Law Enforcement of Fisheries Crime in North Maluku Province through Transcendental Paradigm

Objective: This article aims to discuss the enforcement of customary law in North Maluku, the deliberation value in the BMA Sultanate of Ternate, and the implementation of customary criminal sanctions by the Badan Musyawarah Adat.Methodology: The methodology used in this study was legal research conducted in a non-doctrinal qualitative approach. In this study, the law is not only conceptualized as all the principles and rules that regulate human life in society but also includes institutions and processes that actualize the validity of these rules in society.Findings: Law enforcement of fisheries crimes is based on the provisions of Indonesian Law No. 45 of 2009 concerning Fisheries. Criminal provisions are regulated by Articles 84 to 104. One of them is about sinking the ship used to commit fishing crimes. Sanctions given to the fish theft (illegal fishing) perpetrators in territorial waters that have been determined by the local customary head are 1) warning; (2) monetary charges according to the agreement of the local customary community; and (3) boat (pajeko in Ternate) or motorboat seized by the sultanate to be used by the community through profit sharing.Utility: Customary Institute of Ternate Sultanate in 2018 has decided on three cases in the Kao bay area concerning fish catching. Besides the traditional law enforcement that is implemented by the Sultanate, North Maluku recognizes Sasi Customs (Adat Sasi), which is regulation of tradition that limits people for catching fish or taking other sources in a certain type and particular period. Thus, the ecological balance is still maintained.Novelty/Originality: The concept of transcendental law enforcement is substantially in line with the values in the Segulaha tradition that has been applied for a long time in North Maluku. In Segulaha customary law, there is a traditional element in a person who has the same soul with transcendental values by positioning revelation as the source of the law. Keywords: Law Enforcement, Fisheries Crimes, Transcendental Approach


INTRODUCTION
Indonesia has 6,315,222 km 2 of the territorial waters with an archipelago coastline reaching 99,093 km. The number of Indonesian islands that have been standardized by the National Team on Standardization of Indonesian Geography (Rupabumi) is 13,466 islands.
Besides, the potency of Indonesian fisheries reaches the US $ 31,935,651,400/year. Hence, the existence of abundant natural resources in Indonesia makes the existence and position of Indonesia are strongly strategic. This fact is God's gift for the capital of power, opportunities, as well as a threat to the sustainability of this Nation, especially from the practice of fish plundering. 1 The absence of abundant fish in the oceans of other countries becomes the reason why numerous fishers from abroad come to Indonesia. Overfishing in Indonesia is also caused by a weak regulatory system. The extent of Indonesia's sea is not proportionate with the number of Human Resources tasked with monitoring, managing, and protecting the sea. This condition is certainly very alarming considering that Indonesia has been known as a maritime country. 2 Crime in the Fisheries field basically has a difference with other criminal acts. This difference is in Locus Delicti, which is in the water area that has its classification. Meanwhile, the sea area of a country can be classified into two parts. The first part is sea or waters that become the territory of a country, including inland waters, archipelagic waters, and territorial sea in which the coastal/island country has sovereignty. 3  As an economic crime, it is very alarming, especially with the lack of supervision and law enforcement. Research conducted by Armain Naim showed that among eighteen fishery supervisors or 100% of respondents said that prosecutors' demands were too low and were not comparable to the State losses due to illegal fishing. Therefore, the process of law enforcement on illegal fishing is still not optimal although it is supported by the fishermen who are ready to report if there are irregularities. The readiness of law enforcement officers must respond fish theft with these various modes. High potency of fisheries, huge sea, and diverse other biological wealth will be very wasted if the theft occurs. The police become the Avant-Garde in handling fish theft that occurs in the area. 6 The clarity of authority to conduct an investigation is highly dependent on the Locus Delicti in part of the area where the crime occurs. For example, an institution authorizes to investigate if fishery crime happens in a territorial sea area. Likewise, an institution has the authority to investigate if the offense occurs in the Exclusive Economic Zone. On the other hand, structuring authority for institutions must be conducted by understanding that law 3 Undang-Undang Nomor 6 Tahun 1996 tentang Perairan Indonesia enforcement is a systemic activity. While using the framework that law enforcement is a systemic activity, the structure must be conducted comprehensively. Law, institutional, and cultural enforcement must be organized thoroughly. From the result of this investigation, it is expected that later on, it will be able to uncover the illegal fishing in North Maluku, Indonesia, which is very harmful.

Law enforcement for the fish theft crime in North Maluku
Law enforcement is a series of justice process through law enforcement officials who work based on the authority aiming at having justice based on noble values. Law enforcement can also be an effort of legal justice values that are emitted to all those who want justice.
According to the interview result that was conducted by researchers in the field with the villagers in Posi-Posi Rao Village, Morotai Island District, there was arrest performed by the navy on foreign fishing ships. It began with a fisherman report in which the fishermen had repeatedly passed foreign fishing ships when the ship did illegal fishing in Indonesian territory, especially on Morotai Island, North Maluku Province, Indonesia.
The report from Om Ade was confirmed by the Antarctic Marine Natural Resources Conservation Commission that RFMO for the Antarctic region recorded 3 (three) Transnational companies conducting Illegal Fishing in Indonesian territory. The 3 (three) Transnational companies were Hai Fa, Pusaka Punjana, and FV Viking. Several ships' crews from the three companies were from China, even the ship's crews of Pusaka Punjana were from Panama. Moreover, the existence of a foreign ship is one of the problems in North Maluku, Indonesia. A survey that was conducted by researchers on fifty-one respondents showed that forty-seven respondents witnessed foreign ships that did fishing activities in the North Maluku water area. Meanwhile, the other four respondents did not know anything. From the data above, researchers concluded that the arrival of public ships in the North Maluku water area has become a common perception and a common issue. Although in the same respondents, the researchers found that forty-seven respondents acted against foreign ships, and four respondents did not know anything. In other words, the presence of foreign ships in the North Maluku waters area was a sign of weak sovereignty and weak law enforcement.

RESEARCH METHOD
This research was based on legal research, which conducted in a non-doctrinal qualitative approach. It is because, in this research, the law is not only conceptualized as a whole the principles and rules that regulate human life in society but also includes institutions and processes that actualize the validity of these rules in society.

Research location
This research was conducted in the waters area of North Maluku Province, North Halmahera District, Central Halmahera District, and South Halmahera District, Indonesia.

RESULTS & DISCUSSION
As an area with great marine natural resources, Indonesia cannot be free from various threats. One of them is fishing crime or illegal fishing activity. Illegal fishing practices, which are internationally known as Illegal, Unreported, and Unregulated (IUU), are categorized in a phenomenon that threatens marine fish resources and their environment. Therefore, the Food and Agriculture Organization (FAO), as a world food agency, formulates a reference concerning the orderly, responsible, and sustainable management and development of fisheries that can be applied by countries in the world.  Meanwhile, in solving the dispute, Sultan is assisted by Bobato (minister). There are two types of Bobato. The first is Bobato who handles worldly matters (worldly Bobato). The second is Bobato who handles religious matters or sharia court (spiritual Bobato). This institution is led by a judge (Qadhi).
Worldly Bobato means the part that regulated matters of interests and worldly arrangements, including Ngaruha commission that is given a specific task as an executive institution, and Capita commission that is a government agency in the military field. Meanwhile, spiritual Bobato is the institution that regulates the implementation of Islamic matters. It In regulating life principles at sea, Ternate Customary Conference Agency complies with the policy of Haopo Fopa Mataipasi Moro Moro Matakubise, which is a theorem regulating life orders for the people to manage the sea. Hence, in addition to regulating legal procedures of the sea, it also regulates the procedures on how ships cross or lean on the harbor. From this principle, then, Ngase is applied, which is a kind of tax for a boat from the outside area that leaned.

Deliberation values in the BMA of Ternate Sultanate
One of the problems in law enforcement from positive law is the lack of justice meaning and the non-opening from law enforcers against values in society. Lastuti Abubakar said that customary law institutions are currently alternative legal institutions, which are essential to be used as a basis or source informing national law. 10 This strategic role is crucial because customary law institutions have a substantive approach to law enforcement. A functional approach is formed in deliberation form, which is a fundamental communication pattern of various indigenous people in resolving every dispute.
In deliberations, the final decision is determined together by consensus. Thus, each party to the disagreement becomes equally unaffected and receives justice as expected.
Deliberation becomes the main characteristic in solving customary violations in the BMA of Ternate. Therefore, those who violate customary law are confronted with the BMA to agree on what type of violation is and how the settlement is. After being approved by the Sultan of Ternate, the customary verdict will be applied. However, the customary fisheries and maritime laws of the Sultanate of Ternate is not written, but it is in verbal. It is known as "Dola Bololo" or messages that contain fisheries and marine laws, which is stated by Jo'ou Kolano Sultan of Ternate. The messages are applied by Institution of Indigenous Peoples in the Sultanate of Ternate, Indonesia.
Dola Bololo (Dorobololo) is an expression that is consisted of two stanzas, which are someone's statement of feelings and opinions in satire and imagery side. It means a characteristic of someone's insight into society to convey his feelings and opinions through proverbs toward someone or his friend. Hence, his friend can understand and respond to the intentions and will not feel offended by the satirical language used. Communicating by using Dola Balolo language is more memorable, having polite language, indirect insinuations, and it is easily understood what and how someone's intentions and opinions are. Dola Balolo is conveyed mostly through conversations between two or more people, wherever the place and whenever the time if they are meeting, especially in giving advice and lectures. The example of Dola Balolo (Dorobololo) is as follows:

Fala to mataka-taka Dego-dego to ruraka
The house that I am not ordinary makes me embarrassed to occupy the chair

Ha ufo ma taipasi Moro-moro fo maku ise
Fishing in a different place, the cheerful sound is heard one another

Sagadi no ngolo-ngolo Bara lou maginyau
Scattering in a unanimous effort with ancestral advice Dara to lefo mapila Soro gudu to nonako I cut pigeons' wings. if they fly far away, I will recognize them Loleo igo ma ake Kore koa yo i dahe Moro are about the nature of human life, which each individual in society is required to be able to place themselves in society and be able to create an atmosphere of diversity that can create bonds between fellow humans in family relations to a bigger group or society. However, it is never to be in an uncertain situation that leads to an unclear direction. Conveying Moro Theorem is usually through conversation, especially among parents, but it is now rarely done.
The deliberation concept is implemented based on the customary principle of "ale rasa beta rasa" through the Pela Gandong culture (sibling). Pela means brotherhood between one person and another and between others. There are three types of Pela. They are Pela Karas (Hard), Pela Gandong (sibling) or Bongso (Youngest), and Pela Tampa Siri (Place of Betel leaf). Pela Karas is a vow that is pledged between two areas (villages) or more due to a very crucial event. It generally relates to warfare, such as sacrifice, the end of the uncertain war (no one wins or defeats a war), or there is special help from one country to another country. Pela Gandong or Bongso is based on blood ties or descendants to maintain relations between family relatives who are in different countries or islands. Meanwhile, Pela Tampa Siri is held after an event that is not very vital, such as reconciling after a small incident or when one country has served to another country. This type of pela is also usually determined to promote trading relations. 11 Also, there are customary values that uphold fraternity, which are: 1) Hatu molo upai miki (teaching people to be fair and be considerate in relationships).
2) Hawa-hatopo luna nanaho waymaynyi ehe ula maa' tune (life may not be selfish and must pay more attention to the others around).

The Implementation of Customary Criminal Sanctions by Customary Deliberation Agency
In the fishery context of the Sultanate maritime law that is acceptable in Maluku, according to Ridwan Dero in the Sultanate law, fish-catching is only prohibited in places where other people are doing fish catching in the same place. According to Ofa Hidayat Syah, Sultanate acts as a Customary Deliberation Agency that has right in three territorial waters.
They are Ngolosahe Right, Ngolongido Right, and Ngololamo Right.
As we know, Ngololamo is a deep-sea in which the sun cannot shine its bottom.
Meanwhile, Ngolongido right is still in the ocean that is still visible in the bottom. Ngolosahe right is coast in the coastal area. From the territorial division of this sultan's authority law, other rules develop more, such as the law in regulating fish theft, the ship parking in the Ternate District area, and the rights to cross Ternate sultanate territory for lasing ships. 12 According to Ofa, activities in the Ternate sultanate waters such as crossing the territory or other activities must be conducted by Syahbandar's permission from the port that is owned by the Ternate kingdom. If there is no permission from the Syahbandar, it means violating the customary law of the Ternate kingdom and must be submitted to the authorized legal entity, which is Sangadji law and the common law, for being adjudicated and sanctioned.
Every violation in the Ternate waters area, firstly, will be conducted court trial of a breach by Syahbandar, which are attended by Panira, Capita, Mahimo, and Ser ah. After this decision is settled, it will be submitted to Ngaruha Commission. It will be decided in a binding manner by Sangadji law and social law that is Attorney General (Interview with Ofa Hidayat Syah, 2019). As a legal institution, Sangadji law and social law have double functions. They are as a prosecutor and, at the same time, Sangadji and social law, also have the authority to examine, adjudicate, and decide a case.
It also must be considered based on taste, bobasoh sara sai. Thus, every decision from either Sangadji Law or Social Law may not be arbitrary. 13 According to sanction in Sultanate that has been determined by the local customary head to fish theft perpetrators in waters area, it can be in the form of (1) warning; (2) monetary charges following the agreement from local indigenous people; and (3) boats (pajeko in Ternate language) or fishing motorboats are confiscated by the sultanate to be used by the community through profit sharing.
Furthermore, this research showed that thirty-nine respondents agreed with the Sultanate rules, which stated that ships from foreign countries should be confiscated and used for local fishers. Meanwhile, eight respondents did not agree with the customary laws, and four respondents had other suggestions. M. Alief Zidane stated that ships that are confiscated could be privately owned by individuals, not be leased through the Sultanate.

CONCLUSION
Substantially, the norm that was applied is the Sasi norm of a rule, such as recommendations and prohibitions in the production process. The sanction that is given to fish theft perpetrators in waters area that has been determined by the customary local head is in the form of (1) warning; (2) monetary charges following the agreement from local indigenous people; and (3) boats (pajeko in Ternate language) or fishing motorboats are confiscated by the sultanate to be used by the community through profit sharing. Culturally, legal norms of customary law norms are still recognized by Ternate people although it is limited in a certain budget. North Maluku recognizes Sasi Customs, which is a customary regulation that limits people to catch fish or take other resources in certain types and a particular period. Thus, the ecological balance is still maintained.
Weak Law Enforcement and susceptible Corruption, collusion, and nepotism indicated that law enforcer does not have a political will and a broad view concerning ecology and natural balance. The corruptive attitude is a part of weak spiritual awareness. Hence, it needs an approach that accommodated religious values and has God-oriented (Transcendental).
Transcendental law enforcement concept is substantially in line with the values in Segulaha customs, which has been applied since a long time ago in North Maluku. In Segulaha customary law, there is a traditional element in a person who has the same soul with transcendental values by positioning revelation as the source of law. Finally, from the culture, it is reflected in dorobololo and Moro Theorem. Moreover, Ternate customary law still has support. It generates good relationships with the community while the part of the community's desire is achieving prosperity together.