Migrant Workers' Access to Justice at Home: Indonesia
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University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 10-2013 Migrant Workers’ Access to Justice at Home: Indonesia Bassina Farbenblum University of New South Wales Eleanor Taylor-Nicholson University of New South Wales Sarah Paoletti University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, East Asian Languages and Societies Commons, Human Rights Law Commons, International Business Commons, and the Social Welfare Commons Repository Citation Farbenblum, Bassina; Taylor-Nicholson, Eleanor; and Paoletti, Sarah, "Migrant Workers’ Access to Justice at Home: Indonesia" (2013). Faculty Scholarship at Penn Law. 495. https://scholarship.law.upenn.edu/faculty_scholarship/495 This Report is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. MIGRANT WORKERS’ ACCESS TO JUSTICE SERIES Migrant Workers’ Access to Justice at Home: Indonesia Bassina Farbenblum l Eleanor Taylor-Nicholson l Sarah Paoletti Migrant Workers’ Access to Justice at Home: Indonesia Migrant Workers’ Access to Justice at Home: Indonesia Bassina Farbenblum University of New South Wales Eleanor Taylor-Nicholson University of New South Wales Sarah Paoletti University of Pennsylvania Copyright © 2013 by Bassina Farbenblum, Eleanor Taylor-Nicholson, and Sarah H. Paoletti. This publication is licensed under a Creative Commons Attribution-NonCommercial- NoDerivs 3.0 license. You may copy and distribute the document, only in its entirety, as long as it is attributed to the authors and used for noncommercial, educational, or public policy purposes.Photographs may not be used separately from the publication. ISBN: 978-1-936133-94-9 Published by Open Society Foundations 224 West 57th Street New York, NY 10019, USA www.soros.org For more information contact: This publication is available as a pdf on the websites of the Open Society Foundations (www.opensocietyfoundations.org) and the Migrant Worker Access to Justice Project (www.migrantworkerjustice.org) For more about the Open Society International Migration Initiative, contact Elizabeth Frantz at: [email protected] For more about the Migrant Worker Access to Justice Project, contact Bassina Farbenblum at: [email protected] Cover photo: After a 10-hour drive, Sugiyani Waryomiharjo arrives at a migrant training center in Jakarta on February 26, 2007, and tries to contact her mother and her husband before she has to surrender her mobile phone so she won’t be “distracted” by calls from family members. ©Sim Chi Yin/VII Mentor Program Text layout and printing by Createch Ltd. 4 Table of Contents Terminology and Glossary of Terms 9 List of Tables and Figures 11 Tables 11 Figures 11 Acknowledgments 13 Executive Summary 15 1. Introduction 23 1.A Origin Countries and Access to Justice for Migrant Workers 23 1.B Overview of Report and Research Method 25 Report Overview 25 Research Methodology 26 1.C International Law and a Rights-Based Approach to Labor Migration 28 International Human Rights Instruments and Labor Migration 28 Origin Country Obligations Regarding Access to Justice and Related Rights 29 1.D Defining and Assessing Access to Justice 31 5 2. Indonesian Workers to The Middle East: A Case Study 33 2.A Indonesian Labor Migration 33 2.B Indonesian Labor Migration to the Middle East 34 2.C Migrant Workers’ Access to Justice in Indonesia 36 3. Legal & Institutional Frameworks Governing Indonesian Labor Migration 39 3.A Legal Framework 39 3.B Institutional Framework: Responsibilities of Relevant Government and Private Entities 42 Government Agencies 42 Recruitment Agencies and Other Private Actors 45 3.C Procedural Framework and Institutional Responsibilities Pre-Departure 47 4. Harms Experienced by Migrant Workers 53 4.A Harms in Destination Country 53 4.B Harms in Indonesia 56 5. Migrant Workers’ Rights Under Indonesian Legislation, Contract, and International Law 57 5.A Domestic Laws 58 The Constitution 58 Statute 59 Rights in Regional Legislation 60 5.B International Law And Bilateral Agreements 61 5.C Contractual Rights 62 Placement Agreement 62 Employment Agreement 65 Fulfillment of Rights in Placement and Employment Agreements 65 5.D Summary of Rights under Law and Contract 67 6. Mechanisms for Enforcing Rights and Seeking Redress 69 6.A Negotiation and Informal Dispute Resolution 71 6.B Administrative Dispute Resolution 74 Government Agencies’ Dispute Resolution Functions 75 6 TABLE OF CONTENTS Dispute Resolution Procedure 78 “Mediation” 79 Remedies, Sanctions, and Appeals 81 Perceived Effectiveness of Administrative Dispute Resolution 81 6.C The Migrant Worker Insurance Program 85 Legal Framework and Institutions for Insurance 87 Purchasing Insurance and Claims Procedures 92 Perceived Effectiveness of the Insurance Program 95 6.D Seeking Redress in the Courts 99 Overview of Indonesian Courts and Tribunals 99 Redress through the Criminal Justice System 101 Redress through the Civil Courts 106 6.E Protection Abroad and Embassy Assistance 107 Legal and Institutional Framework 108 Perceived Effectiveness of Embassy Dispute Resolution 112 Beyond Claims Assistance: Other Protective Services 119 7. Challenges to Enforcing Migrant Workers’ Rights and Obtaining Redress 123 7.A Centralization and Distance 124 7.B Documentation Requirements that Workers Struggle to Meet 124 7.C Workers’ Concerns and Cases Not Taken Seriously 126 7.D Lack of Awareness and Understanding of Legal Rights and Redress Options 127 7.E Lack of Legal Aid and Legal Advice 128 7.F Inadequate Regulation of The Private Sector, which Is Not Held Accountable for Worker Harms 129 7.G Overlaps and Gaps in Migrant Worker Protection 130 7.H Time, Resources, and Emotional Cost 130 7.I Corruption and Perceptions of Corruption 131 7.J Summary—Despondency and Frustration 132 8. Conclusion and Recommendations 135 8.A Summary of General Findings 136 8.B Recommendations 149 MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 7 Annexures Annexure 1: International Law Ratifications by Indonesia 161 Annexure 2: Interviews and Focus Groups 163 Annexure 3: List of Organizations/Persons Interviewed 165 Notes 167 8 TABLE OF CONTENTS Terminology and Glossary of Terms Abbreviation English Translation Bahasa Indonesia or Acronym ASEAN Association of Southeast Asian Nations BAP Examination Report Berita Acara Pemeriksaan BNP2TKI National Body for the Placement Badan Nasional Penempatan and Protection of Indonesian dan Perlindungan Tenaga Migrant Workers Kerja Indonesia BP3TKI Agency for the Service, Balai Pelayanan, Penempatan Placement and Protection of dan Perlindungan Tenaga Indonesian Migrant Workers Kerja Indonesia CMW United Nations Convention on the Rights of Migrant Workers and Members of their Families DPR People’s Representative Dewan Perwakilan Rakyat Assembly DPRD Regional People’s Representative Dewan Perwakilan Rakyat Assembly Daerah 9 Abbreviation English Translation Bahasa Indonesia or Acronym KPA Insurance Membership Card Kartu Peserta Asuransi KTKLN Overseas Workers Card Kartu Tenaga Kerja Luar Negeri KUHAP Criminal Procedure Code Kode Undang Undang Hukum Acara Pidana KUHP Criminal Code Kode Undang Undang Hukum Pidana MoFA Ministry of Foreign Affairs Kementerian Luar Negeri MoM Ministry of Manpower and Kementerian Tenaga Kerja dan Transmigration Transmigrasi PAP Pre-Departure Briefing Pembekalan Akhir Pemberangkatan Perda Regional Regulation Peraturan Daerah SATGAS TKI Special Taskforce on the Satuan Tugas Penanganan Handling of Cases of Migrant Kasus Warga Negara Workers and Citizens Abroad Indonesia/ Tenaga Kerja Threatened with the Death Indonesia di Luar Negeri yang Sentence Terancam Hukuman Mati SOP Standard Operating Procedure TKI Indonesian Migrant Worker/ Tenaga Kerja Indonesia Overseas Worker Unless otherwise stated, all references in this report to statutory provisions refer to articles of Law 39/2004. The term “recruitment agency” refers to private migrant labour recruitment com- panies, commonly described elsewhere as manpower agencies, placement agencies or private employment agencies, among other terms. The term “country of origin” refers to a migrant worker’s home country (described elsewhere as “sending country,” a term regarded by some as reflecting the commodifica- tion of migrant workers). The terms “destination country” and “country of work” refer to the country in which a migrant worker is placed as a temporary migrant worker, instead of “receiving country.” 10 TERMINOLOGY AND GLOSSARY OF TERMS List of Tables and Figures Tables Table 1: Information and Training Requirements 49 Table 2: Problems Reported by Migrant Workers Arriving through Jakarta Terminal 4, 2008–2011 54 Table 3: Complaints by Type Received by BNP2TKI Crisis Center, July 2011–June 2012 55 Table 4: Laws and Regulations Governing to Migrant Worker Insurance 87 Table 5: Periods of Migrant Worker Insurance Coverage 90 Table 6: Enhanced Protection Role for Embassies after 2006 108 Table 7: Rights Protection Obligations of Indonesian Foreign Missions 110 Figures Figure 1: Approvals by Ministry of Manpower for Indonesians to Work Abroad 2006–2011, Total and to Middle East 35 Figure 2: Middle East Destinations for Indonesian Migrant