HARMONIZATION OF LAW IN FISHERIES

FOR FISHERMEN EMPOWERMENT

By:
Endang Sutrisno1

ABSTRACT

It is an indisputable fact that the harmonization of law in building a harmony, conformity,

and balance is the key word in the effort towards achieving goals of law ideal. Harmonization of
law through a legislation approach starts from the foundation of law ideal (Rechtsidee), without
it, as contained in Pancasila, the product of law will be meaningless. Harmonization of law
established through the Act 45 of 2009 on the Amendment Act No.31 of 2004 on Fisheries is
expected to achieve the welfare of fishermen. Regarding to this, reveals a research question why
it is necessary to do the harmonization of law, in order to achieve wholeness in building law in
the context of arrangement aiming at fishermen social welfare. To get answers from this
question, this study uses normative research method that studies the principles of law, the legal
basis of positive, systematic study of law and the research on law synchronization stage and law
discovery efforts in concreto which is appropriate to be applied in order to resolve certain legal
issues.
The study's finding indicates the role of law in development thinking is closely related to
the characteristics of the legal ability to handle problems in the community. A harmonization of
law is needed because the normative setting fisheries do not fully describe the full harmonization
of law such as Article 46A of Law 45 of 2009. This legal norm bares a limitation of public
involvement in overseeing the activities of industrial-scale fishing of Article 25 of Law 45 In
2009 allows the degradation of environmental quality due to coastal or marine fisheries industry
activity. On the other hand the government shut down the access to public social control to
monitor the activities of industrial-scale fishing industry due to the existence of Article 46A of
Law 45 of 2009. This setting has ignored the arrangement of Article 14 paragraph (1) and
paragraph (2) of Law 39 of 1999 on Human Rights, and the public's right to get information.
Public supervision on industrial-scale fishing operations is ultimately not achieved.

1 Dr. Endang Sutrisno, SH.M.Hum : A Lecturer of law Faculty of Universitas Swadaya Gunung
Jati Cirebon West Java.

Fisheries Act does not provide places for small businesses, fishermen, laborers and small
fish industries. The government through its legal products provides a wide place for large
industrial-scale fisheries in order to penetrate the field of fisheries on fish resources regarding the
potential for all kinds of fish. State intervention in the form of regulatory management and
exploitation of fish resources referred to the Act No.31 of 2004, which some articles amended by
Act 45 of 2009 does not able to optimally empower fishermen to tackle the problem of poverty.
The absence of normative regulation which expressly protects fishermen, small fishing
industry workers through the Fisheries Act is the phase of a disregard for the basic principles in
the management of coastal zones and oceans in an integrated manner so that the existence of the
Fisheries Act no longer a harmony, conformity, balance by Act 27 of 2007 on Management of
Coastal Areas and Small Islands which are based on sustainability; consistency; integration; legal
certainty; partnerships; equity; public participation; openness; decentralization; accountability
and justice.

Keywords: Fishery Regulations; disability of law.

A. Background Research:
The longer the coast, the greater number of poor people in Indonesia. This is because the
coastal areas in Indonesia are places or pockets of fishermen poverty. Poverty that occurs in
fishing communities is not independent, but due to past policy that is too concentrated on the
development of land areas (continental orientation) and forget about the development of marine
areas (maritime orientation), making the marine and fishery sector periphery.2
Policy makers should consider seriously the importance of socio-cultural approach as a
base or an instrument of empowerment of fishing communities. Based on sociological
characteristics, coastal communities (fishermen) are different from rural communities (farmers)
in mainland. In addition, resources and geographical characteristics among the regions are very
diverse. So, as a result of coercion, ignorance approach and homogenization development
programs for fishing communities will certainly produce failure.
Forms of program failure of empowerment can be the value of the congestion revolving
fund that will be developed, and misuse of funds for the benefit of outside programs, dissolution
of social and economic institutions built after the program ends, socio-economic condition or the
welfare of fishing communities not increase, finally continuity empowerment activities stopped
on the half way.
2 Akhmad Solihin, Pendekatan Sosial-Budaya dalam Memberdayakan Nelayan, (Cakrawala
TNI-AL RI Magazine, edition 383/2004).

The failure is caused by the application of empowerment that is not often framed by the
social structure of the local culture, whether related to institutional issues or the prevailing
system of division of labor in fishing communities. Consequently empowerment programs are
extraneous to the local fishing community, and ironically, the institution of the new
empowerment formation is often antagonistically confronted with local institutions. Thus, the
public apathy towards the implementation of empowerment strategies such growing social
resistance causes an impact on the creation of barriers to successful empowerment strategy.
The government should be duly filled-oriented to development based on local resources
such as agriculture, forestry, marine and fisheries. Many countries that have the resources are
now trying to rebuild the development paradigm by giving more attention to marine sectors,
fisheries and agriculture. Indonesia should review this sector-based natural resource.3 This
serious attempt of the government in reviewing the policy development based on local resources
is expected to bring prosperity to the community as a target community of policy objectives,
which in turn is the parameter of the successful development of the sector.
Development of the fisheries sector as a focus of study is quite interesting considering
many observers in the media show "rosy picture" (beautiful picture) fisheries in Indonesia with
"if-then" rule.4 For example, "if" this ocean is able to be benefitted by thousands of ships, and
each ship produces so many tons of fish, the economic will gain extraordinary benefits. The
concept of a linear pattern of thinking will eventually greatly simplifies such a complex problems
of fisheries development which requires a comprehensive-integral approach with other fields.
Fishing activity as an ancient tradition since the first human being, especially considering
the position of Indonesia as an archipelagic country, rich with coastal and ocean natural
resources should be used for the welfare of the people so that the concern of the government
through the policy development that led to the birth of the fisheries sector and fishing success is
the key word.5 The reason is the further consideration that the study of the management and use
of marine resources, particularly fisheries, the fore in the context of governance and national
development, because the major problems faced by the fishing community (read: traditional
fishermen) as stakeholders continue to spin on poverty and backwardness. Regulation and
3 Akhmad Solihin-Muhammad Karim-Suhana-Thomas Nugroho, Strategi Pembangunan
Kelautan dan Perikanan Indonesia : (Bunga Rampai), (Bandung : Publisher Humaniora,2005),
page.3.
4 Akhmad Fauzi, Kebijakan Perikanan dan Kelautan : Isu, Sintesis dan Gagasan, (Jakarta :
Publisher PT Gramedia Pustaka Utama, 2005),page.10.
5 Rokhmin Dahuri-Jacob Rais-Sapta Putra Ginting-MJ Sitepu, Pengelolaan Sumber Daya
Wilayah Pesisir dan Lautan Secara Terpadu, (Jakarta : Penerbit PT Pradnya Paramita,
2001),hlm.1.

empowerment programs by the government as a state representative are not fully able to address
existing problems.6
Fishery sector development issues can not be separated from the problem found in most
of the communities in the coastal areas of Indonesia, namely the problem of poverty fishermen
(Especially the traditional fishermen and fishing workers)7 because the two types of groups is
majority in number, the image of poverty inherent in the lives of fishermen.8 There are many
factors which cause poverty so that rural community development approach should be applied in
the development of coastal communities with the development strategy to help people to be able
to build and develop on their own abilities and strengths, based on the development potential of
the natural environment in the village.9
The problem of poverty fishermen began to look to surface a decade after the
implementation of a national policy on modernization of fishing equipment, motorization the
boat in the early 1970s. That policy known as blue revolution is intended to improve the
productivity of fisheries in the fishing villages. It apparently has led to over-exploitation of
fishery resources to meet the needs of domestic and international markets. Policy orientation and
thought to 'conquer marine resources' which is so dominant has shifted the protection and
sustainability priorities of resources. Plus this resource is classified into common property
resources.10
This condition affects the level of participation of fishing communities and reduces the
independence and initiative to self-help. If the regulations set-oriented for development purposes
in favor of the individual capitalist philosophy, it will remain difficult for fishermen to break
6 Garuda Wiko, Rekonstruksi Regulasi Pengelolaan dan Pemanfaatan Sumberdaya Kelautan :
Suatu Analisis Sosio-Legal terhadap Peraturan Sektor Perikanan di Kalimantan Barat,
(Disertation ; PDIH Undip, 2006),page.1.
7 Badan Penelitian & Pengembangan Kesejahteraan Sosial Departemen Sosial-Pusat Antar
Universitas-Studi Sosial UGM, Laporan Penelitian Masalah Kemiskinan Nelayan, 1997-1998,
page.10-11. See also Pujo Semedi, Close to The Stone, Far From The Throne : The Story of A
Javanese Fishing Community 1820s-1990s, (Yogyakarta : Benang Merah Press,
2003),page.3.Distributed among three crew members and a boat owner; the income of each
of them was less than two kilos of rice per day-as some part of the catch was used to cover
the cost of their fishing supplies.
8 Ibid,page.10.
9 Rokhmin Dahuri-Jacub Rais-Sapta Putra Ginting-MJ Sitepu,Op.Cit, page.300.
10 Kusnadi, Akar Kemiskinan Nelayan, (Yogyakarta : LkiS Publisher, 2003), page.20.

away from the cycle of poverty.11 There are many examples of it that fishermen are difficult to
access to coastal areas. Meanwhile, the owners of capital are given the power to more freely use
resources in the region though the region is closely related coastal ecosystems, especially marine
fisheries.
The other side that reflects the lack of effectiveness of government policies to address the
issue of poverty is fundamentally fishing port infrastructure which include fishery and Fish
Auction Place (TPI) in various regions that do not contribute to satisfy the fishermen welfare,
inequality and strong patron-client relations in fishing communities. With such a condition is
very broad impact in the socio-economic life of the fishermen that requires a legal structure that
contains alignments on fishing communities. Realizing such a reality today in the era of
President Susilo Bambang Yudhoyono, there are a number of breakthroughs in the field of
maritime policy and fisheries that can be taken and can be priorities after 100 days, among which
can be called is a three-step or a concrete policy breakthroughs:12 first , developing non-bank
Fisheries Financing Institutions (LPP) as an alternative source of financing micro-scale fisheries.
It is important to remember that the sources of financing based upon conventional banks have
been less supportive of small fish. Secondly, increasing the income of fishermen and fish farmers
through fish price guarantee, diversifying technology and business, as well as infrastructure
improvements. Third, enhancing the protection of fishermen and fish farmers with open access
resource use and management, and trading. Many of the challenges that have a potential to
narrow access, such as industrial activities that pollute the waters so that the area is not feasible
for fishing activities. The policy is an attempt by the government to address the poverty crisis
that occur in the fishing communities and also, to support the small business community-based
fisheries management.
Considering most of the social categories of Indonesian fishermen are fishing workers,13
as a major contributor to the national fisheries production quantity. This condition is inversely
proportional to the position of their socio-economic life, because in fact the characteristics of
traditional fishermen and fishing workers remain marginalized in the process of economic
transaction that is unequal and exploitative, so as the producers, fishermen do not get a large
share of revenues.
For that, moving from the context background, law institution that is about to be used as
the basis of law should have the capacity as a facilitator of the various responses to the social
11 Garuda Wiko, Op.Cit,hlm.2-3.
12 Arif Satria, Tiga Terobosan Bidang Kelautan dan Perikanan, 07 Februari 2010 dalam
http://m.antaranews.com
13 Kusnadi, Jaminan Sosial Nelayan, (Yogyakarta : LkiS Publisher, 2007),page.1.

needs and aspirations. As argued by Nonet and Selznick, the character of such a law would
prevent narrowing of the purpose of law. It is not only achieving order and legitimacy, but also
the competence to provide substantive justice.14
The involvement of the State through the construction regulations in the management and
utilization of fish resources has been firmly stated in Law No. 9 of 1985 on Fisheries, as
amended by Act No.31 of 2004 and have been revised back through Act No.45 Year 2009
regarding changes to RI Law No.31 of 2004 on Fisheries, but has not been fully able to optimally
empower fishermen to overcome the problems of poverty. Many legal loopholes that can cause
blurring of meaning becomes increasingly urgent issue given the other provisions that can
support these fisheries regulations namely Law 27 of 2007 on Management of Coastal Areas and
Small Islands show impartiality of government in responding to the needs of small fishing
industry, which is majority controlled by traditional fishing communities and fishing workers.
Then this condition should not linger to happen. Thus, attention must be given to the
harmonization of the legal regulations in fisheries management, given the socio-economic
realities found in the fishing communities of the condition of impoverishment.
On the other hand, it is important to avoid the dense domination of the government, and
fishermen avoid alienation of their own environment, which has been a "living space" and "space
marine cultural construct". In this regard, the regulation of the fisheries should be a
communication framework of fishing communities in socio-economic self-reliance that must be
considered to the social capital in the community.15
B. Problem Identification:
Why legal harmonization is needed to achieve wholeness in building law in the context of
regulation that aims to empower fishing communities?
C. Research Objectives:
This study aims to clarify and determine the harmonization of laws as a step to achieving
legal purpose of traditional fishermen empowerment.
D. Methods:
1. Research Approach
14 Philippe, Nonet & Philip, Selznick, Law and Society in Transition: Toward Responsive Law,
London: Harper and Row Publisher, 1978, page. 12.
15 Rusydi Syahra, Modal Sosial : Konsep dan Aplikasi, Jurnal Masyarakat Dan Budaya, Vol :
V/No.1/2003, Pusat Penelitian Kemasyarakatan dan Kebudayaan Lembaga Ilmu Pengetahuan
Indonesia (PMB-LIPI), 2003, page.1.

According to the objective,16 this research uses a normative legal research includes a
study of the principles of law, the basis of positive law, the law and the systematic study of the
level of synchronization of business law and legal discovery suitable in concreto to be applied in
order to resolve certain legal issues. Therefore in approaching the problem uses purely juridical
approach, which includes the study of law principles for the research to determine the legal
structure in fishery regulations.
At the end of the normative legal research also includes studies of the standard vertical
and horizontal sync then examines the extent to which the law has a positive match. It can be
viewed vertically; whether the legislation that applies to a particular area of life does not
contradict itself or from the standpoint of the hierarchy of legislation.17
Furthermore, the approach taken in this research approach involves legislation because
some legislations that are still associated with the setting in the field of fisheries have resulted in
overlapping arrangement with the provisions of any other law, or even incorrect charge value in
the law. Things like this should be explored through research based on positive legal provisions
concerning fisheries. Further consideration of conditions, including the policies of the
government in the development of the fisheries sector based more on sector approaches that
ignore other sectors that are related to the development of the fisheries. As a result, it often leads
to conflict of interest and conflict of authority and delivery of legal uncertainty for all parties
with an interest in fisheries issues.
E. Research Findings and Discussion:
Harmonization of Legal Affairs for Fisheries Management of Fisheries Resources
The law does not only regulate human relationships, but also human behavior in the use
of natural resources. Government, undertaking the 1945 Constitution, implements law in
accordance with the respective sectors. Currently, the management of fish resources uses Act 45
of 2009 on the Amendment Act No.31 of 2004 on Fisheries, previously applicable Law No.31 of
2004 on Fisheries as a reference for technical regulations fishery.
Basic considerations in the management of fisheries resources that are in the waters
sovereignty of the Unitary Republic of Indonesia and the Indonesian Exclusive Economic Zone
contains potential sea fish resources as a commercial fish breeding. It is a blessing from God
Almighty that is mandated on Pancasila and the Constitution of Republic of Indonesia Year 1945
with respect to bring capacity and sustainability for the greater well-being and prosperity of the
people of Indonesia. The benefits of fish resources yet provide improved living standards
16 Soerjono Soekanto,Op.Cit,page.51.
17 Soerjono Soekanto Sri Mamudji, Op.Cit, pages.19-20.

through sustainable and equitable fisheries management, optimal surveillance and enforcement
systems.
The law serves to integrate the interests that exist in society. People who live in groups
can be classified according to profession, occupation, social culture. For fishing communities,
the interests regulated by the Government are the availability of fish resources and the obligation
of the Government to improve the welfare of fishing communities.
In the context of Indonesia as a country of law, it is a commitment that all activities
carried out in the realm of state sovereignty should refer to the applicable law. State law is a state
system that is governed by the applicable law with justice that are arranged in a constitution, in
which all people in the country, both the governed and the governing, subjected to the same laws,
so that everyone is treated equally and each different person is treated differently on the basis of
a rational distinction, regardless of color, race, gender, religion, region and trust. Authority of the
government is limited by a principle power distribution, so the government does not act
arbitrarily and violate people's rights. Hence the people are given roles in a democratically.18
This state law is based on Pancasila and the 1945 Constitution with the goal that
explicitly lead to the livelihood of the state and the nation prosperous, safe, peaceful and orderly,
which in turn is able to provide guarantees for the equality of citizens before the law and ensure
the maintenance of relationships harmonious, balanced and harmonious society, also in the
context of governance. Understanding of the formulation of the principles of harmony and
balance is one of the principles of good governance (general principles of good administration).19
The principle of balance and harmony as part of efforts to towards the harmonization of
law so as to minimize the incidence of overlap legal norms setting, be able to overcome the
limitations that can lead to differences in the formation of the order to the contrary and the
discrepancy in the law. This kind of effort is caused by the meaning of law as a conceptual
system of rule of law and legal rulings.21
20

18 Munir Fuady, Teori Negara Hukum Modern (Rechtstaat), (Bandung : PT Refika Aditama
Publisher, 2009),page.3.
19 Kusnu Goesniadhie, Harmonisasi Hukum : Dalam Perspektif Perundang-undangan : (Lex
Specialis Suatu Masalah), (Surabaya : JP Books Press,2006),pages.70-71.
20 Ibid, page.62.
21 J.J.H Bruggink, Refleksi tentang Hukum (translator Arief Sidharta), (Bandung : Citra Aditya
Bakti Publisher, 1999), page.137.

Commitment to promoting the rule of law should be able to describe the harmonization of
the legal regulations in force, the notion of harmonization. As proposed by LM Gandhi,22 the
harmonization of law is included adjustments to the legislation, the government's decision, the
judge's decision, the legal system and general principles of law with the goal of increasing the
legal entity, legal certainty, fairness and proportionality, purpose and legal clarity without
sacrificing blurring and legal pluralism. Furthermore, reaffirmed by Mohammad Hasan
Wargakusumah23 pointed out that the National Law Development Agency Department of Justice,
giving the sense of harmonization of law, as a scientific activity towards harmonizing the written
law refers to both the philosophical, sociological, economical and yiridis values. Assessment of
the draft legislation, the various aspects of what has been reflecting alignment and compliance
with laws and regulations that other, unwritten laws that exist in the community, conventions and
international agreements, both bilateral and multilateral agreements have been ratified by
Indonesia.
Law can be understood as the system to measure of the various elements and the common
thread that connects the various elements and the network among these elements build the
structure of the system. Thus law as the system24 connects good, primary and secondary or
intrinsic and instrumental value in establishing a legal structure. This is the meaning of the law as
a system of values. So behind the law there is value-laden meaning. The meaning is a
characteristic of all the sentences are not unreasonable, and not only from the words in the form
of an indicative but also from other forms such as interrogative, imperative or operative, then the
meaning is a description of the facts.25
The legal system will be divided into sub-elements of the law include the substance of the
external legal order legislation, unwritten law, including customary law and jurisprudence, as
well as the internal legal order of the underlying legal principles. Structure of the law regarding
institutional agencies or public institutions, as well as Culture Law is included attitudes and
behavior of public officials and citizens with regard to the other elements in the process of life.
As told by Lawrence M. Friedman26 that legal structure is an institution or law enforcement such
as the police, prosecutors, judges and lawyers. Legal culture or the culture of the law includes the
22 Kusnu Goesniadhie,Op.Cit, page. 71
23 Moh.Hasan Wargakusumah, Perumusan Harmonisasi Hukum tentang Metodologi
Harmonisasi Hukum, (Jakarta : BPHN Departemen Kehakiman Press, 1996/ 1997),page.37.
24 Lili Rasjidi-IB Wyasa Putra, Hukum sebagai Suatu Sistem, (Bandung : Mandar Maju Press,
2003), pages 4-5.
25 Jujun S. Suriasumantri, Ilmu dalam Perspektif, (Jakarta : Yayasan Obor Indonesia &
LEKNAS-LIPI Press, 1984), page.78.

ideas, attitudes, beliefs, expectations and views about law. And Friedman27 see that the law is not
worth only discussed in terms of structure and substance, but also in terms of culture. Legal
culture is one component of the legal system. For want of a better term, we can call some of
these forces the legal culture. It is the element of social attitude and value. The phrase social
forces is itself an abstraction; in any event, such forces do not work directly on the legal system .
People in society have needs and make demands; these sometimes do and sometimes do not
invoke legal process-depending on the culture.28
A legal system is basically trying to bring the content of the values contained in the rule
of law as a goal that must be reached, and the value is the subject of one of the branches of
philosophy that is axiology (philosophical value). Value is usually used to refer to an abstract
noun that can be interpreted as worth or goodness. Human use values as a foundation, the reason
or motivation in everything.
In Black's Law Dictionary,29 the value is defined as follows:
"The utility of an object in satisfying, directly or indirectly, the needs or desires of human
beings, called by economists in its value, or its worth consisting in the power of purchasing other
objects, called value in exchange".
According W.Friedmann, the value is "........ ideas concerning the desirable"30, so the
value is considered as a directive idea, which is something that is driving people towards the
fulfillment of his desires.
Through the theory of knowledge we have come to value theory that is a theory to
investigate the process and content of the assessment process that precede, escort, instead of
determining all human behavior. Therefore the theory of value as human beings face behaves as
its object.31

26 Lawrence M. Friedman, the Legal System A Social Science Perspective, (New York :
Russel Sage Foundation, 1975), pages.11-15.
27 Ibid, pages 11-15.
28 Loc.Cit.
29 H. C.Black, Blacks Dictionary, St.Paul : West Publishing Co.1990, page.1550.
30 Purnadi Purbacaraka , Renungan tentang Filsafat Hukum, ( Jakarta: Rajawali Press,
1978),page.14.

Value is essentially concerned with the interests of the ideals, desires and expectations
that exist in humans, and therefore are relative and subjective or abstract. Subjective value as
nature intended values are the reactions given by the men as perpetrators and existence,
depending on their experiences.32 So thus, the value is the nature or quality of something useful
for human life, both physically and spiritually, and used as a basis, reason or motivation to act
and behave in society.
These values are then in a way to make it more understandable and useful to the public
interest, the value defined in the normative size or concreted in the form of norms. In the context
of the law, the law contains values, both primary and secondary values and or the basic values of
the law intended as instrumental value, the law was valuable as a means to achieve happiness
and justice in society, in addition to objective certainty itself.
Based on the ideals of Pancasila as the law and the 1945 Constitution which is the basic
concept of the national legal system, that the precepts in the Pancasila as the state is the nation's
unity virtue inseparable from each other, and overall roundness, value-laden in them as a single
unit capable of determining the value system within the national legal system.33 These values can
determine the direction, objectives to be achieved, so that values meant to be a matter of life and
be able to guidance in dealing with legal issues-even the most basic one that can cover many
things including law plan (legislation planning) , the process of law (law making process), law
enforcement (law enforcement) and legal awareness (awareness law). In essence, it can be
concluded the national legal system to absorb the value system that consists of a number of
interrelated values derived from the worldview of the Indonesian nation, so it is a legal system
that matches the feeling of the ideals of justice and law, in line with the view of fairness (sense of
justice ).34
National legal system is inspired by the spirit of Pancasila and sourced the highest
positive law the 1945 Constitution, which is able to ensure the rule of law, order, rule of law and
the protection of the law which is based on justice and truth. According to Kelsen,35 positive law
31 Burhanuddin Salam, Logika Materiil Filsafat Ilmu Pengetahuan, (Jakarta : Rineka Cipta
Press, 2003), page.80.
32 Louis O. Kattsoff , Pengantar Filsafat , (Yogyakarta : Tiara Wacana Press,1992),page.331.
33 Solly M. Lubis, Hukum Tata Negara, (Bandung : Mandar Maju, 1992),page.9.
34 Ibid, page.9.
35 Hans Kelsen, Teori Hukum Murni : Dasar-Dasar Ilmu Hukum Normatif (translator: Raisul
Muttaqien), (Bandung : Nusamedia & Nuansa Press, 2006),pages.120-121.

is arranged in some order, starting from the basic law to the law of the most concrete and
individual, they must be rooted in the basic values that contain ethical judgments. This means
that the basic values should be included in the basic norms binding arrangement positive norms
as a whole, ie the content of values of Pancasila.
Based on the above reason, the basic concept of harmonization of law moves from the
mindset of putting Pancasila as the ideal paradigm of law together with the concepts of rule of
law and principles of constitutional government based on the mandate of the 1945 Constitution.
The role of law in development is very closely related to the characteristics of the legal
ability to handle problems in the community, it is a reflection of the characteristics of the type of
the Civil Law System, the model used in Indonesia based on a formal setting. Thus the statutory
sector becomes more prominent specifically in terms of fisheries regulation. In this case the
statutory sector should be able to anticipate the needs in a changing society, so there must be
legislation planning that can reach the future (legislative forward planning).36
The concept of law harmonization of legislation with the perspective is an important
factor to develop law in the field of fisheries that the coastal and marine areas and their natural
resources is one of Indonesia's most important development assets because this region is
supported by the three main components and the backbone of development.37 First, the
biophysical components; coastal and marine that extends along approximately 81,000 km of
coastline and spread to more than 17,000 islands with approximately 5.8 million km including
ZEEI territorial waters, has the potential biological resources or abundant and begaram type, and
each resource has significant value both in the domestic market especially the international
market. Second, the socio-economic component, most of Indonesia's population (approximately
60%) live in coastal areas. This is due to the administrative, most districts / cities located in
coastal areas. Third, the components of the socio-political changes in Indonesia political policy
(democratization) that directly provides opportunities conducive to the development of marine
Indonesia. This opportunities is the birth of Act 32 of 2004 on Regional Government, which
further enhanced through Act 12 of 2008 concerning the Second Amendment Act 32 of 2004 on
Regional Governance and Law 33 2004 on Financial Balance and the Central Region, and on the
other hand with the establishment of institutional and Fisheries Department expected to be the
driving forces of development and national fisheries. With the implementation of the Regional
36 Tri Setyawanta R, Konsep Dasar dan Masalah Pengaturan Pengelolaan Pesisir Terpadu :
dalam Lingkup Nasional, (Semarang : Ghradika Bhakti Litiga Press, 2005),page.136.
37 Dietriech G. Bengen, Urgensi Pengelolaan Wilayah Pesisir Secara Terpadu, dalam Menuju
Harmonisasi Sistem Hukum sebagai Pilar Pengelolaan Wilayah Pesisir Indonesia, (Jakarta :
Kementerian Perencanaan Pembangunan Nasional Badan Perencanaan Pembangunan NasionalDepartemen Kelautan dan Perikanan-Departemen Hukum dan Hak Asasi Manusia bekerja sama
dengan Mitra Pesisir / Coastal Resources Management Project, 2005),pages.91-92.

Administration Act, the coastal area of capital can exploit the potential natural resources. But
unfortunately, it is sometimes less attention to the exploitation of ecological limits and their
impact on the surrounding environment.38 Given the dynamic coastal areas is a strategic region,
not only as a market but also the social market economy as the cultural dynamic strategic areas.
Coastal areas have the potential for very large land resources for housing, land, production
facilities and transportation services. As a consequence of the dynamics of the coastal areas that
could damage the ecosystem, it needs a system of coastal zone management and coastal
integrated to be able to accommodate all the interests of human and environmental sustainability.
Integrated coastal management is a process of coastal natural resource management and
environmental services that integrate the activities of government, business and society, the
horizontal and vertical planning, terrestrial and marine ecosystems, science and management, so
that the sustainable management of these resources can improve the welfare surrounding
communities.39
Indonesia's marine wealth was abundant apparently not able to create welfare of coastal
communities. The condition is indeed very ironic for it as a maritime nation with all variety of
potential. It should have the rules of proper legislation to optimize natural resources so that it can
become a legal umbrella for the problem- problems in the management of coastal areas. It may
also play a role in strengthening community participation in the management of coastal resources
and ultimately to improve the social, economic and cultural conditions.
In fact, the utilization and management of coastal areas in Indonesia will include a range
of activities including the most crucial areas of fisheries regulations set out in the legislation
sector with each vision and mission. According to a study from the Bill Drafting Team Academic
Management of Coastal Areas and Small Islands there are 14 (fourteen) areas of development
that directly or indirectly make use of coastal resources. To 14 (fourteen) field is the area of land,
mining, industry, transportation, fisheries and conservation of natural resources and the
ecosystem, tourism, agriculture, forestry, conservation, zoning, public works, defense, finance
and regions.40
The international conventions and other legal instruments are generally determined based
on a broad pattern because they are generally negotiated and established just to meet the special
needs arising at a time. Similarly, general or specific and detailed, they are probably not as
38 Dyah Marganingrum, Tinjauan Karakteristik Wilayah Pantai Utara dan Pantai Selatan
Jawa Barat dalam Rangka Pengelolaan Kawasan Pesisir Terpadu,(Pusat Penelitian
Geoteknologi - LIPI) dalam Robert M. Delinom (editor), Sumber Daya Air di Wilayah Pesisir &
Pulau-Pulau Kecil di Indonesia , (Jakarta : LIPI Press, 2007),page.50.
39 Ibid,page.51.
40 Tri Setyawanta R, Op.Cit,page.171.

something that should and can be accepted at the specified time, so that they do not have the
same level in the framework of implementation. Some of these provisions have complete and
detailed enough to be implemented immediately, while others require further development by the
processes and arrangements nationally.41
Since the United Nations Conference on Environment and Development (UNCED) in
1992, various global and regional agreements or international has included the concept of
integrated coastal management (integrated coastal management). The concept has been accepted
as a preferred framework (framework of choice) in various international agreements, including
on coastal and sea, including the following 42:
a. the Framework Convention on Climate Change (FCCC) 1992;
b. the Convention on Biological Diversity (CBD) 1992;
c. the Global Programme of Action for the Protection of the Marine Environment from LandBased Activities (GPA) 1995;
d. the Barbados Programme of Action for the Sustainable Development of Small Island
Developing States 1994; and
e. the International Coral Reef Initiative (ICRI) 1995.
Various agreements have provided an important role for integrated coastal management
through the implementation of agreements on the conversion and sustainable development in
coastal areas. In this case the integrated coastal management (integrated coastal zone
management) has an important role as it aims at the level to achieve sustainable development by
improving social and economic well-being of coastal communities.
In a macro perspective, the management of natural resources is based on the 1945
Constitution Article 33 paragraph (3) extensively under the authority of the central government.
In the legal context of the macro explained that the land, water and natural resources contained
within it are managed by the state and are intended for the welfare of the people. The
implementation of regulations concerning the management of natural resources is indeed for this
still vague that almost all natural resource managements tend to be centralized. Consequently, in

41 Tri Setyawanta R, Perkembangan Pengaturan Pengelolaan Pesisir Terpadu : dalam Lingkup

Regional dan Internasional, (Semarang : Penerbit Ghradika Bhakti Litiga Press, 2005),page.57.
42 Beliana Cicin Sain, Robert W. Knecht and Gregory W. Fisk, Growth and Capacity in
Integrated Coastal Management Since UNCED : An International Perspective, Ocean and
Coastal Management, 1996,page.1.

addition to ignoring the interests of the local community empowerment, it can also have an
impact on a variety of natural resource degradation.43
Analysis of integrated coastal management related to regional development, use conflicts
and the interplay of natural processes with human activities,44 for the existence of building
regulations in the management of coastal areas must be seen in 3 (three) major consideration as
its legal basis:
First, Article 33 paragraph (3) of Constitution of Indonesia Year 1945, stated: "The earth,
water and the natural riches contained therein shall be controlled by the state and used for the
welfare of the people". Based on the mandate of the Constitution State RI In 1945, coastal
management aimed to improve people's welfare and other economic activities, which aim to
empower local communities and expand employment.
Second, MPR Decree No.. IV / MPR / 1999 on the Broad Outlines of State Policy
Guidelines (Guidelines) for the 1999-2004, particularly Chapter IV (Policy Direction) in the H
(Natural Resources and Environment) at number 4, stated that: "Utilizing the resources natural
for the greatest prosperity of the people with respect to preservation of the function and balance
of the environment, sustainable development, economic and cultural interests of local
communities, as well as the spatial effort is regulated by law ".
Third, Act 25 of 2000 on National Development Program (Propenas) Year 2000-2004, in
particular Chapter X (Development of Natural Resources and Environment) in figure 4
(Institutional Setup Program and Law Enforcement Management and Conservation of Natural
Resources Environment), that expressed in one sentence, which reads: "The main activity is (1)
Development Act Natural Resource Management following the rules".
The legal basis of fishing activities previously regulated by Act 9 of 1985 was replaced
by Act No.31 of 2004 on Fisheries, that in light of the Law No.31 of 2004 on Fisheries is not
fully able to anticipate technological developments and legal needs in the management and
utilization of fish resources and it can not answer the problem. Therefore it is necessary to amend
some substance, either in relation to aspects of management, bureaucracy or legal aspects. And
for that, Law No.31 of 2004 on Fisheries is revised by Act 45 of 2009 on the Amendment Act
No.31 of 2004 on Fisheries.
The provisions in force concerning fisheries previously include:45

43 Akhmad Fauzi, Kebijakan Perikanan dan Kelautan : Isu, Sintesis dan Gagasan, (Jakarta :
PT Gramedia Pustaka Utama, 2005),pages 49-50.
44 Tri Setyawanta R, Op.Cit, page.58.

1. The provisions of fisheries in Territoriale Zee en Maritieme Kringen Ordinance (Government

Gazette 442 of 1939);
2. Algemeene regelen visschen naar het voor Parelschelpen, Parelsmoerschelpen, Sea Cucumber
Sponsen binnen en niet meer van de afstand and van de drie Engeischezeemijlen Kusten van
Netherlands Indies (State Gazette Year 1916 No.157);
3. Algemeene Regeling binnen het voor de Vissecherij zeegebied van Netherlands Indies
(Government Gazette 144 of 1927);
4. Algemeene regelen op voor de jacht walvisschen binnen drie van den afstad zeemijlen van de
Kusten van Netherlands Indies (Government Gazette 145 of 1927);
5. Ter Bepalingen Visscherij Bescherming Vischsstand van den (State Gazette Year 1920 396).
Overall rules after 1957 are still in effect until the enactment of Act 9 of 1985 on Fisheries. So it
can be affirmed in this case that although Indonesia has proclaimed Archipelago (archipelagic
state principle) since 1957, setting a new national fishery began in 1985. The main legal basis of
fishing activities is Law No.31 of 2004 on Fisheries, which then updated through Act 45 of 2009
on the Amendment Act No.31 of 2004 on Fisheries. Implementing the provisions of Act 45 of
2009, in the framework of regulation of fishing activities, it does not stand alone, but associated
with other laws such as the 1945 Constitution, Law No. 5 of 1983 on the Indonesian Exclusive
Economic Zone ( ZEEI), Law No.17 of 1985 46on Ratification of the Convention on the Law of
the Sea (Ratification of the United Nations Convention on the Law of the Sea 1982), Law No. 5
of 1990 on Conservation of Natural Resources and Ecosystem, Act 17 of 2008 on Shipping, Law
26 of 2007 on Spatial Planning, Law 4 of 1960, as amended by Law 1996 on Main 6 waters of
Indonesia, Law No. .32 In 2009, the repeal of Law 23 of 1997 on the Protection and
Environmental Management, Law 32 of 2004 on Regional Governance and Law 27 of 2007 on
Management of Coastal Areas and Small Islands .
Fisheries Act does not provide places for fishermen to protect small businesses,
fishermen, laborers and small fish industries. The government, through its legal products has
been providing a wide for large industrial-scale fisheries in order to penetrate the fishery to
fishery resources relating potential for all kinds of fish. Government intervention in the form of
regulatory management and exploitation of fish resources referred to Act 9 of 1985 on Fisheries,
45 Tommy H. Purwaka, Tinjauan dan Analisis Peraturan Perundang-undangan Perikanan
Tangkap, dalam Kementerian Perencanaan Pembangunan Nasional Badan Perencanaan
Pembangunan Nasional-Departemen Kelautan dan Perikanan-Departemen Hukum dan Hak
Asasi Manusia berkerja sama dengan Mitra Pesisir/ Coastal Resources Management Project,
Op.Cit, pages.312-313.
46 Ibid, page.312.

as amended by Act No.31 of 2004, is not able to optimally empower fishermen to tackle the
problem of poverty. In fact what happens is that fishermen are marginalized as mere objects
settings. This in turn affects the level of participation of fishing communities, and will further
reduce the independence and the initiative to self-help. If the regulations are set-oriented for
development purposes in favor of the individual capitalist philosophy, it will remain difficult for
fishermen to break away from the cycle of poverty. There are many examples of difficulties for
fishermen to access the coastal areas. Meanwhile, the owners of capital are given the power to
more freely use resources in the region though the region is closely related coastal ecosystems,
especially marine fisheries.47
Article 6 paragraph 2 of Law No.31 of 2004 on Fisheries states that fisheries
management for the purposes of fishing and aquaculture should consider customary law and / or
local knowledge as well as considering the role of the community. Article is intended for
administrators that in organizing, management and regulation, the existence of local communities
with wisdom still get recognition. This article shows that the existence of indigenous / local is
not seen in isolation from the natural resources / fish in its territory.
For Indigenous people in some places, local knowledge is still preserved at the local
community view of the surrounding nature as something sacred, and it must be maintained in
order not to cause a disaster. In addition there are also the values that teach how humans should
preserve the natural environment such as fishing with a concept that does not damage the
ecosystem and take enough for the necessities of life. Such a society does not exploit nature.
Carrying capacity levels are still higher than the damage caused by human activities because they
see themselves as part of nature. Local wisdom is still alive in some places. For that, the
government in the management of fish resources as stipulated in Article 6 of Law No.31 of 2004,
shall take into account and consider customary law and / or local knowledge as well as
considering the role of the community, for example the Central Maluku impose "Sasi" ie
prohibition to take and exploit fish resources in a given period (3-12 months). Local wisdom in
the example "Sasi" can be interpreted to give the fish to grow and multiply so that fish
populations will not be depleted.
The issue of environmental management ultimately must be considered so that the
Fisheries Act should be aligned with the Act No.32 of 2009 because the protection and
management of the environment are systematic and integrated efforts that are made to preserve
the environment and prevent pollution and / or damage environment including planning,
utilization, control, maintenance, monitoring and enforcement. Government Regulation No.60 of
2007 on Conservation of Fish Resources stating the conservation of fish resources is the
protection, preservation and utilization of fish resources, including ecosystem types and genetics
47 Garuda Wiko, Rekonstruksi Regulasi Pengelolaan dan Pemanfaatan Sumberdaya Kelautan :
Suatu Analisis Socio-Legal terhadap Peraturan Sektor Perikanan di Kalimantan Barat,
(Disertation ; PDIH Undip, 2006),page.2.

to ensure the existence, availability and continuity while maintaining and improving quality and
diversity of fish resources.
The absence of normative regulation that expressly protect small fishermen, fishing
workers and small fish industries through the Fisheries Act is ultimately a phase disregard for the
basic principles in the management of coastal areas and seas in an integrated way. One of the
principles should exist for the integrated coastal zone management achievement and the principle
of management of coastal resources have traditionally cherished48 so on other aspects of
existence Fisheries Act no longer a conformity, harmony, balance by Act 27 of 2007 on the
Management of Coastal and Island- Based Small island sustainability; consistency; integration;
legal certainty; partnerships; equity; public participation; openness; decentralization;
accountability and justice.
This condition becomes worse when the issue of protection against small fishing or
fishermen traditionally associated with implementing the provisions of the Fisheries Act
regulation 5 of 2008 on Business fisheries far from the effort for the traditional fishermen and
coastal communities welfare who depend lives in the sea by moving the populist economic
model that excessive concessions to the owners of capital is not the right ladder for empowering
communities. Through its positive law in particular Article 74 of Regulation 5 of 2008 the
Minister clearly said that the management of fisheries will be conducted in cluster (read:
concessions) with the restriction of the coordinates, fishing areas. This means that fisheries
management will increasingly be limited and small fishermen who generally do not have
permission in the region, will be eliminated, resulting in the seizure of fish resources between
small fishermen and large employers in the coastal region and it will potentially disturb sense of
fishermen justice. This condition is becoming increasingly problematic, considering that security
through surveillance and law enforcement in the sea area is optimized so far not ruled out the
occurrence of over-exploitation of fisheries resources without taking heed of environmental
sustainability, it is becoming disharmony arrangement with Law 32 of 2009 on the management
of fishery resources. Fishery law holds to regulate legal relations among stakeholders in the
fishery resource that exists because of the needs of coastal communities and / or market
demand.49 Stakeholder fishery consists of government, private and public. The government acts
as a facilitator and regulator to provide services to the private and public sectors in order to
48 Rokhmin Dahuri - Jacub Rais-Sapta Putra Ginting-MJ Sitepu, Pengelolaan Sumber Daya
Wilayah Pesisir dan Lautan Secara Terpadu, (Jakarta : Penerbit PT Pradnya Paramita, 2001),
page.171.
49 Tommy H. Purwaka, Tinjauan dan Analisis Peraturan Perundang-undangan Perikanan
Tangkap, dalam Kementerian Perencanaan Pembangunan Nasional Badan Perencanaan
Pembangunan Nasional-Departemen Kelautan dan Perikanan-Departemen Hukum dan Hak
Asasi Manusia berkerja sama dengan Mitra Pesisir/ Coastal Resources Management Project,
Op.Cit, pages.324-325.

exploit fisheries resources in order to fulfill their needs as well as market demand. In this case,
the government fisheries resource management in order to provide for the utilization of fisheries
resources undertaken by the private sector and the community on an ongoing basis, whether
individuals or legal institutions.
As noted above that the development of the marine sector can not be released also from
the meaning of Law 4 of 1960, which was amended by Act 6 of 1996 on Indonesian Waters
conjunction Basic Law No.17 of 1985 Ratification of the United Nations Convention on the Law
of the Sea (UNCLOS) 1982. In the legislation that established the concept of the Archipelago
became the basis for the delineation of national territorial waters of Indonesia. With the
consideration that the geographical form of Indonesia as an archipelago it should be a unified
whole. In accordance with the concept of insight archipelago, the Indonesian territorial waters in
the territorial sea is 12 nautical miles wide the outline is measured from the base line (base line)
that connects the outer base points (base points) of the outer islands in the Indonesian
archipelago. In addition, the Act No.1 of 1973 on the Continental Shelf, established also the
authority to manage the bottom waters along with all the natural resources contained therein to a
depth of 200 meters above sea level. Meanwhile, through Law No. 5 of 1983 on the Indonesian
Exclusive Economic Zone (ZEEI), Indonesia establish its sovereignty to manage EEZ waters and
EEZ waters is a sea lane that borders the sea areas in Indonesia with the outer limit is 200
nautical miles, measured from baselines Indonesian territorial waters. In this EEZ waters,
Indonesia has the exclusive right to conduct exploration and exploitation, and management of
natural conservative resources and non-biological contained therein. But if Indonesia is not able
to use it, then other countries have the right to use it to the threshold of sustainable and permits
granted.
In the field of environmental management of coastal areas, the development of legislation
began to appear after the enactment of Law No.32 of 2009 on the Protection and Management of
the Environment, the law has been repealed by Act No.23 of 1997 on the Fundamentals
Environmental Management, the utilization of environmental resources in a sustainable,
ecosystem maintenance and control of the impact of development on the environment and human
life stipulated in this law. Through this law also, has hinted at the need for an Environmental
Impact Assessment (EIA), which was developed in 1982 through the Government Regulation
No.51 of 1993, environmental impact assessment activities are arranged and given the force of
law. Development in coastal areas and oceans requires an environmental impact assessment as
part of the planning process before construction activities are carried out.
In addition, the presence of Law No. 5 of 1990 on Conservation of Natural Resources and
Ecosystems set in the context of natural resource utilization policies are sustainable in
accordance with Act 32 of 2009. Act stipulates the need conservation of all natural resources and
related ecosystems and the use of environmentally sound. And one should also note, Act 26 of
2007 on Spatial Planning that govern the management of all living land, sea and running air
spaces, including spaces in the earth as a whole region, where humans and other living creatures,

engage and maintain survival. This law is very important in the management of coastal and
marine areas. Their presence will be associated with Act 27 of 2007 on Management of Coastal
Areas and Small Islands and has a variety of natural resource potential is high. It is important for
social development, economics, culture, and environment that it is necessary to manage in a
sustainable and global perspective to take into account the aspirations and community
participation.50

F. Conclusions and Recommendations:

1. Conclusion:
a. Harmonization of law leads an attempt to achieve harmony, conformity, balance of existing
legal norms as the legal system in a single framework of national legal systems. Normative legal
provisions in the management have not been fully able to anticipate technological developments
and the needs of law in the management and utilization of fish resources and have not been able
to answer these problems. So it needs to be a change of some substance, concerning aspects of
management, bureaucracy and legal aspects.
b. Fisheries Acts do not provide places for fishermen to protect small businesses, laborers and
small fish industries. The government, through its legal products has been providing a wide for
large industrial-scale fisheries to penetrate the fishery to fishery resources relating potential for
all kinds of fish. State intervention in the form of regulatory management and exploitation of fish
resources referred to Act 9 of 1985 on Fisheries, as amended by Act No. 31, 2004, has not been
able to optimally empower fishermen to tackle the problem of poverty. In fact, fishermen are still
marginalized and are mere objects settings.
2. Recommendations:
a. There must be a political will by the Government to establish a legal political development of
fishery resource management through an integrated development approach. In this context, the
integration contains a dimension sector, a field of science and ecological relevance, resulting in a
legal setting which is not possible a formation of legislation to overlap invitations, or birth
anomalies arrangements in fisheries;
b. A legislation plan, forming legislation must be based on the ideals of law (Rechtsidee)
Pancasila, because it is a construction of mind which is a direct obligation to the law to the ideals
of the public wants. The law without Rechtsidee will run without meaning. Reflecting the ideal
of law in favor of the interests of the small fishing / fishermen and fishing labor and small fish
industries is to build socio-economic welfare of fishing communities.
50 Rokhmin Dahuri -Jacub Rais-Sapta Putra Ginting-MJ Sitepu, Op.Cit, page.143.

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