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How Indonesia’s omnibus bill may impact fisheries compliance and enforcement (commentary)

  • A deregulation bill currently working its way through Indonesia’s parliament proposes sweeping changes for the management of the country’s fisheries sector.
  • Among the provisions is a concentration of licensing and oversight authority with the central government, and the dropping of criminal sanctions in favor of administrative ones for fisheries violations.
  • Stephanie Juwana of the Indonesia Ocean Justice and Initiative argues that the proposed changes risk undermining the management and oversight of fisheries and fall short of achieving sustainable development goals.
  • This post is a commentary and does not necessarily reflect the views of Mongabay.

Indonesia’s parliament is reviewing a new bill on job creation that will amend and repeal provisions from 77 existing laws and combine them into a single piece of legislation. This concept, known as an omnibus bill, has been practiced in many countries with various purposes, ranging from creating simplification in legislature to controversial intentions, such as to enact objectionable provisions. It has already been manifested in some existing Indonesian laws, for example, the Regional Autonomy Law. However, that was different from the draft of the job creation bill because it only embraces one substantive matter. As for the job creation bill, many have actively voiced criticism as it combines a number of controversial subjects that seem unrelated to the title of the law.

For the fisheries sector, the draft will cause, among other things, concentration of authority with the central government; transformation of the licensing system; and a paradigm shift in sanctioning. Those changes will be detrimental to the effectiveness of law enforcement in the fisheries sector for several reasons.

The STS-50 vessel notorious for illegal fishing around the world. Image courtesy of Indonesia’s Marine and Fisheries Ministry.

First, the centralization of authority and transformation of the licensing system can cause ineffectiveness in monitoring and supervision of licensed activities. Based on the draft, licensing authority will be held by the central government, which is defined as the president who is assisted by the vice president and Ministers. Supposedly, a government body under the president will be the one that issues licenses. In the current system, ministries and local government issue fisheries licenses. They also have the responsibility to monitor and supervise the activities that they license. The centralization then raises questions about who will be responsible for monitoring and supervision.

Monitoring is an important process to ensure compliance through inspections and other activities, so that law violations can be prevented and enforcement actions can be initiated when necessary. The central government would face a major challenge should it bear responsibility for monitoring alone. The OECD1 has described how the best practices of compliance assurance system in many countries involve local governments in monitoring. One of the benefits is that local governments are more likely to conduct direct contact during site visits. However, the problem remains of how to ensure the uniformity of monitoring quality among municipalities. Therefore, this law should also allow the central government to have oversight of local governments in performing their monitoring function. Should the monitoring function be not properly executed by the local government, the central government will be able to step into or take over the monitoring process. If this system is adopted, compliance levels can be better assured; otherwise, monitoring will not be effective.

In addition to the above, compliance assurance can also be affected by the transformation of the licensing system. The current system will be transformed to a risk-based one from a regular licensing approach. On one hand, this will allow risk-based targeting of compliance monitoring. Activities that are considered high risk will be the priorities of inspection, which can make monitoring more effective. On the other hand, it is not clear how the classification of low-, medium- and high-risk activities will be applied in the fisheries sector while the indicators are still questionable. This raises concerns about the competence of the license-issuing body that likely lacks strong experience in fisheries sector to decide which activity poses more risk. In Indonesia, there are more than 5,000 fishing vessels larger than 30 GT and more than 500,000 smaller than 30 GT, excluding the vessels of small-scale and traditional fishermen. If not classified properly, low- and medium-risk activities will create a major threat to the sustainability of the fisheries sector. Ineffective control and compliance monitoring can subsequently lead to overfishing, unreported fishing and other violations, such as the use of banned fishing gear.

An Indonesian Navy officer keeps watch on the Hua Li 8 shortly after the rogue vessel’s arrest off the coast of Sumatra. Photo by Ayat S. Karokaro/Mongabay

Second, a paradigm shift in sanctioning can result in failure to ensure compliance and create a deterrence. In terms of sanctioning, the draft revises a number of criminal sanction provisions; it either converts them into administrative sanctions and eliminates criminal sanctions completely, or makes criminal sanctions the last resort and administrative sanctions the primary resort. At present, criminal sanctions are used as the primary enforcement instrument in fisheries law. However, administrative sanctions are common in environmental enforcement since they are easier and cheaper to impose than criminal sanctions. In some contexts, administrative sanctions have proven effective at encouraging compliance.

Aside from that, the draft does not provide a clear distinction between provisions that convert criminal punishment into administrative sanctions and those in which criminal sanctions are retained. This blurred line can affect the effectiveness of law enforcement itself. For instance, illegal fishing, which causes Indonesia an estimated loss of $4 billion per year3, would no longer be punishable by criminal sanctions, rather by administrative fines. This might be effective if the fines are sufficiently severe and able to deprive offenders of the benefits accruing from the illegal activity. Otherwise, the sanctions would not be able to meet their aim of deterring future non-compliance, which is one of the six penalty principles according to Macrory2.

On top of that, the draft does not prescribe other forms of administrative sanctions that can suspend the authorization to fish, e.g. license revocation. Therefore, after the fine is paid, supposing that the administrative fines are too low, offenders can repeat the undesirable behavior. One of the indicators to measure the effectiveness of enforcement, based on Winter, H.4, is to see if transformation of the behavior of the offender can be determined (compliance). Meanwhile, criminal procedure, in most cases, will leave offenders no choice but to stop their operations, hence it can prevent the recurrence of violations. Besides, criminal prosecution remains important for serious cases. Therefore, a combination between criminal and administrative sanctions would be the most effective enforcement, only if there is a clear definition of what offenses are considered serious cases, in which criminal sanctions cannot be substituted, and also if the administrative sanctions imposed are proportional.

A foreign fishing boat detained by Indonesian coast guards. Image courtesy of Indonesia’s Marine and Fisheries Ministry.

Third, the transformation of criminal sanctions into administrative punishment can cause other criminal offenses to not be prosecuted. In fisheries, illegal fishing practices can link to other crimes. The UNODC and FAO5 introduce the term fisheries-related crimes, such as tax crimes, and crimes associated with the fisheries sector, such as human trafficking. If not careful, the imposition of administrative sanctions can weaken the ability of investigators to detect those crimes. Therefore, an integrated system of data and information collection on inspections and potential violations should be made available.

On top of all, this omnibus bill that aims to boost investment in Indonesia seems to not prioritize sustainable development. At the same time, Indonesia’s SDG index is still in the red category6 for SDG 16 on peace, justice and strong institutions, meaning that Indonesia has yet to succeed in ensuring a peaceful and inclusive society. If passed, the current draft of the bill would slow down or even cause a setback in Indonesia’s performance to achieve the SDG targets. It would create more problems rather than solving the current ones.

In conclusion, uncertainties and improperness in the omnibus bill draft can hamper the effectiveness of enforcement and promotion of compliance, and also achievement of SDG targets. Moreover, because of its large scope, this omnibus bill limits opportunities for criticism and scrutiny.

References:

  1. Organization for Economic Cooperation and Development (OECD). 2009.Ensuring Environmental Compliance Trends and Good Practices. OECD Publishing.
  2. Macrory. 2010. Regulation, Enforcement and Governance in Environmental Law. Oxford: Hart Publishing.
  3. Cabral, R.B., et al. 2018. “Rapid and Lasting Gains from Solving Illegal Fishing”. Nat Ecol Evol 2: 650-658.
  4. Winter, Heinrich. 2007. “De effectiviteit van bestuurlijke en strafrechtelijke milieuhandhaving (The Effectiveness of Administrative and Criminal Environmental Enforcement)”. Onderzoek en beleid 0001: 118.
  5. Food and Agriculture Organization of the United Nations (FAO). “Links between IUU Fishing and other crimes”. http://www.fao.org/iuu-fishing/background/links-between-iuu-fishing-and-other-crimes/en/
  6. SDG Index. “Indonesia Sustainable Development Report 2019”. https://github.com/sdsna/2019GlobalIndex/blob/master/country_profiles/Indonesia_SDR_2019.pdf

Stephanie Juwana is a co-founder and the director of international engagement and policy reform of the Indonesia Ocean Justice and Initiative (IOJI). IOJI aims to provide policy advice to the government of Indonesia on sound ocean governance and strong enforcement and advocate important ocean issues in the regional and global levels.

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