Enforcing Labour Rights of Irregular Migrants in Indonesia

In 2012 the Government of Indonesia ratified the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICRMW), which provides a suite of legal rights for migrants, including those living and working in irregular situations.1 It permits the government to prohibit employment, but stipulates a legal responsibility to protect the labour and employment rights of migrants who work despite the prohibition. The number of such migrants is relatively small compared to the number of Indonesians who go overseas for employment. For example, in December 2017 there were only 13,840 registered refugees and other asylum seekers in Indonesia. By contrast, a World Bank estimate for the previous year puts the number of Indonesians living and working abroad, in both regular and irregular situations, at over nine million.2 The relative size of these two populations helps explain why outgoing migration patterns and related rights issues receive greater scholarly, policy and activist attention. This ongoing focus on the much greater number of outgoing migrants has resulted in a major blindspot in the approach of the Indonesian government and civil society to protect the rights of the much smaller number of incoming migrant workers.3

This article contributes to the policy and academic debate about whether incoming migrants have the right to work and labour rights more generally. This right is guaranteed in the 1948 Universal Declaration of Human Rights and has attracted more attention since the United Nations published its 2030 Agenda for Sustainable Development in 2015. According to the United Nations, incoming migrant workers are denied this right,4 but nevertheless have the ‘right to protection against labour exploitation’,5 which is a recalibration of the ‘right to work’ that applies to incoming migrant workers in irregular situations. Here, this well-defined right serves as a heuristic to investigate tensions between that right and the prohibition of employment for incoming migrants living and working in irregular situations. Governments that are parties to the ICRMW are permitted to enforce employment prohibitions but are, nonetheless, required to protect the labour rights of migrants who work.6 Importantly, this arrangement is applicable to all incoming migrants, except refugees and stateless people, students and trainees, as well as seafarers and migrants without residence permits who are working offshore.7 The rights of these excluded migrants are guaranteed under other arrangements, and protection gaps result when other protective international conventions are not in force in the territory of states that are parties to the ICRMW.

Some of these protection gaps came to the authors’ attention during two separate research projects about incoming migration in Indonesia. Wayne Palmer found that the Indonesian government did not routinely support migrant seafarers trafficked for forced labour in claiming unpaid wages.8 The government would not ratify the Maritime Labour Convention until more than a year after the rights abuse was uncovered,9 and, as of September 2018, there are still no plans to ratify the Work in Fishing Convention; these two conventions are intended to protect labour and employment rights of all seafarers. The resulting protection gap resonated with Antje Missbach’s observation of a connection between the employment prohibition and labour abuses experienced by refugees and other asylum seekers as they worked to sustain themselves during their oftentimes years of transit in Indonesia.10 The 1951 Convention and its 1967 Protocol Relating to the Status of Refugees, which the Indonesian government had not ratified as of September 2018, provide protections for the rights of recognised refugees only, excluding asylum seekers from its scope. Recognised refugees, unlike asylum seekers, are excluded from protection under the ICRMW, but partial implementation of the convention also means that the rights of these and other incoming migrants in irregular situations are not protected as they ought to be.

This article offers two case studies to highlight areas of confusion in implementation of rights protection regimes for migrants in Indonesia. When selecting the case studies, a central concern was that they indicated how migrants, who often work out of economic necessity or under coercion despite the employment prohibition, are treated. These examples also show variance in how the government responds to abuse of migrants’ labour rights.11 Thus, they help to show that initially the government does not generally seek to enforce protection of labour rights for any migrants who work despite the employment prohibition, and to highlight exceptional circumstances under which the government has protected those rights.

Our analysis of the protection gaps is in five parts. The first section discusses labour and employment rights for migrants in irregular situations to show that this category of migrants has the human right to ‘protection against labour exploitation’. The second canvasses the legal and policy framework for enforcement of labour and employment rights in Indonesia to explain how and why migrants without permission to work are denied access to the Convention’s mechanisms for rights enforcement. The third section uses two case studies of migrants whose labour and employment rights were abused, and shows how the Indonesian government’s institutional set-up hindered efforts to claim those rights. The fourth section discusses systemic issues that prevent compliance with the ICRMW around protection of incoming migrants’ labour and employment rights. The concluding section argues that a first step towards compliance would be to encourage stakeholders to view Indonesia not just as a ‘sender’ but also as a ‘receiver’ of migrants whose rights are protected under the ICRMW.

Labour and employment rights under the ICRMW

States that are party to the ICRMW are required to extend significant rights to migrants living and working in irregular situations. The convention does not cover recognised refugees and other migrants whose rights are covered by other intentional conventions, such as the Convention Relating to the Status of Refugees, the Maritime Labour Convention and the Work in Fishing Convention. According to the ICRMW, if these migrants work in contravention of the government’s prohibition on gainful employment, their labour and employment rights, as protected under other laws, are not negated; neither are employers excused of their obligations to grant those rights, nor the state absolved of responsibility to enforce them.12 Importantly, the ICRMW does not require states party to it to grant all migrants the right to work, arguably provided under the United Nations 1948 Universal Declaration of Human Rights.13 Rather, the ICRMW creates a related legal responsibility for its parties to protect all migrants’ labour and employment rights, regardless of how they come to live and work in the territory.

The ICRMW frames labour and employment in this way as part of an attempt to assuage government unease about illegal migration. It is referred to as a ‘jurisprudential achievement’ because of the way the convention accommodates the competing interests of migrants and their human rights with those of states concerned about immigration control.14 As a result, a State Party can offer the migrants ‘protection with consequences’ by making efforts to protect the labour and employment rights of migrants, but then punishing them for illegal entry and/or work.15 In practice, this policy means that migrants are dissuaded from requesting government authorities for assistance to claim labour and employment rights, because doing so may ‘jeopardize their presence in the country, a fact often exploited by unscrupulous employers seeking to withhold payment’ of wages.16 Such migrants are unlikely to complain to government if authorities provide inadequate assistance. In other words, while the ICRMW requires States Parties to protect migrants’ labour and employment rights, it does not compel them to create the necessary conditions for all migrants to claim those rights.

Indonesia’s ICRMW report

The United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) monitors compliance with the convention, focusing on ‘legislative, judicial, administrative and other measures States Parties take to implement the ICRMW.17 States should submit an initial report within one year of ratifying the convention, and a report every five years thereafter. The CMW assesses compliance in two stages. First, it compiles a specific ‘list of issues prior to reporting’ to be addressed in the states’ reports, for which CMW receives input from national human rights institutions and civil society organisations. After receiving the report, the CMW again solicits submissions in preparation for assessing the report in a meeting with representatives of the state. The CMW ought to publish assessments with recommendations on how to improve compliance with the convention for the state to respond to. The reporting process for Indonesia is discussed below to draw attention to factors that help explain why states overlook their legal obligations to migrants in irregular situations, especially those who contravene employment prohibitions.

The Government of Indonesia delayed ratifying the ICRMW for almost eight years after signing it,18 largely because of internal disagreement over the rights that incoming migrants with work permits would acquire.19 Compliance with the convention’s reporting procedures has not been a priority of successive governments. The first report was due in 2013 during President Susilo Bambang Yudhoyono’s final term (2009–2014), but was not submitted until 2017, well into Joko Widodo’s Presidency, more than three and a half years late, which is not unusual in the region. The Indonesian submission does not single out one government agency as monitoring implementation of the convention, but identifies 10 national-level government agencies, amongst which the ‘task is divided’.20 Over 400 sub-national governments also play a ‘role’. This is evidence that the Indonesian government lacks the political will to establish the kind of cross-sectoral and cross-scalar lead agency necessary to effectively coordinate the various ‘tasks’ and ‘roles’ it identifies as key for achieving greater compliance with the ICRMW.

So far there are nine main ‘coordinators’, one of which is concerned with incoming migration patterns: the Ministry of Law and Human Rights, which is responsible for immigration control.21 The Ministry of Foreign Affairs has responsibility for compiling the Indonesian government’s compliance data, which partly explains the report’s outward-looking focus. The task was delegated to the Ministry’s Directorate of Human Rights and Humanitarian Affairs, as the reporting obligation resulted from the ratification of an international convention on human rights. This directorate has subsections that specialise in civil and political rights, economic, social-cultural and economic development rights, rights of vulnerable groups and humanitarian matters.22 In theory, these specialisations do not differentiate between citizens and foreigners, but in practice officials in these sections give more consideration to the implications of international obligations for Indonesians.23 This approach is also apparent in other areas of the Ministry’s work, such as the protection of Indonesian citizens outside the country. The forms of protection include legal aid, social and humanitarian assistance, repatriation facilitation, monitoring of consular services, public awareness campaigns, harmonising policy and regulation, as well as developing opportunities for bilateral, regional and multilateral cooperation.24 This existing institutional objective to ‘protect’ Indonesian migrants guides officials in the Directorate of Human Rights to focus on outgoing migration patterns and related rights issues. Consequently, this Ministry gives little attention to issues concerning the rights of incoming migrants, but is nonetheless required to coordinate data collection for Indonesia’s report to the CMW.

A year earlier, in 2016, the CMW collected submissions from two international civil society organisations with offices in Indonesia and a national human rights institution about compliance issues for the government to address in the report. Two out of three submissions focused on matters of Indonesian labour migration. Human Rights Watch asked for government responses to treatment of Indonesian migrant workers before and after they leave the country.25 The National Commission on Violence Against Women (Komisi Nasional Anti-Kekerasan Terhadap Perempuan), one of the three independent government agencies working on advancing human rights in Indonesia, had much to say about the government’s poor performance in preventing the abuse of outgoing migrants’ rights, but they ignored incoming migrants.

The only submission to raise the issue of human rights for incoming migrants was the Global Detention Project, which is primarily concerned with wrongful detention practices affecting all migrants. It recommended asking the Indonesian government for statistical, procedural and other information related to the detention of foreigners,26 and pointed to wrongful practice of detaining migrant children despite frequent instructions not to do so from United Nations human rights bodies, including the Committee on Rights of the Child and the CMW.27 Partly motivated by their concerns about the abuse of the rights of incoming migrants, the CMW included many of them in the ‘List of Issues’ to be addressed in the Indonesian government’s report.28 Furthermore, despite unequal attention to the two directions of migration patterns and related rights issues in the external submissions, the CMW list focused on both in roughly equal measure.

Nonetheless, the subsequent report was imbalanced, with almost 80% of responses focusing on the outgoing migration of Indonesian citizens. The lesser focus on incoming migration and related rights issues gives some specific information about relevant legal and institutional arrangements in Indonesia. In any discussion of matters relating to incoming migrants in the report, the overwhelming focus is on (a) migrants with work permits, (b) detention of migrants for immigration purposes, (c) procedures concerning migrants in criminal justice proceedings, such as notification to relevant embassies and (d) handling of trafficked migrants. There is no discussion of the legal requirement for the Indonesian government to protect the labour and employment rights of migrants in Indonesia, despite the CMW’s special requests to address this requirement in the report.29 Rather, the report talks about government efforts to achieve equal work terms and conditions for outgoing migrants from Indonesia through consular offices and bilateral agreements with governments in destination countries.30 This is one of many examples that show how the report eliminated incoming migrants from any discussion of issues raised.

The report sidesteps labour and employment rights even for incoming migrants with work permits, claiming, somewhat nebulously, only that ‘immigration cases relating to foreign migrant workers in Indonesia are often resolved promptly’.31 However, the government reveals that most of these ‘cases’ may in fact be difficulties with visa applications, explaining that they ‘usually have their employer to complete necessary documents’.32 The report does not comment on systems and processes used to address related rights issues, such as the abuse of labour and employment rights even for this category of migrants. In light of this development, it is not surprising that instances of migrants trafficked into the country for forced labour in commercial fishing are completely omitted. Surprisingly, the report fails to even mention the well-documented ad hoc processes that the government used to claim back pay for the trafficked migrants from their employers,33 which would have addressed the request to ‘indicate what legal and labour protection and enforcement mechanisms are in place’.34 This article’s case study of a group of trafficked migrant fishers and the handling of their situation was also omitted from the Indonesian government’s report.

The CMW noticed these omissions and expressed ‘regret that the information provided was often general or incomplete, especially with regard to the practical implementation of the Convention’.35 The Committee informed the Indonesian government of its concern that migrants working in irregular situations were discriminated against based on their immigration status and requested that it reports compliance in the periodic report due five years later.36 Within two weeks, the Indonesian government gave an interim response to the accusation of discrimination, which acknowledged receipt of the CMW’s recommendations but evaded discussion of incoming migrants by explaining that the ‘Constitution clearly states that the government shall protect its citizens without discrimination’ (italics added).37 Similarly, the Indonesian government only acknowledged that more needed to be done concerning the ‘right to effective remedy’ for ‘our migrant workers and families’ (italics added). In other words, the entire reporting process revealed the government’s reluctance and resistance to even provide information about the quality of rights for migrant workers in Indonesia under the ICRMW.

Irregular migrants and labour rights in Indonesia

Indonesia is a destination for the full range of migrant workers, but the government only authorises employment if they can fill positions that require qualifications, work experience and skill sets that are not easily found in the domestic labour market. In 2016 the government permitted 74,183 migrants to work as English teachers, senior managers and other professionals – a more than 7% increase on 2015.38 These migrants only account for a fraction of the 8,882,263 occasions on which foreigners entered Indonesia that year,39 and may have engaged to some extent in prohibited employment, such as the numerous international consultants and foreign correspondents who enter Indonesia on visitor visas and work on short-term projects. Government-admitted migrant workers are also resident for immigration purposes, so they and their families hold residency cards. It is important to note that Indonesian legal and policy frameworks have been designed to encourage government bodies to treat these ‘resident migrants’ much the same as citizens.40

Resident migrants have access to the four formal mechanisms for resolving labour disputes. The first three (mediation, conciliation and arbitrage) are located in Indonesia’s more than 500 district or municipal Manpower Offices. The fourth mechanism is administered by the Industrial Relations Courts, which adjudicate labour disputes. Abuse of labour and employment rights is not always a punishable offence, but a notable exception is the failure of employers to pay the statutory minimum wage.41 The overall objective of criminal proceedings is to punish perpetrators, but the sentences do not absolve them of their obligation to also give their victims legally-protected employment entitlements.42

In 2015 the Indonesian government assigned 1353 officials, including 167 judges, to help resolve labour disputes.43 Labour dispute data focus on the termination of employment contracts and do not identify other disputed labour and employment rights. In part, this may be because labour disputes are often only brought to the government’s attention when employment relationships have ended. There is, however, good reason to expect that these government services do not always help employees claim their labour and employment rights because other factors, such as the payment of bribes, can and do determine whether officials turn a blind eye to abuse of labour and employment rights.

In requesting government assistance to claim labour and employment rights, workers must supply either national identity cards or residency cards as supporting documents. Even resident migrants working in irregular situations, such as foreigners somehow coerced or deceived into taking up employment in Indonesia, can file claims. They include migrants whose employers, in order to secure an employment visa, promised different terms and conditions of employment to what they actually provided. Alternatively, employers are also known to unilaterally change arrangements after migrants start work, a common practice that results in fully documented migrants ending up in trafficking situations in the region.44 Citizens can also be affected by this form of abuse and, in extreme cases, have been internally trafficked for forced labour. Trafficked citizens, and even trafficked migrants with residency cards, can claim labour and employment rights through the labour dispute mechanisms. Their access to these mechanisms contrasts with the denial of access to the mechanisms for similarly abused migrant workers who are not resident for immigration purposes, such as refugees, other asylum seekers and seafarers. As there is no alternative arrangement for these migrants, the Indonesian government effectively permits abuses to go unreported and unaddressed, in clear violation of the ICRMW to which it is a party.

The ICRMW legally obliges the government to ensure that even these migrants receive wages, working conditions and terms of employment en par with resident migrants and citizens.45 As an example, the statutory minimum wage depends on where the employment is located. Wage-setting policy is decentralised, so provincial, city and district governments have the authority to determine the minimum wage in their jurisdiction.46 There may be multiple minimum wage levels in a single province, because the provincial government may set a minimum wage which district and city governments deem too low and so set a higher minimum in their jurisdiction. Employment law entitles workers to overtime pay, weekly rest days, public holidays, annual leave and other rights, such as restrictions on how employment is terminated.47 Children aged 15–18 should not be employed in situations that endanger health, safety or morality, defined narrowly as recreation venues and other places where sex could be bought or sold.48 Young asylum seekers are known to perform this kind of work,49 but the law is enforced typically in response to the employment of Indonesian children in such places.

Legally, the fact that the government prohibits employment of non-resident migrants does not negate their labour and employment rights if they work despite the prohibition. However, in breaking the prohibition and working illegally migrants risk the maximum punishment of five years in prison and a Rp 500 million (US$38,000) fine.50 Employers of migrants working illegally risk the same punishment. However, the law is not always enforced for a variety of reasons, as indicated by the very low number of investigations of its contravention. For example, in 2015 immigration authorities dealt with only 255 cases, which are not broken down by case type so it is difficult to know if the investigations were of one, multiple or all immigration offences.51 The actual caseload is, of course, much higher when administrative punishments are taken into account; between January and November 2015, deportations alone amounted to over 16,531. Some of these immigration cases and deportations were probably in response to non-resident migrants flouting the employment prohibition. It is also likely that immigration authorities ignored any labour and employment rights abuses that the migrants may have experienced in Indonesia, an institutional practice that is examined in one of the case studies below.

Non-resident migrants, including more than 13,000 refugees and other asylum seekers in transit through Indonesia, are known to perform a range of jobs. The International Organization for Migration (IOM) provides refugees with limited financial and material support to partially compensate them for not being entitled to work in Indonesia.52While some refugees can supplement this support with their savings or money sent by family and friends back home, others are employed or engaged in income-generating activities in Indonesia. Refugees and other asylum seekers are known to prepare food for local restaurants, teach Arabic and English, cut and style hair, work as tailors and models, or make cameo appearances in Indonesian movies; some of the younger ones provide sex services to older Indonesian men and women.53 Non-resident migrants can and do work, despite the employment prohibition, and are arrested and detained, sometimes for arbitrary periods of time, when immigration authorities enforce the prohibition. Before their release, they are required to declare that they will observe the employment prohibition in the future.54

Another large group of non-resident migrants are thousands of men from mainland Southeast Asia working on commercial fishing boats in Indonesian waters. Since 1995 the Directorate-General of Immigration has issued a visa waiver (kemudahan khusus imigrasi) for employment of migrants in Indonesia’s territorial waters and Exclusive Economic Zone.55 The visa waiver is valid for 90 days and can be extended for up to one year, but employers do not always apply for the extension and are known to bring in migrant workers without immigration permission at all.56 The Indonesian fishing industry has been subject to internal and external inquiries about trafficking of migrants for forced labour. As with asylum seekers who have been recognised as refugees, there was a protection gap in the legal and policy framework concerning the rights of migrant fishers with a visa waiver because Indonesia had not ratified the Work in Fishing Convention. The following case studies are of typical responses by immigration authorities to such migrants living and working in irregular situations.

Case study 1: migrant trafficked for forced labour

On 3 April 2015, Thant Zin Win was amongst 658 mainland Southeast Asian migrants rescued by the Indonesian government from Benjina, a remote island in eastern Indonesia, following an international media report on modern-day slavery conditions there.57 The government transferred him and the other migrants to the neighbouring island of Tual, where the IOM arranged safe accommodation, food and water, hygiene kits, clothing and health care. As part of the process, the migrants were screened for evidence of trafficking for forced labour. The IOM identified 656 victims who reported that their employers withheld wages, abused them physically and psychologically as well as imprisoned them. Thant Zin Win worked for 14 months, was imprisoned for two days, and was promised 9000 Thai Baht (US$260) but received only one million Indonesian Rupiah (US$82) per month. At the very least, he and the other migrants wanted the employer to pay the balance of their wages.58

After a preliminary investigation into the migrants’ claims, the rescuing officials quickly realised that the dispute with the employer, Benjina Pusaka Resources, would not be easily resolved. Benjina Pusaka Resources paid Indonesian employees directly, but paid the migrants via its Thailand-based partner, Silver Sea Fishery, which owned the boats the migrants worked on.59 Benjina Pusaka Resources had also paid fees of Rp 60–80 million (US$4500–6000) for each boat with crew. The captains were Silver Sea Fishery employees, to whom Benjina Pusaka Resources paid commissions for each catch. The outsourcing arrangement between the Thai company and the Indonesian subcontractor complicated the situation, so the Indonesian officials, who were not labour inspectors, ruled out a swift resolution and turned a deaf ear to the migrants’ reports about abuse of labour and employment rights. Instead, they focused on rescuing the migrants from danger and repatriating them to regularise their immigration status. Most migrants were repatriated within a week of their rescue, eager to rejoin family and friends in mainland Southeast Asia and to leave the bad experience behind them.

Soon after, the migrants’ low economic status in their countries of origin attracted more international media attention, which increased pressure on the Indonesian government to seek compensation for the migrants in addition to punishing the perpetrators. Most migrants had returned home and were not easily contactable, which complicated efforts to claim wages for everyone. Instead, the government did so for 11 migrants, in tandem with criminal proceedings against the employers. The police had charged eight men with human trafficking for forced labour, but had only collected witness statements from Indonesian employees at Benjina Pusaka Resources and government officials. The Attorney-General’s Office accepted the investigation report but instructed prosecutors to supplement it with migrants’ testimonies and claim restitution for them, partly in response to the perception that the government’s handling of the situation was not adequately victim-centred. Prosecutors only had a list of names, so sought the advice of IOM, which held more detailed data in its Counter-Trafficking Unit Database and in case records collected as part of the victim-identification procedures in Tual five months earlier. The Attorney-General’s Office recommended 22 potential witnesses, and a senior official from the Witness and Victim Protection Agency travelled to Myanmar to locate them. Ultimately, 11 migrants accepted the Indonesian government’s offer to claim back pay of wages if they testified in court.

On 10 March 2016, almost one year after the rescue, the Tual District Court convicted eight men of trafficking for forced labour.60 It awarded 11 migrants a total of Rp 773,300,000 (US$58,000). Thant Zin Win received Rp 49.8 million (US$3,750), equivalent to full wages for the 14 months he worked on the boat. He had already received payments amounting to Rp 15 million (US$1130), but the judge recategorised the payments as a commission, which the captains had paid to Indonesian crew in addition to the monthly wages. The judge ordered the captain to pay the wages because Benjina Pusaka Resources showed evidence that it had already done so via the captain’s primary employer, Silver Sea Fishery. To further compel the captain, the judge included the maximum prison term of one year for failing to make the payment. However, it is unclear if Thant Zin Win’s trafficker paid, as 19 months later in December 2017, the Indonesian government reported that only eight of the 11 victims will receive payment because three traffickers claimed not to have the means to pay.61 It is not unusual in criminal proceedings to use only a representative sample of victim-witnesses like Thant Zin Win and the other 10 migrant fishers, but the outcome is exceptional in the context of this article, as the government supported non-resident migrants to claim and partly secure their labour and employment rights.

Case study 2: underage migrant seeking asylum

In June 2016, Mohammad (not his real name), a 16-year-old Hazara asylum seeker from Pakistan, was arrested by Indonesian immigration officials at a market in Puncak, a mountainous area in West Java known to host thousands of refugees and other asylum seekers. In order to support his family, who had fled first from Afghanistan and later from Pakistan to seek asylum in Indonesia, Mohammad had taken up work assisting a shopkeeper, who offered him a job because Mohammad spoke Indonesian well and could translate for non-Indonesian speaking customers coming to the shop. He worked daily from 8 am to 7 pm and held some responsibility over the cash register when the shopkeeper was not in. Mohammad got along well with his employer, who taught him new words and even gave him cash advances on his wages. He usually earned Rp 900,000 (US$68) per month and was sometimes paid extra, adding up to Rp 1,100,000–1,200,000 (US$83–90). However, the legal minimum wage at the time was Rp 3,204,551 (US$241), so Mohammad was grossly underpaid. At the time of Mohammad’s arrest, the employer also owed him two-weeks’ wages.62

Mohammed was very unlucky in many regards. Not only was he arrested and detained for nine months, thus losing his job, he forwent a claim for back pay of wages. It is unclear whether Mohammad knew about the legal minimum wage or whether the shopkeeper knew that Mohammad was entitled to it despite his migration status. In all likelihood, the authorities did not inform Mohammad about the legal right and would not have supported efforts to file a claim if Mohammad had reported it. Instead, they locked him up in an immigration detention centre in Jakarta, even though he was underage and should not have been detained there. Other asylum seekers alerted the Legal Aid Institute (Lembaga Bantuan Hukum, LBH), a civil society organisation, to Mohammad’s detention.63 They tried to secure Mohammad’s release by meeting with authorities at the Immigration Office in Bogor, but ultimately failed. Officials there would not entertain the idea of release. They had caught Mohammad red-handed working without immigration permission, and wanted to leave it up to their colleagues in the Directorate-General of Immigration in Jakarta to decide how to proceed.

Nine months later the authorities ordered Mohammad’s release. The delay was in part because at the time there was a backlog of more than a thousand cases up for review. Mohammad returned to Puncak, rejoining his family whose application for international protection had been approved by the UNHCR. Resettlement to a third country was now a greater possibility, but Mohammad knew that it would probably take a long time so he and his family would have to continue finding ways to make ends meet in Indonesia. It often takes two to five years to get resettled, but the waiting time can be much longer, with some refugees remaining in Indonesia for 10 years or more. Mohammad attempted to contact his old employer, but soon learned that he had moved on and sold his shop to new owners, whom Mohammad did not want to ask for employment because immigration authorities were arresting refugees and other asylum seekers for illegal work more frequently. This selective enforcement of law successfully dissuaded Mohammad from looking for a new job.

Whether or not Mohammad takes up new employment, he still has a legitimate claim for labour rights relating to his job with the shopkeeper under Law No. 13/2003 on Labour, for at least two weeks’ wages and for underpayment over a longer period. Mohammad was unaware of the legal requirement for the state to help him claim his labour rights. If he was a citizen or migrant with residency rights, he would have been eligible to use the labour dispute resolution mechanisms offered by the Manpower Office in Bogor and the Industrial Relations Court in Bandung. However, Mohammad is neither, and there is no institutional alternative for migrants without residency rights. Consequently, Mohammad and other asylum seekers are effectively forced to cut their losses when employers do not fully grant their labour and employment rights.

Between employment prohibition and labour rights enforcement

These case studies represent typical scenarios where the Indonesian government fails to protect the labour and employment rights of migrants living and working in irregular situations in its territory. As Mohammad’s experience shows, immigration authorities prioritised enforcement of the employment prohibition, as stipulated under Law No. 6/2011 on Immigration. In large part, they did so because the legal and policy framework governing day-to-day activity in the Directorate-General of Immigration has not been amended since the passing of Law No. 6/2012 on Ratification of the ICRMW, to include protection of the labour and employment rights of migrants who work despite the prohibition. Such technical issues mean that ratified conventions do not immediately take effect in Indonesia,64 so immigration authorities continue to focus their efforts on control and surveillance of migrants and their activities. As a consequence of the government’s approach to law enforcement in this area, migrants who work despite the prohibition are dissuaded from claiming rights to which they are legally entitled. It is not surprising, then, that government representatives did not inform Mohammad of his labour and employment rights or of his options for pursing them at some point in the nine months between his arrest and release from immigration detention.

The handling of Mohammad’s case is indicative of a broader tendency for Indonesian government officials in one agency to ignore issues they deem to fall within the policy areas of other agencies. In a phenomenon known as ego sektoral, government agencies operate much like silos because officials are often unfamiliar with the broader legal context of their administrative activity or make conscious decisions to prioritise enforcement of ‘their’ laws.65 Predictably, then, officials in the Directorate-General of Immigration most frequently seek to enforce the employment prohibition under Law No. 6/2011 on Immigration and ignore suspected offenders’ labour and employment rights, protected under Law No. 13/2003 on Labour and Law No. 2/2004 on Resolution of Industrial Relations Disputes. Greater coordination with the Ministry of Manpower is necessary if immigration officials are to improve the government’s response to migration patterns and related rights issues involving migrants in irregular situations. The Indonesian government has previously sought to improve the handling of issues relating to outgoing migrants by establishing an interdepartmental agency, the BNP2TKI, whose role was expanded under Law No. 18/2017 on Protection of Indonesian Migrant Workers; no corresponding effort has been made for incoming migrants.

This confirms tentative conclusions about the position of international law in the Indonesian legal system, that in theory ratified treaties apply in Indonesia, but in practice only do so once their principles have been incorporated into national law.66 Therefore, it is possible for Indonesia to have a ratified convention in force that contradicts another law, creating further confusion for officials who already have a reputation for uneven law enforcement.67 In the case of incoming migrants in irregular situations, lack of legal certainty means that the government turns a blind eye to abuse of their legal rights, as demonstrated in the two case studies. Ultimately, the government claimed unpaid wages of 11 migrant fishers like Thant Zin Win, but it is important to note that the government did not do so in an attempt to enforce the labour and employment rights of these irregular migrant workers as required by Law No. 6/2012 on Ratification of the ICRMW. Rather, the government claimed the wages as restitution for trafficking victims who served as prosecution witnesses in criminal proceedings against traffickers under Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons. Indeed, the government has an international legal obligation to claim restitution for victims under Law No. 14/2009 on the Ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, but no national law incorporates the protections of the ICRMW, so government officials denied incoming migrants in irregular situations the rights upheld in that convention.

The two case studies highlight not only the fact that existing arrangements for responding to rights abuses discriminate on the basis of migration status but also gaps in legal protection for some groups of irregular migrants. The ICRMW is clear that it does not apply to seafarers and refugees (as opposed to asylum seekers),68 who are covered by three other conventions, the ILO Maritime Labour Convention, Work in Fishing Convention and the UN Convention Relating to the Status of Refugees. However, at the time the abuses documented in the two case studies occurred, the Indonesian government had ratified none of these conventions, so the groups of irregular migrants that Mohammad and Thant Zin Win belonged to were living and working in a protection gap. In the case of refugees, states that are party to the ICRMW have the option of extending convention rights through national law or, if necessary, under another convention.69 The Indonesian government has taken neither option, even though extending the convention rights would, in theory, at least provide protection to refugees while they live and work in transit to another destination for resettlement. Indonesia’s failure to do so further emphasises the uncomfortable possibility that, like many other receiving countries, Indonesia is reluctant to help migrants enjoy basic human rights when it has not authorised them to enter its territory.

The case studies also signal that there may be negative implications for migrants who move between administrative categories. Concerning refugees and other asylum seekers, the ICRMW clearly provides coverage to asylum seekers whose refugee status has not yet been determined, but once refugee status has been determined they slip into a legal gap, because the government has not ratified the UN Convention Relating to the Status of Refugees, nor extended ICRMW rights, as discussed above. Of course, this absurdity of refugees ending up with less rights protection as a result of the refugee determination process should not discourage asylum seekers from applying for refugee status in Indonesia, because in doing so they become eligible for the support services of the UNHCR and IOM while they wait for resettlement in another country or ‘voluntary repatriation’. Registration should also protect claimants against arrest, detention and deportation for being in Indonesia without a valid visa, under existing policies such as for the special handling of migrants intending to file claims for refugee status. These policies are not, however, an adequate substitute for the UN Convention Relating to the Status of Refugees, the international legal standard for meeting the needs of migrants in search of international protection. Extending ICRMW rights to excluded migrants, such as refugees, would mean their rights as migrant workers would be protected while they wait for a more durable settlement solution, not least because their time in transit is becoming longer and longer and the need to generate an income for their livelihood is growing commensurately.

Conclusion

This account of Indonesia’s limited protection of human rights is another cautionary tale that shows how human rights do not always move with people as they cross international borders. The United Nations 2030 Agenda for Sustainable Development recognises the protection of labour and employment rights of migrants as crucial for achieving its goals.70 It is important to note that international human rights law has defined the universal ‘right to work’ for migrants living and working in irregular situations to mean that they do not have the ‘right to work’, but rather the ‘right to protection against labour exploitation’, even if they work without the host government’s permission. However, even States Parties to the ICRMW, such as Indonesia, may not guarantee this right and thus fall short of meeting their legal obligations to incoming migrants. This systemic failing can be explained by the fact that some, if not most, states that are party to the convention ratified it as part of a plan to do more in their role as a ‘sender’ of migrants, with the aim to protect the human rights of citizens who leave the country and then work. This was almost certainly the case for the Government of Bangladesh, which has also done very little to protect the human rights of incoming migrants living and working in irregular situations. Much like Indonesia too, government and civil society actors have focused on outgoing migration patterns and related rights issues.71 Greater rights protection could be achieved for all migrants in these countries if the sending/receiving dichotomy was abandoned in favour of attending to the role that most countries have as both ‘senders’ and ‘receivers’ of migrants.

Nonetheless, it is hard to imagine that States Parties such as Indonesia went as far as ratifying the ICRMW without understanding that the convention requires governments to protect the rights of incoming migrants. It is likely that government proponents were aware of the legal obligations inherent in the convention, but decided at the time that appearing to do more for outgoing migrants far outweighed the potential cost to the government of having to protect the rights of incoming migrants in the future. This approach to policymaking certainly bolstered the Indonesian government’s position when lobbying for a regional treaty to protect migrants from labour exploitation through the Association of Southeast Asian Nations (ASEAN), whose membership includes countries like Malaysia, where hundreds of thousands of Indonesian migrants are known to work without government permission and are often exploited by their employers.72 However, much like Malaysia and Singapore, the Indonesian government continues to deny incoming migrants the same legal rights it demands from other governments for its own citizens. Its actions are characteristic of state-led migration governance that ignores the human rights of migrants,73 especially those living and working in irregular situations.

Notes

1 For the purposes of this article, we follow the International Convention on the Rights of all Migrant Workers and Their Families (ICRMW) definition of ‘irregular situation’, which encompasses migrants who have not been ‘authorized to enter, to stay and to engage in remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party’ (ICRMW Article 5).

2 World Bank, “Indonesia’s Global Workers.”

3 The authors would like to thank Nicola Piper and anonymous reviewers for their useful comments on earlier drafts of this article. An earlier version of this article was also presented at the XIX ISA World Congress of Sociology, Toronto, 15–21 July 2018; and at the 15th EASA Biennial Conference, Stockholm, 14–17 August 2018.

4 United Nations Office of the High Commissioner for Human Rights, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, 112.

5 CMW, “General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of their Families,” 16–18.

6 ICRMW, Article 26.

7 ICRMW, Article 3.

8 Palmer, “Back Pay for Trafficked Migrant Workers.”

9 Law No. 15 Year 2016 on Ratification of Maritime Labour Convention.

10 Missbach, “Making a ‘Career’ in People-Smuggling in Indonesia”; Missbach, Troubled Transit.

11 Seawright and Gerring, “Case Selection Techniques in Case Study Research,” 296.

12 Piper and Iredale, “Identification of the Obstacles to the Signing and Ratification of the UN Convention”; Bosniak, “Human Rights, State Sovereignty and the Protection of Undocumented Migrants”; Pécoud, “UN Convention on Migrant Workers’ Rights and International Migration Management.”

13 Bidinger, “Syrian Refugees and the Right to Work”; Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum.”

14 Bosniak, “Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention,” 758.

15 Dewhurst, “Models of Protection of the Right of Irregular Immigrants to Back Pay.”

16 Morris, “Managing Contradiction,” 89.

17 Edelenbos, “Committee on Migrant Workers and Implementation of the ICRMW,” 103.

18 Law No. 6 Year 2012 on Ratification of International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

19 Syahputra, “Penyebab Indonesia Meratifikasi Konvensi PP 1990.”

20 Government of Indonesia, “Initial Report of the Republic of Indonesia.”

21 Ibid.

22 Ministry of Foreign Affairs, “Struktur Kementerian Luar Negeri (Direktorat Jenderal Kerja Sama Multilateral).”

23 Interview with former Vice Chairperson for International Cooperation and Promotion at the National Agency for the Placement and Protection of Indonesian Workers Overseas, Jakarta, November 2017.

24 Ministry of Foreign Affairs, “Struktur Kementerian Luar Negeri (Direktorat Jenderal Protokol Dan Konsuler).”

25 Human Rights Watch, “List of Questions for Bangladesh and Indonesia.”

26 Global Detention Project , “List of Issues Prior to Reporting – Indonesia.”

27 CMW, “General Comment No. 2 on the Rights of Migrant Workers,” 10, paragraph 33; Committee on the Rights of the Child, “Concluding Observations on the Combined Third and Fourth Periodic Reports of Indonesia,” 16, paragraph 66(b).

28 CMW, “List of Issues Prior to Submission of the Initial Report of Indonesia.”

29 CMW, “List of Issues Prior to Submission of the Initial Report of Indonesia,” paragraphs 19–20.

30 Government of Indonesia, “Initial Report of the Republic of Indonesia,” 36–37, paragraphs 109–113.

31 Government of Indonesia, “Initial Report of the Republic of Indonesia,” 32, paragraph 96.

32 Ibid.

33 Indonesian Ministry of Maritime and Fisheries Affairs and IOM (International Organization for Migration), “Trafficking, Forced Labour and Fisheries Crime in the Indonesian Fishing Industry”; Palmer, “Back Pay for Trafficked Migrant Workers.”

34 CMW, “List of Issues Prior to Submission of the Initial Report of Indonesia,” paragraph 19.

35 Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), “Concluding Observations on the Initial Report of Indonesia,” 1.

36 Ibid., 15.

37 Government of Indonesia to Secretariat of the Committee on the Protection of the Rights of All Migrant Workers and their Families, “Comments by the Government of Indonesia on the Concluding Observations,” 3.

38 Government of Indonesia, “Initial Report of the Republic of Indonesia,” 62–63.

39 Ibid., 63.

40 Law No. 23 Year 2006 on Civil Administration, Article 1(2).

41 Law No. 13 2003 on Labour, Articles 183–188.

42 Ibid Article 189.

43 Ministry of Manpower, “Statistik Ketenagakerjaan: Edisi 1,” 97–99.

44 Ford et al., Labour Migration and Human Trafficking in Southeast Asia.

45 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 25.

46 Government Regulation No. 78 Year 2015 on Wages, Articles 45–48.

47 Law No. 13 Year 2003 on Labour.

48 Ministerial Decree No. 235/Men/2003 on Employment that Endangers Children’s Health, Safety or Morality, Article 2.

49 Missbach and Tanu, “Unaccompanied Young Asylum-Seekers Stuck in Transit in Indonesia.”

50 Law No. 6 Year 2011 on Immigration, Article 122.

51 Directorate-General (Immigration) “Tahun 2015, Tahun Penegakan Hukum Keimigrasian: Direktorat Jenderal Imigrasi Sumbangkan 3,05 Triliun.”

52 Missbach, Troubled Transit.

53 Missbach and Tanu, “Unaccompanied Young Asylum-Seekers Stuck in Transit in Indonesia.”

54 Copy of the Declaration (original in English) with the authors.

55 Referred to in Director-General (Immigration) Decree No. F-658.IZ.01.10 on Special Immigration Treatment Year 2003, Article 15.

56 Indonesian Ministry of Maritime and Fisheries Affairs and IOM (International Organization for Migration) “Trafficking, Forced Labour and Fisheries Crime in the Indonesian Fishing Industry.”

57 AP Investigation: Slaves May Have Caught the Fish You Bought.

58 Unless otherwise stated, the information in this case study was provided by anonymous IOM officials involved in the processes between March 2015 and April 2016.

59 Legal decision No. 112/Pid.Sus/2015/PN.TUL.

60 Legal decision No. 105-112/Pid.Sus/2015/PN.TUL.

61 “Kejagung Serahkan Dana Restitusi Terhadap 8 Korban TPPO Benjina.”

62 Unless otherwise stated, the information in this case study was provided by ‘Mohammad’ during and after detention, in March and May 2017.

63 Interview with representative from LBH Jakarta, March 2017.

64 Butt, “The Position of International Law within the Indonesian Legal System.”

65 Palmer, Indonesia’s Overseas Labour Migration Programme.

66 Butt, “The Position of International Law within the Indonesian Legal System.”

67 IOM (International Organization for Migration) and AGO (Attorney General”s Office), ‘Indonesia’s Criminal Justice Response to Trafficking in Persons and Related Transnational Crime.”

68 ICRMW Article 3.

69 ICRMW Article 3(d).

70 Piper, “Migration and the SDGs.”

71 CMW, “Ratification, Reporting & Documentation for Bangladesh.”

72 Bal and Gerard, “ASEAN’s Governance of Migrant Worker Rights.” On political capital, see Iskandar and Crépeau, ‘The Overlooked Soft Power of Indonesia’s Post-UNCMW.”

73 Crépeau and Atak, “Global Migration Governance.”

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