COMMITTEE ON THE PROTECTION OF THE RIGHTS OF MIGRANT WORKERS EXAMINES REPORT OF INDONESIA
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families today concluded its consideration of the initial report of Indonesia on its implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Introducing the report, Abdul Wahab Bangkona, Special Adviser to the Minister of International Affairs of Indonesia, noted that the Government of Indonesia was currently finalising the draft revision of law No.39 of 2004 on the placement and protection of Indonesian workers abroad to bring it in line with the Convention. With more than 6.5 million Indonesians working abroad, the Government had made the protection of migrant workers its utmost priority, and had incorporated this in the National Action Plan for Human Rights 2015-2019. Indonesia’s landmark achievements in the protection of migrant workers included legislative and institutional measures, capacity-building programmes, and various initiatives to empower members of migrant workers’ families. The revised law on the placement and the protection of Indonesian migrant workers reduced the dominant role of private recruitment agencies in order to avoid illegal placement practices, Mr. Bangkona explained.
In the ensuing discussion, Experts commended Indonesia’s legislative reform in order to comply with the provisions of the Convention. Nevertheless, they expressed concern over the detention conditions and length for asylum seekers, refugees and unaccompanied minors, underlining that the position of the Committee was that no person should be detained for migration reasons. Experts also asked about the following issues: conformity of new legal measures with the Convention and application of the Convention, monitoring mechanisms for recruitment agencies, training of judges and judicial personnel on the provisions of the Convention, Indonesia’s role in the Colombo Process and the Abu Dhabi Dialogue, the status of the draft amendment to Law No.39 on the placement of migrant workers, the protection of Indonesian migrant workers in Saudi Arabia, especially in the context of the death penalty, and the detention of asylum seekers and refugees and in particular those rescued from the sea.
In his concluding remarks, Can Ünver, Committee Member and Country Rapporteur for Indonesia, noted that whereas Indonesia could not immediately solve its challenges, the Government was committed to improve the implementation of the Convention and to cooperate with civil society in order to enforce better decision-making regarding migration. Mr. Ünver encouraged Indonesia to ratify relevant International Labour Organization conventions and the Refugee Convention, as well as to improve the treatment of refugees.
Alip Singgih Hermono, Secretary-General of the National Body for the Placement and Protection of Indonesian Migrant Workers, reaffirmed Indonesia’s steadfast commitment to protect all its migrants abroad and foreign workers in its territory, as well as to protect their families. The protection of the rights of migrant workers was a continuous process that required sustainable policies and resources, and constant monitoring and evaluation. The Government fully acknowledged its shortcomings and challenges which was why it was open to inputs and was willing to listen to constructive observations.
Concluding the meeting, José Brillantes, Committee Chairperson, thanked the delegation for the constructive dialogue, commended the State party for its efforts, and encouraged it to take all the necessary measures to take into account the Committee’s observations. Mr. Brillantes welcomed the range of measures that Indonesia had taken, including the ban on sending domestic workers abroad, the revision of the Law No. 39 on the placement of Indonesian migrant workers, and the limitation of the role of recruitment agencies.
The delegation of Indonesia consisted of representatives of the Ministry of Law and Human Rights, the Ministry of Foreign Affairs, the Ministry of Social Affairs, the Ministry of Manpower, the National Body for the Placement and Protection of Indonesian Migrant Workers, and the Permanent Mission of Indonesia to the United Nations Office at Geneva.
The Committee will next meet in public today, 6 September, at 3 p.m. to consider the third periodic report of Mexico (CMW/C/MEX/3).
Report
The initial report of Indonesia can be read here: CMW/C/IDN/1.
Presentation of the Report
ABDUL WAHAB BANGKONA, Special Adviser to the Minister of International Affairs of Indonesia, said that Indonesia attached great priority to the protection of migrant workers, not only as the reflection of the national Constitution, but also as one of the nine priorities of President Joko Widodo. The Government was currently finalising the draft revision of law No.39 of 2004 on the placement and protection of Indonesian workers abroad, which was in line with the provisions of the Convention. The revised law shifted its focus from the placement regime to the protection aspect of migrant workers. Mr. Bangkona regretted that only 49 countries had ratified the Convention, most of them sending countries. The Government of Indonesia underlined the importance of the universality of the Convention for the betterment of the protection of migrant workers around the world. The Convention was instrumental in acknowledging the significant contribution of migrant workers to development and the importance of the international commitment to achieving safe, orderly, regular and responsible migration. Currently, there were more than 6.5 million Indonesians working abroad. Accordingly, the Government had made the protection of migrant workers its utmost priority, which focused on two main targets: enhancing the quality of protection of Indonesian citizens and legal entities, and protecting the rights and safety of migrant workers. The Government had incorporated the improvement of placement and protection efforts of Indonesian migrant workers in its National Action Plan for Human Rights 2015-2019.
Some of the landmark achievements included legislative and institutional measures, capacity-building programmes, and various initiatives to empower members of migrant workers’ families. The revised law on the placement and the protection of Indonesian migrant workers reduced the dominant role of private recruitment agencies in order to avoid illegal placement practices. As of 1 August 2017, all Indonesian migrant workers were covered by social security provided by the State through the Manpower Social Security Institution. At the local level, local governments had adopted more migration-friendly initiatives, such as village-level data inputs, supervision and monitoring for migrant workers’ children, and post-placement productivity training. Local governments were also engaging more actively civil society organizations and religious organizations in order to address migration issues, including in formulating relevant local bylaws. In order to prevent migrant workers from falling into irregular situations, in January 2017 the Task Force on the Prevention of Non-Procedural Indonesian Migration Workers had postponed issuing passports to nearly 5,000 prospective non-procedural Indonesian migrant workers. Citizen service units had been established in 24 Indonesian diplomatic missions in countries with a significant number of Indonesian migrant workers. Those units provided consular services, legal assistance, education and training, shelter, and health services to migrant workers. The units also ran the 24-hour hotline service to respond to migrant workers’ needs.
The Government of Indonesia strongly believed that ensuring the safety of Indonesian migrant workers started from home. It thus closely monitored the performance of some 570 registered placement agencies in the country. In 2016, it had revoked licences of 49 private placement agencies. It also continued to improve the protection, productivity and welfare of migrant workers through the newly launched “Productive Migrant Workers’ Villages” programme. As part of efforts to empower members of migrant workers’ families, the Government was committed to provide for every child, including those born out of wedlock. As for foreign workers in Indonesia, there were some 340,000 of them since 2012. The Government was committed to ensure the enjoyment of their equal rights in the workplace. Any foreign worker staying in Indonesia longer than six months was required to be enrolled in the National Social Security System. As of July 2017, the authorities had deported more than 1,400 foreign workers who had violated the national immigration laws and regulations.
In order to strengthen the enforcement of immigration law, the Government of Indonesia underlined the importance of international and regional cooperation. Cases of violation of the rights of Indonesian migrant workers in various countries had put further pressure on the Government to step up its protection efforts. A number of Indonesian migrant workers had to cope with terrible working conditions, underpayment, mental and physical abuse, criminal charges, and human trafficking. The Government carried out various training programmes to upgrade the skills of Indonesian migrant workers. At the regional level, Indonesia actively made efforts to strengthen the regional framework for the protection of migrant workers, notably through the Colombo Process and the Abu Dhabi Dialogue. Mr. Bangkona called on all countries, particularly on destination countries, to ratify the Convention.
Questions by the Committee Experts
CAN ÜNVER, Committee Member and Country Rapporteur for Indonesia, commended Indonesia’s legislative reform in order to comply with the provisions of the Convention. It was understandable that such a big country would face many challenges. What were the new measures and activities to ensure conformity with the Convention? Was the State party considering the introduction of measures to protect the violation of the rights of Indonesian workers abroad?
As for the application of the Convention, did the State party intend to amend the memoranda of understanding that it had signed with 13 countries to bring them in line with the Convention, Mr. Ünver asked.
One Expert commended the range of laws that Indonesia had in order to protect the rights of migrant workers. What types of monitoring mechanisms were in place for recruitment agencies? What coordination mechanisms were in place to ensure efficient implementation of the relevant laws?
What was the rank of the Convention in domestic law? Had judges and judicial personnel been trained on Convention provisions? What was the role of Indonesia in the Colombo Process and the Abu Dhabi Dialogue?
What was the State party doing to prevent corruption in placement agencies? Had the draft amendment to Law No.39 on the placement of migrant workers been adopted and if not, when would it be adopted? How would it strengthen the protection of migrant workers?
Female Indonesian migrant workers were vulnerable in Saudi Arabia, which regrettably had failed to ratify the Convention. Saudi Arabia had not signed a memorandum of understanding with Indonesia either. What steps had Indonesia taken to protect Indonesian migrant workers in Saudi Arabia, especially in the context of the death penalty?
How were immigration detention centres different from prisons? Indonesian immigration officials could detain migrants for up to 10 days. What was the process for those detained migrants? Could migrants appeal directly to a judge and what guarantees were in place to protect migrants from arbitrary detention and avoid cases of corruption?
To what extent was the General Comment No.2 on detention as an exceptional measure of last resort taken into consideration by the Government? Were asylum seekers, or persons rescued from the sea, detained? How was legal aid provided or guaranteed?
What was the impact of the migration ban for Indonesian domestic workers working in 21 countries due to abuse and exploitation? There had been reports of the abuse of Chinese migrants in Indonesia. Had any steps been taken to combat that discrimination?
What efforts had been made to facilitate birth registration of Indonesian children born in Hong Kong? What was the situation of Indonesian children working abroad, notably in oil platforms in Malaysia?
What was the number of cases that Indonesian consulates had dealt with? What responsibilities did embassies have in submitting complaints and in promoting the rights of migrant workers? What happened to migrant workers that depended on placement agencies that had been closed down?
Since placement agencies played a major role in the recruitment of Indonesian workers abroad, would it not be better to regulate rather than curb their role? Could foreign workers in Indonesia take their retirements to their country of origin? Was there a mechanism in place to facilitate remittances back to Indonesia?
Did Indonesia recognize the existing gender inequality, as exemplified by such a great number of female domestic workers in Saudi Arabia? Sometimes female migrant workers were forced to work very long hours and were subjected to precarious working conditions.
What was the position and status of the national human rights institution? Did it have presence in the entire country? How did the Government control migratory flows, given that Indonesia consisted of so many islands?
What was the status of the ratification of International Labour Organization conventions, especially with respect to Convention No. 181 on the control of private placement agencies?
What was the percentage of migration that went through employment agencies and the percentage that went through the public sector? Was there a law that assigned responsibility to employment agencies, specifying liabilities and fines in case of fraud?
What percentages of migration were allocated to low-skilled and high-skilled workers? Were there any bilateral agreements on trafficking in persons with countries with a significant number of Indonesian migrant workers?
As for the repatriation of Indonesian migrant workers, were there any support programmes available to them? Were remittances used for development projects and for bolstering the economy of Indonesia?
JOSÉ BRILLANTES, Committee Chairperson, asked the State party what it had done with respect the death penalty cases faced by Indonesian migrant workers. How many Indonesian domestic workers had been deployed? Why had the Government declared a ban on the deployment of domestic workers abroad? Could that ban cause irregular and clandestine migration?
Replies by the Delegation
The delegation clarified that the ban on sending Indonesia domestic workers applied to 19 and not 21 countries, mostly Middle Eastern and Gulf countries. The main criteria for sending workers abroad were the following: the existence of regulations protecting the rights of migrant workers, and to have in place a bilateral agreement with receiving countries. The Government took into consideration the recent adoption of amended laws on domestic workers in the Gulf countries. The Government was fully aware that the ban could bring about certain risks. The number of Indonesians going to work in Middle Eastern countries had almost halved since the introduction of the ban.
Indonesia had signed an agreement on human trafficking with the United Arab Emirates. The Government encouraged Indonesian migrant workers to establish associations in the countries where they worked to facilitate their protection. The capacity of consular services to protect Indonesian migrant workers was ensured through diplomatic training. Legal assistance had been provided to 60 Indonesian nationals on death row in different countries, out of which 17 were in Saudi Arabia.
As for the progress on the draft amendment to the Law No. 39 of 2004, it was clearly focused on protection rather than placement of migrant workers. For the first time, the Government mandated care for migrants’ families. The role of private recruitment agencies had to be limited in order to increase the skills of Indonesian migrant workers and to reduce the exploitation of migrant workers. A number of recruitment agencies had lost their licences due to abusive and fraudulent practices. In case of closure of recruitment agencies, they were still held responsible for the safety of migrant workers sent by them. Migrant workers could be transferred to another recruitment agency.
Some 62 per cent of Indonesian migrant workers were women, and the vast majority of them were married and had children. Only two per cent of Indonesian migrant workers had high-level skills, so the country was not experiencing brain drain. As for trafficking in persons, Indonesia had in place relevant legislation and a special task force. The Government was aware that the ban on sending domestic workers could heighten the risk of human trafficking. There were programmes in place to empower Indonesian migrant workers. As for remittances, migrant workers received training on financial literacy.
ABDUL WAHAB BANGKONA, Special Adviser to the Minister of International Affairs of Indonesia, clarified that Indonesia was currently going through a decentralisation process, which meant that the implementation of laws would take place at the regional level. Therefore, the draft amendment to Law No. 39 needed to be discussed at that instance as well.
Indonesia was a multi-ethnic society and, as such, it opposed any discrimination. The Government did note that some cases of discrimination did take place, but legal venues to deal with such cases were in place. As for Indonesian children working in oil platforms in Malaysia, they were encouraged to finish their education.
Second Round of Questions by Committee Experts
CAN ÜNVER, Committee Member and Country Rapporteur for Indonesia, inquired about the participation of civil society in deliberating migration phenomena. What kind of cooperation and activities did civil society engage in?
How did the law regulate the placement fees by private recruitment agencies? Was the kafala system considered when dealing with the protection of Indonesian migrant workers in Saudi Arabia?
What kind of cooperation between Indonesia and Australia had been established concerning migration by sea?
Replies by the Delegation
The delegation said that it took seriously the Committee’s observations about the gender perspective of migration issues. The Government had launched programmes to end violence against women and girls, their trafficking, and to promote their economic independence. Indonesia had focused on gender mainstreaming in the areas of development, anti-trafficking and institutional protection, and it had expanded training on gender issues, namely domestic violence, to law enforcement personnel.
As for the role of local government in the promotion of the rights of migrant workers, the delegation explained that the Government had achieved much progress in that area. The protection of migrant women and children, which used to be problematic in the past, had been improved. Non-governmental organizations worked to promote awareness about the protection of migrant women and children.
The Government had set up the Corruption Eradication Commission and had adopted a zero tolerance policy on corruption in order to better protect the rights of migrant workers. It had also established a task force to eradicate unauthorised levies imposed by Indonesian administration personnel. The Indonesian National Commission for Human Rights was mandated to investigate human rights violations, and to study the implementation of international conventions.
The high cost and the lengthy migration process pushed many Indonesians into irregular migration, which was why the Government worked to lower those costs through subsidies.
There were two types of detention centres in Indonesia: immigration detention centres for temporary detention of foreigners in violation of the country’s immigration laws, and immigration detention rooms. Most of the detainees at immigration detention centres and rooms were refugees and asylum seekers, and they could be detained for up to 10 years. The Directorate General of Immigration strongly upheld the rights of detainees. It provided translators, healthcare services, adequate treatment of women and children, access to families, and it guaranteed the right of detainees to complain to relevant authorities about inappropriate treatment.
Unaccompanied minors were separated from adults in detention centres. There were two shelters for unaccompanied children in the country.
ABDUL WAHAB BANGKONA, Special Adviser to the Minister of International Affairs of Indonesia, said that Indonesia was an active participant in the Colombo Process on contractual labour mobility through which countries shared their best practices in the protection of migrant workers. Indonesia had initiated a dialogue with receiving countries, the so-called Abu Dhabi Dialogue, in order to avoid harmful practices vis-à-vis migrant workers. The Indonesian Government was fully committed to ensure the best social security coverage for migrant workers.
Together with Australia, Indonesia co-chaired the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, as a forum for both sending and receiving countries to prevent migrant workers from falling into the risk of trafficking.
Civil society organizations in Indonesia contributed to better governance of the rights of migrant workers, especially at the local level. Unfortunately, not all receiving countries guaranteed the freedom of association, which was why the Government of Indonesia encouraged the creation of organizations of Indonesian migrant workers abroad.
Third Round of Questions by Committee Experts
Was corporal punishment still used in the criminal system? Was there effective legal remedy for detained migrants? What were the conditions to ensure a penitentiary system that separated administrative detention from detention in prisons?
The fact that migrants could be detained for up to 10 years and that they were held in detention centres in the same conditions as in prisons was shocking, Experts noted. Was the deprivation of freedom the sole response to irregular migration? What were the alternatives?
Experts reminded that the position of the Committee was that no child should be detained for migration reasons. Why was the best interest of the child not considered when making detention decisions? Who determined the best interest of the child in Indonesia? What were potential security risks presented by irregular migrants? That risk should be assessed on a case-by-case basis.
Did the State party believe that Indonesian migrant workers presented a security threat in receiving countries? Did Indonesia respect the Vienna Convention by allowing the contact of detained migrants with their home country?
CAN ÜNVER, Committee Member and Country Rapporteur for Indonesia, asked about the use of remittances to enhance the national economy and to promote employment. Could remittances be directed to investments? Were there any concrete programmes to attract remittances?
What measures were taken to promote access to loans and social programmes on the basis of the flow of remittances?
Replies by the Delegation
The delegation clarified that detention centres were meant for foreigners in violation of Indonesian immigration laws, and asylum seekers and refugees. Since Indonesia was not party to the Refugee Convention, it did not have separate centres for asylum seekers and refugees. There was no criminalisation of migrants in Indonesia. The Government’s position was to deport them as soon as possible. Detention centres hosted mostly asylum seekers and refugees. Ten years of detention was a maximum period applied and the authorities did not detain migrants for such a long time.
As for minors, they were sheltered together with their families. Even though the term detention shelter was used, its function was to provide temporary shelter. With respect to unaccompanied minors, the Government worked closely with civil society to ensure their rights, especially the right to education, and to provide them with adequate accommodation.
With respect to corporal punishment, it was applied only in the province of Aceh that practiced the Sharia law. That punishment was only applied to citizens of that province and not to foreigners.
As for the protection of Indonesian migrant workers within the kafala system, Indonesian consulate services could not have direct access to Indonesian domestic workers within the kafala system, which led the Government to impose a ban on sending Indonesian domestic workers to countries that had the kafala system.
The Government provided subsidies for starting businesses based on remittances, as well as financial training. At the local level, there was a village migration programme to promote efficient ways in utilising remittances, other than consumption. To that end, the Government cooperated with civil society.
As of 1 August 2017, all migrant workers had to be covered by the Indonesian national social security system, and by social security systems in their home countries.
Follow-up Questions by Committee Experts
What were the alternatives for those who violated Indonesia’s migration laws and did not request asylum? The fact that Indonesia had not ratified of the Refugee Convention was not an excuse for not providing refugee status. The Committee’s position was that States parties should not massively deport asylum seekers and refugees.
The response of the delegation regarding Indonesian domestic workers in the kafala system was somewhat euphemistic, Experts observed. The Government of Indonesia could ask for the return of passports of those Indonesian domestic workers. That should be reviewed within the Colombo Process and the Abu Dhabi Dialogue.
JOSÉ BRILLANTES, Committee Chairperson, asked whether there were any plans to expand detention centres in order to deal with overcrowding. What was the policy of the Ministry of Foreign Affairs on issuing of passports to Indonesian migrant workers? What was the practice regarding the documentation of undocumented migrants?
Replies by the Delegation
The delegation noted that Indonesia was not an Islamic state, and the province of Aceh was the only province in the country that applied Sharia law. As for undocumented migrants, they had to return to their home country to obtain travel documents. But, in some situations, the Indonesian consular service would issue them travel documents if there were guarantees in destination countries for the granting of work permits.
The delegation clarified that there were community houses for asylum seekers and refugees, especially for women and children. Indonesia was cooperating with the International Organization for Migration in order to expand accommodation capacities.
Concluding remarks
CAN ÜNVER, Committee Member and Country Rapporteur for Indonesia, appreciated the answers provided by the delegation of Indonesia, which revealed that the State party confronted many challenges. Whereas those challenges could not be immediately solved, the Government was committed to improve the implementation of the Convention and to cooperate with civil society in order to enforce better decision-making regarding migration. Mr. Ünver encouraged Indonesia to ratify relevant International Labour Organization conventions and the Refugee Convention, as well as to improve the treatment of refugees. He also underlined the issue of remittances and of corporal punishment, even though it was applied only in one province.
ALIP SINGGIH HERMONO, Secretary-General of the National Body for the Placement and Protection of Indonesian Migrant Workers, expressed gratitude to the Committee for the opportunity to engage in a constructive dialogue. He reaffirmed Indonesia’s steadfast commitment to protect all its migrants abroad and foreign workers in its territory, as well as to protect their families. That effort required fundamental changes in mind sets and attitudes, and innovative and firm policies and measures. As a large, diverse and archipelago country, Indonesia encountered immense challenges in ensuring safe migration for its migrant workers from the moment of recruitment and placement until return. The protection of the rights of migrant workers was a continuous process that required sustainable policies and resources, and constant monitoring and evaluation. The Government fully acknowledged shortcoming and challenges which was why it was open to inputs and was willing to listen to constructive observations.
JOSÉ BRILLANTES, Committee Chairperson, thanked the delegation for the constructive dialogue, commended the State party for its efforts, and encouraged it to take all the necessary measures to take into account the Committee’s observations. Mr. Brillantes welcomed the range of measures that Indonesia had taken, including the ban on sending domestic workers abroad, the revision of the Law No. 39 on the placement of Indonesian migrant workers, and the limitation of the role of recruitment agencies.
For use of the information media; not an official record
CMW/17/10E