cases, the option to obtain the shortfall from imports and thus abstain from buying illegal wood from local producers has been financially prohibitive, particularly for industrial production lines that require large wood volumes.

The following are a few examples of best practices that promote a balance between industrial demands and sustainable supplies from the country's forests.

• In most countries, big new industrial projects are required to undergo a feasibility study before they are granted approval by the relevant authorizing government agency. The feasibility study should include an analysis of how the industrial plants will be supplied with wood. In all likelihood, this will entail careful analyses on a project-by-project basis. In the case of the wood processing industry, estimates of the raw material demand are usually already available for plants of different sizes and the potential supply can be estimated if approximate forest inventories are available (see Chapter 6 for more information on the importance of forest inventories). It is important to include these studies as a condition for government approval of new industrial installations as well as for substantial expansions of already established industries;
• Where industrial capacity regularly outstrips supply, the closure of mills should be considered, especially those found to be operating illegally. Supply auditing can be used to identify mills potentially processing illegal timber. Progress with such strategies is dependent on measures to strengthen law enforcement capacity and raise levels of accountability and transparency (Box 31);
• International agreements among trading partners and other measures, such as public procurement policies and legislation against illegal trade, may provide incentives for reducing overcapacity and illegal exports (including legal exports based on illegally sourced wood). The limitations of such approaches include exporters increasingly targeting less discriminating markets and their lack of impact on domestic wood demand (see Annex 3 for more information on multilateral and bilateral agreements).

IMPROVING CROSS-SECTORAL LINKAGES AND COLLABORATION

The impacts of policy and legislation in related sectors such as transport, mining, agriculture and energy can have a profound effect on forests, forest management, illegal activities in the forest sector and the livelihoods of forest-dependent people. A better understanding of the linkages between different sectors and a coherent and overarching approach to forest issues can help reduce uncertainty, maximize synergies and minimize the occurrence of illegal practices in the forest sector. Three levels of coordination may be defined (FAO, 2003):

• intersectoral (or horizontal) coordination, when problems are considered mainly at the same territorial level by actors operating in different sectors (for instance forest and agriculture);
• intrasectoral (or vertical) coordination, when coordination is based mainly on interaction among actors operating at different levels but in the same sector (for instance national and local forest administrations);
• multilevel cross-sectoral coordination, linking international and national efforts.

Strong political will and commitment to better interagency cooperation is needed in order to increase successful cooperation among various levels of governments. For instance, in Ecuador, the decision to establish a system of law enforcement involving the police and the military, along with other government agencies, the private sector and civil society was feasible only thanks to strong political commitment at the highest levels. The following best practices facilitate intersectoral coordination:

• promoting overall policy consistency between policies in different sectors (mining, agriculture, forestry, etc.);
• encouraging legal consistency between the forest legislation and laws governing other key sectors with potential adverse effect on forests, such as road expansion, infrastructure development, agricultural intensification, and mining and oil exploration/exploitation;
• identifying and eliminating perverse fiscal or monetary incentives including direct and indirect subsidies for activities in related sectors with a negative impact on the forest sector;
• introducing safeguards in the design of these related policies to diminish the potentially negative impacts on forest and forest-dependent communities;
• providing decision-makers in the forest sector with evidence of potential cross-sectoral effects and enabling them to enter into a cross-sectoral dialogue;
• improving knowledge about ways to address cross-sectoral issues in a comprehensive manner;
• encouraging exchange of forest-related information and knowledge in a transparent and timely way on policies, emerging issues and plans among various governmental institutions;
• monitoring progress and responding proactively to policy and legislation initiatives which might affect forests in other sectors;
• supporting cross-sectoral scientific policy analysis;
• strengthening institutions and promoting the involvement of forest-sector stakeholders and civil society.

INCREASING THE COMPETITIVENESS OF LEGAL OPERATIONS

One of the root causes of organized illegal activity in the forest sector is the profitability of forest crime compared to legal logging and associated legal trade. For example, illegal loggers do not pay taxes or fees for the standing wood, do not bear forest management and post-harvest operation costs and do not have to dedicate efforts, money and time to comply with bureaucratic requirements. Furthermore, illegal loggers often focus on the most valuable species of wood, further boosting the profitability of illegal logging. With higher profits, a low chance of detection and negligible penalties, illegal activities have a strong financial appeal.

Decreasing the profitability of illegal operations

Detecting and penalizing illegal activities through the following actions will limit the financial appeal of breaking the law.

• Improving monitoring systems increases the risk of detection and facilitates prosecution. (See Chapter 6 for more details on monitoring and detection techniques.)
• Involving local populations in forest management by providing access or tenure rights promotes increased local control of the forest resource.
• The market should be closed to products whose legal origin cannot be proved. (See Annex 3 for examples of international initiatives and bilateral agreements.)
• Sanctions should be greatly increased and should be imposed for all detected illegal activities. It is necessary to ensure that offenders are systematically convicted. Sanctions can be monetary (confiscation of assets, fines and penalties, etc.) or non-monetary (restrictions on future activities, revocation of operating licences, imprisonment, community service, etc.) (Whiteman, 2003). However, it is important to note that increasing the fines and penalties for illegal activities might increase the producer's willingness to pay bribes and may also lead to greater corruption. Stiffer penalties will thus only act as a deterrent where overall governance of the forest sector is improved.
• Judiciary procedures should be streamlined and forestry staff given increased power to confiscate illegal timber and equipment.
• Financial penalties should be indexed to inflation rates in order to keep their deterrent power over time. Various indexing systems exist. For example, fines can be expressed as a multiplier of the minimum wage or other stable value indicator, as is the case in Mexico and Peru, or in terms of a stable foreign currency (Christy, 2004; Sociedad Peruana de Derecho Ambiental, 2003).
• It is important to identify and define all possible offences and ensure appropriate penalties for the complete array of offences. For example, it is not enough to state that all operations should be carried out according to an approved management plan, as this does not distinguish between the lack of a management plan, an inadequate plan, and plain failure to follow the plan.
• Recurring offenders should face harsher penalties. For example, repeated breaches of the law can lead to blacklisting of companies by government and effectively excluding them from operating on public forest lands. For the most serious offenders, prison sentences should also be included in the regulatory framework.

Increasing the profitability of legal operations

Some of the tools that can be used to increase the profitability and competitiveness of legal operations include:

• giving preferential treatment to operators who have proven the legality of their operations when awarding concessions;
• establishing government procurement practices that favour forest products of proven legal origin;
• requiring the forest administration to carry out open and transparent judicial processes as a condition for the cancellation of concessions, to protect legal operators from the arbitrary cancellation of concession contracts (in any case, cancellation should be subject to a clear legal process to avoid creating strong disincentives to participate in the official concession system);
• providing financial incentives for sustainable forest management as a way to reduce the profitability gap between illegal operations and sustainable forest management activities prescribed by the law (Box 32);
• a reduction of taxes (stumpage fees) on legally harvested timber if incentives cannot be provided;
• simplifying procedures for obtaining harvesting permits;
• designing and providing technical assistance programmes (see Chapter 5) to assist forest operators with the design of forest management plans, tax incentives or other tools such as cost-sharing agreements, in order to encourage forest operators to follow legal guidelines.

ENHANCING THE CAPACITY OF THE JUDICIARY TO ACT EFFECTIVELY ON FORESTRY LAW MATTERS

Effective implementation of forestry laws requires a reasonably functioning judiciary, both to hold law-breakers accountable for their actions and to protect the legal rights of various stakeholders. However, the reality in many countries is that courts function poorly for a variety of reasons. They are often understaffed and underfinanced, and face caseloads that greatly exceed their financial and human capacity to cope efficiently. The training of judges, particularly at the level of courts that deal with typical forest-related cases, may be weak in general and will usually not involve any specific training in forestry laws. The lack of separation of the judiciary function of the state from executive and legislative branches is a common problem in some countries, leading to widespread interference in the affairs of the judiciary and corruption at all levels, including in the forest sector.

Achieving judicial independence in order to ensure impartiality in judicial decisions is a complex undertaking. There are various ways in which countries have sought to attain this goal and the following general guidelines can assist in such a process (United States Agency for International Development [USAID] 2002):

• build broad support for reforms;
• promote independent organizational and structural arrangements for the judiciary;
• clarify the relationship of the judiciary to the rest of the government;
• improve terms and conditions and training of individual judges;
• ensure transparent procedures;
• promote accountability of the courts to the public (Box 33).

It should be recognized, of course, that broad reforms to the judicial system are well beyond the mandate of forestry governance institutions to initiate or lead, though they can be effective lobbyists and supporters for such a process. In any case, there are other forestry-specific interventions that can be helpful. One is to target the often weak knowledge and appreciation of forestry law issues among the judiciary through professional training programmes. FAO has been supporting this type of strategy in Mozambique through a programme of training in forestry and related natural resource laws for rural resource managers and their advocates, judges, lawyers and administrators, and non-governmental organizations. For most of the district judges, this is the first formal instruction in these laws that they have received. With the skills developed during these courses, judges are much better equipped to deal consistently and professionally with forest-related cases that come before them (Box 34).

Another option, which would enhance the capacity of the judiciary in forest issues, is to make public and include in concession contracts the mechanisms by which fines are calculated and then to transparently apply the formula (see section in this chapter on increasing the competitiveness of legal operations). This would largely eliminate the discretionary power of the forest authority in assessing fines, and would significantly reduce the number of cases which cannot be resolved through a straightforward administrative process and actually need a judge.

Conclusions

A number of steps can be taken in order to streamline and rationalize forest policies and laws, including to:

• Assess underlying social, economic, cultural and political causes of non-compliance and modify the policy and legal framework governing the forest sector accordingly.
• Analyse the impact of the forest policy and legal framework on the livelihoods of the poor.
• Increase clarity, transparency and consistency of forest and forest-related legislation, by drafting legislation that is simple, unambiguous, based on tested approaches and containing transparency obligations and minimal discretionary powers.
• Ensure a participatory approach to forest law design in order to promote transparency, reduce the potential for corruption, enable people to scrutinize the effectiveness of subsequent implementation, help ensure greater equity and minimize the influence of privileged groups.
• Encourage consistency of the regulatory framework to ensure that laws do not contradict each other (within the forest legal framework and with laws in other sectors).
• Minimize bureaucracy, streamline legal procedures and simplify regulations, for instance, through decentralization, avoiding regulatory proliferation and simplifying forest regulations on management planning.
• Secure forest land ownership rights in order to ensure accountability and control of forestry operations at the local level.
• Ensure that in-country industrial capacity does not exceed sustainable supplies, for instance, by conducting feasibility studies before new mills are built, closing down mills and facilitating timber imports.
• Establish international or bilateral trade agreements with trading partners.
• Ensure cross-sectoral linkages and collaboration to ensure a coherent and overarching approach to forest issues (though for instance national forest programmes).
• Increase the competitiveness of legal operations by decreasing the profitability of illegal operations and increasing the profitability of legal operations.
• Promote the independence of the judiciary and transparency of judicial processes.