- Wayne Palmer. 2012. Discretion in the Trafficking-Like Practices of the Indonesian State. In Labour Migration and Human Trafficking in Southeast Asia: Critical Perspectives, edited by M. Ford, L. Lyons and W. van Schendel (eds). London: Routledge, pp.149-166.
Observers of Indonesia’s formal labour export program claim that trafficking-like practices occur at each stage of the migration process. Many reports single out the actions of recruitment agents for particular attention. For example, the US Trafficking in Persons (TIP) Report states that Indonesia’s licensed recruitment agents operate ‘similarly to trafficking rings,’ noting that they ‘routinely falsif[y] birth dates, including for children, in order to apply for passports and migrant worker documents.’ The United States government (2009: 159) also criticises the fact that these agents keep female recruits in ‘holding centres sometimes for periods of many months,’ during which time they are not free to leave. Agents also allow women to finance migration through wage deductions after they have been deployed, a practice which the report argues creates situations of debt-bondage and forced labour in the countries where they work. Not all of these practices contravene Indonesian law: indeed, post-deployment payment of recruitment fees and the use of holding centres are sanctioned by the state. However, refusing recruits the right to leave those facilities and falsifying their personal data are clearly illegal. Yet public officials responsible for monitoring the program do not always refer evidence of illegality to law enforcement officers, choosing instead to ignore it.
The fact that the Government of Indonesia tolerates illegal behaviour by recruitment agents presents an interesting case for observers seeking to understand the role states can play in addressing human trafficking. Accusations of state-sanctioned trafficking draw attention to the relationship between the state and illegality. ‘While the state does not always conspire with crime, it is intriguing to inquire after the conditions under which governments and illegal practices enjoy some variety of symbiosis’ (Heyman and Smart 1999: 1). In the context of Indonesia’s labour migration program, the state tolerates illegality that helps to meet formal objectives: documenting migrant workers and maximising deployments. Close attention to bureaucratic processes reveal that corruption is clearly a factor that persuades officials to ignore illegality. At the same time, they might do so because of discretion. The ‘appropriate and legitimate exercise of discretion’ is essential for achieving ‘good government’ in the view of Scott (1997: 36) which resonates with claims about how it allows the state to adapt to developments in ways that rigid rules and the strict enforcement of laws do not (Tremblay 1993: 329). ‘We all live, as we all know, in an administrative state’ in which modern legislation allows public officials to ‘translate the legislature’s directives into rules’ in a process commonly referred to as policy formation (Rubin 1989: 369, 391), whereby those officials define the boundaries of acceptable behaviour.
This chapter examines the complex relationship between discretion and illegality through the study of an Indonesian Labour Attaché’s micro-practices that involve migrant workers and ‘victims of trafficking.’[i] Labour Attachés are one of few public officials responsible for enforcing labour recruitment and anti-trafficking laws overseas. They have limited access to home state mechanisms for dealing with illegality, operating as they do within the borders of another country. Of equal importance is that their responses are partly guided by the priorities of the Ministry of Manpower, the institution to which they belong in Indonesia. As a result, Labour Attachés in some locations are engaged in complex turf wars with colleagues from other state institutions, particularly the Ministry of Foreign Affairs, adding an extra layer of complexity to an already complicated environment for making decisions about how to best regulate the state migration program. These factors have partly motivated Labour Attachés to shun the anti-trafficking framework when dealing with evidence of illegality which makes up part of citizens’ migration process for overseas work. An account of how Indonesia came to have anti-trafficking legislation, and how it has been operationalized by various parts of the state in relation to migrant workers is necessary in order to better understand why this is so.
INDONESIA’S ANTI-TRAFFICKING LAW AND THE PROCESS OF LEGISLATION
Indonesia passed Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons (Pemberantasan Tindak Pidana Perdagangan Orang) to ‘provide a substantive and legal foundation on which to prosecute trafficking’ as it is understood by international law (IOM 2009b: 17-18). Prior to 2007, only the trade in women and male minors was punishable under the Indonesian Penal Code (Kitab Undang-Undang Hukum Pidana, book 2, chapter 14, article 297), a condition which is symptomatic of a wider trend in Southeast Asia where anti-trafficking activities tend to focus on women, children and sex workers (Piper 2005). However, victims of trafficking can ‘include all people in vulnerable positions, including adult men’ according to international understandings (IOM 2009b: 17). Citing such inadequacies, lawmakers in the People’s Representative Council (Dewan Perwakilan Rakyat) argued for the state to seriously consider developing a more comprehensive definition of the crime. The fact that Indonesia is signatory to the UN Trafficking Protocol was used as legal grounds on which to compel the state to do so. Indonesia was said to have an obligation to ratify the provisions into national law (Government of Indonesia 2005b). Analysis of official documents gives the impression that internal agitators sought to close gaps in the law which had allowed international understandings of trafficking to go unpunished in an attempt to meet these obligations.
But the drive to seriously develop a new framework came in response to external pressure. Indonesia was placed on Tier 3 of the TIP rankings in 2001 and 2002 for not complying with the minimum standards of the UN Protocol (Government of the United States 2001, 2002). Tier 3 countries are subject to sanctions such as the ‘termination of non-humanitarian aid and US opposition to assistance from international financial institutions’ (Lyons and Ford 2010: 255; see also Lindquist and Piper 2007: 146-147). Lawmakers swiftly passed Law No. 23/2002 on the Protection of Children in response, and the President issued Decree No. 88/2002 on the National Plan to Eradicate Trafficking in Women and Children (Government of Indonesia 2006b: 323). The report promoted Indonesia to Tier 2 for the ‘significant effort’ to comply (Government of the United States 2003: 82). Indonesia maintained this position in two consecutive evaluations but was demoted to the Tier 2 Watch List in 2006 for failing ‘to provide evidence of increasing efforts to combat trafficking’ (Government of the United States 2004, 2005, 2006b: 140). Chair of the People’s Representative Council reacted by requesting that the President ‘immediately’ appoint a minister to represent the cabinet in efforts to formulate an anti-trafficking law (Government of Indonesia 2006c). The bill was ready for the President to sign into law in time for it to be recorded in the 2007 TIP report, in which the US State Department acknowledged a ‘significant effort’ to comply and so removed Indonesia from the Watch List (Government of the United States 2007).
The US State Department’s decision to apply pressure on Indonesia in 2006 was partly in protest of the fact that lawmakers were dragging their heels on efforts to pass a ‘much-needed anti-trafficking law that [had] been under consideration for three years’ (Government of the United States 2006b: 140). The process began in 2002 as part of the National Plan of Action for the Eradication of Trafficking in Women and Children (Government of the United States 2006a: 6), but it was not taken over by parliament until 2005. The bill was ranked thirty-fourth on the 2005–2009 five-year National Legislation Program and was raised to twenty-second on the 2005 agenda in recognition of its relative importance compared to other bills. But formal deliberations on the draft did not commence for another year. The delay was the result of a turf war in the parliament’s committee structure. The General Assembly had initially assigned responsibility for working on the bill to Commission III, which specialises in law, human rights, and security, in recognition of the fact that trafficking should be a crime, and that it can have transnational dimensions. Commission VIII, which deals with religion, welfare and women’s empowerment, formally protested claiming that the anti-trafficking bill fell squarely within its jurisdiction because of the widely accepted assumption that victims are generally socio-economically disadvantaged women. The resolution resulted in the formation of a Special Committee (panitia khusus) made up of members from both commissions in December 2005. As a further result, the formulation process only started at the beginning of 2006.
An anti-trafficking bill was registered with the People’s Representative Council as early as July 2005. Despite claims to authorship by lawmakers in Commission VIII who registered the draft as an initiative of their own (Government of Indonesia 2005b), the bill originated from outside parliament. It was authored by officials in the Ministry of Women’s Empowerment and the Protection of Children in close cooperation with the International Organization for Migration (IOM). Ministry and IOM staff then worked together with civil society groups such as the Pro-Women National Legislation Program Network to bring the anti-trafficking bill to the attention of the legislature and were able to garner the necessary support of lawmakers in Commission VIII because of their interest in women’s issues. Alternatively, the Ministry could have submitted the bill to parliament directly, but to do so would have required a cover letter from the President. Obtaining such a letter is not always a simple process partly because ministerial priorities do not always coincide with those of the Presidential Office. So the Ministry agreed that lawmakers in Commission VIII should claim authorship of the draft to expedite the process, using what bureaucrats refer to as the ‘back door’ to get bills tabled. Mietzner (2008: 246) notes that senior bureaucrats also make payments to lawmakers to ‘avoid long-winded negotiations with parliament.’ Whatever the strategy, the ‘back door’ can benefit all involved. Lawmakers in this case received praise for taking initiative, thereby helping to raise their public profiles, and the Ministry was able to ensure that the formal drafting process at least started with a preferred definition of trafficking.
IOM’s collaboration with the Ministry was part of a wider agenda at the time to get governments in Southeast Asia to adopt anti-trafficking legislation. But the institution has not always been able to achieve policy objectives in Indonesia through direct negotiations with the bureaucracy. The powers that be in Indonesia have resisted efforts by IOM to even enlist the state as a member despite claims by staff that membership would make it easier to justify expenditures of the Jakarta Office to donors. As a compromise, IOM signs cooperation agreements that recognize a limited mandate for the organization to operate in Indonesian territory (Government of Indonesia 2005c: point 195). Indonesian officials who participated in the internal discussion hosted by the State Secretariat claim that the state decided against membership because of the cost, at which an IOM employee privately expressed astonishment because some current members’ dues only amount to a couple of hundred US dollars per annum. IOM staff are more inclined to believe that the resistance of the state was partly in protest of the organization’s reintegration activities concerning Free Aceh Movement fighters, which, although sanctioned by a cooperation agreement, were deemed to be partisan rather than neutral. But a former Ministry of Manpower employee and now senior official in the National Board for the Placement and Protection of Overseas Indonesian Workers claims that decision-makers at the time were concerned that IOM’s understanding of trafficking could in theory be applied to the processes of the state migration program. But although the ‘front door’ was shut because of decision-makers’ concerns, IOM was able to participate in the process for creating anti-trafficking legislation via the ‘back door.’
The bill defined trafficking as a process which can end in exploitation. This part of the definition was retained in the version passed into law, although in a slightly modified form.[ii] As a result, practices that ‘cause’ individuals to become exploited may be treated as trafficking in Indonesia (Law 21/2007, article 1). The understanding is partly a result of IOM’s involvement in the drafting process. IOM is of the view that ‘no person in the world would acquiesce to being exploited,’ so anyone who is exploited must have been coerced at some point (IOM 2009b: 26). The same concern underpins the US State Department’s understanding of labour trafficking, which it deems to be a form of forced labour extracted by employers who take ‘advantage of gaps in law enforcement to exploit vulnerable workers’ (Government of the United States 2007: 18). These approaches to trafficking are expansions of the UN Protocol which interprets the crime more narrowly, that is that there must be evidence that the process was carried out ‘for the purpose of exploitation’ before victimhood can be established (article 3a). But critics like IOM and the US State Department argue that the UN definition leaves uncovered a grey area, where there are processes that end in exploitation, but in which coercion is not always identifiable. Informal interactions with – and indirect pressure by – these two institutions in Indonesia helped to solve this issue by getting the state to legislate trafficking as exploitation.
HOW THE STATE SEES TRAFFICKING WITHIN INDONESIA
The Ministry of Women’s Empowerment shares this understanding of trafficking and was thus only too happy to collaborate in drafting the bill. The Ministry’s focus on exploitation is partly the product of a core institutional principle which identifies all women as highly susceptible to abuse (Government of Indonesia 2009b). In its view, women face a higher risk of falling into abusive situations because they occupy weak positions in society. Ministry-supported research on women migrating through state-sanctioned channels argues that the system does not take account of the precarious position of women, and causes them to acquiesce to exploitation overseas due to systemic weaknesses (World Bank 2007: 34). Exploitation occurs partly because women are permitted to pay for the cost of recruitment through wage deductions but is also prevalent because women are generally engaged in the informal sector, which Ford and Piper (2007) argue is denied cover under labour legislation in many destination countries. These claims feed into a more general position of the Ministry that women are made vulnerable by the failure of states to guard them against practices which make it hard to resist economic, psychological or physical abuse. On this basis, the Ministry immediately classifies women who slip into exploitative work arrangements as a result of the migration process as victims of trafficking (Government of Indonesia and World Bank 2006: xvii).
But not all parts of the state share this interpretation of trafficking. Nor is there a widely-accepted national understanding of what constitutes the crime. Questioned about the heterogeneity, a senior police officer lamented that indeed state institutions have been unable reach a consensus (tidak kompak) in these areas. Such fragmented fronts by the state are characteristic of Indonesia, and true of states in the developing world more generally (Barker and Klinken 2010: 7), a condition that has led van Klinken and Barker (2010: 2) to argue somewhat radically that any appearance of ‘unity in the state…is likely to be an ideological image promoted by the state’ itself which does not correspond to reality on the ground. In the case of trafficking, the plurality of understandings is due in part to the fact that state institutions have adopted trafficking terminology to talk about particular conditions and practices which they are mandated to deal with. Law enforcement agencies ultimately decide if cases are convicted as trafficking. But such approaches to understanding the state’s position vis-a-vis crime is said to be problematic because they present a judiciary-focussed interpretation (Rubin 1989: 369-370). Cases handled by the judiciary are typically just the tip of the iceberg because police only tend to uncover trafficking while investigating other crimes and so rely heavily on other parts of the state to refer cases to them. For these reasons, it is of importance to explore a variety of state positions on what trafficking is and who traffickers are before attempting to speak of a national response to the crime.
The state may contribute to trafficking in the view of the Ministry of Justice and Human Rights. Involvement of the state in trafficking is recognised in the UN Protocol (articles 12, 13 and 13b), but was not included in the anti-trafficking bill drafted by the Ministry of Women’s Empowerment.[iii] In a special hearing, the Director-General for Immigration argued that any anti-trafficking law should include sanctions for officials who facilitate the crime, pointing to the prevalence of state documents that misstate the names and dates of birth of bearers as incontrovertible evidence of involvement of state apparatus (Government of Indonesia 2006a). Observers claim that sheer corruption is responsible for the practice (IOM 2009a), but the Ministry also blames the magnitude of the problem on the inability of Indonesia’s civil administration system to ensure that identity documents contain true data (Government of Indonesia 2006a). It is common for citizens to hold multiple national identity cards and for them to contain conflicting data in Indonesia (Ford and Lyons 2010). Immigration officials have complained to the National Police that they are reluctant to reject passport applications using such documents partly because it implies an accusation against colleagues in other parts of the bureaucracy (Government of Indonesia 2009a). Evidence indicates that doing so in some locations has resulted in violent confrontations with local administrations.[iv] But whatever the reasons for it, the Ministry formally opposes the inclusion of false data in state documents because the practice reduces the ability of officials to detect victims of trafficking before they leave the country.
By contrast, the Ministry of People’s Prosperity sees trafficking as a set of practices that denies migrant workers labour rights abroad. For example, practices that result in irregular migration status are said to be ‘almost the same as trafficking’ by senior officials (personal correspondence, 26 June 2009). Irregular migration status exposes migrant workers to the threat of arrest and detention by host authorities (Government of Indonesia 2007a), creating opportunities for employers to impose exploitative conditions on work arrangements. The Ministry is particularly concerned that migrants ‘working without permission…risk…six or more strokes of the cane’ under the Malaysian Immigration Act 1959/63 (article 3), a punishment referred to by observers as ‘judiciary-sanctioned torture’ because of the way in which it is carried out (Amnesty International 2010). Citizens deported from Malaysia are processed and repatriated to their regions of origin by an interdepartmental taskforce coordinated by the Ministry. Taskforce reports adopt anti-trafficking language to describe activities understood to contribute to the scale of deportations such as the deployment of migrant workers on tourist visas instead of work permits. Agents who do so are said to have committed trafficking because their actions deliberately deprive people of legal rights they might have otherwise enjoyed overseas, putting them at risk of corporal punishment (Government of Indonesia 2007a, 2008a).
The Ministry of Manpower and related state apparatus use the trafficking discourse to frame non-procedural methods of recruiting and deploying migrant workers. The Ministry’s frame of reference for violations is Law No. 39/2004 on the Placement and Protection of Indonesian Workers Overseas (Penempatan dan Perlindungan Tenaga Kerja Indonesia di Luar Negeri). Any facilitated labour migration that takes place without fulfilling the legal requirements is deemed illegal. Licensed agents can be fined and imprisoned for misusing recruitment permission or deploying migrant workers who fall short of age and education requirements. Agents that deploy individuals without the full range of documents, including competence certificates insurance policies and employment contracts, may also be subjected to sanctions (Law 39/2004, article 103). Government officials in the Ministry use the terms ‘non-procedural’ and ‘trafficking’ interchangeably to describe these practices. Moreover, the National Board for the Placement and Protection of Overseas Indonesian Workers, an institution which should coordinate with the Ministry when deciding policy, warns that non-procedural recruitment practices bear semblance to trafficking (mengarah kepada trafficking) and that non-compliers could face sanctions under the anti-trafficking law (Government of Indonesia 2008b). This migration approach ‘situates trafficking within the broader phenomenon of irregular migration’ (Lindquist and Piper 2007: 139), and is a common starting point in Indonesia for the development of measures to prevent the crime.
The National Police have shown sympathy for this approach. Head of the National Police in 2008 explained that illegal recruitment practices are often the first step (pintu awal) into exploitative circumstances overseas, and that more enforcement in this area should help to prevent trafficking (Danuri 2008). The TIP report is critical of attempts to prevent trafficking that ‘fail to distinguish illegal migration from trafficking’ (Government of the United States 2005: 12). But a senior police officer claims that the concern should only apply in destination countries where victims of trafficking could end up being treated as unlawful migrants. By contrast, prevention efforts that conflate the two categories in sending countries are deemed to be an attempt to kill two birds with the one stone: to prevent trafficking in persons and labour migration that breaks the law. The National Police signed a memorandum of cooperation with the Ministry of Manpower in 2007 as part of this approach, agreeing to lend law enforcement tools to thwart deployments that do not ‘meet the administrative, documentary and procedural requirements’ of the recruitment law (Government of Indonesia 2007b: 6). Partly because a large number of deployments are in some way defective due to the fact that officials are often negligent (lalai) in the performance of their responsibilities, the arrangement is generally used to discipline recruiters who attempt to cut out the state altogether. Moreover, the police should coordinate with the Ministry in order to determine which law best applies (Government of Indonesia 2007b: 7(1)). Recruitment that by-passes state apparatus, particularly that which is carried out by unlicensed individuals, is generally charged under the anti-trafficking law as a result. The Ministry recommends this course of action partly because the system of fines and imprisonment can be more severe for trafficking than non-procedural recruitment. Important too is the fact that the Ministry is unable to level internal sanctions against unlicensed recruiters. Nonetheless, a senior police officer claims that the use of anti-trafficking provisions to address this crime has proved to be an effective method for deterring illegal recruitment by foreign recruiters.
In theory, the National Police can use the anti-trafficking law to deal with licensed recruiters. But in practice, they are kept at arm’s length by the Ministry of Manpower which prefers to use a system of administrative sanctions to do so. Ministerial Regulation No. 5/2005 on Administrative Sanctions and the Method for Levelling Sanctions in the Implementation of Placement and Protection of Indonesian Workers Overseas includes warning letters to agents, moratoria on their right to deploy workers and the revocation of recruitment licences (article 3(1a-c)). When asked to give input on the necessity of an anti-trafficking law, the Director-General for the Placement and Protection of Overseas Indonesian Workers argued that this system of sanctions had hitherto proved to be an effective method with which to discipline errant recruiters (Government of Indonesia 2006a: 601-602). Unlike the legal route, administrative sanctions are immediately effective. Officials in the Ministry boast that their sanctions enable the state to reprimand agents that the legal system fails to convict because of inadequate evidence or because police, public prosecutors and judges have been paid off.[v] Ministry staff identify the National Police as a major challenge to the application of the law and so choose not to involve the institution in many investigations.[vi] But police and agents argue that transparency is an issue as a result, accusing the Ministry of inconsistent and unpredictable behaviour. As this suggests, the Ministry wields wide discretionary power over the processes that decide how a large part of trafficking cases that involve licensed recruiters are treated in Indonesia.
RESPONDING TO TRAFFICKING OVERSEAS
Transnational cases of trafficking pose a dilemma for the state apparatus because anti-trafficking laws are passed at the national level but attempt to deal with actions and conditions in another country. As a result, anti-trafficking laws can be of little use to embassies in their responses to the crime. The Ministry of Foreign Affairs is responsible for guiding Indonesian embassies in their responses to trafficking and holds technical coordination meetings (rapat koordinasi teknis, rakornas), in which it explains the procedure for handling cases of trafficking to consular staff. The programs are an attempt to standardise the state’s response overseas. According to the Ministry protocol, embassies should make use of host state mechanisms, when victims and perpetrators fall outside the jurisdiction of Indonesian law enforcement institutions. Consular officials are required to report cases, where traffickers are in Indonesia, to the Ministry of Foreign Affairs which should then coordinate a state response at home (Rakornas, 16-17 October 2009: slides 9-10).[vii] However, systems for handling trafficking cases in embassies are decidedly more varied in practice because it is individual mission staff who ultimately decide how best to deal with evidence of trafficking in their host settings rather than the Ministry per se.
Ambassadors and Consuls-General have a mandate to decide the role and responsibilities of all consular staff. Heads of mission should avoid partisan behaviour when they do so. However, institutional affiliations at home play an influential role in deciding whose interests are prioritised in the mission. The assignment of jurisdiction over trafficking cases to a career policeman by the Ambassador to Malaysia is a case in point. While Ambassador Tan Sri Da’i Bachtiar’s decision to do so was motivated by the criminalization of trafficking in 2007, the fact that he is a former Chief of the National Police was just as influential if not more so. The Ambassador gave the National Police the final say on how Indonesia responds to trafficking in Malaysia, and in doing so made sure that trafficking cases were treated first as transnational crimes. The Ambassador also supported the Labour Attaché’s demand to evaluate local agents and endorse job orders, functions that make up part of the Ministry of Manpower’s labour migration program. In overseas representatives where heads-of-mission are recruited from within the Ministry of Foreign Affairs such as Hong Kong and Singapore, these functions are usually performed by colleagues from the same Ministry, while Manpower officials are required to help with or focus on other tasks. This particular division of labour has resulted in protracted turf wars between Foreign Affairs officials and their Manpower counterparts, a situation that Sim and Wee (2009: 180) observe can even arise between missions in different countries.
The effectiveness of embassies’ responses to trafficking depends on the extent to which their staff are integrated into the bureaucracy at home. In an attempt to diversify missions’ connections with the state, the Ministry of Foreign Affairs staffs them with bureaucrats from a range of state institutions. For example, the embassy in Kuala Lumpur employs officials from ten institutions in Indonesia. The Ministry does so in order to ensure that the embassy performs functions of the state as desired by the institution responsible for them at home but also to have someone who can ‘speak the same language’ as those institutions it claims to represent (Interview with Consulate-General in Hong Kong, 24 February 2008). In Singapore, the Labour Attaché was required to develop a system for managing the accreditation of local agents and, for a period, ensure that Indonesian agents’ paperwork was in order before requests for endorsements were made to the Ministry of Foreign Affairs official with the authority to do so. In this case, the Labour Attaché was deemed to be more knowledgeable of the standards set by the Ministry of Manpower. Embassies also make use of the institutional ties that staff bring with them. Informal links with bureaucrats in Jakarta often serve as effective mechanisms with which to get things done in a more timely way. An example of this is how the Police Attaché in Kuala Lumpur claims to use his seniority in the National Police to put pressure on junior officers at home to prioritise investigations of cases that he reports.
The character of mission responses to trafficking can also depend on the choices of individual officials. The 2008-2010 Police Attaché in Malaysia spent most of his time investigating trafficking cases despite pressure from home to concentrate on narcotics and terrorism. He did so in part because of the prevalence of trafficking but also because of a belief that the crime should be his major priority, since it affects such a large number of Indonesian citizens in the country. The Police Section deals with ‘walk-ins,’ but also monitors the media for reports of possible victims which typically involved children or women who claim to have been coerced into sex work.[viii] However, the Police Attaché claims that these cases are only a small fraction of cases. Invisible victims of trafficking, he says, are generally men who work on construction sites and plantations without work permits. The Police Attaché began surveying building sites in the city as part of an embassy-wide effort to monitor irregular workers’ labour rights in response to reports that construction companies had started calling in immigration authorities to arrest undocumented migrants in order to avoid paying their wages. But undocumented workers have warned the Police Attaché not to interfere because the presence of embassy staff unsettles site managers which they feared could result in Indonesians being barred from opportunities for undocumented work. Nevertheless, a single official in this case decided on a method to deal with what is essentially his personal interpretation of the crime.
The procedure for processing trafficking can also depend on secondary markers of identity such as social class. The Ministry of Foreign Affairs formally forbids missions to use any criteria other than citizenship in deciding how to handle cases involving their citizens (Rakornas, 16-17 October 2009: slide 9). In countries with large communities of blue collar and informal migrant workers from home, Indonesian missions operate a dual system for providing services to – and responding to the problems of – that group and other citizens. Hong Kong and Singapore also do so, but the embassy in Kuala Lumpur has circulated a flow chart which shows how the dual system works.[ix] Non-migrant workers meet directly with the Police Attaché who then facilitates the resolution process as mediator or by liaising with host state law enforcement institutions. By contrast, migrant workers must first undergo an interview in the Labour Section, where they are divided into ‘legal’ and ‘illegal’ categories. Indonesia and Malaysia-based agencies are involved in the resolution process of ‘legal’ workers, whereas other intermediaries do so for the ‘illegal’ category. All cases involving sex workers and children are immediately referred to the Police Attaché, but the discretion to decide how the vast majority of cases are handled rests with the Labour Attaché.
The Ministry of Manpower has lobbied for the right to deploy Labour Attachés to all major destination countries to support embassies in responses to issues concerning migrant labour. At the time of writing, there were five Labour Attachés in the Middle East (Kuwait, Qatar, Riyadh and Jeddah in Saudi Arabia, and the United Arab Emirates), and five in the Asia Pacific region (Brunei Darussalam, Hong Kong, Malaysia, Singapore and South Korea). In addition, the Ministry of Foreign Affairs agreed to accommodate four additional Manpower employees in Indonesian embassies by 2011 (Jordan, Oman and Syria in the Middle East and Taiwan in East Asia) despite the fact that Foreign Affairs officials have resisted the imposition of Manpower officials in many locations because of how they disrupt the status quo. The high profile case of the Labour Attaché to Abu Dhabi who was returned to Indonesia in 2009 for undisclosed reasons is a case in point. Although the deployment of diplomatic staff hinges on reciprocal agreements with host states, the Ministry of Foreign Affairs ultimately decides how officials fit into the authority structures of missions. They might not always have control over the process for accrediting local agents or the right to endorse agents’ paperwork, but they all play a significant role in major consular processes that involve migrant labour. The dilemmas facing Labour Attachés in the exercise of their responsibilities are demonstrated in the following case drawn from one of the countries under study.
A LABOUR ATTACHÉ’S DILEMMA
Domestic workers must report to the Labour Section before applying for an extension of their travel documents. The applicant is required to sign a standard employment contract in an interview that must also be attended by her employer. The contract was designed by the Labour Attaché who lobbied the Ambassador to include it as part of the process to extend passports for domestic workers, because many of their labour rights are not regulated by host laws. Technical staff hired for the specific purpose to assist in the Labour Section are required to ensure that employers rather than agents attend the interview, and that they both agree to the minimum wage set by the Indonesian government. Migrant workers are also asked to confirm their names and dates of birth. Most cases are handled by these staff and just require a signature of the Labour Attaché before the Immigration Section will accept applications to renew migrant workers’ passports. But when irregularities arise, applicants are referred to the Labour Attaché who then decides on the best way to deal with the case. For example, migrant workers found to be using counterfeit or misappropriated passports are not reported to law enforcement. Rather, the passports are confiscated and the bearers issued with limited validity travel documents which should force migrant workers to return to Indonesia where they can restart the migration process.
The Labour Attaché encounters at least two clear cases of ‘trafficking’ each month mostly as a result of the interviewing process. Trafficked persons are generally between the ages of 14 and 16 and have been recruited into employment as domestic workers on passports that overstate their ages. But identification is not always simple because sometimes underage migrants may look older than they really are and work hard to conceal their true age. The Labour Attaché presented a binder full of such cases, pointing to the most recent one which involved an individual holding a passport stating that she was 23, but who was later found to be only 14 years and 9 months old. The Labour Attaché uncovered this case by probing deeper into details about her education by asking when she started and finished primary school. Employers typically claim that they had no idea that their workers were children, and in private interviews argue that the recruitment and documentation processes were carried out by local agents and their partners in Indonesia. Migrants themselves tend to be adamant that they consented to the arrangement in Indonesia because they needed the work to support their families. The Labour Attaché reports such cases to authorities in Indonesia, recognizing that it is often parents and not the children themselves who give consent.
The Labour Attaché has corresponded with the Ministry of Foreign Affairs, the Criminal Investigation section of the National Police, the National Board for the Placement and Protection of Overseas Indonesian Workers, the Ministry of Women’s Empowerment and the Ministry of Manpower in Jakarta about such cases. She includes information about the worker’s identity, a brief description of her story, the articles of the recruitment law which had been contravened and the name of the agent in Indonesia who coordinated the migration process. The Ministry of Manpower is the only state body which responds with any regularity partly because it can discipline recruiters unlike many of the other institutions. The responsiveness of the Ministry is also the outcome of an arrangement whereby the National Police defer authority to civil servant investigators within the Ministry to establish whether there is enough evidence to pursue legal sanctions or if the Ministry’s administrative sanctions should be applied instead. The immediacy of effect and the impact that the latter measure should have on agents’ ability to operate legally in Indonesia makes them more willing to comply with authorities in the Ministry – and, by extension, the Labour Attachés in Indonesia’s embassies. As a result, the Labour Attaché addresses all correspondence on illegality involving recruitment agents in Indonesia to the Ministry of Manpower, notifying other state institutions with a carbon copy.
But the Labour Attaché does not always report agents through official channels. Instead, agents may be instructed to report directly to the Ministry of Manpower. In such cases, the Labour Attaché corresponds privately with colleagues in Indonesia to brief them on the case, and thereby ensure that it is handled within the Ministry, a process which avoids involving the police. In her experience, the police are not always the most appropriate institution with which to address illegality involving recruitment agents. Personal experiences and confessions by agents themselves suggest that police officers in the Criminal Investigation Section may accept bribes in exchange for dropping charges.[x] Agents complain that they are often the target of incessant extortion by police officers who threaten to push for formal investigations into evidence of illegality in which agents are involved. Such investigations are acknowledged to lead to more extortion and possibly fines and imprisonment. Mistrusting the police, the Labour Attaché personally conducts preliminary investigations instead, taking note of agents’ version of events, and then making a decision about how best to report the case to colleagues in Indonesia for further action.
In some cases, the Labour Attaché does not respond to the inclusion of false data in the travel documents of migrant workers at all. The Labour Attaché was much more consistent in the reporting of recruiters who transgressed the minimum age requirement for deployment when first posted. However, she started to make exceptions with time. Agents complained that it was difficult to find suitable recruits. The Labour Attaché also learned in discussions with migrant workers that recruits sometimes cooperated with agents and commission-seeking fieldworkers to obtain state documents that overstated their ages. Moreover, some migrants claimed to have approached agents with full sets of already modified papers, arguing that they did so because barriers to overseas employment were too high. Their stories about the lack of attractive employment opportunities at home eventually tipped the scale in favour of ignoring some transgressions. On the basis of these encounters, the Labour Attaché decided to turn a blind eye to the maturing (pendewasaan) of migrants’ ages when they were over the age of 18 and had the maturity to deal the challenges of working in the residence of their employers. She also instituted a ‘two-strikes-and-you’re-out’ system for cases that involved women below the age of 18. Agents receive a warning for the first transgression and are reported for any subsequent violation as a result.
The Labour Attaché also chose to ignore evidence that migrant workers’ passports do not contain their true names. In particular, it is common for migrant workers who have formerly worked in Saudi Arabia to hold such documents because recruitment agents change the names of recruits in order to comply with immigration law which requires visa applicants to have more than one name. Intending migrant workers with only one name in Indonesia tend to add their fathers’ names as surnames joined by the Arabic bin (son of) or binti (daughter of), which, because they are more Islamic-sounding, then make up part of agents’ marketing strategy to the region. But agents may also change recruits’ identities to avoid detection by authorities. The Labour Attaché explained that the Ministry of Manpower in Singapore requires foreign domestic workers to undergo a 90 minute test within three days of arrival, in which they should answer 40 questions in English. Research by the embassy suggests that a large number of Indonesians fail the exam and so are required to leave the country (see Government of Indonesia 2005a: 19-21). The Labour Attaché reported that workers who fail the test are typically only repatriated by their agents to Batam (located a short distance from the Singapore and Malaysian coasts), where they are recycled (didaurulang) by agents for redeployment, a process which she claims entails the re-documentation of workers who are then returned to Singapore to re-sit the test under a different name.
All of these factors contribute to the prevalence of ‘real but fake’ documents held by Indonesian domestic workers in Singapore. In the Labour Attaché’s view, responding to every case that came to light would consume a sizeable proportion of already limited resources, although she notes that doctored identities can create problems for migrant workers in host settings. Indonesian domestic workers have been imprisoned in Hong Kong for ‘false representation,’ but the Labour Attaché observes that host governments tend to show leniency in recognition of mitigating factors such as poverty and the role of intermediaries in the migration process.[xi] The Labour Attaché noted with irony that destination countries set high minimum age requirements with one hand, but then set things ‘right’ for cases of manipulated data that come to their attention with the other hand. She explained that it was clear to all when Singapore proposed higher criteria that the end result would be greater demand for ‘real but fake’ documents in Indonesia because the policy did not address supply and demand issues in the labour market. Indonesians still wanted work, and Singaporeans still offered jobs. A respondent in the International Labour Organization claims that a contact in the Singaporean Ministry of Manpower privately confided that raising the age limit was partly intended to make it more difficult for agents to send 14 year olds and force them to instead start sending workers who were closer to the age of 18 or older. With these kinds of policy considerations in mind, the Labour Attaché does not investigate the veracity of migrants’ stated identities unless doing so is part of an investigation into another crime.
As these courses of action suggest, this particular Labour Attaché views the falsification of names and ages in state documents to be an administrative problem that sits in stark contrast to trafficking practices which coerce recruits to migrate against their will. The Labour Attaché regularly handles cases of migrant workers who approach the embassy claiming that it was not their choice to leave Indonesia quite differently. She has dealt with cases where women explain that their husbands or fathers put pressure on them to register for overseas employment, and that their agents then ignored their requests to go home. Agents do not typically allow recruits to leave training centres (Lindquist 2010; Killias 2010). Generally this is so because recruitment agents pay women to start the migration process in Indonesia, framing the inducement as ‘pocket money’ (uang saku) (Palmer 2010).The Ministry of Manpower refers to this strategy as a duping tactic (program pembodohan) because agents do not make it clear that the payment is in effect an advance of their wages which will have to be repaid through deductions once recruits start work. The Labour Attaché argues that it is these sorts of practices which deceive and coerce people that should be dealt with as trafficking because, unlike the falsification of identities, the intention to exploit in such cases is clear and the resultant violation of their human rights is predictable.
But the Labour Attaché’s authority to handle cases involving migrant workers has not been consistent over the entire period of her posting to the embassy. She was instructed to take up the position as Technical Assistance Officer as a result of a joint set of decrees issued by the Foreign Affairs and Manpower ministries. The posting was organised in response to lobbying by recruitment agents in Indonesia and evidence that Foreign Affairs officials were doing a poor job at carrying out functions of the state migration program overseas. At the outset, the Labour Attaché was not permitted to inspect job orders but succeeded in convincing the relevant Foreign Affairs official to let her help at least ensure that the requests met government criteria before they were endorsed. In the process, the Labour Attaché uncovered evidence that job orders she rejected had been endorsed so set up a shadow system to monitor the function, of which the Director for Placements in the Ministry of Manpower in Jakarta was routinely informed to vet defective paperwork. But the Labour Attaché also found that the Ministry of Manpower sometimes issued recruitment permission without a job order at all. Following confrontations with both sets of officials, the Labour Attaché was cut out of all processes that brought her in contact with the administration of the program for undisclosed reasons. The Ambassador put exclusive control in the hands of a trusted Foreign Affairs official in the latter part of 2010 which coincided with the final year of his posting, and is rumoured to be amassing a war chest to purchase a new ambassadorial position, which, as a practice, is common across different institutions of the bureaucracy (McLeod 2010). But whatever the motivation may have been for the reorganisation of authority within the embassy, it is clear that the handling of migrant and trafficking cases will be subject to a new and highly personalised discretionary regime of procedures.
DISCRETION, ILLEGALITY AND TRAFFICKING
As these examples of the Labour Attaché demonstrate, many government officials in Indonesia, and particularly the Ministry of Manpower, have reservations about treating migrant workers as victims of trafficking, even when they meet legal requirements of the anti-trafficking law. In their view, illegal actions are indeed responsible for some of the trafficking-like conditions in which migrant workers cross international borders and work overseas. However, this group of bureaucrats reject the push to treat these conditions as evidence of trafficking because of institutional and personal knowledge that they are a result of factors more varied and complex than coercion or the intention to exploit. Officials use this logic when deciding how to respond to such illegality. The fact that they do so demonstrates clearly that while lawmakers can introduce a definition of trafficking into the state’s legal framework for the purpose of identifying crime, it is often bureaucrats who decide the parameters of cases for which the definition is employed. The case of the Labour Attaché’s dilemma illustrates the role that discretion plays in this process, showing how the state can come to be involved in trafficking-like practices.
The actions of the Labour Attaché demonstrate that government officials may ignore illegality for reasons other than corruption. In the case of age limits on migration, the Labour Attaché believed that the law often set standards for what type of migration should take place, ignoring the reality of who actually wants to migrate. Officially, the logic that informs the push for higher age and education limits is that older and more educated migrants are more mature and therefore more capable of dealing with serious issues that may arise in their places of employment such as the non-payment of wages and physical abuse. Initially, Indonesian law required citizens to be at least 21 years of age and have attained at least a junior high school education before they could be deployed overseas. The requirement was challenged in the Supreme Court where returned migrant workers and recruitment agents argued that the high limits were unconstitutional. As a result, the minimum level of education was lowered to primary school, but the age limit remained at 21 for informal sector deployments (cases 028/PUU-IV/2006, 029/PUU-IV/2006). In the development of these standards, however, law and policymakers did not deem the fact that recruits can obtain ‘real but fake’ documents that overstate their ages in Indonesia to be a serious issue. The ease with which they do so and the fact that they often have ‘successful’ migration experiences despite these documents convinced the Labour Attaché to in some cases to ignore the false data recorded in their passports.
It is clear from the example of the Labour Attaché that government officials apply the law unevenly by ignoring regulations which they believe to be unsuitable, a condition in the Indonesian bureaucracy that has received commentary from Lindsey and Butt (2010). In some cases, bureaucrats may view some forms of illegality to be a low priority. The legal concept used to describe such decisions is de minimis non curat praetor, meaning that government officials are not required to concern themselves with trifles. A parallel concept exists in regard to law enforcement, that is de minimis non curat lex, to protect the legal system from being overloaded with cases that involve trivial transgressions of the law. These two concepts provide the legal basis on which employees of the state make decisions about whether to respond to – or disregard – illegality. Typically, disregarded transgressions entail technical violations of the law for which consequences are considered to be insufficient cause for action. In the case of passports that contain false data, the Labour Attaché decided that illegality was a low priority where the data had not resulted in negative consequences for the passport bearers. Instead, the Labour Attaché chose to prioritise the signing of employment contracts as part of the passport extension process to improve the quality of labour rights for Indonesian domestic workers in their host settings.
Labour Attachés also disregard illegality that they consider to be systemic. The sheer number of state-facilitated migrant workers holding passports with false names and dates of birth is evidence that Indonesian systems and processes for detecting irregularities in applications for travel documents have been ineffective. Immigration officials claim that the demands of the Ministry of Manpower’s state migration program to issue passports is partly to blame for the scale of the problem. But accusations of guilt aside, one Attaché described his emotional response to the situation as being like a pendulum that swings from frustration at one extreme to apathy at the other. On the one hand, he was concerned that state systems and processes which should guarantee the integrity of state documents had been corrupted. On the other hand, he was reluctant to act on the evidence of illegality because doing so often resulted in little change in the way things are done in Indonesia but almost always disadvantaged the migrants who may have played minor roles in bringing the false documents into being. In short, he questioned whether it was fair that citizens should have to pay the price for the state’s inability to manage its affairs. The fact that the scale of some kinds of illegality is so great and so uniform in character suggests that it is less a matter of individual cases than that of a failed system. Such systemic forms of illegality make individual cases seem merely symptomatic of another more complex issue.
On a day-to-day basis, these considerations inform the decision-making processes of Labour Attachés as they are confronted with false data in passports. Labour Attachés clearly have the authority to initiate legal proceedings. However, they choose not to do so in all cases. They ignore some forms of illegality partly because their location overseas means that they lack access to the full range of law enforcement mechanisms which would otherwise be available in Indonesia. They are also swayed by their personal understandings of the complexities involved in establishing guilt. Another major consideration is of course the fact that the passport bearer is within the borders of another country. The host state issues documents such as work permits and identity cards based on the data recorded in migrants’ travel documents. So if the embassy were to issue passports containing new data, migrants whose right to work is tied to the document on which they entered the host country would have to undergo complicated processes to change their identity or might even lose the right to remain. But confiscating documents and forcing migrants to return home also poses another dilemma because of how it deprives citizens of much needed work. It also raises ethical questions about whether it is fair to do so when it is well known that the migration process can be lengthy and costly. In short, ignoring evidence of illegality may appear to be the best possible decision for all concerned.
These decisions clearly implicate the state in trafficking-like practices. The Palermo Protocol recognises that the state can be involved at various stages of the trafficking process through the actions of officials, citing in particular their involvement in the unlawful issuance of travel documents (article 12). Anti-trafficking legislation in Indonesia recognises this possibility, stipulating sanctions for bureaucrats whose misuse of authority facilitates the crime (Law 21/2007 article 8). Corruption helps to explain why government officials in embassies turn a blind eye to evidence of trafficking. However, it does not account for all decisions to do so. Officials also use discretion when determining how to respond – if at all – to trafficking-like practices on the part of recruitment agents and the state. As the Labour Attaché’s actions demonstrate, anti-trafficking laws may be of little use when dealing with illegality associated with individuals crossing international borders, as they are only national in their reach. In recognition of this limitation, the Ministry of Foreign Affairs recommends that embassies and consulates utilise host state mechanisms as part of their response to the crime. But as the cases described here suggest, this strategy is equally unsatisfactory when it comes to dealing with trafficking because of the implications such courses of action might have for migrant workers and sending states in the host setting.
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[i] Between 2008 and 2011, I interviewed Labour Attachés in Hong Kong, Kuala Lumpur and Singapore. A consul-general, Immigration and Police Attaché also participated in the research project. In Indonesia, senior officials from the Ministry of Manpower, National Board for the Promotion and Protection of Overseas Indonesian Workers, Ministry of Internal Affairs, Ministry for Women’s Empowerment, and bureaucrats in provincial and district level state institutions shared opinions and data. Some officials asked for their anonymity to be guaranteed. I treat such data by referring to state body affiliations without specifying positions, and to positions without providing information about the location.
[ii] The draft defined trafficking as a process that is carried out ‘for the purpose to exploit or which results in a person being exploited’ (Government of Indonesia 2005d: article 30), whereas Article 1 of Law No. 21/2007 defines trafficking as a process that is carried out ‘for the purpose of exploitation or which causes a person to be exploited.’
[iii] The draft bill is on file with the author.
[iv] For example, the immigration office in Entikong refused a passport application after establishing that only a few weeks earlier the applicant was issued with a passport in a different name. Officials in the District Civil Administration Office which issued the applicant’s new identity threatened to burn down the immigration office for interfering in a locally-accepted practice in response. The District Chief intervened by compelling the immigration office to repair relations in line with customary law which in this case was by providing a gift of pigs to officials in the District Civil Administration Office (Government of Indonesia 2006a).
[v] See Butt and Lindsey (2010) for an account of how the ‘judicial mafia’ in Indonesia.
[vi] Law No. 8/1981 on the Procedure of Criminal Law requires officials to report evidence of crime, but allows them to use internal investigators (Articles 1(1), 6 and 108(3)). Known as civil servant investigators (Penyidik Pegawai Nasional Sipil), Law No. 39/2004 on the Placement and Protection of Indonesian Workers Overseas reaffirms their authority to instigate and halt investigations (Article 103).
[vii] Head of Subdirectorate for the Welfare and Repatriation of Indonesian Citizens presented this approach in a presentation titled ‘Policies and Programs of the Ministry of Foreign Affairs in the Prevention and Handling of Trafficking in Persons.’
[viii] 2009 trafficked persons who were registered with the Police Attaché on file with the author.
[ix] Kuala Lumpur Embassy Taskforce for Service Provision to and Protection of Indonesian Citizens, “Handling Cases that Affect Indonesian Citizens/Women Migrant Labour” on file with the author.
[x] As a case in point, the Labour Attaché cited the recent and severely embarrassing handling of infamous rogue taxman Gayus Tambunan for the system of exemptions he was granted by the National Police, the Attorney-General and the courts for a fee.
[xi] See HKSAR v Warniati for an example of how these mitigating factors have been used to argue for leniency.