Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers against Human Rights Violations in Saudi Arabia (2010-2014)
BY: RIKE NINDITA OCTOVIANA ID no. 016201300128
A Thesis presented to the Faculty of Humanities, International Relations Study Program President University In partial Fulfillment of the requirements for Bachelor’s Degree in International Relations Major in Diplomacy Studies
May 2017 THESIS ADVISOR RECOMMENDATION LETTER
This thesis entitled “Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers Against Human Rights Violations in Saudi Arabia (2010- 2014)” prepared and submitted by Rike Nindita Octoviana in partial fulfillment of the requirements for the degree of Bachelor in the Faculty of Humanities, International Relations Study Program has been reviewed and found to have satisfied the requirements for a thesis fit to be examined. I therefore recommend this thesis for Oral Defense.
Cikarang, Indonesia, May 26, 2017
Name and Signature of Advisor
______
(Drs. Teuku Rezasyah, M.A., Ph.D.)
Thesis Advisor
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DECLARATION OF ORIGINALITY
I declare that this thesis, entitled “Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers against Human Rights Violations in Saudi Arabia (2010-2014)” is, to the best of my knowledge and belief, an original piece of work that has not been submitted, either in whole or in part, to another university to obtain a degree.
Cikarang, Indonesia, May 2017
______
Rike Nindita Octoviana
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PANEL OF EXAMINERS APPROVAL SHEET
The Panel of Examiners declare that the thesis entitled “Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers Against Human Rights Violations in Saudi Arabia (2010-2014)” that was submitted by Rike Nindita Octoviana, majoring in International Relations from the Faculty of Humanities was assessed and approved to have passed the Oral Examination on 2 June 2017.
Dr. Phil. Reza A.A. Wattimena, S.S., M.Hum. Examiner I
Natasya Kusumawardani, S.IP., MProfStuds (Hons) Examniner II
Drs. Teuku Rezasyah, M.A., Ph.D. Thesis Adviser
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ABSTRACT
Name : Rike Nindita Octoviana
ID no : 016201300128
Title : Indonesia’s Diplomacy in Protecting Indonesia’s migrant workers Against Human Rights Violations in Saudi Arabia (2010- 2014)
Human Right is the basic and absolute right of every people, because he or she was born human. The topic of human right issues has become the most discussion topic all over the world which create charter that upholds the human right that is Universal Declaration of Human Right and Vienna Declaration and Programme of Action. In Indonesia, Saudi Arabia is the second largest country as the main destination for Indonesian migrant workers placement, even though Saudi Arabia is also known as the country with a high level of migrant workers complaints. This research uses the concept of diplomacy to analysis the Indonesia’s diplomacy in protecting Indonesia’s migrant workers in Saudi Arabia. The Kafalah’s system which Saudi Arabia embraces, is the main factor which caused human rights violation. The case of Sumiati on 2010, forced Indonesian government impose the moratorium towards Saudi Arabia, effective on August 1, 2011. The impact of moratorium pushed Saudi Arabia towards the discussion that resulted in agreement of Indonesia’s migrant workers protection. Through several diplomacy effort (summit or meetings and negotiations) such as Senior Official Meetings I, Senior Official Meeting II, Ministerial Bilateral Meetings, on February 19, 2014 Indonesia managed to improve the protection of migrant workers by signing Memorandum of Understanding (MoU) on Ministerial Bilateral Meetings II.
Keywords: Migrant Workers, Diplomacy, MoU, Saudi Arabia
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ABSTRAK
Nama : Rike Nindita Octoviana
ID no : 016201300128
Judul : Indonesia’s Diplomacy in Protecting Indonesia’s migrant workers Against Human Rights Violations in Saudi Arabia (2010- 2014)
Hak Asasi Manusia adalah hak dasar dan mutlak setiap orang, karena dia dilahirkan manusia. Topik tentang isu hak asasi manusia telah menjadi topic diskusi paling banyak di seluruh dunia. Ada piagam yang menjunjung tinggi hak asasi manusia yaitu Deklarasi Universal tentang Hak Asasi Manusia dan Deklarasi dan Program Aksi Wina. Arab Saudi adalah Negara terbesar kedua sebagai tempat tujuan utama dan penempatan pekerja migran Indonesia, namun Arab Saudi juga berada di tempat pertama sebagai Negara dengan tingkat keluhan pekerja migran Indonesia yang tinggi. Peneliti menggunakan konsep diplomasi untuk menganalisis diplomasi Indonesia dalam melindungi pekerja migran Indonesia di Arab Saudi. Sistem Kafalah yang di anut oleh Arab Saudi, menjadi salah satu faktor terjadinya kekerasan. Kasus Sumiati pada tahun 2010, membuat pemerintah Indonesia memberlakukan moratorium terhadap Arab Saudi, yang efektif pada 1 Agustus 2011. Dampak moratorium membuat, Arab Saudi ingin membahas tentang kesepakatan perlindungan pekerja migrant Indonesia. Melalui beberapa upaya diplomasi (pertemuan puncak atau pertemuan dan negosiasi) seperti Rapat Pejabat Resmi I, Rapat Pejabat Tinggi II, Rapat Bilateral Menteri, pada tanggal 19 Februari 2014 Indonesia dapat memperbaiki perlindungan pekerja migran dengan menandatangani Memorandum of Understanding (MoU) di Rapat Bilateral Menteri II.
Kata Kunci: Tenaga Kerja Indonesia, Diplomasi, MoU, Arab Saudi
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ACKNOWLEDMENT
For first gratitude is to the Lord, I would like to say thanks to Jesus Christ for giving me strength to fight my laziness, easily give up, fear and anxiety in doing and finishing my thesis. Also regret that always I feel because I’m not managing my time well. I am very grateful that I can learn how to manage my time schedule in the future and be more patience during the process in finishing it.
Secondly, my father, Timotius Heri Witjaksono and my mother, Nouke Ade Mailoor who give me support and pray to finishing my thesis and not pressing me hard to finish my thesis. Thank you for believing me that I can finish this thesis.
Thirdly, I would like to say big thanks for my thesis advisor Mr. Teuku Rezasyah and Ms. Natasya Kusumawardani who give their idea, knowledge, suggestion and time in completing my thesis.
I would like to say big thanks for my friends (Ine, Hana, Sandra, Thia, Meris and Debol) for supporting, ask, helping and encourage me to finish this thesis. Also no exception Koko Wise Brain, for always encourage, believe, support and reminds me to do and finish my thesis. Thank you for stay by my side when I feel sad and depressed because of my thesis, and spare his time to help me for grammatical check and editing my thesis.
Cikarang, 26 May 2017
Rike Nindita Octoviana
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TABLE OF CONTENTS
THESIS ADVISOR RECOMMENDATION LETTER ...... i DECLARATION OF ORIGINALITY ...... ii PANEL OF EXAMINERS APPROVAL SHEET ...... iii ABSTRACT ...... iv ABSTRAK ...... v ACKNOWLEDMENT ...... vi TABLE OF CONTENTS ...... vii LIST OF TABLES ...... ix LIST OF FIGURES ...... ix LIST OF ACRONYMS ...... x CHAPTER I INTRODUCTION ...... 1 I.1 Background of Study ...... 1 I.2 Problem Identification ...... 6 I.3 Statement of the Problem ...... 7 I.4 Research Objectives ...... 7 I.5 Significant of the Study ...... 7 1.6 Theoretical Framework ...... 8 I.6.1 Diplomacy ...... 8 I.7 Scope and Limitations of the Study ...... 13 I.8 Research Methodology ...... 14 I.9 Literature Review ...... 15 I.10 Structure of the Thesis ...... 20 I.11 Chapter Summary ...... 21 CHAPTER II INDONESIA’S MIGRANT WORKERS IN SAUDI ARABIA ...... 22 II.1 Development of Indonesia Workers in Saudi Arabia ...... 22 II.2 Indonesia and Saudi Arabia legal basis of migrant workers protection 23 II.2.1 Indonesia legal basis of migrant workers protection ...... 23 II.2.2 President Susilo Bambang Yudhoyono Foreign Policy regards Migrant Workers...... 24 II.2.3 Saudi Arabia legal basis of migrant workers protection ...... 25
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II.3 Human Right violations towards Indonesia’s migrant workers in Saudi Arabia ...... 28 II.4 Factors of Problems of Indonesia’s migrant workers in Saudi Arabia .. 32 II.5 Chapter Summary ...... 34 CHAPTER III Indonesian Government Responses towards Human Rights Violations in Saudi Arabia ...... 35 III.1 Moratorium in August 1, 2011 ...... 35 III.2 The Impact of the Moratorium ...... 38 III.3 Chapter Summary ...... 42 CHAPTER IV Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers against Human Rights Violations in Saudi Arabia (2010-2014) ...... 43 IV.1 Senior Official Meetings (SOM) I (2010) ...... 46 IV.2 Senior Official Meeting II (2011) ...... 46 IV.3 Ministerial Bilateral Meetings (2013) ...... 47 IV.4 Ministerial Bilateral Meetings II (2014) ...... 47 IV.4.1 Memorandum of Understanding (MoU) ...... 48 IV.5 The Implementation of Memorandum of Understanding (MoU) ...... 49 IV.6 Chapter Summary ...... 52 CHAPTER V CONCLUSION ...... 53 BIBLIOGRAPHY ...... 55
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LIST OF TABLES
Table 2.1 Problematic Indonesia’s migrant workers in Saudi Arabia based on the type of problem 2010-2013 ...... 29 Table 2.2 Data of Indonesia’s migrant workers Died Abroad (Middle East Area) 2010-2014 ...... 30 Table 4.1 Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers in Saudi Arabia ...... 44 Table 4.2 Problematic Indonesia’s migrant workers in Saudi Arabia 2010- 2014...... 51
LIST OF FIGURES
Figure 1.1 Theoretical Framework Scheme ...... 13 Figure 2.1 Rule of Kafalah’s System ...... 27
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LIST OF ACRONYMS
BNP2TKI Badan Nasional Penempatan dan Perlindungan Tenaga Kerja Indonesia (The National Authority for the Placement and Protection of Indonesian Overseas Workers)
Qadi A judge who makes decisions based on Islamic law
IGO Inter-Governmental Organization
PPTKIS Perusahaan Pengerah Tenaga Kerja Indonesia Swasta (Private Company)
BUMN Badan Usaha Milik Negara (State-Owned Enterprises)
BUMD Badan Usaha Milik Daerah (Regionally-Owned Enterprises)
MoU Memorandum of Understanding
ILO International Labor Organization
Kafalah system Saudi’s foreign worker sponsorship system
MoM Minutes of Meeting
SOM Senior Official Meeting
JTF Joint Task Force
JWG Joint Working Group
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Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers against Human Rights Violations in Saudi Arabia (2010-2014)
CHAPTER I INTRODUCTION
I.1 Background of Study
Human Right is the basic and absolute right of every people, because he or she was born human. These rights exist, because given the vulnerable position of man in the social process in society, cultural, economic, and are intended to provide protection. Every human being has human rights even though the extent to which these rights are fulfilled in practice, vary widely from state to state.
The topic of human right issues has become the most discussion topic all over the world where all states, institutions, organizations, unions have agreed to maintain, uphold, and protect human right. This topic is based on the first international forum meeting which supporting to uphold the human right and the first consent that has been agreed and signed by several countries namely Vienna Declaration and Programme of Action.1 Vienna Declaration and Programme of Action reflected the consensus among Western Countries and non-Western Countries that human rights have a universal nature.
Another charter that upholds the human right is Universal Declaration of Human Right that has been established in 1948 which was proclaimed and adopted by the United Nations General Assembly.2 Universal Declaration of
1 Vienna Declaration and Programme of Action adopted by the World Conference on Human Right in Action in Vienna on June 25, 1993. Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx, on 16 May 2017 2 Universal Declaration of Human Rights. Retrieved from http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf,on 16 May 2017
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Human Right reflected that every state supposedly has its own human right laws. Both of those declarations regarding the human right protection are to ensure the right provided rightfully towards individual either as a man, women, and children, not to mention as a migrant worker.
Migrant worker is defined as a person with temporary permission to work in another country.3People who become a migrant worker wanted to improve their living circumstances in their origin country, especially in the financial area. However, in their destined foreign country, migrant worker can face problems, which leads to violations towards their human rights. In fact, both of those Human Right Declarations regarding human rights protections have not ensure human rights violations will not happen, especially towards migrant workers. There are still many of human rights violations issues especially confronted by Indonesia’s migrant workers.
Human right violation has attracted the worldwide attention, as well as the protections of migrant worker have become international issues. These violations are exists in form of torture which can be either physical or psychological, and aims at the "humiliation or annihilation of the dignity of the person." Physical torture might include mutilation, beatings, and electric shocks to lips, gums, and genitals.4Universal Declaration of Human Right declare in article 4 no slavery “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”5
The existence of violation in this globalization era, made interaction between state actors, non-state actors and individual increases and tend to be unavoidable. The globalization has made the world become borderless and this create a situation where people can easily interact with each other’s from the other part of the world. This interaction which has been built is known as international relations. International relation define that people(s) will involve
3Your Dictionary. “Migrant worker”. Retrieved from http://www.yourdictionary.com/migrant- worker, on 16 may 2017 4Cassese, Antonio. 1999. Human Rights in a Changing World. Philadelphia: Temple University Press. pg 90 5 United For Human Rights. Retrieved from http://www.humanrights.com/what-are-human- rights/violations-of-human-rights/democracy.html, on 16 May 2017
2 | P a g e inside the global activities such in economic, political, connections and cultural. Globalization has increased the interconnectedness of the world in more ways imaginable. The interactions which happen in globalizations era become less controllable and maintainable that leads to human right violation.
Indonesia is the world’s seventh largest country in terms of land and sea area, also the world’s fourth most populous country and the most populous Muslim-majority country. 6 Indonesia as a developing country is currently facing human rights violations towards its migrant workers in foreign countries.
Currently Indonesian growth in economic sector and its condition as a developing country attracted foreign investors to invest in Indonesia, such as Saudi Arabia.7The bilateral relation between Indonesia and Saudi Arabia has been established for a long time. This relations established because of the belief similarity between Indonesia and Saudi Arabia. Saudi Arabia is known as the birthplace of Islam and Indonesia is one of country which has largest Muslim populations in the world.
In economic sector, Indonesia and Saudi Arabia has become a trade partner for a long time, especially in energy trade. In recent years, both countries have agreed to double their bilateral trade by 2020, and both of them have a lot of potential for expansion. Saudi Arabia is one of the biggest markets and act as a major trade partners for Indonesia in the Middle East. The investment from Saudi Arabia has helped Indonesia government in decreasing unemployment number inside the country. Saudi Arabia mostly invests their money in the oil energy of Indonesia, their background as a country whose strength laid on their oil resources.
6Satu Jam. Ternyataluaswilayah Indonesia menempatiurutanke 7 di dunia. Retrieved from https://www.satujam.com/luas-wilayah-indonesia/#content, on 16 may 2017 7Asmarini, Wilda. Reuters. November 26, 2015. Saudi Aramco to invest more in Indonesia’s oil and gas sector. http://www.reuters.com/article/saudi-aramco-indonesia-pertamina- idUSL3N13L42X20151126
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Indonesia huge number of population is consists of people with low and poor of knowledge and education.8That is the main reason, many Indonesian labors choose to become migrant workers as a housemaid, and factory workers where these sectors do not require a high knowledge. Therefore they choose to work overseas, such as Saudi Arabia rather that working inside their own country.
For Indonesian, working abroad has more benefits rather than working in Indonesia. First, they get chance to improve their financial stands which then will improve their living including their family. Social norm in Indonesia also support this cause by providing positive appreciation towards people who works overseas. Therefore, these migrant workers tend to feel proud by working abroad. Indonesia as a country itself also have their portion of benefit, by sending their workers overseas, Indonesia automatically gain country GDP. The other benefit for Indonesia, is the other country available working place, by having these migrants workers, Indonesia is able to push down its unemployment rate. Low level of knowledge and education factor is pressuring Indonesian to find a proper job, even in their own country. The increasing number of unemployment is the impact for this condition. The high standard for employment and low space of employment space have enable this high number of migrant workers. Thus make Indonesia to be largest providers of migrant workers, these migrants workers is currently spreading all over the world, such as Asia, Middle East, and Europe. According to the National Authority for the Placement and Protection of Indonesian Overseas Workers (BNP2TKI) data in 2011 until 2015, there are 2.299.187 Indonesian workers who is currently working abroad.9
Saudi Arabia is the second largest country as the main destination of Indonesia’s migrant workers placement, where the number of Indonesia’s
8 The Jakarta Post, May 5, 2016. “Indonesia Saudi Arabia to double trade by 2020”. Retrieved from http://www.thejakartapost.com/news/2016/05/05/indonesia-saudi-arabia-to-double-trade- by-2020.html. on 16 may 2017 9Okezonenews. October 16, 2016. Alasan 2 jutapenduduk Indonesia memilihMigrasikeLuarNegeri. Retrieved fromhttp://news.okezone.com/read/2016/10/16/510/1516240/alasan-2-juta-penduduk- indonesia-memilih-migrasi-ke-luar-negeri, on 16 May 2017
4 | P a g e migrant workers in Saudi Arabia at that time reached 1.2 million people.10 Despite its popularity, Saudi Arabia is the country the highest number of Indonesia’s migrant workers complaints, this claim is supported by Consulate General in Jeddah which state 1.546 cases of migrant worker complaints which happen in Saudi Arabia.11Indonesia’s migrant workers face the problems of human rights violations, such as violence, persecution, arbitrary acts committed employers to workers that led to the persecution and murder case in Saudi Arabia.
One of the example of Indonesia’s migrant workers violations, can be seen in the case of Kokom, a labor woman from Sukabumi, West Java, village residents Cijatu, District Jampang Kulon, who become victims of torture by her employer that made her paralyzed in Saudi Arabia. While working for two male employers, Kokom never obtain any salary, and frequently abused physically that caused some parts of his body paralyzed such as legs, eyes, and ears. However, the most severe punishment for the perpetrators of tortures only a few years in custody, or fines. Even after serving their punishment, both of Kokom’s employer fails to fulfill the rights of Indonesia’s migrant workers, such as wages which is not given. There are not a few workers who have similar fate with Kokom, returning to Indonesia only with the clothes wore with additional torture wounds.12
The problems of Indonesia’s migrant workers abroad has been going on for years, but there is no real solution for the right of Indonesia’s migrant workers abroad. The solution for these Indonesian migrant workers is expected to be a guarantee for their human rights. Abuses of human rights tends to happens towards workers who work in the informal sector, which generally
10 Kompas.com, SetengahJuta WNI dieksporjadi TKI Sepanjang 2013, Retrieved fromhttp://bisniskeuangan.kompas.com/read/2014/01/08/0957567/Setengah.Juta.WNI.Dieksp or.Jadi.TKI.Sepanjang.2013, on 16 May 2017 11 BNP2TKI 2011, “Turun, PenyelesaianKasus TKI di Arab Saudi”. Retrieved from http://www.bnp2tki.go.id/berita-mainmenu-231/3953-turun-penyelesaian-kasus-tki-di-arab- saudi.html, on 16 May 2017 12 Kompas.com,2013.TKW SukabumiDisiksasampaiLumpuh di Arab Saudi. Retrieved from http://regional.kompas.com/read/2013/10/08/2129405/TKW.Sukabumi.Disiksa.sampai.Lump uh.di.Arab.Saudi, on 16 may 2017
5 | P a g e works as domestic helpers (Housemaid), drivers, gardeners, and tradesman. It is inevitable that the limited expertise and knowledge owned by Indonesia’s migrant workers, such as lack of communication skills, and low level of understanding towards the rules and culture in Saudi Arabia is the reasons behind the abuse from the employer.
I.2 Problem Identification
On this research, researcher will focus on the issues of Indonesia’s migrant workers protection against human rights violations as this become a major problem which faced by Indonesia government. These human right violations is mostly faced by Indonesian women workers by having bad treatment from their employer, such as violence in form of beating, torturing, raping and murder. It is a sorrowful scene where we see Indonesia’s migrant workers who leave their family behind and put their faith to work in Saudi Arabia and hope to get a better life, but ended with tragic condition in the hands of their employer.
These problems prove that Indonesia still experiencing problems in protecting of their migrant workers that they place in foreign countries. Whereas, Indonesia have the laws in protecting of human rights where it have been embedded in Indonesia’s 1945 Constitution. The protection of the human right is on Human Rights act no. 39 of 1999, article 2 as “The Republic of Indonesia acknowledges and holds in high esteem the rights and freedoms of humans as rights which are bestowed by God and which are an integral part of humans, which must be protected, respected, and upheld in the interests of promoting human dignity, prosperity, contentment, intellectual capacity and justice.”In fact, there are legal instruments which owned by Indonesia’s government that aims to protect human rights including the rights of migrant workers. Still, violations of human rights exist as what happen in the case of migrant workers violations in Saudi Arabia. 13
13 ILO.org. Concerning Human Rights. Retrieved from https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/55808/105633/F1716745068/IDN55808 %20Eng.pdf. On 20 may 2017
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Protecting Indonesian overseas workers as stipulated in Article 6 of Law No. 39/2004 declare that the government is responsible to protect Indonesian overseas workers. That means the government must guarantee the security and certainty of legal protection for Indonesian overseas workers. Where the protection of Indonesian overseas workers is dedicatedly stipulated in Article 7 of Law No. 39/2004 which broadly states that the government shall ensure the rights of Indonesian overseas workers while abroad.14
In order to ensure the protection and guarantee the right of Indonesia’s migrant workers, diplomacy have become the means to achieve it. Further, this research will seek deeper explanation about how the Indonesia’s diplomacy effort in protecting Indonesia’s migrant workers in Saudi Arabia.
I.3 Statement of the Problem
The statement of the problem of this research is:
How did Indonesian government improve the protection of Indonesia’s migrant workers against human rights violations in Saudi Arabia?
I.4 Research Objectives
This thesis will be use descriptive method in analyzing Indonesia’s diplomacy in protecting Indonesia’s migrant workers against human rights violations in Saudi Arabia (2010-2014). The use of descriptive method can be justified as the statement of affairs as they are at present and the researcher having no control over variable. Descriptive attempt to determine, describe or identify what is, while analytical research attempts to establish why it is that way or how it.
I.5 Significant of the Study
14 Indonesia Labor Law. 2014. The Placement and Protection of Indonesian overseas workers. Retrieved from http://www.indonesialaborlaw.com/the-placement-and-protection-of- indonesian-overseas-workers/#sthash.fcxCgji9.dpbs, on 20 may 2017
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This research is expected to contribute in ways as follow:
a. To analyze the form of diplomacy that has been taken by Indonesian government to protect and guarantee the right of Indonesia’s migrant workers in Saudi Arabia.
b. To analyze the violations towards Indonesia’s migrant workers in Saudi Arabia, that will show Indonesia’s diplomacy with Saudi Arabia to achieve the protection of Indonesia’s migrant workers from perceptive of “Concept of Diplomacy”.
c. To know the impact of Indonesian diplomacy towards human rights protection of Indonesia’s migrant workers in Saudi Arabia.
1.6 Theoretical Framework
In this research, researcher will use a theory concept to support the problem which being researched. The concepts are diplomacy theory by G.R Berridgefrom his book Diplomacy: Theory and Practice. Also support by Modern Diplomacy by R.P Barston, will be the best tool to describe and analyze cases and answer the research question.
I.6.1 Diplomacy
Diplomacy is from the ancient Greek diploma, composed of diplo, meaning “folded in two,” and the suffix -ma, meaning “an object.” The folded document conferred a privilege—often a permit to travel—on the bearer, and the term came to denote documents through which princes granted such favors.15 Peoples who involve in problem or work related with international relation called diplomat.
15 Freeman, Chas. Encyclopedia Britannica. July 7, 2016. Diplomacy, Retrieved from https://www.britannica.com/topic/diplomacy, on 18 may 2017
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Diplomacy concept also becomes one of the ways to perform completion human right violation problem. According to R. P. Barston on his book “Modern Diplomacy”, from a state perspective, diplomacy concerns with advising, shaping and implementing foreign policy. As such it is the means by which states through their formal and other representatives, as well as other actors, articulate, coordinate and secures particular or wider interests, using correspondence, private talks, exchanges of view, lobbying, visits, threats and other related activities.16
In order to achieve Indonesia interest which is the protection of Indonesia’s migrant workers in Saudi Arabia, Indonesia need to do diplomacy with Saudi Arabia government. In implementing diplomacy of the state can be done through some form, namely:17 1. Direct Telecommunication Direct Telecommunication is communication between governments which act as a very important channel to conduct the diplomacy. Communication can be done through written telecommunication, telephone, and video-conference, email and broadcast statement.18
2. Bilateral Diplomacy Communication limited to two parties at any one time, conduct of relations on a state-to-state basis via formally accredited resident missions is the conventional method of conducting bilateral diplomacy. The communication revolution has made it both more responsive and more able to make inputs into policy-making at home.19
3. Multilateral Diplomacy
16Barston, RP. 2013. Modern Diplomacy (Fourth Edition). New York. Page 1 17Berridge, GR 2005, Diplomacy Theory and Practice, Palgrave Macmillan, London. 18Berridge, GR 2005, Diplomacy Theory and Practice, Palgrave Macmillan, London. pg 90- 102 19Ibid., pg 105
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Communication or conferences attended by three or more states or parties, and when communication with vary hugely in subject; there are another party such as intergovernmental organization (IGO). Diplomacy is subject-focused on one issues or series of related issues. It brings together all the parties whose agreement is necessary.20
4. Summitry Summitry is diplomacy forms which inject momentum into a stagnant negotiation. The dialogue diplomacy of the heads of state or government meets for face negotiations about the issues between the two parties which conduct the summit (prearranged agenda).21
5. Mediation Form of diplomacy consists of three parties, two parties in conflicts and one party as a mediator for the conflicts. Mediation is to prevent disputes from escalating into conflicts and to limit the spread of conflicts. According to Berridge, mediation divides into ‘track one’ and ‘track two’.22
From 5 (five) forms above, Indonesian government have been done 4 (four) forms as an effort to protect the migrant worker in Saudi Arabia, which are:
Through Direct Telecommunication, which have been done by President Susilo Bambang Yudhoyono via sending letter to the King of Arabia regarding 3 important points. First, President Susilo Bambang Yudhoyono expresses that their bilateral relations between Indonesia and Saudi Arabia are currently in a good condition, except for Indonesia’s migrant workers cases. Second, the President also expressed appreciation for hundreds of Indonesia’s
20Ibid., pg 146 21Ibid.,pg 168 22Berridge, GR 2005, Diplomacy Theory and Practice, Palgrave Macmillan, London.pg 187
10 | P a g e migrant workers have been released from threats punishment. The third point was in regard of protests of Susilo Bambang Yudhoyono over the violent execution verdict of Ruyati (migrant worker) without notifying Indonesian side regarding this issue. Even by using this letter, Indonesian government failed to protect the migrant worker, because the death penalty still done, the main reason behind this is the Saudi Arabia has adhere the legal system in implementing the death penalty.23
Second, Indonesian government made agreement about the changes in delivery systems with Saudi Arabia government. Indonesian government take this form to provides an opportunity for the government to intervene in the delivery of Indonesia’s migrant workers and their protection, but the result is violation cases still happen and not enough to protect the Indonesia’s migrant workers in Saudi Arabia.24
Third form is Summitry, Indonesian government conduct the meetings with Saudi Arabia government to discuss further about the migrant worker problems and the protection. Indonesian government takes this form because this is the effective way to make a result to protect the migrant worker in Saudi Arabia. The result is formation of agreement of both countries, namely MoU as the bilateral relation (diplomacy).25
Fourth, Indonesian government also takes the mediation form by having Minister of Foreign Affairs meet the Saudi Arabia vice Minister to ask mediation towards King Salman, between Indonesia’s migrant workers (Ruyati)
23 VOA Indonesia, July 6, 2011. Presiden SBY Kirim Surat PermohonanPengampunankepada Raja Saudi. Retrieved from http://www.voaindonesia.com/a/sby-kirim-surat-permohonan- pengampunan-kepada-raja-saudi-125073174/95223.html, on 18 may 2017 24 VOA Indonesia, November 23, 2010. PemerintahUpayakanPerjanjianTerkait TKI dengan Saudi. Retrieved from http://www.voaindonesia.com/a/pemerintah-upayakan-perjanjian- terkait-tki-dengan-saudi--110221419/86437.html, on 18 may 2017 25 Hukumonline.com. Akhirnya, Indonesia-Saudi TekenPerjanjian TKI. Retrieved from http://www.hukumonline.com/berita/baca/lt53055df150844/akhirnya--indonesia-saudi-teken- perjanjian-tki, on 17 may 2017
11 | P a g e with legal problems in Saudi Arabia family with Saudi Arabia victim’s family. But this form also failed, the death penalty was still commenced.26
From the 4 (four) form of diplomacy that have been taken by Indonesian government, the form of Summitry is more dominant and provides a tangible form of migrant worker protection in Saudi Arabia.
Summitry carries importance for the negotiation process. They can be used for pre-negotiation function, to keep the momentum going or to accelerate specialists’ talk.27Summitry and Negotiation is related each other, according to Hans Morgenthau, “As instruments for the negotiated settlement of outstanding issues, summit meetings are a supplement to ordinary diplomatic procedures – they are functionally connected with those procedures. They follow ordinary diplomatic negotiations as they are followed by them, each laying the groundwork for the other...”28 The summit can be instrumental in speeding up such negotiations as well as domestic decision-making. Negotiations can be defined as an attempt to explore and reconcile conflicting positions in order to reach an acceptable outcome.29
Researchers used the concept of diplomacy as in the implementation of the summitry (meetings) has been done with Indonesia government as the action of protecting the migrant worker. Also the Moratorium policy requires cooperation among countries in the form of negotiations mechanism through several meetings and negotiations in the minister level, which then formed a special forum with the subject discussion of Indonesia’s migrant workers handling. Through cooperation to reach an agreement in the form that aims Indonesia’s migrant workers protection on bilateral agreements. This interest to be achieved by Indonesia is a guarantee of protection for Indonesia’s migrant workers, so the problems can be solved.
26Liputan6.com, Apr. 2015. 100 cara RI selamatkan TKI darihukumanmati di Arab Saudi. Retrieved from http://news.liputan6.com/read/2215178/kemlu-100-cara-ri-selamatkan-tki- dari-hukuman-mati-di-arab-saudi on 1 May 2017 27Caramerli, Angela. 2012. Summitry Diplomacy: Positive and Negative AspectsActaUniversitatisDanubius. RelationesInternationales Vol. 5 No. 1 28Mellissen, J 2003. Summit Diplomacy Coming of Age. 29Barston, RP 2013.Modern Diplomacy (Fouth Edition). New York. pg.51.
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Figure 1.1 Theoretical Framework Scheme
Indonesia's Moratorium
Indonesia's Summitry Diplomacy
Memorandum of Understanding (MoU)
From the scheme above, the main input of this research is moratorium. Which then processed by implementation diplomacy (summitry) done between Indonesia and Saudi Arabia government. Through negotiations in meetings, the agreement of both countries generate Memorandum of Understanding (MoU) which consist of protection towards Indonesia’s migrant workers. This Memorandum of Understanding acting as the output.
I.7 Scope and Limitations of the Study
The number of Indonesia’s migrant workers which sent towards Saudi Arabia will keep continuing and fluctuate. That is why in doing this research, the range period of violations on human right will focus from 2010 until 2014, the period of the research will be narrowed into five years occurrence to help narrow the data collection and help to focus the research. The purpose of the question is to find every step of diplomacy that had been taken in regard to the protection of the Indonesia’s migrant workers right in Saudi Arabia. Also the
13 | P a g e result of the diplomacy effort between Indonesia and Saudi Arabia to protect and guarantee the migrant worker’s right.
2010 is a year in which the Indonesian government began awakened to immediately take act decisively on issues of violence against workers who took place in Saudi Arabia. Beginning with Sumiati experiencing the most severe torture compared to the previous cases. Sumiati work in Saudi Arabia on July 18, 2010, and get the physical violence from ironed, cut, and beaten to burn that causes burns and paralysis injury. Cases that occurred on November 8, 2010 is a hard blow towards Indonesian government, and even the President immediately sent a team with the mission of legal settlement for perpetrators of torture to Sumiati. In 2011, there are diplomacy efforts which had been taken by Indonesia until 2014, the result from those diplomacy in protect and guarantee the Indonesia’s migrant workers right is quite significant.30
I.8 Research Methodology
In order to do appropriate research and to find the answer of the problem, the researcher will use the qualitative method. Qualitative method is used so the researcher is able to understand a phenomenon or situation or events comes which from exploring the totality of the situation. This research often associated with access to large amounts of "hard data". It may begin as a grounded theory approach with the researcher having no previous understanding of the phenomenon. For a better understand about the violations that happened in Saudi Arabia, this research would use descriptive approach in describe the forms of human right violations occur in Saudi Arabia. In order to answer the problem in this research, Literature review is conducted concerning the concept of diplomacy theory, Indonesia’s migrant worker, and human right violations towards Indonesia’s migrant workers in Saudi Arabia. The researcher will use the Universal Periodic Review of Indonesia’s human right record on fact
30 Jawaban.com, November 17, 2010. KisahSumiati, TKI yang teraniaya di negeri orang. Retrieved from http://www.jawaban.com/read/article/id/2010/11/17/91/101116232723/Kisah- Sumiati,-TKI-yang-Teraniaya-di-Negeri-Orang, on 16 may 2017
14 | P a g e findings data about the human right violation towards Indonesia’s migrant workers in Saudi Arabia also thoroughly collecting data and reports about the human right violation helped by electronics finding from the internet.
I.9 Literature Review
To have a better understanding and to support the case analysis of Indonesia’s diplomacy effort to protect the Indonesia’s migrant workers right, this section will highlight the discussion result from some literature review that the researcher used to have a better understanding about the research.
The main theory that is used for this research is retrieved from the book of G.R. Berridge, with title “Diplomacy: Theory and Practice”. This book will contribute in theoretical framework, which is used to analysis the Indonesia’s Diplomacy in protecting the Indonesia’s migrant workers in Saudi Arabia. From that form of diplomacy which Indonesian government takes, then resulting the improvement of protection.
Beside G.R Berridge, researcher also use theory from R.P Barston, with his book with title “Modern Diplomacy”, this theory will be used for explaining diplomacy concept as the way to overcome human right violation problems and also describing relations between summitry diplomacy with the negotiations.
Researcher use the journal with title “Protecting migrant workers, an Indonesian Experiences “. This journal explaining about Indonesian experiences in protecting Indonesia’s migrant workers as country which has a great number of workers which currently working abroad among others ASEAN fellow countries member. Most of Indonesian Indonesia’s migrant workers are working as maids or house hold servants, and they are either sent towards their recipient country by legal procedures or illegal procedures. They often suffering from bad treatment from their employer. These acts usually cruel, inhuman, and tends to degrade their dignity as human being. On 17 November 2010, in Saudi Arabia an incident happened draw a great concern of human conscience and human right. Employer of Indonesia’s migrant worker, mother and daughter had conducted an outrage action to cut her maid’s mouth with scissors, peeled of
15 | P a g e their maid mouth and head skin, struck her legs until paralyzed. This Indonesian migrant worker also often suffered from illness due to her employers without a pity iron her skin cruelly.31
According to this article, the main obstacles that Indonesia faced is lack of optimum function in diplomatic protection. In order to overcome the obstacle in the future, Indonesia ought to make effort such as, increasing the effective protection of Indonesia’s migrant workers in abroad, by several main provisions and considering the law no. 39/200. Another very important provision is in article 27, stating that the placement of Indonesia’s migrant workers only in the country which already had a written agreement with Indonesia. This journal contributed on Indonesia’s obstacles and experience in protecting Indonesia’s migrant workers.
The other journal which used in this research is “Muslim Intellectuals or Housemaids? The Saudi Perceptions of the Indonesian Domestic Workers”. This journal describing the presence of the Indonesian workers in the Kingdom of Saudi Arabia and how the Saudis perceive these workers. In the past, they were respected as intellectuals while at the present they are humiliated as domestic workers. This journal also shows that low perception can affects the relation between Indonesia and Saudi Arabia. There are 2 (two) factors that caused the change of perceptions about Indonesia, the first factors occurred along with the loss of clerical and intellectual role of Indonesian migrants who settled in Saudi Arabia (mukimin) since the 18th century. The main reason of this is the changes in political and religious orientations. Second, the emergence of Saudi Arabia as the petro-dollar country has made this country into the central destination for job seekers, especially informal workers. Since the 1980's a big wave of Indonesian women workers (TKW) have been flowing into Saudi Arabia. This is the main reason that makes Indonesian female workers are often associated with prostitution practices in Saudi Arabia.32
31Diantha, I Made Pasek. 2015. Protecting Migrants Workers, An Indonesian Experiences. International Journal of Business, Economic and Law. Bali, Indonesia. Vol 7, number 3. 32Machmudi, Yon. December 2011. Muslim Intellectuals or Housemaids? The Saudi Perceptions of the Indonesian Domestic Worker. Journal of Indonesian Islam. Jakarta. Vol 05, number 02
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According to this journal, based on interview with Saudis, most of them admitted that Indonesian domestic workers in Saudi Arabia live in miserable conditions and many are treated badly by their employers. In general Indonesian citizens are better known as the non-formal working class and not as professional workforces, they are known as the housemaids; domestic workers in Saudi are identical to slave.
In order to change the current perception which have been formed, Indonesia need to improve skills and quality of Indonesian workers. Restoring the intellectual image of Indonesian in Saudi Arabian community, can be done through scholarships distributed towards children of mukimin in Indonesia. The reason behind this is to explore the religious sciences and encourage them to dedicate themselves in pursuing religious knowledge in Saudis and become respected ulama’s there. Implementing this actions will enable them to be able to communicate with sufficient knowledge of Arabic language and culture. Therefore, they are expected to be able to interact with Saudis in more respectful ways. This journal is contributed in knowing the Saudi Arabia perspective of Indonesia’s migrant workers that affect such treatment of Indonesia’s migrant workers in Saudi Arabia.
The third journal used is “Pull and Push Factors of Indonesian Women migrant workers from Indramayu (West Java) to Work Abroad “. This journal content is describing about pull and push factors that make Indonesian women migrant workers wants to work abroad. The main push factor described from this journal is financial reason. High rate of poverty and unemployment rate constitute the decision of female migrant workers from Indramayu to work overseas. The success stories of previous Indonesia’s migrant workers to improve their economic condition towards Indonesia’s migrant worker candidate also become the push factor for female migrant workers from Indramayu to work abroad. 33
33 Iqbal, Muhammad. October 2015. Pull and Push Factors of Indonesian Women migrant workers from Indramayu (West Java) to Work Abroad. Mediterranean Journal of Social Science. Jakarta. Vol 6, number 5.
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The pull factors explained in this journal are: higher salary offered in destination countries, wider opportunity for low skilled jobs due to more people in developed countries leave low skilled jobs and this create demand for Indonesia’s migrant workers. Another pull factor is working abroad will provide opportunity for the worker to enrich their experiences and skills, chance to continue their study and learn foreign languages. The chance to travelling abroad and attend special event at overseas is also a prestige to higher their status in Indramayu. Second, the social factors have become push factors of migrant female workers from Indramayu to work abroad. The success of previous migrant workers which able to improve their living and the community which reward them with a high social status encourage other female in Indramayu to work abroad. They hope that they are able to achieve similar result with the previous migrant workers and enable them to improve their social status and financial stands of their family. Third, the cultural factor, labor migration is heredity occupation in Indramayu. The demand and support of family to work abroad is high towards female children in Indramayu
Saudi Arabia become the favorite destination for the Indramayu workers with reason. They believe that while working there they will have a chance to perform hajj (pilgrim). Recently, Saudi Arabia no longer attracts young female Indonesia’s migrant workers from Indramayu cause the negative stereotype in regard to protection of the workers. This journal contributed for knowing the push and pull factors Indonesian wants to work abroad, even though there are problems and mistreatment that they faced.
Fourth, the journal title “Analysis of Female Migrant Workers (TKW) Decision to Migrate to Saudi Arabia” discusses about the factors that influence the decisions of TKI to migrate to Saudi Arabia. From age, the number of dependents families, and a sense of prestige to work in Saudi Arabia, and kinship networks with previous TKW. Although there are many risks to be faced it does not reduce the number of migrant workers applying to Saudi Arabia.34
34Fadliyanti, Luluk. 2013. Analysis of Female Migrant Workers (TKW) Decision to Migrate to Saudi Arabia. Journal of Economics and Sustainable Development. Jakarta. Vol 4, Number 17
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This Journal contributed on factors that make Indonesia’s migrant workers choose Saudi Arabia as their working destination.
Fifth journal title is “Kebijakan Moratorium dan Dampaknya Terhadap Pengiriman Tenaga Kerja ke Arab Saudi”. This journal discuss about the moratorium issued by Indonesian government as an effort made to move Saudi Arabia diplomacy in order to approve the Memorandum of Understanding (MoU) between Indonesia and Saudi Arabia. This MoU aimed to protect migrant workers. This journal contributed on moratorium explanation also the impact of the moratorium towards Saudi Arabia.35
Sixth journal title is “Kebijakan Moratorium Pengiriman Tenaga Kerja Ke Luar Negeri Dan Dampaknya Terhadap Peningkatan Kualitas Pekerja Migran Indonesia”. This journal discusses about the impact of the Indonesia moratorium regarding migrant workers sending policy toward the growth of Indonesia migrant workers and the improvement of migrant workers quality. This journal will contribute on explaining the moratorium that Indonesian governments impose towards Saudi Arabia.36
Last journal used in this research is titled “Temporary Workers or Permanent Migrants? The Kafala System and Contestations over Residency in the Arab Gulf States”. This journal discusses about the Kafalah’s system that routinely enforced and complied with. The very mechanisms that lead to migration enforcement can be used to subvert these restrictions, also the hierarchy of labor value, is a complementary informal institution driven by both state and non-state actors to differentiate in the treatment of an extremely diverse labor force. This journal is contribute to explanation of Kafalah’s system that Saudi Arabia embrace.37
35 R.Y, Amanda. Juni 2016. Kebijakan Moratorium dan Dampaknya Terhadap Pengiriman Tenaga Kerja ke Arab Saudi. Journal of International Relations analysis. Jakarta. Vol 5 no 2. 36Prihanto, Hari. April 2013. Kebijakan Moratorium Pengiriman Tenaga Kerja ke Luar Negeri dan Dampaknya Terhadap Peningkatan Kualitas Pekerja Migran Indonesia. Journal of the Economic Paradigm. Jambi, Indonesia. Vol 1 no 7 37 Lori, Noora. November 2012. Temporary Workers or Permanent Migrants? The Kafala System and Contestations over Residency in the Arab Gulf States. Asian and Pacific Migration Journal. Harvard University. Vol 20 no 4.
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I.10 Structure of the Thesis
Chapter I Introduction
Introduction containing the background of study, problem identification, statement of problem, research objectives, significant of study, theoretical framework, scope and limitation of study, research methodology and literature review that will be used overall on problems to be studied.
Chapter II Indonesia’s Migrant Workers in Saudi Arabia
Chapter II is consist of the phenomenon of domestic Indonesia’s migrant workers in Saudi Arabia to describe, history of delivery and placement of Indonesia’s migrant workers to Saudi Arabia, Indonesia and Saudi Arabia law of migrant workers protection, the work treatments as domestic workers in Saudi Arabia, Indonesia’s migrant workers problems and violations cases in terms of human rights side as well as the factors that cause Indonesia’s migrant workers violations problem occurred.
Chapter III Indonesian Government Responses towards Human Rights Violations in Saudi Arabia
Chapter III is consist of Indonesia responses towards the violations such as Moratorium in 1 August 2011, also the impact of Moratorium to Indonesia and Saudi Arabia.
Chapter IV Indonesia’s Diplomacy in Protecting Human Rights Violations toward Migrant Workers in Saudi Arabia (2010-2014)
Chapter IV is consist of the form of the diplomacy action which is Senior Official Meetings I, Senior Official Meeting II, Ministerial Bilateral Meetings, And the output of the talks agreed on the signing of a memorandum of understanding (MoU) on protection and social security for Indonesia’s migrant workers in Saudi Arabia 19 February 14 on Ministerial Bilateral Meetings II.
Chapter V Conclusion
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This Chapter is consist of answer of the research question in this thesis.
BIBLIOGRAPHY
I.11 Chapter Summary
This chapter is about the human rights which important to be protected, because human rights is the absolute right of every person Indonesia’s migrant workers as one of people(s) that face human rights violations, Indonesia as the country that many send out the workers and Saudi Arabia as main destination of placement, also the high level of Indonesia’s migrant workers violations. Researcher uses the concept of Diplomacy as a theory to analysis the research, specific on summitry diplomacy form. The research is focus on 2010-2014 periods.
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CHAPTER II INDONESIA’S MIGRANT WORKERS IN SAUDI ARABIA
In chapter I, it had been discussed in the background of study that human right is important to be protected. Also, bilateral relation between Indonesia and Saudi Arabia continue to develop. Indonesian government is obliged to protect the human rights also Indonesia’s migrant workers, in order to analyze it further, researcher use diplomacy concept and forms of diplomacy. The previous chapter have find out which one that have more effectiveness to be used in the protection improvement of Indonesia’s migrant workers. In the first chapter also included review of journals to support the analysis in this research.
II.1 Development of Indonesia Workers in Saudi Arabia
Indonesia labor migration cannot be separated with the old order and the new order, even since colonial period in 1887. In 1887, the labors sent to several areas of colonialism such as, Suriname, Caledonia and Netherlands. Before the Indonesia period of independence, migration abroad of Indonesian workers is done by Netherlands government through labor contract placement to Suriname, South America. Where the main reason for this is to increase the agricultural productivity of the Netherlands. Migration policies that built in the colonial period are used as tools to obtain result which corresponds in the goals and interests of the state and the ruling elite.38
In early 1970, the rising of oil industry happened in Middle East region Discovery of oil reserves in large quantities and large-scale of exploration have made the Arab countries in the Middle East especially Saudi Arabia gaining enormous financial resources.39 This phenomenon enable Saudi Arabia to create several jobs opportunities which encourage the delivery flow of Indonesian
38 BNP2TKI, 2011. Retrieved from (http://www.bnp2tki.go.id/frame/9003/Sejarah- Penempatan-TKI-Hingga-BNP2TKI) on 16 may 2017 39Pudjiastuti, Tri Nuke. 2007. “PeranPemerintahdalampelaksanaankebijakan citizen protection dalampenangananmasalahtki di timurtengah”. Dalampertemuankelompokahli:optimalisasi citizen protection dalampenangananisutenagakerja Indonesia di timurtengah. DepartemenLuarnegeri RI: BadanPengkajiandanpengembangankebijakan. Pg 45
22 | P a g e workers to Saudi Arabia and provide the new destination for Indonesia’s migrant workers.
Saudi Arabia become the favorable delivery destination of migrant workers because the close religious relationship ties between Indonesia and Saudi Arabia namely through the path of pilgrimage. When Indonesian people perform the pilgrimage sometimes they will interact with Saudi Arabia local people, even getting married, staying and running business in there. Gradually they will invite their relatives or friends to work there.
Initially, the number of Indonesia’s migrant workers placed in Saudi Arabia by the government is 25 people in 1975. Then in 1976 it rose up to 480 people and in 1977 it increased to 2,838 people. Since 1975 the Indonesia-Saudi Arabia relations often experience ups and downs, especially in the case of violence towards Indonesia’s migrant workers in Saudi Arabia. This issue then was heard to Indonesian public, which generate negative comments and stigma in Indonesian community.
II.2 Indonesia and Saudi Arabia legal basis of migrant workers protection
II.2.1 Indonesia legal basis of migrant workers protection
A country need and must protect their people; protection afforded by a government to their people, especially the Indonesia’s migrant workers which manifested in law protection of Indonesia’s migrant workers. Indonesia has a legal basis protection for Indonesia’s migrant workers within the Law no. 39 of 2004 on the Placement and Protection of Indonesian Workers Abroad. Supervision on the placement and protection of workers who are still in preparation located in the country to which is going to be sent abroad or the one already sent towards their destination country shall
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be guaranteed to have their rights as labor work and granted a strong legal certainty.40
Placement of Indonesia’s migrant workers via legal entity can be done through several ways, through Private Company (PPTKIS), State-Owned Enterprises (BUMN) or Regionally-Owned Enterprises (BUMD) and Individual. The legal basis for this is derived from Presidential Regulation No. 81 of 2006 on The National Authority for the Placement and Protection of Indonesian Overseas Workers (BNP2TKI).41
According to legal basis above, Indonesian government has a strong basis in protecting Indonesia’s migrant workers in abroad, and fully responsible for the welfare of Indonesia’s migrant workers.
II.2.2 President Susilo Bambang Yudhoyono Foreign Policy regards Migrant Workers The government's decision to regulate the Indonesia’s migrant workers is contained in the Presidential Instruction of the Republic of Indonesia No.6 of 2006 regarding the Policy Reform of the System of Placement and Protection of Indonesian Workers by the President of the Republic of Indonesia. The policy was signed by President Susilo Bambang Yudhoyono, which covers five main points. First, the instructions is to take the necessary steps in accordance with their respective duties, functions and authorities in the implementation of the Policy Reform of the Placement and Protection System of Migrant Workers. Secondly, in taking steps as instructed earlier is shall be guided by the programs listed in the attachment of the Presidential instructions. Third, the Coordinating Minister for Economic Affairs has the duty to form the Coordinating and Monitoring Team for the Implementation of this Presidential Instruction and the Working Group as required. Also
40 ILO.org. Retrieved from http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=70915, on 20 may 2017 41 BNP2TKI, 2013. Retrieved from (http://www.bnp2tki.go.id/) on 16 may 2017
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Coordinating Minister for Economic Affairs have to determine the membership, organizational structure, duties, working procedures and secretariats of the Coordinating Team and Implementation Monitoring of this Presidential Instruction. Fourth, the Coordinating Minister for Political, Legal and Security Affairs and Coordinating Minister for Economic Affairs coordinate 120 and monitor the implementation of this Presidential Instruction in line with its tasks, and reports periodically the implementation of this Presidential Instruction. Fifth, all costs as a result of the issuance of this Presidential Instruction shall be borne by the State Revenue and Expenditure Budget. Sixth, implementation of this Presidential Instruction will be done with full responsibility.42
II.2.3 Saudi Arabia legal basis of migrant workers protection
Saudi Arabia also has the legal basis for migrant workers, these are some regulations that Saudi Arabia apply towards migrant workers, such as:
1. Saudi Arabia does not have a constitution like that of any other country. The basic law enforced is the Islamic Sharia law. Therefore, there still apply the law of beheading, whipping and cutting hands against perpetrators of crimes.43 2. The rules of public order were made by an institution called Sharia and by king's decree. Judicial power is under the dominion of a cadre who heads the judiciary. The power of a Qadi is limited only to the legal and constitutional issues issued by the Sharia institution. If the case concerns of the law, promulgated will by the decree of the king, then the righteous
42BPKP. 2006. Instruksi Presiden Republik Indonesia. Retrieved from www.bpkp.go.id/uu/filedownload/7/22/44.bpkp, on 18 May 2017 43Desty Purwanti.2013,“Kebijakan Pemerintah Indonesia DalamMenanganiPermasalahan PRT tahun 2006-2012”(Skripsi),Universitas Islam NegeriSyarifHidayatullah Jakarta
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to judge not the Qadi but the governor or the head of the local area.44
Saudi Arabia legal basis of migrant workers is on Saudi Labor Law Royal Decree No. M/51, 23 Sha'ban 1426 / 27 September 2005, specific on chapter III of the law covers the employment of non- Saudis. But the important thing to note is Saudi Arabia embraces Kafalah's legal system. This legal system is considered difficult for the Indonesian government to persuade the government of the Saudi Arabia to conduct supervision and protection of Indonesia’s migrant workers directly.45
Kafalah's legal system is a law that binds migrant workers, in this case the migrant workers who work as housekeepers (maid), to those who employ them. This legal system enables the employers to keep the worker from working elsewhere or even leaving the country where they work. This long-standing legal system has become Indonesian government main obstacle to protect their workers. Indonesian government tried to persuade Saudi Arabian government to intervene in direct supervision and protection to its Indonesia’s migrant workers but constrained by this legal system. Kafalah's system have the tendency towards slavery, where freedom of workers who are in a Saudi’s family are limited to their space and held by their employer. The Kafalah's system forces the migrant workers to give their visas to their employers, which then triggers exploitation and violation. In this system, employers are assumed full responsibility for the migrant workers who they employ and provide great power and control over their workers.46
44Desty Purwanti.2013,“Kebijakan Pemerintah Indonesia DalamMenanganiPermasalahan PRT tahun 2006-2012”(Skripsi),Universitas Islam NegeriSyarifHidayatullah Jakarta 45 ILO.org. Retrieved from http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=74429, on 20 may 2017 46The Asia Pacific Mission for Migrants (APMM), 2014 “The Kafala”, Hong Kong.Pg. 24
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Here is a scheme of Kafalah’s system which is also called the Kafalah Rukun which is based on Islamic Sharia law:
Kalafah Rukun
Employers Third Party
(Kaafil) (Makful)
Indonesia’s migrant workers
(Makful’alaih)
Source: Human Rights Watch47
Figure 2.1 Rule of Kafalah’s System
From scheme above, according to the Sharia of Islamic law, the law of Kafalah will becomes valid to be enforced if all of the pillars (party) have been fulfilled. Kafalah’s system declared valid if there is an employer, the worker and the third party as mediating media if at any time there a problem between the two sides (employer and worker). These third parties may be occupied by private agents placement of Indonesia’s migrant workers located in the destination country or the advocacy of the embassy or the local police.
To ratify the law, the existence of contract in writing; became the basis of mutual relations between employers and workers. However in reality, what happens to the workers who work for a
47 Human Right Watch. 2013. Saudi Arabia: Protect Migrant Workers’ Rights. Retrieved From https://www.hrw.org/news/2013/07/01/saudi-arabia-protect-migrant-workers-rights, on 16 May 2017
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family in Saudi Arabia under the Kafalah’s system tends to be treated arbitrary.
II.3 Human Right violations towards Indonesia’s migrant workers in Saudi Arabia
Indonesia is a country who is currently resides as a migrant workers supplier, and currently occupied a significant rank in Asia, followed by Philippines. There are currently 6 million Indonesia’s migrant workers working in 42 destination countries from 361 districts or cities and 33 provinces throughout Indonesia. The majorities of Indonesia’s migrant workers are working as housekeeper (maid) and have vulnerability to the practice of human right violation.48
Private Company (PPTKIS) is one of Indonesia’s migrant workers placement actors, namely almost 70% from whole Indonesia’s migrant workers is processed by PPTKIS. The quality and the skill of pre-placement education which are given to workers by the private companies (PPTKIS) is only the act formalities, which then became a potential problem.49
48Hidayah, Anis. 2011. MenujuPembaruanKebijakanBuruhMigran yang lebihProtektif. Vol 8 no 3 49Ibid.
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Table 2.1 Problematic Indonesia’s migrant workers in Saudi Arabia based on the type of problem 2010-2013 Type of Num 2010 2011 2012 2013 Problem Unilateral 1 10.850 4.123 1.679 954 dismissal Sickness due 2 work 8001 3681 1.573 342 condition Employer 3 2.192 3.996 2.175 586 problem 4 Mistreatment 2.342 1.031 531 152 Salary not 5 1.607 1.031 1.044 378 Paid sexual 6 1.978 1.282 537 110 harassment congenital 7 974 1.041 60 25 illness Incomplete 8 1.063 769 240 688 document Work 9 526 354 136 33 accident Work is not in accordance 10 with the 393 217 176 123 employment agreement 11 Pregnancy 246 255 108 35 Not able to 12 387 66 44 19 work Employer 13 219 182 95 15 dies 14 Bring a child 95 296 143 104
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Can’t 15 212 80 16 5 Communicate 16 Others 591 573 383 200 TOTAL 31.676 18.377 8.940 3.775 Source: Center for Research on Development and Information (BNP2TKI, 2013)50
The amount of Indonesia’s migrant workers which was recorded in 2010, according to data from The National Authority for the Placement and Protection of Indonesian Overseas Workers (BNP2TKI) is 1.1 million people. From 6.117 cases that Indonesia’s migrant workers experience in Saudi Arabia, there are 28 murder cases, and there are many workers that didn’t receive any salary, doing works which is not in accordance with the employment agreement, receiving sexual harassment etc.
In addition, chaotic management and protection of Indonesian labor migrants in both countries have caused high deaths among Indonesia’s migrant workers in Saudi Arabia.
Table 2.2 Data of Indonesia’s migrant workers Died Abroad (Middle East Area) 2010-2014 Placement 2010 2011 2012 2013 2014 Country Jordan 5 5 13 5 1 United Arab 2 5 20 1 4 Emirates Saudi 30 70 110 51 12 Arabia Syria 5 5 13 2 3 Kuwait 12 6 5 5 4 Qatar 7 3 12 3 7 Oman 4 1 5 5 3
50 BNP2TKI. 2013. Penempatan dan Perlindungan Tenaga Kerja Pada Tahun 2010-2014. Retrieved from http://www.bnp2tki.go.id/uploads/data/data_21-02- 2014_043950_fix_2013.pdf, on 18 May 2017
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Bahrain 1 4 2 5 1 Muscat 3 0 2 0 1 Iraq 0 0 1 0 1 Egypt 4 1 3 1 1 TOTAL 73 100 183 78 40 Source: Center for Research on Development and Information (BNP2TKI, 2014)51
From the above data, it is clear that ironically, Saudi Arabia as the country's most popular migrant destination in the Middle East, it also became the country with the largest deaths among Indonesia’s migrant workers among other destinations. This case of death is actually caused by various things, such as sickness, work accident (pure accident or being tortured by the employer), crime victim, and also due to legal case causing them to be sentenced to death by Saudi court. The main point of this data is it shows how weak the mechanism of protection and legal guarantees for Indonesia’s migrant workers in the related country.
According to Ministry of Manpower and Transmigration, Muhaimin Iskandar said the presence of overstayer Indonesia’s migrant workers in Saudi Arabia caused partly because workers run away from their previous employers due to various factors, such as does not want to work because they aren’t feeling convenient towards their employer, excessive workload and others. Moreover, there are also syntactic tricks that affect and deceive workers with the lure of a larger salary that makes workers switch employers without know the status rick in migration that very harmful to him/her, also process of deportation overstayer Indonesia’s migrant workers to go through quarantine (Tarhil) which handled directly by Saudi Arabia immigration officers. Not only that, overstayer Indonesia’s migrant workers will be able to go back to Indonesia if they already
51 BNP2TKI. 2014. Penempatan dan Perlindungan Tenaga Kerja Pada Tahun 2014. Retrieved from http://www.bnp2tki.go.id/uploads/data/data_16-01- 2015_020347_Laporan_Pengolahan_Data_BNP2TKI_S.D_31_DESEMBER_2014.pdf, on 18 May 2017
31 | P a g e have solved any problems related to their contact in Saudi Arabia and certainly has no problems with the Saudi Arabia police.52
II.4 Factors of Problems of Indonesia’s migrant workers in Saudi Arabia
Most of problems experienced Indonesia’s migrant workers came from within the country (internal-Indonesia). This problems caused by some factor, such as: recruitment process which is still dominated by brokers or sponsors, training which not in accordance with the needs of service users (Indonesia’s migrant workers) where most of it is just a formalities without serious act of training, lack of coordination among stakeholders including official institutions and low quality of human resources.
The high number of Indonesia’s migrant workers demand from overseas market brings up the dilemma for Indonesian government. Indonesia’s migrant workers delivery abroad became one of best solution to decrease the high unemployment rate, but in other side, lack of education and skills is the main cause of number the problems faced by Indonesia’s migrant workers.
The factors causing main problems of Indonesia’s migrant workers in Saudi Arabia are:
First, in recruitment process, there is domination of brokers or sponsors which help to arrange and even falsify almost all administrative registration information required by Indonesia’s migrant workers. This creates difficulties for migrants workers when they encounter problems and need legal protection.
Second, prioritizing the needs of the country of placement without regard to the law in No 39/2004. Specific on Chapter v, article 27 verse 1 mention that placement of Indonesia’s migrant workers only done with countries that already have MoU with Indonesia, but in reality, the placement is
52Suryowati, Estu. November 6, 2013. Pemerintah Arab Deportasi TKI “overstay”, MenakertransPasrah.http://nasional.kompas.com/read/2013/11/06/1606529/Pemerintah.Arab .Deportasi.TKI..Overstay.Menakertrans.Pasrah.
32 | P a g e also conducted towards countries that do not have such agreement with Indonesia.53
Third, the Training process is not done professionally, that makes Indonesia’s migrant workers does not have sufficient skills, such as language skill even the knowledge about culture and citizen habit in country of destination. There is no guarantee of skills that Indonesia’s migrant workers have, because there are no competence test on training process (only formalities).
Fourth, for working departure of Indonesia’s migrant workers, they need to have legal documents, but because of the lack of coordination between stakeholders this necessary documents usually ignored. There are also corruptions that affect the procedure and requirements in document management. Therefore, prospective workers who want the fast service in administration tends to do identity falsification.54
Factors of vulnerability to violence against Indonesia’s migrant workers in Saudi Arabia are:
First, differences in culture, Indonesian way of thinking to put working abroad as the way to gain a better life for individuals and improve family condition and situation where they face the limitations in Indonesia. Working abroad is consist of many good rewards and terrible risk. In the end, Indonesian still believe that working abroad has its own pride rather than working in Indonesia. Meanwhile in Middle East context, the perspective of Middle Eastern people towards Indonesia’s migrant workers position which is as a housekeeper/maid is very similar to slaves. They do not give any respect towards people in this line of work. These things create bad treatment towards Indonesia’s migrant workers.55
53Kemlu, BPPK. 2011. KajianUpayaPeningkatanKualitasPerlindungandanPelayanan TKI di LuarNegeri 54Kemlu, BPPK. 2011. Kajian Upaya Peningkatan Kualitas Perlindungan dan Pelayanan TKI di Luar Negeri 55Eddyono, Sri Wiyanti. 2007. Kekerasanterhadap TKW di TimurTengahdanPenangannya. JurnalLuarNegeri
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Second, the differences structure of law, law enforcement behavior in handling the case problem of Indonesia’s migrant workers and settlement is also the main vulnerability of Indonesia’s migrant workers.
Third, the laws and state policies, this is the important factor that effect the vulnerability to violence against Indonesia’s migrant workers. Susceptibility of legal and policy at the national level, affects the internal and external countries, especially in Indonesia’s migrant workers protection on destination countries.56
II.5 Chapter Summary
This chapter is discussing about of the phenomenon of domestic Indonesia’s migrant workers in Saudi Arabia, history of delivery and first placement of Indonesia’s migrant workers to Saudi Arabia. The specific details of Indonesia’s migrant workers laws protection from both of countries (Indonesia-Saudi Arabia). Also this chapter explain about the bad treatment of Indonesia’s migrant workers in Saudi Arabia because of the perception. Indonesia’s migrant workers problems and violation cases data such as sexual harassment, unpaid salary, employer problems etc. Finally this chapter explain the factors that cause violation towards Indonesia’s migrant workers human rights, also this segment explaining the problem occurred from internal, also the main factors which is the low level of legal and policy protection of Indonesia’s migrant workers.
56Ibid.
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CHAPTER III Indonesian Government Responses towards Human Rights Violations in Saudi Arabia
The previous chapter discusses the delivery history of Indonesia’s migrant workers to Saudi Arabia, which occurred first in the early era of 1970, the rapid growth of oil industry enable Saudi Arabia to provide available jobs opportunity that attracts jobseeker from Indonesia, which then choose Saudi Arabia as their working destination. The legal basis of migrant workers protection from both of countries, Saudi Arabia Kafalah’s legal system that binds the Indonesia’s migrant workers and makes the employers fully responsible to the Indonesia’s migrant workers. Kafalah is the legal system which triggers the violation towards Indonesia’s migrant workers happen.
III.1 Moratorium in August 1, 2011
One of important moment in Indonesia’s migrant workers conflict in Saudi Arabia occurred when Indonesian government issues moratorium enforcement towards Indonesia’s migrant workers delivery for Saudi Arabia in 2011. This moratorium act as the response from Indonesian government towards Indonesia’s migrant workers violation that Saudis (employer) done.
According to Oxford Dictionary, ‘moratorium’ from Latin morat- ‘delayed’ , A legal authorization to debtors to postpone payment57, meanwhile Merriam Webster define that “moratorium‟ as “a time when a particular activity is not allowed.”.58Zartman on his book said “escalation within a conflict can produce, lead to, or provide an opportunity for negotiation under specific circumstances”.59 Negotiations momentum in this conflict was triggered by
57 Oxford Dictionary, “moratorium”, Retrieved from https://en.oxforddictionaries.com/definition/moratorium on 17 May 2017 58 Merriam Webster, “Definition of Moratorium”, Retrieved from (http://www.merriam- webster.com/dictionary/moratorium), on 17 May 2017
59Zartman, William. 2007. Peacemaking in International Conflict (Revised Edition). Washington, D.C. pg 5
35 | P a g e escalation series (violation towards Indonesia’s migrant workers), and climaxed when death penalty of a migrant worker named Ruyati binti Satubi held by Saudi Arabia court without the knowledge of Indonesia.60Ruyati was beheaded on Saturday, June 18, 2011 in Mecca for the murder of her female employer Khairiyah binti Hamid Mijilid in January 2010. The day after the beheading, on 19 June 2011, Indonesian representatives in Saudi Arabia cast a strong protest against the Saudi government because they did not inform the execution of the beheading and had violated the Vienna Convention of Diplomatic Relation 1963. This issues also followed by Sumiati case, an Indonesian migrant workers who received severe human right violation. The Indonesians said to know about the case by seeking their own information from various parties. 61
Feeling sovereignty, torn and urged by various parties (public and parliament), Wednesday 23 June 2011, a limited cabinet meeting chaired by President Susilo Bambang Yudhoyono at the Presidential Palace formally establishes a moratorium on sending Indonesia’s migrant workers to Saudi Arabia which will be effective from 1 August 2011, which then also summarizes all levels of escalation that had occurred during the conflict. This moratorium decision becomes one of 6 (six) Presidential Instructions related to employment issues.62
The decisions contained in the Presidential Speech by Susilo Bambang Yudhoyono on 23 June 2011 at the Presidential Office. The decisions include: 1. decides on a moratorium regarding sending migrant workers to Saudi Arabia, effective from August 1, 2011. But from the date of the announcement of the moratorium, steps towards the moratorium implementation have begun. This moratorium will continue between Indonesia and Saudi Arabia until there are institutions, agreements, guarantees, protections, entitlements, and other
60Haryadi, Edi. 2011, “Pemerintah Stop Pengiriman TKI ke Arab Saudi”, Retrieved from (http://fokus.news.viva.co.id/news/read/228572-habis-ruyati-terbitlah-morotarium-tki) on 17 May 17 61 BBC, 2011, “PemancunganRuyati, RI Protes Arab Saudi”, Retrieved from (http://www.bbc.com/indonesia/berita_indonesia/2011/06/110619_ruyati_saudi.shtml), on 17 may 2017 62 JPNN.com. June 23, 2011. SBY Putuskan Moratorium TKI ke Arab Saudi. Retrieved from http://www.jpnn.com/news/sby-putuskan-moratorium-tki-ke-arab-saudi, on 20 may 2017
36 | P a g e necessary matters. b. The decision on the moratorium to other Middle Eastern countries is still waiting for an integrated team's recommendation that was thoroughly evaluated whether the moratorium is also eligible to be enforced in another country other than Saudi Arabia. c. President Susilo Bambang Yudhoyono will also send a letter to the King of Saudi Arabia which contains three things. First, President Susilo Bambang Yudhoyono considers the bilateral relations between Indonesia and Saudi Arabia in good condition, except for the case of Indonesia’s Migrant Workers. Second, the President also expressed appreciation for the hundreds of migrant workers have been released from the threat of punishment. The third is about the violent protests of Susilo Bambang Yudhoyono over the execution of Ruyati who crashed into norms of international manners by not informing the Indonesian side. d. Establish a special task force for handling and defense migrant workers who are under threat of death sentence. e. Establish legal and human rights attaches at embassies of the Republic of Indonesia with a significant number of Indonesian labor migrants. f. Formulate national policies concerning Overseas Workers after an integrated team evaluates.63
Minister of Manpower and Transmigration Muhaimin Iskandar, after the meeting confirmed that this moratorium will be valid until the implementation of a guarantee system (for Indonesia’s migrant workers in Saudi Arabia).64
Knowing this, the Saudi Arabian government tried to take initial action by announcing the termination of work permits on June 29, 2011 towards domestic workers from Indonesia and the Philippines due to "recruitment conditions filed by both countries", although at that time many people complained about the lack of supply of Indonesia’s migrant workers. Then on July 2, 2011, the Saudi government, as quoted by The Economist, stated that "The Kingdom had suspended its visa program to all would be hometown of
63 Elin Yunita Kristanti, Viva News. 23 June 2011. “Keputusan SBY Terkait Pemancungan Ruyati.”. Retrieved from http://m.news.viva.co.id/news/read/228669-ini-instruksi-sby-terkait- tewasnya-ruyati, on 18 May 2017 64Haryadi, Edi. 2011, “Pemerintah Stop Pengiriman TKI ke Arab Saudi”, Retrieved from (http://fokus.news.viva.co.id/news/read/228572-habis-ruyati-terbitlah-morotarium-tki) on 17 May 17
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Indonesia or the Philippines."65 While on another occasion, a Saudi government official says, "The (labor) ministry’s decision coincides with its great efforts to open new channels to bring domestic workers from other sources".66
Saudi Arabian government planned to employ more migrant workers from other developing countries. Indonesian side, in addition to demanding on salary, also requires an insurance system, a more stringent employer qualification requirements procedure and the establishment of a system for the protection of labor migrants in the country. The "heavy" demands from these two migrant workers supplier countries which seem to have been increasing made Saudi Arabian government suspend the visa program for both Indonesia and Philippines.
III.2 The Impact of the Moratorium
Although some are skeptical towards this moratorium policy, the majority support the government's efforts to stand firm against Saudi Arabia's arbitrariness, which has always been done to Indonesia’s migrant workers and the Indonesian government. In addition, not a few parties who later concluded that this action actually bring a positive impact for Indonesia.
Reflecting from the moratorium policy which is enforced at the beginning 2011, moratorium is a strong bargaining tool to push Saudi Arabia to do the negotiations regarding Indonesia’s migrant workers protection which has been considered very difficult to do. Considering from the history of the series of diplomatic actions ever undertaken by Indonesia and Saudi Arabia, it is evident that Indonesia's ideals to have a protection and placement agreement for Indonesia’s migrant workers in the form of Memorandum of Understanding
65 The Economist, 2011, “Beheading the Golden Goose”, Retrieved from (http://www.economist.com/blogs/banyan/2011/07/migrant-workers-saudi-arabia), on 17 may 2017 66 BBC, 2011, “Saudi Arabia Bars Indonesia and Philippines Workers”, Retrieved from (http://www.bbc.com/news/world-asia-pacific-13970689), on 17 may 2017
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(MoU) with Saudi Arabia have not resulted in progress until the implementation of moratorium on January 2011.67
Through this moratorium, Indonesian government pushes Saudi Arabia to find another sources of migrant workers because lack of Indonesia’s migrant workers supply, especially in domestic sector. This action caused damage in Saudi Arabia side, where the actual demand for migrant worker is high but there is not enough supply to fulfill this need. Saudi Arabia side finally relented, and willing to open up negotiation regarding the framework or contain of the memorandum of understanding which was originally demanded by Indonesia, in May 2011. Furthermore, with the enforcement of moratorium, the magnitude of the compressive force is expected to be a guarantee of Saudi consistency to continue negotiations and become an accelerator for achieving the comprehensive signing MoU of the Indonesia’s migrant workers protection. The enactment of this total moratorium aims to offer short-term alternative solutions to the presence of various Indonesia’s migrant workers violation cases in Saudi Arabia, but the long-term goal is to improve Indonesia's labor protection mechanisms and systems.68
Chairman of BNP2TKI Jumhur Hidayat said, "There has been progress related moratorium August 2011, because workers can make contracts with companies. No longer with the individual as ever” Executive Director of Migrant Care Anis Hidayah also explained, "The placement of Indonesia’s migrant workers to Saudi Arabia was suspended since August 1, 2011 and the governments of both countries are still negotiating”. Furthermore, with stop sending Indonesia’s migrant workers means stopping the victims from the human right violation in Saudi Arabia.69
67Max Sijabat. The Jakarta Post. November 9, 2011. Moratorium takes effect Saudi Arabia. Retrieves from http://www.thejakartapost.com/news/2011/11/09/moratorium-takes-effect- saudi-arabia.html, on 20 may 2017 68 Kathy Quiano, CNN. 2011, “After beheading, Indonesia Stops Sending Workers to Saudi Arabia”, Retrieved from (http://edition.cnn.com/2011/WORLD/asiapcf/06/22/indonesia.migrant.workers/), on 17 may 2017 69Max Sijabat. The Jakarta Post. November 9, 2011. Moratorium takes effect Saudi Arabia. Retrieves from http://www.thejakartapost.com/news/2011/11/09/moratorium-takes-effect- saudi-arabia.html, on 20 may 2017
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The placement of Indonesia’s migrant workers to Saudi Arabia which have been done for more than 40 years is directly proportional to the presence of various cases of violence and human rights violations against Indonesia’s migrant workers in the country. As long as Indonesia continues to send Indonesia’s migrant workers to Saudi Arabia, the series of heartbreaking cases will continue to occur, until a series of concrete actions are taken to improve and tackle the obstacles and limitations of law, social barriers and politics of workers in both countries.
Although Indonesian government cannot reduce the number of complaints and problems that occur to Indonesia’s migrant workers already in Saudi Arabia (see table 2.1), by temporarily halting the sending of Indonesian labor migrants, at least the government is able to stop the chain of violence that will occur if the delivery continues. Related to this, BNP2TKI's data (see table 2.2) shows the change in the number of returned migrants in trouble from before the moratorium imposed until after the moratorium was enacted. In the table, it can be seen that the number of returned Indonesia’s migrant workers in troubled Saudi Arabia continued to decline from 2010 to 2013.
In 2010 before the moratorium, on table 2.1 the number of Indonesia’s migrant workers troubled reached 31,676, while in 2011 when the moratorium began to run, the number of Indonesia’s migrant workers in trouble declined to 18,377. Meanwhile, in 2012 and 2013, the number of returned migrants in problem condition declined again reaching 8,940 and 3,775 respectively. This proves that, firstly, the scarcity of supply of Indonesia’s migrant workers in Saudi Arabia has made the minimum number of Indonesia’s migrant workers returning to their homeland in trouble condition. Second, the scarcity is also likely to make employers minimize the violence against their workers because of the increasing difficulty of obtaining new housekeeper or maid supply from Indonesia.70
70BNP2TKI, 2013. Data PenempatandanPerlindungan TKI. Retrieved from (http://www.bnp2tki.go.id/) on 16 may 2017
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The same thing also seems to apply to the number of Indonesia’s migrant workers who are died abroad. In table 2.2, it can be seen that the previous data of Indonesia’s migrant workers in 2011 reached 70, and then after the moratorium was enacted, the number of Indonesia’s migrant workers in 2012 increase to 110 and 2013 decreased to 51. On 2014, the number of Indonesia’s migrant workers died abroad decreased to 12 respectively. Although the data of Indonesia’s migrant workers represent the total violation cases of Indonesia’s migrant workers in Saudi Arabia, and considering that Saudi Arabia is one of the main destinations of Indonesia’s migrant workers, the enactment of the moratorium in 2011 would be enough to affect the end result of the data.71
Furthermore, the existing moratorium lag and reduce the intensity of Indonesia’s migrant workers problems to be addressed. This provide a more relaxed opportunity for a period time and enable introspection and improvement in the management mechanisms. It is no longer a secret that the various cases of violence that occurred in Indonesia’s migrant workers in Saudi Arabia, apart from various limitations on the Saudi side, is also the impact of the poor management of Indonesia’s migrant workers.
Take for example the regulatory system in the form of laws and / or other government policies that, if more scrutinized, only favor the government. The substance which is comprehensively discussed about the safety, security, and welfare of Indonesian labor migrants is found to be very minimal. Therefore, many parties will judge that the Indonesian government only sees Indonesia’s migrant workers as business commodities (hardly as human beings) who are sweating for the benefit of foreign exchange, whatever the risk.
71BNP2TKI, 2013. Data PenempatandanPerlindungan TKI. Retrieved from (http://www.bnp2tki.go.id/) on 16 may 2017
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III.3 Chapter Summary
This chapter is explaining about the response of Indonesian government regarding the violation of Indonesia’s migrant workers in Saudi Arabia on previous chapter (chapter II). Indonesian government impose the moratorium policy in August 11, 2011 as a response toward Saudi Arabia, which is also act as form of temporary protection for Indonesia’s migrant workers. Moratorium policy enough to damage Saudi Arabian government in term of short supply of workers, but it is still not enough to protect Indonesia’s migrant workers in Saudi Arabia. Moratorium only can protect prospective workers in Indonesia not Indonesia’s migrant workers in Saudi Arabia itself. Impact from the moratorium policy, have made Saudi Arabian government to become more relented and wants to establish agreement with Indonesian government that will be explain further on next chapter (chapter IV).
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CHAPTER IV Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers against Human Rights Violations in Saudi Arabia (2010-2014)
As time goes by, the various diplomatic steps that Indonesia has pursued seem to be perceived to remain far from significant progress. Meanwhile, Violence is getting more frequent and the Saudis still not opening itself towards discussion. Finally in early 2011, the Indonesian government through the Minister of Manpower and Transmigration Muhaimin Iskandar (SBY government volume II) began to establish a "semi moratorium" of sending Indonesian workers to Saudi Arabia. Semi moratorium is done in the form of tightening work requirements include; Revamping of labor demand process, recruitment of prospective Indonesia’s migrant workers, job skills and language training, medical examination, debriefing, provision of insurance coverage, departure and protection of labor migrants while working overseas.72
In effect, there was a decrease in the applicant's job order from 1000 to 5 requests per day during January - June 2011, which led to the scarcity of Indonesian Indonesia’s migrant workers in Saudi Arabia. And the result, Muhaimin said, "The Saudi government that for 40 years never wants to negotiate for the protection of Indonesia’s migrant workers, finally willing to negotiate. There were two important ministerial meetings that resulted in the signing of the initial memorandum of understanding towards the MoU by the Saudi Arabian Minister of Labor and the Head of BNP2TKI at the end of May. "73 But this semi-moratorium effort is not without flaws, because one of the negative impacts of the TKI is the increase of overstayer Indonesia’s migrant workers whose status changed to illegal Indonesia’s migrant workers.74
72 Detik.com, 2011, “RI Berlakukan Semi Moratorium TKI ke Arab Saudi SejakAwal 2011”, Retrieved from (http://news.detik.com/berita/1666388/ri-berlakukan-semi-moratorium-tki-ke- arab-saudi-sejak-awal-2011), on 18 may 2017 73 Detik.com, 2011, “RI Berlakukan Semi Moratorium TKI ke Arab Saudi SejakAwal 2011”, Retrieved from (http://news.detik.com/berita/1666388/ri-berlakukan-semi-moratorium-tki-ke- arab-saudi-sejak-awal-2011), on 18 may 2017 74Pikiran Rakyat, 2011, “RombonganKedua TKI TerlantarTiba di Jakarta”, Retrieved from (http://www.pikiran-rakyat.com/serial-konten/pemulangan-tki-jembatan-khandara-jeddah), on 18 may 2017
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Before year 2010, there are several negotiations step between Indonesia and Saudi Arabia to the MoU, such as Minutes of Meeting (MoM) on 24 September 2001 in Jakarta and Presidential meeting on 26 April 2006 in Saudi Arabia. The result for these negotiations will not be used in this research, as stated in the research limitation, this research will focus on negotiations step (summit) on 2010 until 2014 period.
The negotiations step that Indonesian government takes as the diplomacy action is the summitry form, which related each other. This is the summit that Indonesian government takes with Saudi Arabia.
Table 4.1 Indonesia’s Diplomacy in Protecting Indonesia’s Migrant Workers in Saudi Arabia Discuss & No Meetings Time & Place Result(s) Negotiate a. Discuss the a. The initiation urgency of design of special forum protection system senior level of Indonesia’s officials (SOM) migrant workers and, b. Commitment to optimize the Conduct on 7th Joint Task Force Senior Official December (JTF) consisting 1. Meetings (SOM) 2010 in Saudi of I (2010) Arabia representatives of the Indonesian government in Saudi Arabia and related ministries in Saudi Arabia
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who perform regular monthly meetings a. An agreement a. Form a Joint on the discussion Working Group of the (JWG) Memorandum of representing Understanding both countries Conduct on Senior Official (MoU) on the with the task of 2. May 2011 in Meeting II(2011) placement and detailing the Jeddah protection of labor points which migrants in Saudi need to be Arabia incorporated into the MoU text a. The urgency of a. A fairly good holding re- shared meeting JWG to commitment discuss in detail discussion of the contents of the the previously MoU draft that stalled MoU has been draft can be submitted by both immediate next Ministerial Conduct on 6th parties previous b. Provide a 3. Bilateral March 2013 win-win Meetings (2013) solution for both parties in the implementation of placement and protection of Indonesia’s migrant workers in Saudi Arabia
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Memorandum of Ministerial Understanding Conduct on Bilateral (MoU) on 4. 14th February Meetings II Placement and 2014 (2014) Protection of Migrant Workers Source: Desty Purwanti.2013, “Kebijakan Pemerintah Indonesia Dalam Menangani Permasalahan PRT tahun 2006-2012”75
IV.1 Senior Official Meetings (SOM) I (2010)
This meetings attended by Ministry of Manpower and Transmigration Muhaimin Iskandar had a meeting with Minister of Labor of Saudi Arabia Adiel bin Muhammad Fakieh and Saudi Arabia's Deputy Interior Minister Ahmad Muhammad Al-Salim, in Saudi Arabia to discuss the urgency of design protection system of Indonesia’s migrant workers in Arabia following the case of death penalty against Kikim Komalasari and the case Sumiati. This meeting then resulted in the initiation of special forum senior level officials (SOM) and commitment to optimize the Joint Task Force (JTF) consisting of representatives of the Indonesian government in Saudi Arabia and related ministries in Saudi Arabia who perform regular monthly meetings.76
IV.2 Senior Official Meeting II (2011)
SOM II is the High Level of Officials Meeting was attended by the chairman a delegation from the Indonesian government, namely the head of BNP2TKI Jumhur Hidayat and Chairman of the Saudi Arabian delegation, Ministry of Manpower Adiel Muhammad Fakieh. This meeting resulted in an agreement on the discussion of the Memorandum of Understanding (MoU) on the placement and protection of labor migrants in Saudi Arabia. The MoU is discussed through the signing of a Statement of intent or letter
75Desty Purwanti.2013,“Kebijakan Pemerintah Indonesia Dalam MenanganiPermasalahan PRT tahun 2006-2012”,Universitas Islam NegeriSyarifHidayatullah Jakarta, Retrieved from https://www.migrant-rights.org/2014/04/indonesian-saudi-agreement-delayed/ on 2 June 2017 76 Ibid.
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of intent by the existing delegations. The MoU is planned to be ready for signature at the latest six months ahead, and during that time period, each party will form a MoU preparation work team, to then form a Joint Working Group (JWG) representing both countries with the task of detailing the points which need to be incorporated into the MoU text.77
IV.3 Ministerial Bilateral Meetings (2013)
Wednesday afternoon that local time, meeting attended by the Minister of Manpower of both countries, Muhaimin Iskandar and Adiel Muhammad Fakieh did bilateral meetings that discuss the urgency of holding re-meeting JWG to discuss in detail the contents of the MoU draft that has been submitted by both parties previous.
Muhaimin in a press statement quoted by this media said that the bilateral meeting had been held resulting in a fairly good shared commitment discussion of the previously stalled MoU draft can be immediate next. He also said that the governments of both countries agreed to provide a win-win solution for both parties in the implementation of placement and protection of Indonesia’s migrant workers in Saudi Arabia.78
IV.4 Ministerial Bilateral Meetings II (2014)
After several summits (meetings) were held by both countries, finally the process is producing the form of protection for Indonesia’s migrant workers. That is Memorandum of Understanding (MoU), this MoU as Indonesian government improvement to protect human right of Indonesia’s migrant workers in Saudi Arabia (Result).
77Desty Purwanti.2013,“Kebijakan Pemerintah Indonesia DalamMenanganiPermasalahan PRT tahun 2006-2012”,Universitas Islam NegeriSyarifHidayatullah Jakarta, Retrieved from https://www.migrant-rights.org/2014/04/indonesian-saudi-agreement-delayed/ on 2 June 2017 78 Ibid.
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IV.4.1 Memorandum of Understanding (MoU) Memorandum of Understanding (MoU) in English is “letter of intent‟, “letter of agreement‟ and “statement of agreement‟. MoU can be define like this, according to Black’s Law Dictionary,
“A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement; a non-committal writing preliminary to a contract. A letter of intent is not meant to be binding and does not hinder the parties from bargaining with a third party. Business people typically mean not to be bound by a letter of intent, and courts ordinarily do not enforce one, but courts occasionally find that a commitment has been made...”79 MoU become a set that help Indonesian government to get the protection guarantee for Indonesia’s migrant workers from their placement countries. The existence of the MoU does not mean much if the contents of the MoU do not comprehensively guarantee the protection of workers and there are weaknesses in terms of implementation. The existence of the MoU provides a bridge regarding differences in national legal provisions on Indonesia’s migrant workers. There are many placement countries where Indonesia does not have a MoU, but because the domestic law of the related country of placement do not have a hostile intent and provide protection foreign workers, the protection of Indonesia’s migrant workers runs quite well.80
Previously Indonesia and Saudi Arabia did not have MoU of Indonesia’s migrant workers protection. But after Indonesia implemented a moratorium, finally the Saudi Arabian government relented and open up towards negotiations. This process of negotiation conduct with the holding of meetings (summits) between the two sides of the state, until the signing of the MoU took place.
79Hukumonline, 2013, “Perbedaan Antara Perjanjiandengan MoU”, Retrieved from (http://www.hukumonline.com/klinik/detail/lt514689463d4b2/perbedaan-antara-perjanjian- dengan-mou), on 18 may 2017 80Kemlu, BPPK. 2011. KajianUpayaPeningkatanKualitasPerlindungandanPselayanan TKI di LuarNegeri. pg 38
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Memorandum of Understanding (MoU) is be signed on 19 February 2014, in Riyadh. The signing of MoU conducted directly by the Minister of Manpower both countries, Muhaimin Iskandar and Adiel Muhammad Fakieh. This agreement would guarantee that every migrant worker had communication access, days off, salaries paid through banking services and online access to a work contract.81
The signing of this agreement is to provide legal certainty for the users of the service as well as for the Indonesia’s Migrant Workers itself. The contents of the agreement include, among other things, the recognition of the employment mechanism through the standard contract of employment contract which contains the types of work and the amount of wages received by the Indonesia’s migrant workers, the rights and obligations of the service user and the Indonesia’s migrant workers and the terms of the employment agreement and the extension. The agreement also includes the rights of Indonesian labor migrants in the provision of access to communications, one day offs, leave, the condition which the migrants’ passports held by their own, arranging working hours and provision of payroll systems through banking, insurance and health care. The agreement also includes an online system in the recruitment and placement of Indonesian labor migrants, the 24-hour call center mechanism, consular agreements for protection, etc.82
IV.5 The Implementation of Memorandum of Understanding (MoU)
Indonesian government believed this MoU to be the basis of the first agreement of cooperation employment between Indonesia and Saudi Arabia and constitutes an important milestone for the realization of the protection of labor
81Nurfika Osman. The Jakarta Post. February 19, 2014. Jakarta, Riyadh to sign MoU on migrants. Retrieved from http://www.thejakartapost.com/news/2014/02/19/jakarta-riyadh- sign-mou-migrants.html, on 20 may 2017 82 Depnakertrans. 2014. Pusat Humas Kemnakertrans. Retrieved from http://menteri.depnakertrans.go.id/?show=news&news_id=155.on 18 May 2017
49 | P a g e migrants in Saudi Arabia. On Saudi Arabia side, Saudi Arabia government believe that through this MoU, this will become historical actions in the manpower sector because this agreement will guarantee that all of Indonesia’s migrant workers are protected. Saudi Arabia will pay special attention to Indonesia’s migrant workers from now on.83
Expert opinion of MoU between Indonesia and Saudi Arabia on Placement and Protection of Indonesia’s Migrant Workers in Saudi Arabia, according to Prof Dr. Hj. Aelina Surya, the implementation each of points in MoU, such as provision of access to communications, one day offs, leave, passports held by migrant workers, arranging working hours and provision of payroll systems through banking, insurance and health care, also the 24-hour call center mechanism, consular agreements for protection are the form of the establishment of security during work. Improved supervision directly by the Saudi Arabian government to agents’ placement in each region and users of Indonesia’s migrant workers services, is expected to build awareness the people of Saudi Arabia to be more respectful to his or her worker as a person who helps them activities daily. Therefore the internal improvement of each country concerned should immediately executed. Having internal improvement then will immediately affect application of the contents of the MoU which can immediately maximized.84 The problems of the Ruyati and Sumiati as the victims of violence which they face in Saudi Arabia become a triggers for Indonesian government to give the reaction to Saudi Arabian government. Indonesian government impose the Moratorium towards the placement of Indonesia’s migrant workers to Saudi Arabia while demands the guarantee of Indonesia’s migrant workers protection from Saudi Arabia. Moratorium becomes the initial step from Indonesia’s government to form the improvement of Indonesia’s migrant workers protection. This moratorium also succeeds to damage Saudi Arabia and become recessive,
83Nurfika Osman. The Jakarta Post. February 19, 2014. Jakarta, Riyadh to sign MoU on migrants. Retrieved from http://www.thejakartapost.com/news/2014/02/19/jakarta-riyadh- sign-mou-migrants.html, on 20 may 2017 84 Prof.Dr. Hj. Aelina Surya. Peran Pemerintah Republik Indonesia dalam Perlindungan Tenaga Kerja Indonesia (TKI) sektor Informal di Arab Saudi.Retrieved from http://www.gps.hi.unikom.ac.id/download/Prof-Aelina-Ratu-Rayanti.pdf. on 31 May 2017
50 | P a g e because the lack supply of Indonesia’s migrant workers in Saudi Arabia. Saudi Arabia then open up to negotiates and discuss about the MoU framework. Indonesian government does the summitry diplomacy (negotiations) with Saudi Arabia government on SOM I, SOM II, Ministerial Bilateral Meetings and Ministerial Bilateral Meetings II gives result which the improvement of the Indonesia’s migrant workers protection in Saudi Arabia (MoU). The implementation of Indonesia diplomacy is gives a positive impact. By having MoU improvement towards Indonesia’s Migrant Workers protection is felt tremendously. According to data from BNP2TKI, there are massive reductions of Problematic Indonesia’s migrant workers in Saudi Arabia: Table 4.2 Problematic Indonesia’s migrant workers in Saudi Arabia 2010-2014
Source: Center for Research on Development and Information (BNP2TKI, 2014)85
85 BNP2TKI. 2014. Penempatan dan Perlindungan Tenaga Kerja Pada Tahun 2014. Retrieved from http://www.bnp2tki.go.id/uploads/data/data_16-01- 2015_020347_Laporan_Pengolahan_Data_BNP2TKI_S.D_31_DESEMBER_2014.pdf, on 31 May 2017
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From BNP2TKI data above, on 2010 the number of problematic Indonesia’s migrant workers is located in 31,676, because of moratorium that number decrease to 18,377 on 2011. That number is continues decrease while the negotiations between Indonesia and Saudi Arabia occur. Until the MoU is signed on 2014, the number of problematic Indonesia’s migrant workers is 1.270. This data proves that, the implementation of MoU in form as result of protection improvement from Indonesia’s diplomacy can significant to decrease the violations faced by Indonesia’s migrant workers.
With the formation of MoU, it become a testament of responsibility from the Indonesian government to protect its migrant workers abroad. This MoU also can make the bilateral relation between Indonesia and Saudi Arabia in manpower sector still intertwined. However, Indonesia should improves the protection from internal country, such as by improving the recruitment process, training process, the coordination between stakeholders including private companies and official institutions. Based Law No.39 of 2004 Chapter V article 27 verse 1, the legal basis of migrant workers protection is not enough to guarantee the Indonesia’s migrant workers in other countries. Therefore, Indonesian government should make a written agreement (MoU) with other countries which would become the destination for Indonesia’s migrant workers placements. Indonesian government should be more decisive and initiative in order to protect and guarantee its migrant workers’ rights in other countries.
IV.6 Chapter Summary
This chapter is describing about the improvement of Indonesian government done to protect human right of Indonesia’s migrant workers in Saudi Arabia. First step is done through negotiations in meetings that was conducted between Indonesian government and Saudi Arabian government. The negotiations as the process of diplomacy that Indonesia takes, and make the output (result) which Memorandum of Understanding (MoU). MoU is signed on 19 February 2014 in Riyadh, through MoU, Indonesian government hope it can guarantee the protection of Indonesia’s migrant workers, so violation towards Indonesia’s migrant workers does not happen again.
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CHAPTER V CONCLUSION
Regarding the analysis and data from previous chapter, this research can conclude that the answers from the research question are, Indonesian government improves the protection of Indonesia’s migrant workers against human rights violations in Saudi Arabia by diplomacy efforts or actions to Saudi Arabia. From the first action done by Indonesian government, which is through protests towards Saudi Arabia, executing of diplomacy form such as direct telecommunication (sending letter) until mediation fail to achieve mutual understanding.
Indonesian government responses regarding that is impose moratorium (August 1, 2011) towards sending Indonesia’s migrant workers to Saudi Arabia while demand the guarantee of Indonesia’s migrant workers protection. Moratorium action is enough to make Saudi Arabia wants to discuss agreement of protection. Through several processes of negotiations also summit that conduct of both countries, such as Senior Official Meetings I, Senior Official Meeting II, Ministerial Bilateral Meetings and Ministerial Bilateral Meetings II (MoU).
From these meetings (summit), Indonesian government demands the legal agreement, to protect the Indonesia’s migrant workers from violation that conduct by employer (Saudis).
After, Indonesian government does the summit diplomacy also the negotiations, the result of the Indonesian diplomacy efforts on 19 February 2014 by the signed Memorandum of Understanding (MoU). This MoU is the agreement between Indonesian governments with Saudi Arabian government to protect the Indonesia’s migrant workers in Saudi Arabia.
Through the formation of MoU, Indonesia is able to improve the protection of Indonesia’s migrant workers in Saudi Arabia. Also this MoU between both of countries is able to guarantee the protection of Indonesia’s migrant workers in Saudi Arabia. Indonesia’s migrant workers right are being
53 | P a g e respected by Indonesia and Saudi Arabia. Therefore, the bilateral relations of Indonesia and Saudi Arabia in Indonesia’s migrant workers sector can carry on without any problems internal and external.
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