Abstract
The article discusses the Indonesian Waters Act (No. 17 of 1985) and its use in the context of criminal acts in the Malacca Strait. According to Indonesia’s Maritime Security Agency, more than 9,000 vessels passed through the Malacca Strait during March 2016. This level of traffic is often a magnet for those intending to engage in crimes. The article concludes that, having ratified the UNCLOS Convention in 1982, it is essential to create a specific body with authority over the Indonesian Malacca Strait and to renew the laws on the continental borderline at Malacca Strait with the other littoral States in the interests of crime prevention.
Keywords
The Malacca Strait is a long and narrow waterway and shared border of four littoral States: Indonesia, Malaysia, Singapore and Thailand. The strait is positioned as a “life line” between west and east, north and south, and a critical connection for those engaged in Asian and European economic activities. It is therefore one of the busiest in the world (second after the Hormuz Strait which is an international trade route with heavy tanker traffic). Based on radar monitoring, Indonesia’s Maritime Security Agency (known as “BAKAMLA”) reported that 3,519 cargo ships, 1,877 tankers, and 4,000 other vessels passed through the Malacca Strait in March 2016. With a width of 1.5 km at its narrowest point and a depth of only 1.8 km, this level of traffic alone is problematic in the Strait.
Such a high level of traffic often causes problems from various aspects that threaten the security/safety of passing vessels. In particular, it is thought to attract those bent on committing transnational crimes, such as maritime piracy, illegal fuel siphoning, violations of the Outer Continental Shelf Lands Act, the smuggling of bales of second-hand clothes, illegal fishing, marine pollution, drug trafficking, timber smuggling, terrorism etc. In light of the large number of crimes and the fact that the strait is bordered by four States, a key legal question arises: Who is responsible for security issues? Indonesia has assumed a very important role in law enforcement in the Strait of Malacca, but this is also the responsibility of the other three littoral States as stipulated in Article 3 of the UN Convention on the Law of the Sea (UNCLOS).
Elements of criminal acts. Source: Ediwarman, 2014.
The following is a brief description of the basic legal principles and rights relating to this article.
Each country has the right to set its outer continental shelf lands to a limit not exceeding 12 nautical miles from the baseline by the provisions of UNCLOS. Based on the principle that each country is obliged to maintain world order via its laws, Indonesian criminal law holds, for example, that a person can be held responsible under any law that already existed at the time of his action; that every person, Indonesian and foreigner, who has committed a crime within the territory of the Republic of Indonesia is bound by Indonesian law; and that criminal law applies everywhere and to anyone if certain national interests are violated, (for example, if criminal action affects the security of the State and its islands). This principle seems clearly relevant to crimes committed in the Strait of Malacca but outside of Indonesia’s 12-mile boundary line.
According to Simons in his book Strafbaar feit cited by Lamintang (1997), in jurisprudence, a “criminal act” is “an act that against the law intentionally by someone can be held accountable for its acts and by Law – An act that can be punished”.
Kanter and Sianturi (2002) list five elements to any criminal act, namely: the offender, the violation, an act, the illegality of the act (i.e., that it is prohibited and sanctioned by criminal law), and the circumstances (including time and place).
Similarly, a theory of criminal law proposed by Schaffmeister and Keijzer is illustrated in the scheme below.
Liability for a criminal act can be found for formal violations (where the crime focuses on acts) or material ones (where the crime focuses on consequences). In both, the mental element is also important. The Hoge Raad (Supreme Court of the Netherlands) has held that a failure to act may be considered a criminal act, where that failure causes or threatens harm to individual or public interests. If all of the relevant elements can be proven then the accused can be convicted.
Criminal liability is thus a combination of action, intention and fault. The circumstances of that act are also taken into account, and can occasionally be decisive. An attempt alone would be a criminal act, based on action, intent and fault, even if the action was unsuccessful. In light of the person’s actions and intent, that perpetrator must take responsibility, and, if proven, the attempt will be sentenced according to the Article violated.
The study of criminology as a science involves the consideration of facts, causal factors and efforts that must be made in overcoming them (Saherodji, 1980).
Discussion
Legal Rules Governing Criminal Acts in the Strait of Malacca
Overview
UNCLOS was adopted in Montego Bay on 10 December 1982. Indonesia enacted its Act on Indonesian Waters (now known as Law No. 17 of 1985) on 30 April 1982. Criminal acts in the Malacca Strait region are subject to UNCLOS Article 3, which emphasises the right to safeguard peace between countries. This provision is binding on each State that has ratified UNCLOS, and applies to every State-owned ship that crosses the sea beyond national jurisdiction – that is, beyond the extent of each country’s territorial sea (to a limit not exceeding 12 nautical miles measured from the baseline specified in UNCLOS Article 3).
UNCLOS provisions apply to all criminal acts that occur outside the 12-mile territorial sea and that do not occur on or involve a country’s recognised continental shelf, unless committed by a person or persons that are citizens of the country asserting the law. In the latter circumstances, the provisions of each country’s criminal law will apply. The actions of Indonesian citizens are regulated by the provisions stipulated in Law No. 1 of 1946 (concerning the Criminal Code) – regarding shipping crimes, specifically by Articles 438–479, while fisheries crimes are regulated in Articles 84–105 of Law No. 45 of 2009 amending Law No. 31 of 2004. In addition, many other provisions of criminal law are applicable in Indonesia to persons, both foreigners and Indonesians, who commit crimes in the territory of Indonesia. Outside of Indonesia’s territorial seas and continental shelf, Indonesian citizens who commit crimes are subject to the criminal provisions in Indonesian legislation that has been established for every person who commits a crime outside Indonesia (Suarda, 2012).
Common Crimes in the Strait of Malacca
The following are among the types of crimes that often occur in the Strait of Malacca: Violations of the Outer Continental Shelf Lands Acts: Outer continental shelf lands designations have been agreed by coastal countries such as Indonesia, Malaysia, Thailand and Singapore, but any ships passing through the Malacca Strait should respect the environmental security of the area, by adhering, for example, to the relevant States’ clean water acts. Indonesia had not declared its continental shelf lands during the 73 years of its independence until a filing in 2019. This fact may have a significant impact on the relationship between Indonesia, Malaysia, Thailand and Singapore if it is not resolved in some crucial areas, because the four littoral States are not only related by maritime issues but also economic values such as fisheries and natural resources. For example, in 2011, Indonesia and Malaysia were involved in an outer continental shelf lands conflict. On 7 April of that year, BAKAMLA arrested two Malaysian-flagged ships for entering Indonesian waters without permission. The Malaysian Foreign Ministry sent a protest note to the Indonesian government, stating that they considered that the Indonesian security forces had entered Malaysian waters (Mentari, 2018). In 2015, a Myanmar citizen in a Malaysian-flagged vessel was charged with illegal fishing in Indonesia’s exclusive economic zone (EEZ) in the Strait of Malacca. After the arrest, documents were found on board issued by the Malaysian government, which was not authorised to permit fishing in Indonesian waters. The perpetrators were punished according to Indonesian law. Given its geographical importance and the economic value of traffic through the Strait of Malacca, there are always threats to security relating to crimes listed below. To address them, the four littoral States will need to collaborate in a very significant way. Smuggling second-hand clothes: Smuggling bales of second-hand clothes (sometimes referred to as “ball-pressed smugglng”) is mostly carried out by Indonesian citizens who are moving the clothing as contraband from Malaysia into Tanjung Balai (in Sumatra province, Indonesia). Numerous perpetrators have been arrested by the Indonesian Navy and handed over to Tanjung Balai Customs for judicial process. Illegal fishing: In addition to examples mentioned above, in 2012, a Myanmar citizen was caught fishing from a Malaysian-flagged vessel captured by BAKAMLA in the Indonesian EEZ. That violator is now undergoing a judicial process in the Medan High Court. Maritime piracy: A relatively recent example of maritime piracy in the Strait occurred on 26 December 2016. During heavy weather, six perpetrators were captured by LANTAMAL (Naval base) IV Riau Kepri attempting to hijack ships (Fadli, 2016). Another example occurred in February 2018, about three miles from South Perasi Island. Allegedly using black magic, the perpetrators climbed barges using ropes and hooks, then took the machinists hostage. Four perpetrators were arrested and evidence confiscated included two portable engine boats, portable propellers and four machetes. Illegal fuel siphoning: One example of illegal fuel siphoning in the Strait of Malacca involved the crew of a Singapore-flagged tanker, who allegedly siphoned 2,900 tons of crude oil from a vessel they then abandoned in the waters north of Rupat Island, Bengkalis Regency. Drug trafficking: In one drug trafficking case in the Strait of Malacca, two Indonesian citizens in their twenties crossed the Malacca Strait to Aceh carrying 7 kg of crystal meth and 300 ecstasy pills. They were both arrested in East Aceh. Marine pollution: A large number of cross-traffic vessels are discharging waste into the sea in the Strait of Malacca. This is very detrimental to the fishermen. In addition, oil spills in the Strait occurring on 8 February 2017 caused pollution that had a long-term impact on the ecosystem. Human trafficking and slavery: According to a captain from Myanmar, human trafficking involves the sale of victims for 150 Ringgit, after which they work on the ship as sex workers for eight months. Once their “contract” is completed, they are returned to their home country. Terrorism: Armed terrorists appear to be able to move through the Strait of Malacca.
A Criminology Perspective Regarding Criminal Acts in the Malacca Strait
Causes of Criminal Acts in the Strait
There are many factors that contribute to criminal acts in the Indonesian continental shelf lands in the Strait of Malacca. BAKAMLA, for example, cites lack of support from stakeholder agencies. Several stakeholders hold the view that BAKAMLA’s authority is only based on presidential regulations, whereas a credible maritime security agency should be subject to the law. Formerly, Indonesia addressed these issues using a “multi-agent system”, in which institutions worked jointly to solve the same problem. These institutions each had their own respective legal bases for their function as law enforcers in the sea. Their activities were not integrated – security and law enforcement could not run optimally because each of these ministries had different policies, facilities and human resources resulting in overlapping authority. This has become a trigger for changes in the institutional system from a multi-system to a single system, which is a system that uses one institution to carry out defence and security activities. As a result, BAKAMLA has, as yet, been ineffective in its efforts to carry out its role and function.
In general, from a criminology perspective, there are three major contributing causes of criminal acts in the Strait of Malacca. First among these are infringements of Indonesia’s rights with regard to its continental shelf. Beyond this, few laws or regulations have been put in place, and those that exist have weak standards and are backed only by a weak law enforcement system.
Initiatives Needed to Combat Criminal Acts in the Malacca Strait
In the context of law enforcement against crimes in the Strait of Malacca, there need to be comprehensive improvements to the system, especially: Improved legal structure, legal substance and legal culture for the countries of Indonesia, Malaysia, Thailand and Singapore, so that law enforcement can be coordinated using marine patrol aircraft defence equipment owned by the four countries to help prevent crime in the Strait of Malacca. Review of the continental shelf lands of the four littoral States, as the first step in resolving relevant conflicts, particularly between Indonesia and Malaysia. The revision of Indonesia’s EEZ, in accordance with Article 74 of UNCLOS, to be fair to all four littoral States and to make it clear how each country will adhere to the mutually agreed rules in supervising cross-traffic vessels in the Strait of Malacca. In addition, each ship passing through the Strait could be subject to a levy, which could be used to improve the environment for each coastal country.
Policy Regarding Crimes Committed in the Malacca Strait
According to Sudarto, criminal policy can be subject to the following interpretations (narrowest to broadest): It describes the principles and methods used as the basis to react to violations of criminal law. It embodies the overall function of law enforcement officials, including the workings of the court and the police. It is the overall policy, which is implemented based on legislation and official bodies that aim to enforce basic norms of society.
Based on the definition of criminal policy above, criminal acts in the Strait of Malacca can be overcome through a combination of penal and non-penal policies: Penal policy: For those criminals who violate the Continental Shelf Lands Acts and those who commit crimes in the Malacca Strait, sanctions should be imposed, including fines to be paid to coastal countries. For example, a person with Myanmar nationality that owns and operates fishing vessels in Indonesia’s EEZ without the necessary fishing licence would have violated Article 93(2) of Law No. 45 of 2009, as well as Law No. 3 of 2004 concerning Fisheries. In such a case, the violator could be fined IDR 2,000,000,000 (two billion rupiah) and sentenced to eight months in prison. Non-penal policy: As a “non-penal policy”, in addition to these penalties, the perpetrator would also be ordered to pay compensation to the victim (i.e., the person aggrieved due to the perpetrator’s acts) and fines to the State.
Conclusions
The criminological perspective on criminal acts in the Strait of Malacca can be summarised as follows: The legal regulations that apply to criminal perpetrators in the Strait of Malacca are referred to in Law No. 17 of 1985 concerning the Ratification of the United Nations Convention on the Law of the Sea (UNCLOS 1982) concerning the Law of the Sea; Law No. 1 of 1946 concerning the Criminal Code; and Law No. 45 of 2009 amending Law No. 31 of 2004 concerning Fisheries and laws other than the Criminal Code (Direktori Putusan Mahkamah Agung RI, 2016). Efforts are needed to combat the following causes that have enabled criminal acts in the Strait of Malacca: Lack of clarity to address violation of Indonesia’s continental shelf lands; Few and weak standards of law; and Poor law enforcement system. Initiatives to combat criminal acts in the Strait of Malacca. It is necessary to make comprehensive improvements to both Indonesia’s legal system and those of the other three littoral States (Malaysia, Thailand and Singapore); and There needs to be a review of the continental shelf lands of the four littoral States since the 1982 adoption of UNCLOS. Criminal acts in the Strait of Malacca can be dealt with using penal and non-penal policies (a combination of penalties and compensation to victims).