Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 00074910701408065
Bulletin of Indonesian Economic Studies
ISSN: 0007-4918 (Print) 1472-7234 (Online) Journal homepage: http://www.tandfonline.com/loi/cbie20
INDONESIA'S NEW FISHERIES LAW: WILL IT
ENCOURAGE SUSTAINABLE MANAGEMENT OR
EXACERBATE OVER-EXPLOITATION?
Jason Patlis
To cite this article: Jason Patlis (2007) INDONESIA'S NEW FISHERIES LAW: WILL IT ENCOURAGE
SUSTAINABLE MANAGEMENT OR EXACERBATE OVER-EXPLOITATION?, Bulletin of Indonesian
Economic Studies, 43:2, 201-226, DOI: 10.1080/00074910701408065
To link to this article: http://dx.doi.org/10.1080/00074910701408065
Published online: 10 Apr 2008.
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Date: 18 January 2016, At: 20:04
Bulletin of Indonesian Economic Studies, Vol. 43, No. 2, 2007: 201–25
INDONESIA’S NEW FISHERIES LAW:
WILL IT ENCOURAGE SUSTAINABLE MANAGEMENT
OR EXACERBATE OVER-EXPLOITATION?
Jason Patlis*
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World Wildlife Fund, Washington DC
Indonesia is at a vital juncture in the direction of its fisheries management. There is
ample evidence that fisheries resources throughout Indonesia continue to decline
and that over-fishing not only persists but is a growing problem. Without government intervention, fisheries, like other natural resources, are subject to open access
and therefore over-exploitation. Confronted with the drive to increase fisheries production to benefit the economy, spur business development, provide an essential
food source and maintain local livelihoods, the government must at the same time
seek to ensure that this resource is not depleted. The enactment of a new statute
governing fisheries affords an opportunity to balance these competing goals and
address some serious problems in fisheries management and enforcement. This
paper analyses Law 31/2004 on Fisheries and concludes that, given early indications on implementation, the government should more aggressively improve the
regulatory and enforcement mechanisms needed to achieve sustainable fisheries
management.
Although Indonesia is the world’s biggest archipelagic country, government agencies have largely ignored its fisheries, giving more attention to the nation’s wealth
of terrestrial natural resources, extracted by logging, mining and drilling. Despite
the lack of government attention until recently (or perhaps because of it), fisheries
have not been ignored by big businesses and local communities, but have been
heavily exploited without significant oversight or monitoring, and consequently
with little data collection. Indeed, like other natural resources, fisheries are often
the victim of open access in the absence of some form of government intervention, and this leads to likely over-exploitation and ultimate depletion. Scholars
raised the spectre of over-exploitation as early as the 1960s (Yowono 1998). With
growing recognition of the importance of fisheries and the maritime sector, and
of the need for greater oversight of it, the government created a new Ministry of
Marine Affairs and Fisheries (MMAF, Departemen Kelautan dan Perikanan) and
a new national maritime board (Dewan Maritim Indonesia, DMI) in 1999. And
after a 19-year wait, Law 9/1985 on Fisheries was finally replaced in 2004, with
the enactment of Law 31/2004 on Fisheries. A host of new implementing regulations is currently at various stages of administrative review.
* The views contained in this paper are those of the author and should not be attributed to
the World Wildlife Fund.
ISSN 0007-4918 print/ISSN 1472-7234 online/07/020201-25
DOI: 10.1080/00074910701408065
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How these regulations are drafted, and how the new law is implemented and
enforced, will determine the future direction of Indonesia’s fisheries, and will
depend on the government’s outlook. As noted by Brown, Bengen and Knight
(2005), policy makers are split into two camps: those who believe that Indonesia’s
fisheries are under-developed, with considerable potential for further growth,
and with opportunities for significant investment to improve infrastructure and
increase effort; and those who believe that they are already over-exploited, with
under-reported data belying depletion, and with an immediate need to curtail
fishing effort and focus on conservation of major marine areas.1 Mous et al. (2005)
also recognise the competing pressures on Indonesian fisheries: while there is a
growing body of evidence that they are ‘fully exploited or over-exploited’, there
is still increasing pressure to ‘exploit ”untapped resources”’.
The new Law 31/2004 reflects these contrasting—and perhaps, but not necessarily, irreconcilable—views. On the one hand, it offers a great deal of verbiage and
over-arching direction in support of fisheries conservation and sustainable development; on the other, it establishes a number of programs to increase and improve
fishing effort. Which way implementation of the law ultimately tilts will depend
on the regulations now in draft. The directions of the law are broad enough to
allow implementing regulations to favour greater conservation, increased exploitation, or both. As individual aspects of the law will each be elaborated through
individual regulations, and implemented by different divisions within the MMAF,
it is highly possible—and indeed likely—that the contrary directions implicit in
the law will be carried forward into the regulations.
A concerted effort is also being made to deal with enforcement issues: the ministry has adopted a number of initiatives to establish community-based enforcement approaches for near-shore fisheries, and to improve patrolling of offshore
fisheries, targeting in particular illegal foreign fishing in Indonesian waters. However, historically weak enforcement mechanisms and a fragmented institutional
structure for dealing with marine issues may hamper these efforts.
Taking all this into account, some degree of optimism might be allowed—the
framework is in place to improve fisheries management significantly—but given
past experience, current drafts of the regulations, and continuing problems in
enforcement, a pessimistic outlook is more justified. Indonesia is likely to follow
the example of fisheries in many parts of the globe: continued over-fishing, a sharp
collapse in fish stocks, and then a patchwork set of measures to recover the fishery.
THE VALUE OF INDONESIA’S FISHERIES
Fisheries account for approximately 2.2% of Indonesia’s gross domestic product
(GDP). The sector is a major employer, providing roughly 3 million direct fulltime and part-time jobs in 2002 according to Brown, Bengen and Knight (2005),
1 Falling into the first camp, the Minister of Marine Affairs indicated earlier this year (Jakarta Post, 12/3/2007) that the gap between maximum sustainable yield (MSY) and actual
catch represented an opportunity to increase fishing effort (to boost the economic wellbeing of coastal communities and fishers and improve nutrition through increased fish
consumption), rather than evidence of possible over-fishing. He specifically cited annual
catch levels of 3.8–4.8 million tons compared with an MSY of 6.4 million tons per year.
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while JICA (2005) estimates a slightly lower number of fishers—2.57 million in
2002—with a 2.2% growth rate since 1999. At the other end of the scale, Dutton
(2005) cites Food and Agriculture Organization (FAO) data indicating 6.7 million
fishers (both fresh-water and marine). Tax receipts from fisheries are very small—
much smaller proportionally than in forestry and other natural resource sectors.
Brown, Bengen and Knight (2005) recommend a greater effort on the part of the
government to collect taxes and other revenues currently lost as a result of the difficulties inherent in monitoring fish landings throughout the country.
Apart from their economic significance, fisheries play a strong role in the identities and traditions of many cultures across the archipelago. Traditional fishing
techniques and practices are still employed in many areas (Titahelu 2005).
The western marine waters of Indonesia are relatively shallow, lying above the
Sunda shelf surrounding Java, Sumatra and Kalimantan, while the eastern waters
are quite deep (except for the Arafura Sea separating western Papua and Australia).
The western waters are rich in near-shore, smaller fisheries, while the eastern waters
serve as migratory corridors for many large pelagic (open ocean) species. Smallscale fisheries, using gear such as lines, traps, beach seines, lift nets, pole and line,
trolling gear and mini-seines, account for almost 95% of the overall fishing effort
in the country (FAO 2000; Dutton 2005).2 Vessels using hooks and lines account for
roughly 35% of the catch; gill nets for 31.4%; seines and purse seines for 7.7% and
1.6%, respectively; traps for 8.4%; and lift nets for 6.5% (JICA 2005).
Indonesia’s fishing fleet approximates 460,000 vessels. According to JICA (2005),
non-powered boats that go out on daily excursions comprise roughly half of the
fleet, although the number is steadily decreasing as more fishers acquire small
outboard and inboard motors for their boats: in 1999, there were 241,517 nonpowered boats (53.0%) and by 2002 this figure had dropped to 219,079 (47.6%).
Compare this with the increase in outboard motors, from 124,043 boats in 1999 to
130,185 in 2002. The increase in inboard motors on vessels smaller than five gross
tons (GT) is even more dramatic: from 57,768 in 1999 to 74,292 in 2002.
At the same time, the number of large industrial vessels has more than doubled
in this period: vessels of 100–200 GT with inboard motors increased from 756 to
1,612 boats; and vessels greater than 200 GT with inboard motors rose from 211
in 1999 to 559 in 2002 (JICA 2005). Dutton (2005) and Brown, Bengen and Knight
(2005) observe similar trends over the last 20 years, noting not only that the fleet is
increasing dramatically in terms of the number of boats, but also that its composition is shifting heavily to larger vessels. These trends have a significant bearing
on the status of the fisheries. The major question they pose is whether the fisheries
are still under-developed, with room to grow, or whether they are being overexploited, with a need for greater control over fishing effort.
Estimates of the overall catch from Indonesia’s fisheries vary quite widely.
Citing the 2003 issue of the central statistics agency’s Statistik Perikanan Indonesia
(Indonesian Fisheries Statistics), Brown, Bengen and Knight (2005) state that total
production is 5 million tons per year, of which 70% (3.5 million tons) is from
marine capture fisheries, and the rest from aquaculture and fresh water. Mous et
al. (2005)—also citing government data from 2003—report that production from
marine capture fisheries is 4.4 million tons. Yet another government report states
2 For explanation of fisheries terms used here, see .
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that total production in 2003 was 4.7 million tons, up from 4.3 million tons in 2001
(Departemen Kelautan dan Perikanan 2004). And JICA (2005) reports that total
marine capture fisheries output increased from 3.68 million tons in 1999 to 4.07
million tons in 2002 (implying an average annual growth rate of 3.42%).
These estimates of actual yield can be compared to the estimates of maximum
sustainable yield (MSY)—that is, the total catch that can be borne by fisheries
while still maintaining long-term sustainability.3 The legal quota for the fisheries harvest is tied to this figure: total allowable catch (TAC) is set equal to 80%
of MSY, in accordance with the ‘precautionary principle’ (Mous et al. 2005). Like
those for the actual catch, the MSY figures vary greatly. Mous et al. (2005) observe
that estimates of MSY range over a factor of two—from 3.7 to 7.7 million tons per
year—although the most reliable estimate is probably around 5.0 million tons per
year. A study by JICA (2005) argues that MSY is 6.2 million tons per year.4 On this
basis the annual TAC would be just under 5 million tons.
Given these ranges of variation in both sustainable catch and actual catch,
it is extremely difficult to gain an accurate picture of the health of Indonesia’s
fisheries. Fauzi (2003) estimates the actual catch to be closer to 8.4 million tons
per year—roughly double the official estimates, considerably more than the estimated MSY of 6.2 million tons, and even further in excess of the corresponding
TAC. He suggests that these discrepancies can be explained by a variety of factors. One is over-capacity of the fishing industry. Another is the illegal activity for
which no official data exist: Fauzi (2003) cites an estimate that 3,200 Thai fishing
vessels are illegally harvesting more than 2 million tons per year in aggregate.
Yet another factor is that actual production is under-estimated in official data as a
consequence of unreported catch, bycatch, and waste (Fauzi 2003).
Data for fish landings are also incomplete and inaccurate. In 1997, for example,
the government published a target for total landings of 143,000 tons, and subsequently reported landings totalling 280,000 tons, while the FAO estimated that
actual landings surpassed 3.6 million tons.
THE LEGAL FRAMEWORK GOVERNING INDONESIA’S FISHERIES
Overview of marine fisheries management
The common starting point for any discussion of natural resource consumption
and management in Indonesia is the provision in article 33(3) of the constitution
that ‘[t]he land, waters and the natural resources within [Indonesia] shall be under
the powers of the State and shall be used to the greatest benefit of the people.‘
3 The concept of MSY dates from the 1930s and, as described by Mous et al. (2005), promotes ‘equilibrium fishing—catching an amount of fish that is equal to the amount of fish
that is added to the population through growth and reproduction‘. Mous et al. (2005) further explain that a fishery can be over-exploited even if harvest levels remain below the
MSY. If fish stocks have been pushed too low, fishing at the MSY does not afford stocks an
opportunity to reproduce, so catch levels will be lower than they would be at the optimal
stock level.
4 Of this total, roughly 52.4% are small pelagics living in near-shore waters, 28.9% are
demersal (bottom-dwelling) fish, also in near-shore fisheries, and 15.8% are large pelagics
(tuna, mackerel, sharks).
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TABLE 1 Types of Fish Landing Centres
Type Name
A
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B
C
D
Catch
Supported
(‘000 tons)
Oceanic
Fishing Ports
National
Fishing Ports
Coastal
Fishing Ports
Fish Landing
Places
Minimum
Vessel
Accommodation
Level of
Government
Responsible
Number
of
Ports
N
GTa
18–120
100
60
Central
5
7.2–18
75
15–60
Central
11
3–7.2
50
5–15
Central
17
1–5
Provincial
630
0–3
a GT (gross tons).
Sources: FAO (2000); JICA (2005).
This provision has been interpreted and analysed by numerous scholars, many
of whom have criticised its implementation in favour of large economic interests
rather than ‘the people‘, or rakyat (Lynch and Harwell 2002). Whether exploitation
of fisheries in Indonesian waters serves to benefit big business or local communities, and with what priorities, is one of the key questions to be decided in implementing the new fisheries statute. Regardless of its interpretation, it is this article
33(3) that gives authority to the central government to regulate the development
and management of the resource.
An interesting anomaly of fisheries management is that the overall management scheme is not at all evident in the primary statute governing the sector,
which establishes only the broad directions and parameters. Rather, the management scheme must be gleaned from reading the complete set of individual regulations and ministerial decrees promulgated by the government.
In sum, Indonesia’s management of maritime fisheries consists of three primary components:
• limits on fisheries catch yields for specific regions throughout the nation;
• geographic restrictions within near-shore and offshore waters based on size of
vessel; and
• issue of permits for individual vessels and production facilities.
The nation’s maritime area is divided into 11 fisheries resource management
areas. For each area, the central government establishes TAC limits, based on
MSY. A TAC limit is calculated for each of the four types of landing centres shown
in table 1. Roughly 77% of the fish landing centres are in western Indonesia, and
the remaining 23% in the eastern part of the country (FAO 2000).
In terms of geographic restrictions based on vessel size, the government regulates vessels as follows: only vessels of 5 GT or less may fish within three miles of
the shoreline; vessels over 25 GT may not fish within four miles of the shoreline;
and vessels over 100 GT may not fish within five miles of the shoreline.
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Pursuant to Regulation 54/2002 (which superseded Regulation 15/1990), all
vessels are required to be registered, certified as operational, and in possession of
permits for sailing and for fisheries business. Small-scale fishing operations are
exempted from this requirement. Vessels of more than 30 GT are licensed by the
ministry; vessels of 10 to 30 GT (and with motors of 90 horsepower or less) are
licensed by the province; and vessels of under 10 GT but over 3 GT are licensed by
the district. Vessels of 3 GT or less do not need a licence. The requisite paperwork
is handled by a variety of officials, including those from the ministry, the regional
fisheries agency, the harbour-master and the local port authority. According to
Cacaud (2001), no less than 27 steps are required for the issue of fisheries permits,
and there is an effort now, especially following the enactment of Law 31/2004, to
streamline this process.
Legislation
Decentralisation has had a tremendous bearing on marine resource management,
in particular providing regional delimitations of up to 12 nautical miles seaward
from the shoreline for provincial management, and up to one-third of provincial waters for district and municipality management.5 The original decentralisation law, Law 22/1999 on regional autonomy, drew a very ambiguous distinction
between the jurisdictional authority of the province over its marine area (wilayah
laut daerah provinsi) specified in article 3, and the management authority of the
district over its marine area (kewenangan pengelolaan wilayah laut), specified in
article 10. As discussed in Patlis et al. (2001), a great number of ambiguities and
potential conflicts were created by the wording of Law 22/1999 and its implementing regulations. Cacaud (2001) also discusses ambiguities within fisheries
management as a result of decentralisation, raising questions about the establishment of TAC limits within fisheries regions. Many of these problems were
resolved with the enactment of Law 32/2004 on regional autonomy, which superseded Law 22/1999 (Patlis 2005a: 235–6):
Under Law 32/2004, both provinces and districts are given broad and clear authority for management within their marine areas (wilayah laut) (Article 18(1)). … The
new areas of authority under Law 32/2004 include exploration, exploitation, conservation and management of marine resources; spatial planning; and enforcement
of laws (Article 18(3)). Regional governments will share in the benefits of management of the seabed in their marine areas (Article 18(2)). Guidelines are provided
for cadastral marine boundary determination (Article 18(4) and (5)). Law 22/1999,
in contrast, was silent on these issues: no provision was made for the use of the
seabed, on the assumption that it would remain under central government control;
furthermore, no provision was made for the designation of marine areas, cadastral
determination, spatial planning and other aspects vital to determining the nature
and scope of regional marine authority.
5 Districts and municipalities may declare management control over up to one-third of the
provincial waters, which will generally be four nautical miles. In some cases, depending
on maritime borders between provinces or between Indonesia and other countries, a province’s marine jurisdiction will be less than 12 nautical miles, in which case the district/municipal marine area will be less than four miles. There may also be circumstances in which
a district or municipality does not wish to manage the one-third provincial maritime area
authorised.
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Law 33/2004 on the fiscal balance between central and regional governments
complements Law 32/2004 and supersedes Law 25/1999. Its article 14 provides
that 20% of fisheries revenues are to go to the central government, while 80% go
to the district and municipal governments. Article 18 in turn provides that the
revenues to districts and municipalities are to be split evenly across the country.
Revenues are defined in the elucidation of article 18 to mean ‘levies imposed on
Indonesian fishing company holders of a Fishing Permit …, a Fishing Allocation
…, and a Fish Transport Permit … for [the] opportunity granted by the Indonesian
government to operate in Indonesian waters’. The revenue sharing allocation for
fisheries is profoundly different from that for other natural resource sectors in two
ways: first, for fisheries, no share of revenues goes to the provincial governments
as in other sectors; second, for fisheries, the revenues for regional governments
are shared equally, and not weighted in favour of the region of origin of the natural resource. This was done more for practical reasons (that landings can come
from throughout large marine regions, and fish cannot be claimed by any given
district) than for philosophical reasons (that fisheries are a true national resource,
and therefore benefits accrue across the nation). Nevertheless, given the constitutional provision that the resource is to be used for the benefit of the people, and
given that fisheries is a common resource, there is a sense of regulatory aesthetic
in the equal sharing of fisheries revenues nationwide.
The structure of Law 31/2004 is outlined in table 2. As with most of the natural
resource sectors, there are inherent tensions between the decentralisation laws
and the law on fisheries. Even though Law 32/2004 provides for provincial and
district authority within 12 miles and 4 miles (or one-third of provincial waters),
respectively, Law 31/2004 defines the fisheries management areas of the nation
as including all territorial waters, Indonesia’s Exclusive Economic Zone (EEZ),
TABLE 2 Outline of Law 31/2004 on Fisheries
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Chapters
Articles
Subject
I, II and III
IV
1–6
7–24
V
25–45
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
46–47
48–51
52–56
57–59
60–64
65
66–70
71
72–83
XV
XVI and XVII
84–105
106–111
Definitions and scope of the law
Fisheries management, including the role of MMAF,
standards and prohibitions
Fisheries business, defined as pre-production, production,
processing, transporting and marketing
Fisheries information and statistics
Fisheries fees
Research and development
Education, training and extension
Small-scale fishers
Delegation of authorities of the government
Monitoring
Establishment of a new fisheries tribunal
Enforcement (covering investigations, indictments and
trials before the newly created tribunal)
Criminal and civil fines and sanctions
Transitional and final provisions and entry into force
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and freshwater bodies as well (article 5). This gives the central government
authority to regulate in the provincial and district/municipal waters of 12 and 4
miles, respectively, notwithstanding the regional authority provided under Law
34/2004. There are many other centralistic provisions throughout Law 31/2004.
For example, it is the MMAF that:
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• sets the total allowable catch within the fisheries management area (article
7(1)(c));
• sets total allocations for both capture and aquaculture fisheries (article 7(1)(a)
and (c));
• sets type, quantity and size of fishing gear (article 7(1)(f) and (g));
• sets fishing zones and seasons (article 7(1)(h));
• identifies reserves and protected marine species and areas (article 7(1)(q), (s)
and (t) and 7(5));
• permits construction and import of fishing vessels (article 35); and
• determines the plans, classifications, standards and accreditation of fishing
ports (article 41).
Other provisions of the law specify that it is the central government that shall
regulate all aspects of capture and aquaculture fishing and supporting industries,
such as:
•
•
•
•
use of waters for aquaculture (article 18);
transporting and storage devices for aquaculture (article 19);
fish handling and processing (article 23);
issuing permits (although provinces and districts/municipalities share some
permitting authorities) (articles 28 and 31);
• developing fishery information and statistical data systems, networks and
centres (article 46);
• regulating fisheries research and development (article 52); and
• implementing education, training and extension programs (articles 57, 60 and
63).
Indeed, the law leaves very little explicitly in the hands of regional governments. Only one article (article 65) broaches the subject of delegation of authorities from the central government to regional governments—and all it says is that
the delegation of fisheries functions shall be done through subsequent government rule-making. So Law 31/2004 is still largely centralistic in nature, with an
entirely unclear role for provinces and districts.6
Law 31/2004 also poses great uncertainties—and inherent contradictions—as
to the future direction of fisheries management. On the surface, the over-arching
mandate within the law is provided in article 6(1), which states that fisheries management is to be ‘conducted to achieve optimum and sustainable benefits, and to
ensure sustainability of fisheries‘. However, other provisions go in either of two
directions. On the one hand, many provisions mandate conservation of fisheries
6 Patlis et al. (2001) and Patlis (2005a) discuss the broader conflicts between the decentralisation laws and the statutes governing individual sectors such as fisheries and forestry.
Even though the latter have been enacted after the decentralisation law, they nevertheless
remain very centralistic in tone and text.
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(article 3(i)), fisheries habitat, and protected marine species (article 7(5)), and call
for strict prohibitions against certain activities that would damage these resources
(e.g. articles 8, 9, 12 and 16). On the other, many provisions call for expansion
of fishing effort (article 3(c)), increases in supply and consumption (article 3(d)),
higher revenues from fisheries (article 3(b)), general promotion of exploitation
(article 3(f) and (g)), and more rapid fisheries development (article 7(6)). These
conflicting themes permeate the law.
The uncertainties are exacerbated by the absence from the law of substantive standards for either fisheries management or conservation. To be sure, MSY
remains the bottom line. However, the law does not prescribe how this should be
calculated. Furthermore, in order to ensure sustainability of fisheries, pursuant
to article 11(1), the minister may declare the existence of a critical condition that
endangers fish supply, fish species or fish areas; however, the law specifies no criteria as to when such a condition might exist. With respect to conservation, article
13(1) states that ‘efforts shall be [made] for the conservation of the ecosystem,
conservation of fish species, and conservation of fish genetics‘, and article 13(2)
provides that such provisions are to be elaborated through regulation. There is no
specification of how much to conserve, to what extent, or by what means. In addition, important terms either are not defined or are defined vaguely (e.g. ‘a fishing
vessel’ is any vessel or floating device used to catch fish, and ‘fishing’ is defined as
any activity intended to catch fish with any device or method). These definitions
are too simplistic, broad and over-inclusive to have any meaningful bearing on
implementation and enforcement.
Where standards do exist, they are ambiguous and broad. For example, article
12(1) prohibits persons from conducting activities that will result in pollution or
degradation of fisheries resources or the fisheries environment; article 16(1) prohibits persons from importing, exporting, supplying or farming fish in a manner
that is detrimental to the community, fish farmers, fisheries resources or the environment; and article 23(1) prohibits persons from using raw materials, supplements, additives or equipment that endanger human health or the environment.
The law offers no insights into the meanings of such profoundly broad prohibitions or the standards that determine what is considered detrimental or a danger
to health or environment.
The new law does improve the legal certainty of the fisheries permit scheme,
in a subtle but important manner. Where Law 31/2004 spells out in great detail
the necessary permits for conducting fisheries activities, the original Law 9/1985
was silent. Article 10 of that law merely required a fisheries permit (izin usaha
perikanan), and it was Regulation 15/1990 that created and fleshed out the permit system. In codifying this system in statute, Law 31/2004 should improve the
business climate to some degree by increasing the legal certainty associated with
permits.
The mechanics of the new legal framework under Law 31/2004 do not change
substantially from the existing framework in terms of licences and permits. A fisheries business licence (surat izin usaha perikanan, or SIUP) is required for any entity
carrying out fishing business (article 26(1)). A fishing licence (surat izin penangkapan
ikan, or SIPI), must be issued to fishing vessels (domestic and foreign-flagged) to
conduct fishing activities, and is a component of the SIUP (article 27). Licences
are issued for certain types of gear and vessel sizes. A licence for transporting
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harvested fish (surat izin kapal pengangkut ikan, or SIKPI) is also required for vessels transporting fish (article 28). In addition to these three main permits, vessels
are required to register with MMAF (article 36) and, before sailing, are required
to obtain a sailing permit from the local harbour-master (article 42), a prerequisite
for which is a certificate of operational adequacy from each port’s fishery control
officer (article 43). The important change is that these details are now contained in
the text of the law, instead of being scattered across several implementing regulations as they were under Law 9/1985.
Law 31/2004 also contains a series of provisions designed to support smallscale fishers. Article 6(2) states that fisheries management shall take into account
adat (traditional) law, indigenous customs and community participation (consistent with article 18B of the constitution). Small-scale fishers receive two types of
benefits: exemptions from regulatory burdens; and affirmative incentives and
assistance. They are not required to obtain a SIUP (article 26(2)) or to pay fisheries
fees (article 48(2)). They are entitled to access to credit programs to be established
by the ministry, and to education and training (article 60(1)). While they are free
to fish throughout Indonesian waters (article 61(1)), the only procedural requirement is that they register free of charge with the local fisheries agency (article
61(5)), and the only substantive requirement is that they comply with the conservation regulations to be promulgated by the minister (article 61(3) and (5)).
The new fisheries law has more detail than the old as to prohibitions and prescriptions. As Cacaud (2001) observes, ‘[t]he Fisheries Act of 1985 is a short text
enacted at a time when it was still believed that fishing effort and fishing capacity could continue to increase without adversely impacting the abundance of the
fishery resources‘. Article 6(1) of Law 9/1985 had a blanket prohibition against
‘conducting fish catching and fish cultivation activities by utilising materials
and/or devices that can endanger the habitat of fish resources and their environment‘, and article 7(1) had a blanket prohibition against ‘activities that may
cause pollution and damage to fish resources or their environment‘. These articles
only implicitly banned the most destructive of fishing practices such as using cyanide or explosives. Prosecutions had to demonstrate causal links between specific
fishing practices and gear types and damage to fish resources and the marine
environment. In addition to the small number and non-specific nature of its prohibitions, Law 9/1985 did not provide for any meaningful management framework: as argued by Cacaud (2001), ‘it does not provide for any fisheries planning
tools (e.g. fisheries management plans); provisions with regard to enforcement
should be reviewed (e.g. designation of enforcement officers, determination of
enforcement officers’ powers); and it contains few monitoring measures (e.g. data
collection, logbook, register of fishing vessels)’. Gillet (2000) also notes ambiguities in Law 9/1985 and other laws and regulations in the definition of ‘fisheries
management‘.
In contrast, Law 31/2004 prohibits a long list of fishing activities. For example,
article 8 prohibits the use of chemical substances, biological substances, explosives,
gear and other means or equipment that could harm or endanger the sustainability of fisheries resources or their environment. With the gear types themselves
prohibited, prosecutions need only to demonstrate use of the gear, rather than a
more complicated causal link between the gear type and a prohibited impact. In
addition, penalties in the new law are more carefully crafted: they apply to the
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fisher directly, as well as to the captain of the vessel, and the proprietor of the vessel or the fishing company. To be sure, the prohibitions could be stronger. There
is an exception for use of these substances and techniques for ‘research purposes’
(article 8(5)), a term which is undefined but may allow a large loophole. And they
could be clearer: the same generic prohibition against any and all fishing types
that damage the environment that appeared in article 7 of Law 9/1985 is repeated
in similar language in articles 8 and 12 of Law 31/2004, and can include most of
the fishing gear types used by fishers and permitted by the MMAF.
The biggest difference between the original fisheries law and the new one is the
increased emphasis on enforcement and adjudication. Law 31/2004 establishes
a fisheries tribunal to handle prosecutions for violations of fisheries regulations.
This is a unique attribute in the Indonesian judicial system—offering a specialised
venue for cases within a particular sector. The goal is to provide more expeditious,
transparent and honest decisions than in the past. The first such courts were to be
established in the country’s largest ports—Jakarta, Medan, Pontianak, Bitung and
Tual—within two years of the law’s enactment.
However, the key determinant of whether Law 31/2004 will adequately address
the problems facing Indonesia’s fisheries rests with its interpretation in implementing regulations. To underscore the uncertainties and lack of clarity in Law
31/2004, and to highlight just how much direction within fisheries management
remains unclear at this point, one can look at the number of key issues that are
left to be elaborated in future implementing regulations. All told, Law 31/2004
provides for 36 implementing regulations on topics ranging from the issue of
fisheries permits to imports and exports; fish harvesting, processing and transporting; conservation; research and development; and outreach. The appendix to
this paper provides a complete list of all required implementing regulations, the
provisions of the law to be elaborated in those regulations, and the strategy of the
ministry in drafting them.
Regulations
Given the dearth of literature on fisheries laws—and what little there is generally starts and stops at the statutory level, without discussion of regulations or
decrees—it is worth reviewing at least the litany of regulations and decrees on
the books, with a fuller analysis of their contents and interplay with one another
reserved for a subsequent paper. As a prefatory note, Patlis (2005a) discusses
the hierarchy of Indonesian law, with the general order of authority as follows:
the constitution; statutes (undang-undang); government regulations (peraturan
pemerintah); presidential decrees (keputusan presiden); ministerial decrees (keputusan
menteri); provincial laws; and district laws. With the enactment of Law 10/2004 on
the Establishment of Laws, presidential and ministerial decrees (keputusan) were
renamed presidential and ministerial regulations (peraturan).
A number of government regulations governing the fisheries sector were promulgated to implement Law 9/1985. Among the more important recent regulations
relating to fisheries and marine resources are those listed in table 3.
The primary regulation is No. 54/2002 relating to Fisheries Business, which
gives considerable detail about the permit scheme for fisheries activities. It discusses the various permits, when they are required, how to obtain them, for
how long they are valid and where they are valid. Regulation 51/2002 on Ships
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TABLE 3 Important Regulations Relating to Fisheries and Marine Resources
Regulation No.
Subject
58 and 62/2002
54/2002
51/2002
36 and 37/2002
15/2002
69/2001
7/2000
19/1999
70/1996
15/1990
Tariffs
Fisheries Business
Ships
Foreign Vessels
Fish Quarantine
Ports
Sailors
Control of Marine Pollution
Ports
Fisheries Business; this had been amended by Regulation
141/2000 before being superseded by Regulation 54/2002.
Management of Natural Living Resources within the Exclusive Economic Zone
15/1984
addresses the various permits required for operating and owning a ship in Indonesian waters, regulations for foreign-flagged vessels, and criteria for seaworthiness of vessels. Regulation 15/2002 on Fish Quarantine addresses certification for
the hygiene and health of fish in transit, which is to be provided by local officials
in the places of shipment and arrival. Regulation 69/2001 defines and regulates
the three major types of ports in Indonesia—national, provincial and district.
Article 40 of that regulation specifically mentions fishing ports, but only in passing, and leaves further elaboration to a lower ministerial decree—MMAF Decree
46/2002 on the Organisation of Coastal Fishing Ports.
There are not many presidential decrees on fisheries. Presidential Decrees
14/2000 and 174/1998 allow for the conveyance of seized fishing vessels to community fishers. One of the more important decrees, Presidential Decree 85/1982,
addresses the impact of shrimp trawling on near-shore coastal waters specifically
by prohibiting trawling for shrimp in western Indonesian waters. Dozens of ministerial decrees and regulations govern fishing in general. A partial list of the more
important decrees is given in table 4.
As is often the case in Indonesia, the transitional nature of the new fisheries
law and the status of implementing regulations under the old law leave fisheries
in a state of legal flux. Article 109 of Law 31/2004 provides that ‘all implementing
regulations of Law 9 of 1985 concerning Fisheries are still valid, as long as they
are not in contravention of, and have not been repealed by, this law‘. Patlis (2005a)
discusses the problems with this legal formulation, known as an ‘implied repeal‘.
With no explicit statement of which regulations might be in contravention of the
new law, and no particular arbiter—and given the inherent vagueness and excessive breadth of many provisions of the new law—there is no clear sense of which
regulations remain in force and which are invalidated, albeit implicitly.
There are both mitigating and exacerbating factors to be considered in determining what the transitional period of the next few years will be like. On the one
hand, to the extent that Law 31/2004 specifies the fisheries permit system, it adopts
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TABLE 4 Important Ministerial Decrees Governing Fishing
Decree No.
Subject
2/2004
10/2004
38/2003
13/2003
10/2003
9/2002
1/2002
60/2001
47/2001
45/2000
Permitting of Fish Aquaculture Business
Fishing Ports
Productivity of Fishing Vessels
Fish Quarantine
Fisheries Permits
Intensification of Aquaculture
Integrated Management System for Fisheries Products
Fishing Vessels in the Exclusive Economic Zone
Format of Fisheries Permits
Permitting of Fisheries Business
and reinforces the pre-existing regulatory framework, serving to strengthen legal
and business certainty in this regard. Where Law 31/2004 is vague or silent on the
details (as is typical of most statutes, deferring to implementing regulations for
the details of a management regime), it can easily accommodate the pre-existing
regulatory framework. Given that this framework is relatively new—the major
fisheries business regulation is No. 54, promulgated in 2002—there is a strong
likelihood that Law 31/2004 was drafted with this new regime in mind, and is
unlikely to change it. On the other hand, the delays experienced in promulgating
new regulations—the first series of regulations on capture fisheries, aquaculture
and conservation, scheduled for completion in 2006, were not yet ready at the
time of writing in early 2007—increase uncertainty and confusion about how to
implement Law 31/2004, and which regulations currently apply.
Institutions
This section provides a brief history and overview of the various agencies involved
in fisheries management, more to underscore the complications involved in fisheries management than to analyse these institutional arrangements critically.
Historically, fisheries were managed under the Ministry of Agriculture. In 1999,
President Abdurrahman Wahid established an early version of the MMAF, known
as the Ministry of Fisheries and Marine Exploration (Dahuri and Dutton 2000),
which pulled in civil servants from the Ministry of Home Affairs, the National
Development Planning Agency, the Ministry of Agriculture and the Ministry of
Forestry (for marine conservation purposes). As the ministry’s mandate evolved
to cover broader issues in marine conservation, management and exploitation,
its first minister, Sarwono Kusumaatmadja, changed its name to the current one.
The creation of the MMAF in 1999 led to a sharp improvement in, and strengthening of, the management of coastal and marine resources. The ministry has
consolidated and coordinated policies across all aspects of management of those
resources. The focus has shifted from marine exploitation to marine management,
with strong institutional recognition of conservation. While the ministry is still in
the process of implementing those new policies, and much work remains to be
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done to integrate its diverse missions fully, it shows great signs of promise. The
current ministerial decree establishing the structure and organisation of the ministry is Decree Kep.05/MEN/2003.
The one fundamental institutional deficiency in the MMAF’s scope concerns
the conservation of non-fishery marine living resources, such as endangered
marine species, coral reefs, grasses and mangroves. Original authority for living
resources and biological diversity generally, including habitat conservation, rests
with the Ministry of Forestry. However, residual authority for marine affairs generally rests with the MMAF. This authority includes fisheries resources, fisheries
habitats, coral reef habitats and, in a general and broad way, marine biological
diversity. The MMAF is thus responsible for many aspects of marine and coastal
conservation (except the establishment of certain types of marine protected areas,
and the management of certain laws, such as the Convention on Biological Diversity ratified through Law 5/1994, and Law 5/1990 on Conservation of Natural
Living Resources and Their Ecosystems). This division of management authority
has slowed and complicated conservation efforts, and should be corrected. The
MMAF has competence over marine and coastal resources, but this should also
include protecting their habitat under existing legal authorities and in accordance
with the designation of special marine protected areas.
In addition to creating the ministry, with the issue of Presidential Decree
161/1999 President Wahid established the DMI, with the lofty mission of
coordinating and improving overall policy and management of marine resources,
activities and areas. The board’s membership consists of 13 central government
agencies, each having some role in marine and coastal policy and management.
The chair is the president, and the vice-chair is the Minister of Marine Affairs and
Fisheries. Total membership is 27, with the remaining members being academic,
NGO and business representatives. The board has been relatively ineffectual
in coordinating all sectors and line ministries whose actions and policies affect
coastal and marine resources. It meets irregularly and infrequently, and has a
very limited budget to maintain staff and operations. Moreover, its authority is
very broad, but as yet unclear and ill-defined. To date, it has issued no substantive decree or document relating to marine management, but merely a series of
decrees addressing membership and logistics.
The ministry, through Ministerial Decree 994/Kpts/Ik.150/9/99 issued in 1999,
established coordinating councils for fisheries management decisions (Forum Koordinasi Pengelolaan Pemanfaatan Sumberdaya Ikan, or FKPPS). There is one FKPPS
at the central level, and one in each of nine fisheries management areas (Cacaud
2001). The national FKPPS meets once every two years, and last met shortly after
the enactment of Law 31/2004 to discuss its implementation (FKPPS Nasional
2004). It identified the need to develop fisheries management plans, and to improve
the accuracy of catch data and estimates of fish abundance, identification of fisheries potential, coordination of research and enforcement, and the permit system.
Regional and international developments
The original Law 9/1985 was enacted just before Indonesia ratified the UN Convention on the Law of the Sea (UNCLOS) (through enactment of Law 17/1985).
However, it adheres to two of the basic tenets of fisheries management contained in
UNCLOS. Article 61 of UNCLOS provides that coastal states should determine the
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total allowable catch for fisheries within their EEZ, and article 62 provides that, to
the extent that a coastal state does not attain capacity, it should allow foreign-flagged
vessels to fish. While the tenets of the law are followed—article 9 of Law 9/1985
allows only Indonesian nationals to engage in fishing unless otherwise allowed
under international law—implementation and enforcement have suffered.
In addition, Law 9/1985 was enacted long before other important international
treaties and standards governing fisheries management came into effect. Among
the most important are the ‘Compliance Agreement‘ (the Agreement t
ISSN: 0007-4918 (Print) 1472-7234 (Online) Journal homepage: http://www.tandfonline.com/loi/cbie20
INDONESIA'S NEW FISHERIES LAW: WILL IT
ENCOURAGE SUSTAINABLE MANAGEMENT OR
EXACERBATE OVER-EXPLOITATION?
Jason Patlis
To cite this article: Jason Patlis (2007) INDONESIA'S NEW FISHERIES LAW: WILL IT ENCOURAGE
SUSTAINABLE MANAGEMENT OR EXACERBATE OVER-EXPLOITATION?, Bulletin of Indonesian
Economic Studies, 43:2, 201-226, DOI: 10.1080/00074910701408065
To link to this article: http://dx.doi.org/10.1080/00074910701408065
Published online: 10 Apr 2008.
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Date: 18 January 2016, At: 20:04
Bulletin of Indonesian Economic Studies, Vol. 43, No. 2, 2007: 201–25
INDONESIA’S NEW FISHERIES LAW:
WILL IT ENCOURAGE SUSTAINABLE MANAGEMENT
OR EXACERBATE OVER-EXPLOITATION?
Jason Patlis*
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World Wildlife Fund, Washington DC
Indonesia is at a vital juncture in the direction of its fisheries management. There is
ample evidence that fisheries resources throughout Indonesia continue to decline
and that over-fishing not only persists but is a growing problem. Without government intervention, fisheries, like other natural resources, are subject to open access
and therefore over-exploitation. Confronted with the drive to increase fisheries production to benefit the economy, spur business development, provide an essential
food source and maintain local livelihoods, the government must at the same time
seek to ensure that this resource is not depleted. The enactment of a new statute
governing fisheries affords an opportunity to balance these competing goals and
address some serious problems in fisheries management and enforcement. This
paper analyses Law 31/2004 on Fisheries and concludes that, given early indications on implementation, the government should more aggressively improve the
regulatory and enforcement mechanisms needed to achieve sustainable fisheries
management.
Although Indonesia is the world’s biggest archipelagic country, government agencies have largely ignored its fisheries, giving more attention to the nation’s wealth
of terrestrial natural resources, extracted by logging, mining and drilling. Despite
the lack of government attention until recently (or perhaps because of it), fisheries
have not been ignored by big businesses and local communities, but have been
heavily exploited without significant oversight or monitoring, and consequently
with little data collection. Indeed, like other natural resources, fisheries are often
the victim of open access in the absence of some form of government intervention, and this leads to likely over-exploitation and ultimate depletion. Scholars
raised the spectre of over-exploitation as early as the 1960s (Yowono 1998). With
growing recognition of the importance of fisheries and the maritime sector, and
of the need for greater oversight of it, the government created a new Ministry of
Marine Affairs and Fisheries (MMAF, Departemen Kelautan dan Perikanan) and
a new national maritime board (Dewan Maritim Indonesia, DMI) in 1999. And
after a 19-year wait, Law 9/1985 on Fisheries was finally replaced in 2004, with
the enactment of Law 31/2004 on Fisheries. A host of new implementing regulations is currently at various stages of administrative review.
* The views contained in this paper are those of the author and should not be attributed to
the World Wildlife Fund.
ISSN 0007-4918 print/ISSN 1472-7234 online/07/020201-25
DOI: 10.1080/00074910701408065
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How these regulations are drafted, and how the new law is implemented and
enforced, will determine the future direction of Indonesia’s fisheries, and will
depend on the government’s outlook. As noted by Brown, Bengen and Knight
(2005), policy makers are split into two camps: those who believe that Indonesia’s
fisheries are under-developed, with considerable potential for further growth,
and with opportunities for significant investment to improve infrastructure and
increase effort; and those who believe that they are already over-exploited, with
under-reported data belying depletion, and with an immediate need to curtail
fishing effort and focus on conservation of major marine areas.1 Mous et al. (2005)
also recognise the competing pressures on Indonesian fisheries: while there is a
growing body of evidence that they are ‘fully exploited or over-exploited’, there
is still increasing pressure to ‘exploit ”untapped resources”’.
The new Law 31/2004 reflects these contrasting—and perhaps, but not necessarily, irreconcilable—views. On the one hand, it offers a great deal of verbiage and
over-arching direction in support of fisheries conservation and sustainable development; on the other, it establishes a number of programs to increase and improve
fishing effort. Which way implementation of the law ultimately tilts will depend
on the regulations now in draft. The directions of the law are broad enough to
allow implementing regulations to favour greater conservation, increased exploitation, or both. As individual aspects of the law will each be elaborated through
individual regulations, and implemented by different divisions within the MMAF,
it is highly possible—and indeed likely—that the contrary directions implicit in
the law will be carried forward into the regulations.
A concerted effort is also being made to deal with enforcement issues: the ministry has adopted a number of initiatives to establish community-based enforcement approaches for near-shore fisheries, and to improve patrolling of offshore
fisheries, targeting in particular illegal foreign fishing in Indonesian waters. However, historically weak enforcement mechanisms and a fragmented institutional
structure for dealing with marine issues may hamper these efforts.
Taking all this into account, some degree of optimism might be allowed—the
framework is in place to improve fisheries management significantly—but given
past experience, current drafts of the regulations, and continuing problems in
enforcement, a pessimistic outlook is more justified. Indonesia is likely to follow
the example of fisheries in many parts of the globe: continued over-fishing, a sharp
collapse in fish stocks, and then a patchwork set of measures to recover the fishery.
THE VALUE OF INDONESIA’S FISHERIES
Fisheries account for approximately 2.2% of Indonesia’s gross domestic product
(GDP). The sector is a major employer, providing roughly 3 million direct fulltime and part-time jobs in 2002 according to Brown, Bengen and Knight (2005),
1 Falling into the first camp, the Minister of Marine Affairs indicated earlier this year (Jakarta Post, 12/3/2007) that the gap between maximum sustainable yield (MSY) and actual
catch represented an opportunity to increase fishing effort (to boost the economic wellbeing of coastal communities and fishers and improve nutrition through increased fish
consumption), rather than evidence of possible over-fishing. He specifically cited annual
catch levels of 3.8–4.8 million tons compared with an MSY of 6.4 million tons per year.
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while JICA (2005) estimates a slightly lower number of fishers—2.57 million in
2002—with a 2.2% growth rate since 1999. At the other end of the scale, Dutton
(2005) cites Food and Agriculture Organization (FAO) data indicating 6.7 million
fishers (both fresh-water and marine). Tax receipts from fisheries are very small—
much smaller proportionally than in forestry and other natural resource sectors.
Brown, Bengen and Knight (2005) recommend a greater effort on the part of the
government to collect taxes and other revenues currently lost as a result of the difficulties inherent in monitoring fish landings throughout the country.
Apart from their economic significance, fisheries play a strong role in the identities and traditions of many cultures across the archipelago. Traditional fishing
techniques and practices are still employed in many areas (Titahelu 2005).
The western marine waters of Indonesia are relatively shallow, lying above the
Sunda shelf surrounding Java, Sumatra and Kalimantan, while the eastern waters
are quite deep (except for the Arafura Sea separating western Papua and Australia).
The western waters are rich in near-shore, smaller fisheries, while the eastern waters
serve as migratory corridors for many large pelagic (open ocean) species. Smallscale fisheries, using gear such as lines, traps, beach seines, lift nets, pole and line,
trolling gear and mini-seines, account for almost 95% of the overall fishing effort
in the country (FAO 2000; Dutton 2005).2 Vessels using hooks and lines account for
roughly 35% of the catch; gill nets for 31.4%; seines and purse seines for 7.7% and
1.6%, respectively; traps for 8.4%; and lift nets for 6.5% (JICA 2005).
Indonesia’s fishing fleet approximates 460,000 vessels. According to JICA (2005),
non-powered boats that go out on daily excursions comprise roughly half of the
fleet, although the number is steadily decreasing as more fishers acquire small
outboard and inboard motors for their boats: in 1999, there were 241,517 nonpowered boats (53.0%) and by 2002 this figure had dropped to 219,079 (47.6%).
Compare this with the increase in outboard motors, from 124,043 boats in 1999 to
130,185 in 2002. The increase in inboard motors on vessels smaller than five gross
tons (GT) is even more dramatic: from 57,768 in 1999 to 74,292 in 2002.
At the same time, the number of large industrial vessels has more than doubled
in this period: vessels of 100–200 GT with inboard motors increased from 756 to
1,612 boats; and vessels greater than 200 GT with inboard motors rose from 211
in 1999 to 559 in 2002 (JICA 2005). Dutton (2005) and Brown, Bengen and Knight
(2005) observe similar trends over the last 20 years, noting not only that the fleet is
increasing dramatically in terms of the number of boats, but also that its composition is shifting heavily to larger vessels. These trends have a significant bearing
on the status of the fisheries. The major question they pose is whether the fisheries
are still under-developed, with room to grow, or whether they are being overexploited, with a need for greater control over fishing effort.
Estimates of the overall catch from Indonesia’s fisheries vary quite widely.
Citing the 2003 issue of the central statistics agency’s Statistik Perikanan Indonesia
(Indonesian Fisheries Statistics), Brown, Bengen and Knight (2005) state that total
production is 5 million tons per year, of which 70% (3.5 million tons) is from
marine capture fisheries, and the rest from aquaculture and fresh water. Mous et
al. (2005)—also citing government data from 2003—report that production from
marine capture fisheries is 4.4 million tons. Yet another government report states
2 For explanation of fisheries terms used here, see .
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that total production in 2003 was 4.7 million tons, up from 4.3 million tons in 2001
(Departemen Kelautan dan Perikanan 2004). And JICA (2005) reports that total
marine capture fisheries output increased from 3.68 million tons in 1999 to 4.07
million tons in 2002 (implying an average annual growth rate of 3.42%).
These estimates of actual yield can be compared to the estimates of maximum
sustainable yield (MSY)—that is, the total catch that can be borne by fisheries
while still maintaining long-term sustainability.3 The legal quota for the fisheries harvest is tied to this figure: total allowable catch (TAC) is set equal to 80%
of MSY, in accordance with the ‘precautionary principle’ (Mous et al. 2005). Like
those for the actual catch, the MSY figures vary greatly. Mous et al. (2005) observe
that estimates of MSY range over a factor of two—from 3.7 to 7.7 million tons per
year—although the most reliable estimate is probably around 5.0 million tons per
year. A study by JICA (2005) argues that MSY is 6.2 million tons per year.4 On this
basis the annual TAC would be just under 5 million tons.
Given these ranges of variation in both sustainable catch and actual catch,
it is extremely difficult to gain an accurate picture of the health of Indonesia’s
fisheries. Fauzi (2003) estimates the actual catch to be closer to 8.4 million tons
per year—roughly double the official estimates, considerably more than the estimated MSY of 6.2 million tons, and even further in excess of the corresponding
TAC. He suggests that these discrepancies can be explained by a variety of factors. One is over-capacity of the fishing industry. Another is the illegal activity for
which no official data exist: Fauzi (2003) cites an estimate that 3,200 Thai fishing
vessels are illegally harvesting more than 2 million tons per year in aggregate.
Yet another factor is that actual production is under-estimated in official data as a
consequence of unreported catch, bycatch, and waste (Fauzi 2003).
Data for fish landings are also incomplete and inaccurate. In 1997, for example,
the government published a target for total landings of 143,000 tons, and subsequently reported landings totalling 280,000 tons, while the FAO estimated that
actual landings surpassed 3.6 million tons.
THE LEGAL FRAMEWORK GOVERNING INDONESIA’S FISHERIES
Overview of marine fisheries management
The common starting point for any discussion of natural resource consumption
and management in Indonesia is the provision in article 33(3) of the constitution
that ‘[t]he land, waters and the natural resources within [Indonesia] shall be under
the powers of the State and shall be used to the greatest benefit of the people.‘
3 The concept of MSY dates from the 1930s and, as described by Mous et al. (2005), promotes ‘equilibrium fishing—catching an amount of fish that is equal to the amount of fish
that is added to the population through growth and reproduction‘. Mous et al. (2005) further explain that a fishery can be over-exploited even if harvest levels remain below the
MSY. If fish stocks have been pushed too low, fishing at the MSY does not afford stocks an
opportunity to reproduce, so catch levels will be lower than they would be at the optimal
stock level.
4 Of this total, roughly 52.4% are small pelagics living in near-shore waters, 28.9% are
demersal (bottom-dwelling) fish, also in near-shore fisheries, and 15.8% are large pelagics
(tuna, mackerel, sharks).
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TABLE 1 Types of Fish Landing Centres
Type Name
A
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B
C
D
Catch
Supported
(‘000 tons)
Oceanic
Fishing Ports
National
Fishing Ports
Coastal
Fishing Ports
Fish Landing
Places
Minimum
Vessel
Accommodation
Level of
Government
Responsible
Number
of
Ports
N
GTa
18–120
100
60
Central
5
7.2–18
75
15–60
Central
11
3–7.2
50
5–15
Central
17
1–5
Provincial
630
0–3
a GT (gross tons).
Sources: FAO (2000); JICA (2005).
This provision has been interpreted and analysed by numerous scholars, many
of whom have criticised its implementation in favour of large economic interests
rather than ‘the people‘, or rakyat (Lynch and Harwell 2002). Whether exploitation
of fisheries in Indonesian waters serves to benefit big business or local communities, and with what priorities, is one of the key questions to be decided in implementing the new fisheries statute. Regardless of its interpretation, it is this article
33(3) that gives authority to the central government to regulate the development
and management of the resource.
An interesting anomaly of fisheries management is that the overall management scheme is not at all evident in the primary statute governing the sector,
which establishes only the broad directions and parameters. Rather, the management scheme must be gleaned from reading the complete set of individual regulations and ministerial decrees promulgated by the government.
In sum, Indonesia’s management of maritime fisheries consists of three primary components:
• limits on fisheries catch yields for specific regions throughout the nation;
• geographic restrictions within near-shore and offshore waters based on size of
vessel; and
• issue of permits for individual vessels and production facilities.
The nation’s maritime area is divided into 11 fisheries resource management
areas. For each area, the central government establishes TAC limits, based on
MSY. A TAC limit is calculated for each of the four types of landing centres shown
in table 1. Roughly 77% of the fish landing centres are in western Indonesia, and
the remaining 23% in the eastern part of the country (FAO 2000).
In terms of geographic restrictions based on vessel size, the government regulates vessels as follows: only vessels of 5 GT or less may fish within three miles of
the shoreline; vessels over 25 GT may not fish within four miles of the shoreline;
and vessels over 100 GT may not fish within five miles of the shoreline.
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Pursuant to Regulation 54/2002 (which superseded Regulation 15/1990), all
vessels are required to be registered, certified as operational, and in possession of
permits for sailing and for fisheries business. Small-scale fishing operations are
exempted from this requirement. Vessels of more than 30 GT are licensed by the
ministry; vessels of 10 to 30 GT (and with motors of 90 horsepower or less) are
licensed by the province; and vessels of under 10 GT but over 3 GT are licensed by
the district. Vessels of 3 GT or less do not need a licence. The requisite paperwork
is handled by a variety of officials, including those from the ministry, the regional
fisheries agency, the harbour-master and the local port authority. According to
Cacaud (2001), no less than 27 steps are required for the issue of fisheries permits,
and there is an effort now, especially following the enactment of Law 31/2004, to
streamline this process.
Legislation
Decentralisation has had a tremendous bearing on marine resource management,
in particular providing regional delimitations of up to 12 nautical miles seaward
from the shoreline for provincial management, and up to one-third of provincial waters for district and municipality management.5 The original decentralisation law, Law 22/1999 on regional autonomy, drew a very ambiguous distinction
between the jurisdictional authority of the province over its marine area (wilayah
laut daerah provinsi) specified in article 3, and the management authority of the
district over its marine area (kewenangan pengelolaan wilayah laut), specified in
article 10. As discussed in Patlis et al. (2001), a great number of ambiguities and
potential conflicts were created by the wording of Law 22/1999 and its implementing regulations. Cacaud (2001) also discusses ambiguities within fisheries
management as a result of decentralisation, raising questions about the establishment of TAC limits within fisheries regions. Many of these problems were
resolved with the enactment of Law 32/2004 on regional autonomy, which superseded Law 22/1999 (Patlis 2005a: 235–6):
Under Law 32/2004, both provinces and districts are given broad and clear authority for management within their marine areas (wilayah laut) (Article 18(1)). … The
new areas of authority under Law 32/2004 include exploration, exploitation, conservation and management of marine resources; spatial planning; and enforcement
of laws (Article 18(3)). Regional governments will share in the benefits of management of the seabed in their marine areas (Article 18(2)). Guidelines are provided
for cadastral marine boundary determination (Article 18(4) and (5)). Law 22/1999,
in contrast, was silent on these issues: no provision was made for the use of the
seabed, on the assumption that it would remain under central government control;
furthermore, no provision was made for the designation of marine areas, cadastral
determination, spatial planning and other aspects vital to determining the nature
and scope of regional marine authority.
5 Districts and municipalities may declare management control over up to one-third of the
provincial waters, which will generally be four nautical miles. In some cases, depending
on maritime borders between provinces or between Indonesia and other countries, a province’s marine jurisdiction will be less than 12 nautical miles, in which case the district/municipal marine area will be less than four miles. There may also be circumstances in which
a district or municipality does not wish to manage the one-third provincial maritime area
authorised.
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Law 33/2004 on the fiscal balance between central and regional governments
complements Law 32/2004 and supersedes Law 25/1999. Its article 14 provides
that 20% of fisheries revenues are to go to the central government, while 80% go
to the district and municipal governments. Article 18 in turn provides that the
revenues to districts and municipalities are to be split evenly across the country.
Revenues are defined in the elucidation of article 18 to mean ‘levies imposed on
Indonesian fishing company holders of a Fishing Permit …, a Fishing Allocation
…, and a Fish Transport Permit … for [the] opportunity granted by the Indonesian
government to operate in Indonesian waters’. The revenue sharing allocation for
fisheries is profoundly different from that for other natural resource sectors in two
ways: first, for fisheries, no share of revenues goes to the provincial governments
as in other sectors; second, for fisheries, the revenues for regional governments
are shared equally, and not weighted in favour of the region of origin of the natural resource. This was done more for practical reasons (that landings can come
from throughout large marine regions, and fish cannot be claimed by any given
district) than for philosophical reasons (that fisheries are a true national resource,
and therefore benefits accrue across the nation). Nevertheless, given the constitutional provision that the resource is to be used for the benefit of the people, and
given that fisheries is a common resource, there is a sense of regulatory aesthetic
in the equal sharing of fisheries revenues nationwide.
The structure of Law 31/2004 is outlined in table 2. As with most of the natural
resource sectors, there are inherent tensions between the decentralisation laws
and the law on fisheries. Even though Law 32/2004 provides for provincial and
district authority within 12 miles and 4 miles (or one-third of provincial waters),
respectively, Law 31/2004 defines the fisheries management areas of the nation
as including all territorial waters, Indonesia’s Exclusive Economic Zone (EEZ),
TABLE 2 Outline of Law 31/2004 on Fisheries
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Chapters
Articles
Subject
I, II and III
IV
1–6
7–24
V
25–45
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
46–47
48–51
52–56
57–59
60–64
65
66–70
71
72–83
XV
XVI and XVII
84–105
106–111
Definitions and scope of the law
Fisheries management, including the role of MMAF,
standards and prohibitions
Fisheries business, defined as pre-production, production,
processing, transporting and marketing
Fisheries information and statistics
Fisheries fees
Research and development
Education, training and extension
Small-scale fishers
Delegation of authorities of the government
Monitoring
Establishment of a new fisheries tribunal
Enforcement (covering investigations, indictments and
trials before the newly created tribunal)
Criminal and civil fines and sanctions
Transitional and final provisions and entry into force
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and freshwater bodies as well (article 5). This gives the central government
authority to regulate in the provincial and district/municipal waters of 12 and 4
miles, respectively, notwithstanding the regional authority provided under Law
34/2004. There are many other centralistic provisions throughout Law 31/2004.
For example, it is the MMAF that:
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• sets the total allowable catch within the fisheries management area (article
7(1)(c));
• sets total allocations for both capture and aquaculture fisheries (article 7(1)(a)
and (c));
• sets type, quantity and size of fishing gear (article 7(1)(f) and (g));
• sets fishing zones and seasons (article 7(1)(h));
• identifies reserves and protected marine species and areas (article 7(1)(q), (s)
and (t) and 7(5));
• permits construction and import of fishing vessels (article 35); and
• determines the plans, classifications, standards and accreditation of fishing
ports (article 41).
Other provisions of the law specify that it is the central government that shall
regulate all aspects of capture and aquaculture fishing and supporting industries,
such as:
•
•
•
•
use of waters for aquaculture (article 18);
transporting and storage devices for aquaculture (article 19);
fish handling and processing (article 23);
issuing permits (although provinces and districts/municipalities share some
permitting authorities) (articles 28 and 31);
• developing fishery information and statistical data systems, networks and
centres (article 46);
• regulating fisheries research and development (article 52); and
• implementing education, training and extension programs (articles 57, 60 and
63).
Indeed, the law leaves very little explicitly in the hands of regional governments. Only one article (article 65) broaches the subject of delegation of authorities from the central government to regional governments—and all it says is that
the delegation of fisheries functions shall be done through subsequent government rule-making. So Law 31/2004 is still largely centralistic in nature, with an
entirely unclear role for provinces and districts.6
Law 31/2004 also poses great uncertainties—and inherent contradictions—as
to the future direction of fisheries management. On the surface, the over-arching
mandate within the law is provided in article 6(1), which states that fisheries management is to be ‘conducted to achieve optimum and sustainable benefits, and to
ensure sustainability of fisheries‘. However, other provisions go in either of two
directions. On the one hand, many provisions mandate conservation of fisheries
6 Patlis et al. (2001) and Patlis (2005a) discuss the broader conflicts between the decentralisation laws and the statutes governing individual sectors such as fisheries and forestry.
Even though the latter have been enacted after the decentralisation law, they nevertheless
remain very centralistic in tone and text.
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(article 3(i)), fisheries habitat, and protected marine species (article 7(5)), and call
for strict prohibitions against certain activities that would damage these resources
(e.g. articles 8, 9, 12 and 16). On the other, many provisions call for expansion
of fishing effort (article 3(c)), increases in supply and consumption (article 3(d)),
higher revenues from fisheries (article 3(b)), general promotion of exploitation
(article 3(f) and (g)), and more rapid fisheries development (article 7(6)). These
conflicting themes permeate the law.
The uncertainties are exacerbated by the absence from the law of substantive standards for either fisheries management or conservation. To be sure, MSY
remains the bottom line. However, the law does not prescribe how this should be
calculated. Furthermore, in order to ensure sustainability of fisheries, pursuant
to article 11(1), the minister may declare the existence of a critical condition that
endangers fish supply, fish species or fish areas; however, the law specifies no criteria as to when such a condition might exist. With respect to conservation, article
13(1) states that ‘efforts shall be [made] for the conservation of the ecosystem,
conservation of fish species, and conservation of fish genetics‘, and article 13(2)
provides that such provisions are to be elaborated through regulation. There is no
specification of how much to conserve, to what extent, or by what means. In addition, important terms either are not defined or are defined vaguely (e.g. ‘a fishing
vessel’ is any vessel or floating device used to catch fish, and ‘fishing’ is defined as
any activity intended to catch fish with any device or method). These definitions
are too simplistic, broad and over-inclusive to have any meaningful bearing on
implementation and enforcement.
Where standards do exist, they are ambiguous and broad. For example, article
12(1) prohibits persons from conducting activities that will result in pollution or
degradation of fisheries resources or the fisheries environment; article 16(1) prohibits persons from importing, exporting, supplying or farming fish in a manner
that is detrimental to the community, fish farmers, fisheries resources or the environment; and article 23(1) prohibits persons from using raw materials, supplements, additives or equipment that endanger human health or the environment.
The law offers no insights into the meanings of such profoundly broad prohibitions or the standards that determine what is considered detrimental or a danger
to health or environment.
The new law does improve the legal certainty of the fisheries permit scheme,
in a subtle but important manner. Where Law 31/2004 spells out in great detail
the necessary permits for conducting fisheries activities, the original Law 9/1985
was silent. Article 10 of that law merely required a fisheries permit (izin usaha
perikanan), and it was Regulation 15/1990 that created and fleshed out the permit system. In codifying this system in statute, Law 31/2004 should improve the
business climate to some degree by increasing the legal certainty associated with
permits.
The mechanics of the new legal framework under Law 31/2004 do not change
substantially from the existing framework in terms of licences and permits. A fisheries business licence (surat izin usaha perikanan, or SIUP) is required for any entity
carrying out fishing business (article 26(1)). A fishing licence (surat izin penangkapan
ikan, or SIPI), must be issued to fishing vessels (domestic and foreign-flagged) to
conduct fishing activities, and is a component of the SIUP (article 27). Licences
are issued for certain types of gear and vessel sizes. A licence for transporting
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harvested fish (surat izin kapal pengangkut ikan, or SIKPI) is also required for vessels transporting fish (article 28). In addition to these three main permits, vessels
are required to register with MMAF (article 36) and, before sailing, are required
to obtain a sailing permit from the local harbour-master (article 42), a prerequisite
for which is a certificate of operational adequacy from each port’s fishery control
officer (article 43). The important change is that these details are now contained in
the text of the law, instead of being scattered across several implementing regulations as they were under Law 9/1985.
Law 31/2004 also contains a series of provisions designed to support smallscale fishers. Article 6(2) states that fisheries management shall take into account
adat (traditional) law, indigenous customs and community participation (consistent with article 18B of the constitution). Small-scale fishers receive two types of
benefits: exemptions from regulatory burdens; and affirmative incentives and
assistance. They are not required to obtain a SIUP (article 26(2)) or to pay fisheries
fees (article 48(2)). They are entitled to access to credit programs to be established
by the ministry, and to education and training (article 60(1)). While they are free
to fish throughout Indonesian waters (article 61(1)), the only procedural requirement is that they register free of charge with the local fisheries agency (article
61(5)), and the only substantive requirement is that they comply with the conservation regulations to be promulgated by the minister (article 61(3) and (5)).
The new fisheries law has more detail than the old as to prohibitions and prescriptions. As Cacaud (2001) observes, ‘[t]he Fisheries Act of 1985 is a short text
enacted at a time when it was still believed that fishing effort and fishing capacity could continue to increase without adversely impacting the abundance of the
fishery resources‘. Article 6(1) of Law 9/1985 had a blanket prohibition against
‘conducting fish catching and fish cultivation activities by utilising materials
and/or devices that can endanger the habitat of fish resources and their environment‘, and article 7(1) had a blanket prohibition against ‘activities that may
cause pollution and damage to fish resources or their environment‘. These articles
only implicitly banned the most destructive of fishing practices such as using cyanide or explosives. Prosecutions had to demonstrate causal links between specific
fishing practices and gear types and damage to fish resources and the marine
environment. In addition to the small number and non-specific nature of its prohibitions, Law 9/1985 did not provide for any meaningful management framework: as argued by Cacaud (2001), ‘it does not provide for any fisheries planning
tools (e.g. fisheries management plans); provisions with regard to enforcement
should be reviewed (e.g. designation of enforcement officers, determination of
enforcement officers’ powers); and it contains few monitoring measures (e.g. data
collection, logbook, register of fishing vessels)’. Gillet (2000) also notes ambiguities in Law 9/1985 and other laws and regulations in the definition of ‘fisheries
management‘.
In contrast, Law 31/2004 prohibits a long list of fishing activities. For example,
article 8 prohibits the use of chemical substances, biological substances, explosives,
gear and other means or equipment that could harm or endanger the sustainability of fisheries resources or their environment. With the gear types themselves
prohibited, prosecutions need only to demonstrate use of the gear, rather than a
more complicated causal link between the gear type and a prohibited impact. In
addition, penalties in the new law are more carefully crafted: they apply to the
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fisher directly, as well as to the captain of the vessel, and the proprietor of the vessel or the fishing company. To be sure, the prohibitions could be stronger. There
is an exception for use of these substances and techniques for ‘research purposes’
(article 8(5)), a term which is undefined but may allow a large loophole. And they
could be clearer: the same generic prohibition against any and all fishing types
that damage the environment that appeared in article 7 of Law 9/1985 is repeated
in similar language in articles 8 and 12 of Law 31/2004, and can include most of
the fishing gear types used by fishers and permitted by the MMAF.
The biggest difference between the original fisheries law and the new one is the
increased emphasis on enforcement and adjudication. Law 31/2004 establishes
a fisheries tribunal to handle prosecutions for violations of fisheries regulations.
This is a unique attribute in the Indonesian judicial system—offering a specialised
venue for cases within a particular sector. The goal is to provide more expeditious,
transparent and honest decisions than in the past. The first such courts were to be
established in the country’s largest ports—Jakarta, Medan, Pontianak, Bitung and
Tual—within two years of the law’s enactment.
However, the key determinant of whether Law 31/2004 will adequately address
the problems facing Indonesia’s fisheries rests with its interpretation in implementing regulations. To underscore the uncertainties and lack of clarity in Law
31/2004, and to highlight just how much direction within fisheries management
remains unclear at this point, one can look at the number of key issues that are
left to be elaborated in future implementing regulations. All told, Law 31/2004
provides for 36 implementing regulations on topics ranging from the issue of
fisheries permits to imports and exports; fish harvesting, processing and transporting; conservation; research and development; and outreach. The appendix to
this paper provides a complete list of all required implementing regulations, the
provisions of the law to be elaborated in those regulations, and the strategy of the
ministry in drafting them.
Regulations
Given the dearth of literature on fisheries laws—and what little there is generally starts and stops at the statutory level, without discussion of regulations or
decrees—it is worth reviewing at least the litany of regulations and decrees on
the books, with a fuller analysis of their contents and interplay with one another
reserved for a subsequent paper. As a prefatory note, Patlis (2005a) discusses
the hierarchy of Indonesian law, with the general order of authority as follows:
the constitution; statutes (undang-undang); government regulations (peraturan
pemerintah); presidential decrees (keputusan presiden); ministerial decrees (keputusan
menteri); provincial laws; and district laws. With the enactment of Law 10/2004 on
the Establishment of Laws, presidential and ministerial decrees (keputusan) were
renamed presidential and ministerial regulations (peraturan).
A number of government regulations governing the fisheries sector were promulgated to implement Law 9/1985. Among the more important recent regulations
relating to fisheries and marine resources are those listed in table 3.
The primary regulation is No. 54/2002 relating to Fisheries Business, which
gives considerable detail about the permit scheme for fisheries activities. It discusses the various permits, when they are required, how to obtain them, for
how long they are valid and where they are valid. Regulation 51/2002 on Ships
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TABLE 3 Important Regulations Relating to Fisheries and Marine Resources
Regulation No.
Subject
58 and 62/2002
54/2002
51/2002
36 and 37/2002
15/2002
69/2001
7/2000
19/1999
70/1996
15/1990
Tariffs
Fisheries Business
Ships
Foreign Vessels
Fish Quarantine
Ports
Sailors
Control of Marine Pollution
Ports
Fisheries Business; this had been amended by Regulation
141/2000 before being superseded by Regulation 54/2002.
Management of Natural Living Resources within the Exclusive Economic Zone
15/1984
addresses the various permits required for operating and owning a ship in Indonesian waters, regulations for foreign-flagged vessels, and criteria for seaworthiness of vessels. Regulation 15/2002 on Fish Quarantine addresses certification for
the hygiene and health of fish in transit, which is to be provided by local officials
in the places of shipment and arrival. Regulation 69/2001 defines and regulates
the three major types of ports in Indonesia—national, provincial and district.
Article 40 of that regulation specifically mentions fishing ports, but only in passing, and leaves further elaboration to a lower ministerial decree—MMAF Decree
46/2002 on the Organisation of Coastal Fishing Ports.
There are not many presidential decrees on fisheries. Presidential Decrees
14/2000 and 174/1998 allow for the conveyance of seized fishing vessels to community fishers. One of the more important decrees, Presidential Decree 85/1982,
addresses the impact of shrimp trawling on near-shore coastal waters specifically
by prohibiting trawling for shrimp in western Indonesian waters. Dozens of ministerial decrees and regulations govern fishing in general. A partial list of the more
important decrees is given in table 4.
As is often the case in Indonesia, the transitional nature of the new fisheries
law and the status of implementing regulations under the old law leave fisheries
in a state of legal flux. Article 109 of Law 31/2004 provides that ‘all implementing
regulations of Law 9 of 1985 concerning Fisheries are still valid, as long as they
are not in contravention of, and have not been repealed by, this law‘. Patlis (2005a)
discusses the problems with this legal formulation, known as an ‘implied repeal‘.
With no explicit statement of which regulations might be in contravention of the
new law, and no particular arbiter—and given the inherent vagueness and excessive breadth of many provisions of the new law—there is no clear sense of which
regulations remain in force and which are invalidated, albeit implicitly.
There are both mitigating and exacerbating factors to be considered in determining what the transitional period of the next few years will be like. On the one
hand, to the extent that Law 31/2004 specifies the fisheries permit system, it adopts
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TABLE 4 Important Ministerial Decrees Governing Fishing
Decree No.
Subject
2/2004
10/2004
38/2003
13/2003
10/2003
9/2002
1/2002
60/2001
47/2001
45/2000
Permitting of Fish Aquaculture Business
Fishing Ports
Productivity of Fishing Vessels
Fish Quarantine
Fisheries Permits
Intensification of Aquaculture
Integrated Management System for Fisheries Products
Fishing Vessels in the Exclusive Economic Zone
Format of Fisheries Permits
Permitting of Fisheries Business
and reinforces the pre-existing regulatory framework, serving to strengthen legal
and business certainty in this regard. Where Law 31/2004 is vague or silent on the
details (as is typical of most statutes, deferring to implementing regulations for
the details of a management regime), it can easily accommodate the pre-existing
regulatory framework. Given that this framework is relatively new—the major
fisheries business regulation is No. 54, promulgated in 2002—there is a strong
likelihood that Law 31/2004 was drafted with this new regime in mind, and is
unlikely to change it. On the other hand, the delays experienced in promulgating
new regulations—the first series of regulations on capture fisheries, aquaculture
and conservation, scheduled for completion in 2006, were not yet ready at the
time of writing in early 2007—increase uncertainty and confusion about how to
implement Law 31/2004, and which regulations currently apply.
Institutions
This section provides a brief history and overview of the various agencies involved
in fisheries management, more to underscore the complications involved in fisheries management than to analyse these institutional arrangements critically.
Historically, fisheries were managed under the Ministry of Agriculture. In 1999,
President Abdurrahman Wahid established an early version of the MMAF, known
as the Ministry of Fisheries and Marine Exploration (Dahuri and Dutton 2000),
which pulled in civil servants from the Ministry of Home Affairs, the National
Development Planning Agency, the Ministry of Agriculture and the Ministry of
Forestry (for marine conservation purposes). As the ministry’s mandate evolved
to cover broader issues in marine conservation, management and exploitation,
its first minister, Sarwono Kusumaatmadja, changed its name to the current one.
The creation of the MMAF in 1999 led to a sharp improvement in, and strengthening of, the management of coastal and marine resources. The ministry has
consolidated and coordinated policies across all aspects of management of those
resources. The focus has shifted from marine exploitation to marine management,
with strong institutional recognition of conservation. While the ministry is still in
the process of implementing those new policies, and much work remains to be
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done to integrate its diverse missions fully, it shows great signs of promise. The
current ministerial decree establishing the structure and organisation of the ministry is Decree Kep.05/MEN/2003.
The one fundamental institutional deficiency in the MMAF’s scope concerns
the conservation of non-fishery marine living resources, such as endangered
marine species, coral reefs, grasses and mangroves. Original authority for living
resources and biological diversity generally, including habitat conservation, rests
with the Ministry of Forestry. However, residual authority for marine affairs generally rests with the MMAF. This authority includes fisheries resources, fisheries
habitats, coral reef habitats and, in a general and broad way, marine biological
diversity. The MMAF is thus responsible for many aspects of marine and coastal
conservation (except the establishment of certain types of marine protected areas,
and the management of certain laws, such as the Convention on Biological Diversity ratified through Law 5/1994, and Law 5/1990 on Conservation of Natural
Living Resources and Their Ecosystems). This division of management authority
has slowed and complicated conservation efforts, and should be corrected. The
MMAF has competence over marine and coastal resources, but this should also
include protecting their habitat under existing legal authorities and in accordance
with the designation of special marine protected areas.
In addition to creating the ministry, with the issue of Presidential Decree
161/1999 President Wahid established the DMI, with the lofty mission of
coordinating and improving overall policy and management of marine resources,
activities and areas. The board’s membership consists of 13 central government
agencies, each having some role in marine and coastal policy and management.
The chair is the president, and the vice-chair is the Minister of Marine Affairs and
Fisheries. Total membership is 27, with the remaining members being academic,
NGO and business representatives. The board has been relatively ineffectual
in coordinating all sectors and line ministries whose actions and policies affect
coastal and marine resources. It meets irregularly and infrequently, and has a
very limited budget to maintain staff and operations. Moreover, its authority is
very broad, but as yet unclear and ill-defined. To date, it has issued no substantive decree or document relating to marine management, but merely a series of
decrees addressing membership and logistics.
The ministry, through Ministerial Decree 994/Kpts/Ik.150/9/99 issued in 1999,
established coordinating councils for fisheries management decisions (Forum Koordinasi Pengelolaan Pemanfaatan Sumberdaya Ikan, or FKPPS). There is one FKPPS
at the central level, and one in each of nine fisheries management areas (Cacaud
2001). The national FKPPS meets once every two years, and last met shortly after
the enactment of Law 31/2004 to discuss its implementation (FKPPS Nasional
2004). It identified the need to develop fisheries management plans, and to improve
the accuracy of catch data and estimates of fish abundance, identification of fisheries potential, coordination of research and enforcement, and the permit system.
Regional and international developments
The original Law 9/1985 was enacted just before Indonesia ratified the UN Convention on the Law of the Sea (UNCLOS) (through enactment of Law 17/1985).
However, it adheres to two of the basic tenets of fisheries management contained in
UNCLOS. Article 61 of UNCLOS provides that coastal states should determine the
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total allowable catch for fisheries within their EEZ, and article 62 provides that, to
the extent that a coastal state does not attain capacity, it should allow foreign-flagged
vessels to fish. While the tenets of the law are followed—article 9 of Law 9/1985
allows only Indonesian nationals to engage in fishing unless otherwise allowed
under international law—implementation and enforcement have suffered.
In addition, Law 9/1985 was enacted long before other important international
treaties and standards governing fisheries management came into effect. Among
the most important are the ‘Compliance Agreement‘ (the Agreement t