THE FAILURE OF INDONESIA-MALAYSIA COOPERATION IN RESOLVING INDONESIAN ILLEGAL MIGRANT WORKERS IN THE STATE OF SARAWAK, MALAYSIA 2013- 2016
By Fenni Adella ID No. 016201300163
A thesis presented to the Faculty of Humanities President University in partial fulfillment of the requirements for Bachelor Degree in International Relations Major in Diplomacy
2017
THESIS ADVISER
RECOMMENDATION LETTER
This thesis entitled “The Failure of Indonesia-Malaysia Cooperation in Resolving Indonesian Illegal Workers in the State of Sarawak, 2013-2016” prepared and submitted by Fenni Adella in partial fulfillment of the requirements for the degree of Bachelor of Arts in International Relations in the Faculty of Humanities of President University 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.
Jakarta, Indonesia, 2017
Recommended and Acknowledged by,
Dr.Endi Haryono. M.Si. Thesis Advisor
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DECLARATION OF ORIGINALITY
I declare that this thesis entitled “The Failure of Indonesia- Malaysia Cooperation in Resolving Indonesian Illegal Workers in the State of Sarawak, 2013-2016” 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 17, 2017
FENNI ADELLA
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PANEL OF EXAMINERS APPROVAL SHEET
Panel of examiners stated that the thesis entitled “The Failure of Indonesia-Malaysia Cooperation in Resolving Indonesian Illegal Workers in the State of Sarawak, 2013-2016” that was submitted by Fenni Adella majoring in International Relations from the Faculty Humanities was assessed and approved to have passed the Oral Examination on
Prof. Anak Agung Banyu Perwita, Ph.D Chair – Panel of Examiners
Dr. Phil. Reza A. A. Wattimena, S.S., M.Hum Examiner
Dr.Endi Haryono. M.Si. Thesis Adviser
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The Failure of Indonesia-Malaysia Cooperation in Resolving Indonesian Illegal Migrant Workers in the State of Sarawak, Malaysia
Indonesia is the biggest supply of labour force to Malaysia‟s development. Indonesian migrant workers in Malaysia can be both legal and illegal. Legal migrant workers are those who entered the state legally, while illegal migrant workers are those who work in or enter to the receiving state without a proper pass or procedures. The high demand for cheap labour in Sarawak catalysts the rise of illegal migrant entrance to the state. The Malaysia's economic development had been significantly contributed by the existence of foreign labour forces. However, their increase in number especially as illegal migrant worker negatively affects Malaysia and had brought concerns to the public, as well as the government. Additionally, for Indonesia, the presence of Indonesian illegal migrant workers in Sarawak results in the increase of Indonesian death cases due to the lack of work training imposed by the employers and the lack of access to legal protection of the workers. Accordingly, Malaysia imposes tough sanctions against illegal migrant workers, while legally recruited foreign workers are welcomed. Therefore, there is an urgency and need for both government of Indonesia and Malaysia in combating the illegal entry and the existence of Indonesia illegal migrant workers in Sarawak. This thesis is significant in providing detailed information and analysis on how did the cooperation between Indonesia and Malaysia in getting ride in solving the problem of Indonesia Illegal Migrant Worker in Sarawak, Malaysia
Keyword: Indonesia Illegal Migrant Workers, National Interest, Relative Gain, Neorealism, Indonesia, Malaysia, Sarawak, Entikong
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ABSTRAK
Kegagalan Kerjasama Indonesia-Malaysia Dalam Menyelesaikan Masalah Pekerja Migran Ilegal Indonesia di Sarawak, Malaysia
Indonesia merupakan pemasok tenaga kerja terbesar terhadap pembangunan Malaysia. Buruh Migran Indonesia di Malaysia terbagi menjadi dua yaitu pekerja legal dan illegal. Buruh migran legal adalah mereka yang masuk ke Malaysia secara legal dengan menggunakan dokumen yang lengkap, sedangkan pekerja migran ilegal adalah mereka yang bekerja atau masuk ke Malaysia tanpa izin atau tidak melalui prosedur yang benar. Tingginya permintaan terhadap buruh migran Indonesia di Sarawak menyebabkan tingginya aktivitas keluar masuk pekerja illegal Indonesia ke negara bagian Sarawak. Perkembangan ekonomi Malaysia terlihat secara signifikan oleh adanya tenaga kerja asing, namun tingginya angka buruh migran ilegal di Sarawak menimbulkan efek yang negatif dan juga kekhawatiran terhadap publik dan juga pemerintah Malaysia. Begitu juga halnya dengan Indonesia, banyaknya jumlah buruh migran Indonesia yang berstatus ilegal di Sarawak mengakibatkan tingginya angka kasus kematian buruh migran Indonesia dikarenakan kurangnya pelatihan kerja oleh perusahaan dan sulitnya akses terhadap perlindungan hukum dikarenakan status mereka yang ilegal. Oleh karena itu, diperlukan kerjasama antara pemerintah Indonesia dan Malaysia dalam memberantas masuknya pekerja ilegal dan mengurangi angka pekerja ilegal Indonesia yang telah tersebar di negara bagian Sarawak, Malaysia. Skripsi ini signifikan dalam menyediakan informasi rinci dan analisis bagaimana mana kerja sama antara Indonesia dan Malaysia dalam mencegah dan menyelesaikan masalah Pekerja Illegal Migran Indonesia di Sarawak, Malaysia.
Keyword: Pekerja Migran Ilegal Indonesia, Kepentingan Nasiaonal, Keuntungan Relatif, Neorealisme, Indonesia, Malaysia, Sarawak, Entikong.
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ACKNOWLEDGEMENT
Alhamdulillahi rabil „alamin, I would like to expresses my highest gratitude to Allah subhanahu wa ta‟ala for blessing, love, opportunity, health, and mercy to complete this thesis entitled” The Failure of Indonesia-Malaysia Cooperation in Resolving Indonesia Illegal Workers in the State of Sarawak, 2013-2016” is submitted as the final requirement for the degree of Bachelor of Arts in International Relations in the Faculty of Humanities of President University.
1. To my beloved parents Mr. Fauzi Sastra Warman and Mrs. Nenni Hayati for the phone call every time in order to remind me to keep going and never giving up. Thank you for your endless love and supports (both financially and mentally) since the beginning of my journey in university. Thank you for your never-ending prayers day and night. Thank you for my sister and brothers for cheering me up when I am down. You guys have taught me the real meaning of family and love. I love you and couldn‟t ask for more.
2. My thesis advisor, Dr. Endi Haryono. M.Si and Mrs.Witri Elvianti SI.P,Ma for their patience and care in guiding, advising and commenting my way through this thesis. Without their guide, I will be lost. Without their advice, I will be clueless. Without their Comments, I will not be able to finish my thesis. Thank you for helping me to pass this final stage of my university
3. Thank you to Prof. Anak Agung Banyu Perwita, Ph.D and Dr. Phil. Reza A. A. Wattimena, S.S., M.Hum for the guidance and well instruction during one of my most important moment in my life. 4.Thank you for all lectures in President University who have shared their knowledge, insight, and experiences.
5. Thank you to beloved Khairina Auliannisa Lubis, couldn‟t ask for more best friend.
6. Thank you to ITA for supporting me emotionally and love me.
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7. Thank you to my lovely crazy Mentary/Devregaz or whatever is her name right now. Me love you and I know you do too. To my moody Ayla Namira, you know I Miss You so badly, good luck for everything.
8. Thank you to Wahid Pratomo Putra Biantoro for your kindness and your sincerity in helping me every time.
9. Thank you to my university squad who did not come to my thesis defence but still exist in my heart. I love you guys and see you guys on top Dwi Chintya, Cherrish and Ines.
10. All My friends in life, my high school squads. Love you all.
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TABLE OF CONTENTS
THESIS ADVISER ...... i RECOMMENDATION LETTER ...... i DECLARATION OF ORIGINALITY ...... ii PANEL OF EXAMINERS APPROVAL SHEET ...... iii ABSTRAK ...... v ACKNOWLEDGEMENT ...... vi TABLE OF CONTENTS ...... viii LIST OF TABLES AND FIGURES ...... x LIST OF ABBREVIATIONS ...... xi CHAPTER I ...... 1 INTRODUCTION ...... 1 I.1 Background of the problem ...... 1 I.2 Problem Identification ...... 6 I.3 Statement of the Problem ...... 8 I.4 Research Objective ...... 8 I.5 Significance of Studies ...... 8 I.6 Literature Review ...... 9 I.7 Theoretical Framework ...... 12 I.8 Scope and Limitations of the Study ...... 14 I.9 Research Methodology ...... 14 I.10Thesis Outline ...... 15 CHAPTER II ...... 17 PROBLEM OF INDONESIA ILLEGAL MIGRANT WORKERS IN THE STATE OF SARAWAK .... 17 II. Introduction ...... 17 II.1 Overview on Illegal Migrant Workers in Malaysia ...... 18 II.2 Indonesia Illegal Migrant Workers in Sarawak ...... 21 II.3 Push and Pull Factor of Huge Number of Illegal Migrant in Sarawak ...... 27 II.4 Social Problem Issues on Indonesia Illegal Migrant Workers ...... 36 CHAPTER III ...... 39 INDONESIA-MALAYSIA COOPERATION...... 39 III. Introduction ...... 39 III.1 Regional and International Cooperation on Migrant Workers ...... 39
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III.2 Malaysia Bilateral Relation with Indonesia ...... 41 III.3 Cooperation on Worker Sending and Receiving Country ...... 43 III.4 Both Countries Annual Meeting on Discussing About Indonesia Illegal Migrant Workers in Malaysia ...... 51 III.5 Malaysian Laws Governing Affairs of Foreign Workers ...... 52 CHAPTER IV ...... 56 ANALYSIS ON THE COOPERATION AND PROGRAM IMPLEMENTATION IN SOLVING INDONESIA ILLEGAL MIGRANT WORKER IN SARAWAK ...... 56 IV. Introduction ...... 56 IV.1 Malaysia Government Approach in Combating Illegal Migrant Workers ...... 56 VI.2 Indonesia and Sarawak Approach on Indonesia Illegal Migrant Workers ...... 63 IV.3 Viewing Closer into the Ties Between the Two Countries...... 68 IV.4 Foreign Workers Dilemma...... 73 IV.5 Malaysia Policy Has Been Implemented ...... 79 IV.6 Liberalism and Indonesia-Malaysia Cooperation ...... 80 IV.7 Challenge in solving the Indonesian Illegal Migrant Problem ...... 83 CHAPTER V ...... 85 CONCLUSION ...... 85
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LIST OF TABLES AND FIGURES
Table 1: Indonesian Migrant Committed to Crime in Sarawak
Table 2. Place of Arrest/ Surrender of the Ops Nyah Operation
Table 3: Indonesia‟s Remittance from Malaysia
Figure 1. Number and Type of Problem Faced by Workers
Figure 2. Comparison between Sarawak and Malaysia
Figure 3 Number of Indonesia Migrant Workers Died in Sarawak
Figure 4. Number of Indonesian Deported from Sarawak
Figure 5. Indonesia Migrant Deportation Flow
Figure 6. Foreign Workers Remittance from Malaysia
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LIST OF ABBREVIATIONS
MoMT : Malaysian Ministry of Manpower and Transmigration BNP2TKI : Placement and Protection of Indonesian Overseas Workers IMW : Indonesia Migrant Worker IIMW : Indonesia Illegal Migrant Worker PPTKIS : Private Indonesian Manpower Supplier Company ASEAN) : Association of Southeast Asian Nations BNP2TKI : Placement and Protection of Indonesian Migrant Workers Abroad KTKLN : Card Overseas Employment PJKTKI : Indonesian Labor Providers Organization DAP : Democratic Action Party MOU : Memorandum of Understanding GFMD : The Global Forum for Migration and Development
AFML : ASEAN Forum on Migrant Labour MRA : Malaysian Recruitment Agency IRA : Indonesian Recruitment Agency BNSP : Badan Nasional Sertifikasi Profesi JTF : Joint Task Force LoI : Letter of Intent PLRT : Penata Laksana Rumah Tangga CCFWII : Cabinet Committee on Foreign Workers and Illegal migrants GOF : General Operation Force MMEA : Malaysian Maritime Enforcement Agency NRD : National Registration Department ATIPSOM : Anti – trafficking in Persons and Smuggling of Migrant IMWA : Indonesian Migrant Workers Award NGO : Non Governmental Organization MTUC : Malaysian Trade Union Congress
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CHAPTER I
INTRODUCTION
I.1 Background of the problem
The relationship between countries is influenced by the interests of each country, and the relationships between countries can work well if those interests do not clash. To achieve the interest of the country, it is needed to encourage the cooperation with two or more countries, both in regional or international level. As an independent and sovereign state, as well as members of the international community, Indonesia has and implemented foreign policy. Foreign policies can be described as a state‟s behavioural pattern adopted in conducting foreign and diplomatic relations with other parties in the world. A foreign policy is formulated based on comprehensible national interests. These national interests can vary from national security, trade relation, economic development, territorial preservation and resolution issues. Well-defined policy approach based on rationality is crucial for a state to achieve these objectives and aims.1
Looking into the Indonesia territory, the largest archipelago in the world is Indonesia with 18,110 islands, the territorial area of 3.1 million km² and its territorial waters of 5.8 million km². Wide geography made Indonesia to have areas that intersect with many countries. Indonesia has land borders with Malaysia, Papua New Guinea and East Timor along 3092.8 km. Meanwhile, its territorial waters borders with 10 countries, namely Malaysia, India, Singapore, Thailand, Philippines, Vietnam, Australia, Timor Leste, Palau and Papua Nugini.2
Additionally, according to Indonesia law no. 43/2008 on the territory of the state, the border area is part of the territory of countries located on the inner
1 Sadia Mushtaq and Ishtiaq Ahmad Choudhry. Title: Conceptualization of Foreign Policy An Analytical Analysis website: http://www.berkeleyjournalofsocialsciences.com/spring4.pdf 2 Sandy Nur Ikfal Raharjo: Indonesia‟s Policy On The Land Border Area Management With Malaysia (An Evaluative Study In The Entikong District)
1 side along the boundary Indonesia and other countries, in terms of state borders on land, the border area is located in the district. Area of the country is defined as one of the elements that constitute a unity state land areas, archipelagic waters, internal waters and territorial sea as well as the seabed and the land beneath it, as well as the air space above it, including all sources of wealth contained therein.3 Land border between Indonesia and Malaysia stretches along 2,004 km in 16 districts in West Kalimantan and 14 sub-districts in East Kalimantan.4
As neighboring country, Indonesia and Malaysia have a long history of state relations, both in the bilateral and regional scope. According to the Malaysian Government, the main destination county for Indonesian migrant‟s workers (IMW) is Malaysia, both for legal migrant and illegal migrant workers. Similarities in ethnics, cultures and language with Indonesia enables Indonesian workers to easily mingle into Malaysian society.5IMW is one of the strongest structures for Indonesia‟s economic growth.6
There are several opinions about the definition of Indonesian Migrant Workers. According to Labor Minister of the Republic of Indonesia Article 1 section (1) of Law Number 39 Year 2004 regarding the Placement and Protection of Indonesian Workers Abroad, IMW is every Indonesian citizen that suitable to work abroad in the service relationship for a given period of time with a salary.7 Meanwhile in Article 1 Kep. Kep Manakertran Republic Indonesia Number 104A / Men / 2002 regarding the placement of migrant workers abroad mentioned that
3 The report from State Administration Institution 2004. Country Border Area Management Study. Research Report, Center for International Administrative Studies. Jakarta. 4 Mulyana, Agung. 2012. General Policy and Border Area Development Strategy. Country by National Border Management Agency. 5 Labor migration from Indonesia, an overview of Indonesia migration to selected destinations in Asia and the Middle East by IOM International Organizations https://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/Final-LM-Report- English.pdf Retrieved October 20, 2016, 6Novarina, A 2013, „Malaysia hapus visa kunjungan cegah TKI ilegal‟, Antara News, 6 September, viewed 12 November 2016,
2 migrant workers are both men and women who work abroad within a certain period under employment agreement through migrant workers placement procedure.8
According to the data reported by BNP2TKI (Badan Nasional Penempatan dan Perlindungan Tenaga Kerja Indonesia) from 2013-2016, there are 463.297 Indonesian Migrant Workers working in Malaysia through legal procedure.9 However, migration through illegal way is a serious problem that must be completed by the sending and receiving countries of labor services.10The problem about the opportunity to work in their own country and interest to work abroad under the silhouette of a higher salary made someone willing to take all the ways that is believed can bring to a better life. From where then appear illegal practices, where there are people who do not have the complete document, only a passport, but would like to work as Migrant Workers in Malaysia for the sake of their livelihood, they finally determined to go across the border posts, and they are often called Illegal migrant workers.11
The departure of prospective migrants or migrant workers from Indonesia to Malaysia is done through some transit areas in the border region, such as Nunukan (East Kalimantan), Entikong (West Kalimantan) and Batam, Tanjung Pinang (Riau Islands) and some in other regions in Indonesia. The border region is a transit area before proceeding to its destination with the official labor force status (registered) and undocumented (illegal workers).12 In this thesis, the writer
8 Keputusan Menteri Tenaga Kerja Dan Transmigrasi Republik Indonesia website: http://www.portalhr.com/wp-content/uploads/data/pdfs/pdf_peraturan/1204258381.pdf accessed on Saturday , September 23, 2016 9 Data Penempatan Dan Perlindungan Tenaga Kerja Indonesia Tahun 2016 - Badan Nasional Penempatan Dan Perlindungan Tenaga Kerja Indonesia Report Michael P. Todaro & Lydia Marusko, “Illegal Migration and US Immigration Reform: A Conceptual Framework, Population and Development Review”, Vol. 13, No. 1, 1987, 101-114. 10 Illegal Migrant In Sabah retrivied Monday, December 19 2016 web site : https://worldconferences.net/proceedings/icssr2015/full%20paper/IC%20006%20ILLEGAL%20I MMIGRANT%20AND%20SECURITY%20CRISIS%20IN%20SABAH.pdf 11 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. Data collected from Consulate General of the Republic of Indonesia in Kuching, Sarawak 12 ibid
3 will limit its research to one location which is, Entikong, West Kalimantan and concerning about illegal Indonesia migrant workers in Sarawak, Malaysia.
Entikong is one of the districts in the border region that is in the Sanggau district, province of West Kalimantan,Indonesia which is geographically, an area that is immediately adjacent to the state of Sarawak, Malaysia. West Kalimantan became one of the points of transit for the people of Indonesia to work abroad both official labor force status (registered) and undocumented (illegal workers).13
As states constantly evolving,14 According to the data reported by the Immigration Department of the State of Sarawak, there are about 150,000 (one hundred fifty thousand) Indonesian citizens working in Sarawak.15 Indonesia is the country's largest labor contributor with the total number is 95 percent of the overall number of all foreign workers who work in the State of Sarawak, Malaysia. This amount does not include citizens of Indonesia who live in Sarawak unofficially, with the average working as a construction workers, workers palm groves, sailors, dangdut singer, waitresses, shop keeper, following the husband or parent, housekeeper, salon workers, and others. Thus, it is estimated by Sarawak Imigration Department that there are about 400,000 (four hundred thousand) Indonesian citizens living in the State of Sarawak, Malaysia.16 The deputy home minister of Sarawak Datuk Wan Junaidi Tuanku Jaafar admitted that those number of illegal workers in Sarawak is huge problem and has stated:17 “Sarawak government does not tolerate the presence of illegal immigrants and has declared getting rid of them as their main priority”
13 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak 14 Consulate General of the Republic of Indonesia Kuching, Sarawak , Rencana Strategis (RENSTRA) KJRI RI Kuching tahun 2015-2019 page 1 15 Seminar Management of Foreign Workers in Sarawak May 19th 2016 held by the Sarawak Immigration and consulate general of the republic of Indonesia in Kuching, Sarawak. 16 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. 17llegal immigrants in Sarawak a „huge problem‟, deputy home minister admits retrivied on Monday, December 19 2016 Website: http://www.themalaymailonline.com/malaysia/article/illegal-immigrants-in-sarawak-a- huge-problem-deputy-home-minister-admits
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Data‟s from the Indonesian Consulate General for Sarawak shows that, on average a year, 200 Indonesian workers died in Sarawak with 80 percent of them are illegal workers. These deaths were caused variously from death by wild animal, harsh treatment from employers, sickness and to workplace accidents. Workplace accidents occurs as many companies did not care about safeties and they did not provide any work safety training prior.18
According to Indonesian Consul General for Sarawak Jahar Gultom, “Illegal workers” are not always describing people who come to Sarawak illegally. Rather, these workers may arrive with official work documents into Sarawak, but they move to another employer or company without an official resignation and leaving behind their documents at their previous employer.
Illegal immigration stumbles upon many problems as the illegal migrant workers are often lowly paid, their housing quarters are overcrowded and the lack of healthcare services were received. These problems led to the increase of the crime rate in Sarawak, for example smuggling, human trafficking, raping, etc. Also, as the workers are illegal and undocumented, companies tend to take advantage on this situation to pay less attention to them.
In 2015, the Consulate General has handled 476 migrant worker‟s cases. This number is higher than 2014, which stands at 348 cases. With these cases, 116 cases were about Documentation issues, 83 cases were about worker‟s inability to survive in their jobs and 97 cases were about late payments19
For this case, the guilt is shared between the government, recruitment agencies and also IMW itself. Though, the cooperation, as the governments in charge, between the Malaysian Ministry of Manpower and Transmigration (MoMT) and the National Authority for the Placement and Protection of Indonesian Overseas Workers (BNP2TKI) are particularly responsible for most frequently, problems are occurring at the pre-departure activities. Furthermore,
18 Illegal workers head to Sarawak despite risks retrivied on Monday, December 19 2016 http://www.thejakartapost.com/news/2016/04/18/illegal-workers-head-sarawak-despite-risks.html 19 ibid
5 illegal recruitment practices also contribute to the huge number of illegal workers.20 This brings about the crucially in the need for the cooperation‟s between Indonesia and the state government of Sarawak in addressing the issues of illegal migrant.
I.2 Problem Identification
Huge number of Indonesian citizen with around 400,000 living in the State of Sarawak21 are scattered in some major areas such as Bintulu, Miri, Sibu, Kuching, Kapit, Lawas and Limbang. From the amount of the total number of Indonesian citizens who live in the State of Sarawak, only about 2% of Indonesian migrant workers who work in professional fields such as pilot, lecturer, entrepreneur/businessman, architect, hospitality etc. Formal workers in Sarawak generally work in four sectors namely construction, agriculture and agro-industry, the timber industry, domestic helper.22
The high number of Indonesia migrant workers also affected to the increasing number of deportations Indonesian citizens living in Sarawak, where since 2012 until June 2016 has reached 5700 people. Of these, most of them are Indonesian citizens who come and live in the state of Sarawak without a working visa or without legal documents or we called Indonesia illegal migrant workers, which some other number is a citizen of Indonesia who have various problems in the workplace such as salaries not paid, victims of human trafficking, escaped from an employer, a job that is not in line with expectations and so forth.23
According to the data reported by Indonesia Consulate General of the Republic of Indonesia in Kuching, Sarawak, there are some constrain that caused the high number of Indonesian illegal workers in Sarawak, such as geographical
20 International labour Organization for Migration,on the Migration Policy 2008 risks retrivied on Monday, December 19 2016 website: http://hrbaportal.org/wp-content/files/wcms_208594.pdf 21 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. 22 Ibid 23 Ibid
6 constraints, the constraints of the Indonesia government, the constraints of the state government of Sarawak, the constraints of the citizen itself and also constraints on the side of the employer or company.
Geography constrain is the length of the land border between Sarawak and Indonesia make the supervision of the flows in and out of citizen or workers are not well monitored, the government of Sarawak admitted as many as 49 are 'Road Rat' and 14 are 'Jalan Gajah' along the land border connecting Indonesia and State of Sarawak, Malaysia.24
Constraints also come from the Indonesian government, which caused a few things like weak of system observation on the border that connecting Indonesia and state of Sarawak, a weak system of passports making procedure that can make it easier for Indonesian citizens to have a passport, Weak supervision of the Private Indonesian Manpower Supplier Company (PPTKIS) related responsibilities of handling migrants workers fled to the state of Sarawak and weak handling and prosecution of cases of human trafficking that often happens to Indonesian workers working in Malaysia.25
Constraints on the part of employers or companies that employ illegal workers in a company. This is because of the high demand for workers, so that is making the employer or company received illegal workers to work in their company. Either by paying expensive individual agent, or by utilizing the status of illegal migrant workers.26 Entrepreneurs that have business in developed countries prefer to employ illegal migrants in the company, because the wages paid are relatively cheaper if employing illegal migrants, and wages earned by illegal migrants from the company are considered much greater than the wages earned in their origin country.27
24 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. 25 Ibid 26 Ibid 27 J. B. Grossman, “Illegal Immigrants and Domestic Employment”, Industrial and Labor Relation Review, Vol. 37, No. 2 (1984), 240-251.
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Therefore, it is required intensive cooperation between the representatives of Indonesia in Sarawak namely the Consulate General of the Republic of Indonesia in Kuching together with the Sarawak state government in dealing with the high number of illegal Indonesian workers living in Sarawak.
I.3 Statement of the Problem
As have been explained above, the writer would like to analyze the cooperation between Indonesia and the State of Sarawak in resolving the issues of illegal workers from Indonesia to Sarawak, Malaysia in reviewing the data of number of workers deported through the border of Entikong, West Kalimantan. Thus, the topic and questions for this research are defined as follow.
Research Question:
How did the Cooperation between Indonesia and Malaysia in Addressing the Issues of Indonesian Illegal Workers in Sarawak?
I.4 Research Objective
To describe and analyze the policies imposed by both countries (Indonesia-Malaysia) in order to settle the issues of Indonesia illegal workers in the State of Sarawak, Malaysia. To analyze responds and actions taken by the State of Sarawak, Malaysia in preventing the huge number of Indonesian illegal workers in the State of Sarawak.
I.5 Significance of Studies
To explain the role of Indonesian representative in protecting illegal workers who enter the State of Sarawak without legal document. To provide detailed information regarding bilateral relation between Indonesia and Malaysia in addressing the issues of huge number of Indonesia illegal workers entering State of Sarawak, Malaysia. To give significant contribution to the academic interest and further researches particularly in the field of International Relations
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I.6 Literature Review
According to Kanapathy (2008a), the policies and measures by the Malaysian government are implemented through three phases. The author also discusses the implemented policies in controlling illegal migration and to stem the illegal immigrants. The first stage of the policies and measures implementation are deemed lacking of action against illegal workers. This lack of action also marks the first stage itself. In the second stage, however encouragement of legal recruitment and policies restricting illegal immigrations were introduced. The year 1997 initiates the third stage. Tougher measures are introduced as illegal migrants has been seen as a social and security threat. Factors supporting the illegal migrant activities are also discussed by the author. Factors such as less costly migration, greater freedom in preferring any employer and easier to move for another employer, the low wage that illegal migrant workers are willing to accept, due to the development of migration networks, ineffective enforcement and the availability of a ready secondary market for illegal migrants job.28
Azizah Kassim and Ragayah Hj. Mat Zin (2011) discusses the Malaysian policy regarding illegal workers, implementation, and impact. The author also conducted a survey and interviews covering 404 respondents to ensure the real situation surrounding illegal workers who are in Malaysia. From the journal, the author used the triangulation method that combines quantitative (gathering information through a quantitative survey) and qualitative (based on interviews and focus group discussions) approaches. The existence of foreign workers contributes highly impacting the Malaysian economic development. This point and the fact that their large number, especially as illegal migrants, left a trail of negative impacts, are emphasized by the author. The negative impacts concern the public and the government gravely. The policy on illegal migrant workers in
28 Kanipati 2009 policy on irregular migrant in Malaysia retrivied on Monday, December 19 2016 website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf
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Sabah and Labuan is managed by the Federal Special Task Force for Sabah and Labuan under the National Security Council in the Prime Minister's Department, unlike in Sarawak and Peninsula, which is the concern of the Department of Immigration and Ministry of Home Affairs. There are two conjoined objectives of the policy. First objective is the encouragement of legal recruitment of foreign workers and the illegal migrant expansion inhibition. Second objective is to initiates strategies including regularization, amnesty, border surveillance and control, rooting out illegal migrants which are already in Malaysia and deportation.29
Joseph Chinyong Liow (2003) from Institute of Defence and Strategic Studies Nanyang Technological University has conducted a research with the title “Malaysia‟s Approach to its illegal Indonesia Migrant Labor Problem: Securitization, Politics, or Catharsis?” Evaluating how the Malaysian government cope with the IIMW problems, based on the theory of securitization. Through the theory, The Malaysian government concentrates on two key features. First, portrayal of illegal Indonesian migrant as an “existential threat” to the Malaysian lifestyles and social order by the “speech act” of government officials, including the Prime Minister and second, mobilization of resources to great extents as the government has embarked on “emergency measures” to address this problem. Although the presence of illegal Indonesian migrant pose an “existential threat”, their absence could also threatens the Malaysian economic security. The author also outlined the key argument behind the Malaysian government‟s failure to cope with the issue of IIMW lies in implementation of the policies, as the formulation of policies itself is not lacking. This essence is the tenuous nature of the function of politics. He also discussed the evolution of the “illegal Indonesian migrant workers” problem in Malaysia, how the applicable solution for the problem is seemingly elusive and how the problem frictions a better Indonesia- Malaysia relation. A conclusion by the author stating that a grey area in the
29Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness retrivied on Monday, December 19 2016 website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf
10 understanding of the security threat posed by illegal migrant workers is further dramatized by the diverse view between politics and security, which is presented through the securitization theory and the policies, is highly problematic.30
On the other hand, the sociological approach regarding illegal migrants in Malaysia has also become a major focus Azizah Kassim (2005). The state of Sabah has the highest number of illegal migrants present and thus, it becomes the author‟s focus state. The author also discussed the continuity in the presence of illegal immgrants, despite government‟s various measures. Different ways in which foreigners can turn illegal are also discussed, along with their survival strategies. The author suggested that by understanding illegal immigrants‟ survival trait, government can better formulate effective policies. The same author attempted to explain the persistence of the illegal migrants on her next two paper. Studying the policies on migrant workers, it was deduced by the writer that one major factor persisting the presence of illegal migrant workers is the allusively weak nature of the policy itself.31
Sadiq (2005) adopted a political science approach in his paper on illegal migrants in Sabah. The author have research on the Filipinos migrant workers residing in the state of Sabah. By deviating from a government's conventional norm to control, monitor and restrict illegal immigrants‟ entry and access to citizenship. The government encourages the illegal inflow of the Filipinos and incorporating them into the state electoral rolls. This leads into altering the political outcome to favor the state government.32
30 Joseph Chinyong Liow (2003) “Malaysia‟s Approach to its illegal Indonesia Migrant Labor Problem 31 AzizaH Kassim and ragayaH HJ. mat zin1 Irregular Migrants and the Law– Pilipino Journal of development retrieved Monday, 18, December 2016 website: http://dirp3.pids.gov.ph/webportal/CDN/PUBLICATIONS/pidspjd11-malaysia.pdf 32 Irregular Migrants, Human Rights and Securitization in Malaysia: An Analysis from a Policy Perspective retrivied on Monday, December 19 2016 website : http://link.springer.com/chapter/10.1057%2F9781137298386_12
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I.7 Theoretical Framework
In International relations, Realism is a theory that takes a negative view of human nature and assumes that states exist because they will get mutual benefit from each other and struggle to achieve their national interests, so it is different with Liberalism, which sees otherwise. Meanwhile we have to take a look on the debate over this view is not a zero-sum game that will result which one is the winners and losers. Both of these theories are the perspective to view the particular phenomenon or problem, not as something to fight for.33 In this thesis the writer borrow the theory of Liberalism on the analysis to the Indonesia Malaysia cooperation in resolving Indonesia illegal migrant worker in the state of Sarawak, Malaysia.
In contrast to the liberalism theory, realism argue that the characteristic of international relation is the conflict of interest where from realism perspective the main attention is the aspect of power, because power as seen as an important tool for every state in achieving their national interest. As referring to the idea of realism scholar Hans Morgenthau, power is the basic element of international politic that idealist and liberals continue to ignore at their peril. On the other word saying that the realism believes that a state with lacking of power, cannot survive, let alone prevail, in a tumultuous and anarchic world.
The theory of realism is clearly vice versa with liberalism theory. The main focus of the theory of liberalism contrasts strongly with realist theory. If the realist theory is skeptical in the international relations system, then liberal theory tends to be optimistic and assumes that the system of international relations can create cooperation and profit for the parties interacting.
Liberalism theory comes from the word liberty which means freedom. As a theory of International Relations, Liberalism also has the underlying assumption of the theory. The basic assumptions of Liberalism include:
1. A positive view of human nature
33 Wardhani, B., 2014. Liberalism. PowerPoint Presentation. Universitas Airlangga, Surabaya, Indonesia. 20 Maret 2014
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2. The belief that international relations can be cooperative rather than conflictual 3. and believe in progress34
Liberalism scholar believe that the relationship between countries will go well with the peace that was created by each country, which then can be realized by the presence of international organizations as a media that could unite the nation. Therefore, Liberalism does not only see state as the dominant actor in international relation, but also international individuals and organizations as actors in inter-state interactions. The purpose of liberalism in the international world is a state with their mutual cooperation with the aim of creating an atmosphere that supports the world peace. 35
In the other word, the liberal approach emphasizes on the cooperative strain in human nature. The view is that the state as not only engaging in conflict, but also as having capacity to share common interest and thus observes common rules. It is clearly that the theory of liberalism takes a positive and favorable view of human nature.
One way to explain the conditions of cooperation among self-interested states is to look into similarities of domestic political and economic regimes. Particularly, there is no dearth of theoretical and empirical arguments on the close association between democracy as a regime type and international cooperation as a course of action chosen by states. Neoliberal institutionalists have suggested well-articulated theoretical arguments on the close links between democracy and cooperative behavior on the international scene.36
According to the liberalism, the increasing of economic contrast between nation were causing state to be increasingly depend on one another for the attainment of such national goals as faster economic growth, full employment,
34 Jackson, R. dan Sorensen, G., 1999. Introduction to International Relations. New York: Oxford University Press. 35 Dunne, T. & Brian C. Schmidt, dalam John Baylis and Steve Smith (eds.), The Globalisation of World Politics. Oxford: Oxford University Press. p. 171 36 E. Mansfield, H. Milner, and B. Rosendorff, “Why Democracies Cooperate More,” International Organization 56 (2002), pp. 477-513;.
13 and price stability.37 The Liberalism believes that economic interdependence between actor or state can reduce the potential for war and conflict within the cooperation, where all actors need other actors to fulfill their various interests.
This is what happened to Indonesia and Malaysia, where both country are interdependence each other on labor sending and receiving. The problem about the huge number of Indonesian illegal migrant worker in the state of Sarawak has brought into a problem that is required the cooperation between Indonesia and Malaysia in which the existence both legal and illegal Indonesian migrant worker perceived as both advantage and disadvantage for both countries.
I.8 Scope and Limitations of the Study
As this research will examine the cooperation between Indonesia and Malaysia in resolving the huge number of Indonesia illegal migrant workers in the State of Sarawak, Malaysia. The scope and limitations of this research will be defined by several program and activity taken by both countries. The highlight of this thesis will be limited on:
a. Indonesia and Malaysia policies in addressing the issue of Indonesia illegal migrant workers b. Action or program conducted by Indonesia and Malaysia in solving the Indonesia illegal migrant workers in Sarawak c. The time frame of this research will be limited from 2013 until 2016 d. The location for collective data will take on Consulate General of the Republic of Indonesia in Kuching and data from Sarawak Immigration Department
I.9 Research Methodology
This research will use a qualitative method, qualitative research aims to understand the situation, the incident, the role of a group of people and social
37 Robert o. koehane and Joseph S. Nye power and interdepence second edition website: http://www.ri.ie.ufrj.br/intranet/arquivos/power_and_interdependece.pdf
14 interaction. According to Creswell, qualitative research based on the assumption that will provide direction for designing the entire phase of the study38. The types of research used is descriptive analytical which will be used to describe the efforts of both countries in resolving illegal cross border in the State of Sarawak. This thesis will use the primary sources for analysis coming from both countries, Indonesia and Malaysia‟s international mass media releases, government web sites, the speech from the government officials, statement of the government officials, official government documents obtained from annual reports of both countries, Consulate General of the Republic of Indonesia data and related journals or literature studies from international background to support the theoretical framework that the writer hope could answer the research question, so this thesis will provide well information and detail of the topic.
I.10Thesis Outline
I.10.1 Chapter I – Introduction The first chapter of this thesis wishes to introduce the reader to the issues and purpose of this research. This chapter will elaborate the background of the study, problem of identification, significance of studies, theoretical framework, definition of term and scope of limitations of the study. Simply, this chapter is planned to be the foundation of the writing, and to show the overview to the reader to look forward into the thesis.
I.10.2. Chapter II – Problem of Indonesia Illegal Migrant Workers in the State of Sarawak The second chapter of this research will give an overview about Indonesia Migrant Worker in Malaysia with focusing on the problem of Indonesia illegal migrant worker in the State of Sarawak. In this chapter, the author also discussed some of the factors that led to the large number of IIMW and the problem caused by their presence.
38 John W. Creswell, Research Design: Qualitative, Quantitative, and Mixed Methods Approaches, (California: Sage Publications, 2003) page 4.
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I.10.3 Chapter III – Indonesia-Malaysia Cooperation
The third chapter will show the cooperation between both government of Indonesia and Malaysia in general and more focus on the agreement regarding labor sending and receiving by elaborate the MOU between both countries. In this chapter also show the commitment of both countries in addressing the issues of Indonesia illegal migrant worker in Sarawak.
I.10.4 Chapter IV – Analysis on the Cooperation and Program Implementation in Solving Indonesia Illegal Migrant Workers in Sarawak The forth chapter will analyze the cooperation policies and program implemented by both countries and the development situation regarding Indonesia Illegal workers in Malaysia, especially in the state of Sarawak. This chapter will describe each countries approach in solving the problem. In this chapter will also show the development policies and law enforcement toward illegal migrant workers.
I.10.5 Chapter V – Conclusion In this last chapter, the writer will conclude and evaluate all the explanations described in this research and show Indonesia and Malaysia cooperation in settle down a huge number of illegal Indonesian workers coming to Sarawak. Moreover, this chapter will contain suggestion and recommendation as well.
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CHAPTER II
PROBLEM OF INDONESIA ILLEGAL MIGRANT WORKERS IN THE STATE OF SARAWAK
II. Introduction
Accepting foreign workers into Malaysia helps to cope with the lack of work force in certain sectors only, though they are not to be absorbed into all sectors. Sectors in short of workforce are plantation, construction, industries, service and manufacturing. Two major sectors crucially in need of workforce are the service and manufacturing sectors. Malaysia is undergoing an economic transition from an agricultural oriented to industrial such as manufacturing. This also greatly affect the demand of workers, skilled or otherwise.39
A very high risk is taken by the illegal migrants to take on the illegal status with reasons. Despite the legal and administrative channels to employment in Malaysia, legal recruitment of low skilled worker involves several intermediaries in both sending and receiving countries to channel their absorption. This cause the raise in the migration transaction cost. Thus, illegal employment is deemed as less hefty and cheaper alternative for both potential workers and employers.40
The rising number of migrant workers to Malaysia is becoming one of new issues in Malaysia recently. Where migrants in Malaysia can be divided into two which are legal migrant and illegal migrants. Legal migrant is those who enter the country legally and those who are entering the country without proper procedure considered as an illegal migrant. In this chapter, the writer is focusing on Indonesia illegal migrant workers in Sarawak as a concern issue that needs to be addressed by both government, Indonesia and Malaysia.
39 Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf 40 ibid
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II.1 Overview on Illegal Migrant Workers in Malaysia
As of today, the world we know has 232 million international migrants. Labour migration is generally defined as cross border movement, with the purpose of seeking employment in a foreign country. The Association of Southeast Asian Nations (ASEAN) labour market has a well-established feature of labour migration. This aspect is very crucial in supporting the economic growth of both countries, origin and destination. The destination country gains from the expansion of labour force which the labour migrants help to achieve. While, the origin country gains from contribution through the remittance earned by the labour.41
The presence of migrant workers had greatly impact to the reduce on labour paucity for a destination country in many sectors, including construction, fisheries, domestic works, manufacturing, etc. Malaysia has also gained from this scene. For the last two decades, migrant workers had help to supply labour force to gear the country‟s emergence into an upper middle-income country.
Malaysia is both a destination and an origin country. It is the main destination for Indonesian labour migrants. Malaysia‟s emigration trend is dominated by skilled workers and students studying abroad. While, it‟s immigration trend is featured with low skilled and semi-skilled workers. Malaysia is greatly accustomed on the migrant workers for their contribution to development and industrialisation and it has a high demand for Indonesian migrant workers..42
Migrant workers in Malaysia are mostly originating from other South and Southeast Asian countries. These countries include Indonesia, Bangladesh, Myanmar and Vietnam. Migrant workers in Malaysia were attracted by the higher salary offer than their originate countries. The migrant labour trend in Malaysia is featured with low skilled and semi-skilled workers occupying the dangerous,
41 International Labour Organization . title : Review of labour migration policy in Malaysia by ILO Regional Office for Asia and the Pacific 42 Ibid
18 dirty, and/or demeaning jobs (also known as “3D” jobs) in many sectors such as domestic work, agriculture, construction, and manufacturing. These are jobs that most Malaysians preferred not to take with the currently offered salary.43
In adding on the discussion on regular labour migration from Indonesia to Malaysia, Malaysia has also become the largest destination for IMW who live and work in Malaysia on an legal basis or as illegal migrants. It was predicted that the number of Indonesian illegal migrant workers in Malaysia may be twice as many as legal migrant workers in Malaysia. Therefore, immigration flow of Indonesia into Malaysia is becoming the second largest flow of illegal migrant after the movement across the US-Mexico border44 and become a serious problem for the government to be resolved.45
As of September 2016, the immigration department has issued Temporary Employment Pass to foreign workers with a total of 1,854,684 issues. The highest number of issues held by workers from Indonesia (749,226), then followed by Nepal (411,364), Bangladesh (237,991), Myanmar (140,259), India (121,430) and others (194,374). These values refer to statements by Deputy of Prime Minister of Malaysia Ahmad Zahid Hamidi).46Indonesians still make up the largest group of foreign workers in Malaysia.47 According to a data for the period of 2011-2015 by the Agency for the Placement and Protection of Indonesian Migrant Workers Abroad (BNP2TKI), there are more than 2 million Indonesian citizen worked
43 Labour Migration from Indonesia an Overview of Indonesia Migrant to selected destinations in Asia and the Middle East by IOM International Organization for Migration https://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/Final-LM-Report- English.pdf 44 Malaysia's Illegal Indonesian Migrant Labour Problem: In Search of Solutions By Liow, Joseph retrieved Tuesday, December 19 2016 website: https://www.questia.com/library/journal/1G1- 102909259/malaysia-s-illegal-indonesian-migrant-labour-problem 45 Illegal Immigrant in Sarawak a “huge problem”, deputy home minister admit retrieved Tuesday, December 19 2016 website: http://www.themalaymailonline.com/malaysia/article/illegal- immigrants-in-sarawak-a-huge-problem-deputy-home-minister-admits 46Malaysia‟s Zahid: Two million foreign workers hold temporary working permits retrieved on Monday, November 13 2016 website: http://aseantuc.org/2016/11/malaysias-zahid-two-million- foreign-workers-hold-temporary-working-permits/ 47 Indonesians still largest group of foreign workers in Malaysia retrieved Sunday 13, November 19 2016 website: http://www.thejakartapost.com/news/2016/03/30/indonesians-still-largest-group- foreign-workers-malaysia.html-0
19 abroad48 and there are 1.3 million IIMW in Malaysia.49 It Is also stated by Human Resources Minister Datuk Seri Richard Riot that “for every 10 legal workers in Malaysia, there are seven illegal workers”. In other words, 70 per cent of foreign workers in Malaysia are illegal or undocumented.50
According Azizah Kassim, illegal migrant can be defined as:
(a) A foreigner entering a country without any permit or pass. (b) A foreigner came into a country through illegal channel (c) A foreigner entering a country legally but stays over their working permit. (d) Contracted workers who change their employer without re new their contract. (e) A foreigner who misuses the pass visit, for instance those who enters on tourist or student visa but abuses the given visa by staying on to do other things. (f) Those who possess fake document or legal document gained through illegal means. (g) children born to foreign nationals in Malaysia and whose births have not been officially documented (h) A foreign workers who fails to renew his or her working permit. (i) A refugee who fails to renew his or her yearly IMM13 pass. 51 Another definition:
“the illegal migrants includes the foreigners who enter the country without proper travel document or those who enters legally but stays longer than permitted… illegal migrants are foreign nationals who enter the country through legal ways but overstayed, or those who slipped into
48 Improvement in Migrant Worker Issues. http://aseantuc.org/2016/11/urgent-improvements-in- migrant-worker-management-needed/ 49 Asean Trade Union Council Malaysia retrieved Sunday 13, November 19 2016 website: http://aseantuc.org/2016/11/indonesia-police-urged-to-pursue-people-smugglers-following-boat- incident/ 50 We Need To Act On Undocumented Foreign Workers By Malaysian Trades Union Congress Malaysia retrieved Sunday 13, November 19 2016 website: http://www.mtuc.org.my/we-need-to- act-on-undocumented-foreign-workers/ 51 Wan Shawaluddin Wan Hassan, Marja Azlima Omar &Ramli Dollah, The illegal immigrants in Sabah: Why do they come back? Borneo Research Journal, Vol. 4, Dec 2010, p 117
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the country through illegal channel, or foreign workers who works without the required permit.”52 Illegal migrant can therefore be generally defined as those who are employed, incoming and residing in the country without any valid proof and proper document indicating that they are legally be recognised by the counties‟ law and policy.
The illegal migration issues had become a major concern globally. It is one of the major concern for both the destination and the origin countries like Indonesia and Malaysia. According to a data shown by United Nations Department of Economic and Social Affairs in 2011 stated that “among 146 countries with data, three out of four governments viewed illegal migration in their countries as a major concern. Governments of 22 of the 25 countries with the largest migrant stocks regarded illegal migration as a major concern.” An increasing number of government start to address this issue more seriously. They are reforming their immigration laws, promoting return of the illegal migrants and implementing regularisation programmes.53 More governments raise this issue to the global level and put it into a debate.
Migrants under illegal status are particularly vulnerable to exploitation, abuse and discrimination, according according to United Nation Department of Economic and Social Affairs. They could be exposed to the danger of being exploited by crime organisation involved in human trafficking and migrant smuggling. This is a serious violation of human rights.54
II.2 Indonesia Illegal Migrant Workers in Sarawak
Sarawak is the largest State of the Federation of Malaysia, located on the island of Borneo. It is experiencing an accelerated expansion of oil palm
52 ibid 53 United Nations. (2013). International Migration Policies Government Views and Priorities. Department of Economic and Social Affairs. New York: United Nations. Page 7, Retrieved December 2, 2016, 54 United Nations. (2013). International Migration Policies Government Views and Priorities. Department of Economic and Social Affairs. New York: United Nations. Page 91, Retrieved December 7, 2016,
21 plantations which have led to a developing discord with the indigenous people.55Sarawak consists of 13 divisions with a total area of 124 449 km2, equivalent to 40% of the territory of Malaysia with a population of 2.58 million people. Sarawak is one of the states in Malaysia, which is directly adjacent to Indonesia, West Kalimantan where there are three official borders namely Tebedu-Entikong, Lundu-Lizard, and Aruk-Sambas.
In the recent time, Sarawak provide comprehensive employment for IMW in various sectors such as Construction, Industrial logging, oil palm, households and others.56 According to the data reported by the Immigration Department of the State of Sarawak, there are about 150,000 (one hundred fifty thousand) foreign workers working in Sarawak.57 Indonesia is the country's largest labor contributor to the state of Sarawak with the total number is 95 percent of the total number of all foreign workers who work in the State of Sarawak, Malaysia with the average working as a construction worker, workers palm groves, sailors, dangdut singer, waitresses, shop keeper, following the husband or parent, housekeeper, salon workers, and others.58
However, those number of workers does not include Indonesian people who work and live in Sarawak illegally or as undocumented migrant, so it is estimated by Sarawak immigration department that there are around 400.000 (forty hundred thousand) Indonesian citizens living in the State of Sarawak, Malaysia.59The huge number of illegal migrant is much higher than the population of some of the ethnic groups in Sarawak. The Bidayuh community, for
55 Land Rights and Oil Palm Development in Sarawak by Marcus Colchester, Wee Aik Pang, Wong Meng Chuo and Thomas Jalong was first published in 2007 by Forest Peoples Programme and Perkumpulan Sawit Watch 56 Consulate General of the Republic of Indonesia Kuching, Sarawak , Rencana Strategis (RENSTRA) KJRI RI Kuching tahun 2015-2019 page 1 57 Seminar Management of Foreign Workers in Sarawak May 19th 2016 held by the Sarawak Immigration and consulate general of the republic of Indonesia in Kuching, Sarawak. 58 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak 59 ibid
22 example, numbered just slightly more than 200,000. The Kayan, the Kenyah, the Lun Bawang amd the Kelabit communities are even smaller.60
From an interview with Mr. Muhammad Abdullah, Consul of Consular Affair in Consulate General of the Republic of Indonesia, there are some general types of IIMW in the State of Sarawak: 1. An overstay with tourist visa and engaged in work 2. Students engaged in employment 3. Trainees overstaying their visas 4. Regular migrants keep working without re-new their contract period 5. Regular migrants who are running away from their designated employer while their contract still valid 6. Victim of Human Trafficking and People Smuggling 7. All of the above, as well as, furtive movement across borders (undocumented labor migration or illegal movement). 8. Children born through non-legal marriage between Indonesian and Malaysian citizen.61 Consulate General of the Republic of Indonesia in Kuching as the Indonesia government representative in Kuching has received several denunciation and problems encountered by citizens of Indonesia, especially Indonesian Migrant workers. It is showed on the figure below:
Figure 1. Number and Type of Problem Faced by Workers
60 Illegal Indonesia Worker a big threat retrieved Monday, November 13, 2016 website: https://hornbillunleashed.wordpress.com/2015/03/15/illegal-indonesian-workers-a-big-threat/ 61 Interviewed with Consul for Consular Affair Mr. Muhammad Abdullah in Jakarta December 13th 2016
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DATA YEAR 2012 UNTIL JUNI 2016 400 being cheated
350 sick
300
salary not paid 250
victim of human trafficking 200
150 victim of abuse
100 family problem
50 document problem
0 2013 2014 2015 2016 (469) (381) (476) (315) dismissed
Source: Data from Consulate General of the republic of Indonesia in Kuching, Sarawak, Malaysia
Referring to Figure 1 above, which shows several examples of problems and cases received by the Indonesian representative in Malaysia. With comparison to the annual report of BNP2TKI and data from Consulate General Republic of Indonesia in Kuching Sarawak, number of case reported by Indonesian citizen in Sarawak remain higher than other state as shown in the table below:
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Figure 2. Comparison between Sarawak and Malaysia
1994 DATA YEAR 2000 2013 UNTIL 1800 JUNI 2016 1600 1535 1400 1200 1000 886 800 723 Malaysia 600 469 476 381 400 315 Sarawak 200 0 2013 2014 2015 2016 (1192) (1267) (2470) (1850)
Source: Comparison between data from annual report of BNP2TKI and Consulate General of the Republic of Indonesia in Kuching, Sarawak.
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Figure 3. Number of Indonesia Migrant Workers Died in Sarawak
DATA WORKERS WHO DIED IN SARAWAK S 200 o 181 180 u 166 r 160 148 146 c 140 DATA YEAR e : 120 2012 UNTIL 100 91 JUNE 2016 D 80 a 54 t 60 51 51 37 a 40 23 f 20 r 0 o 2012 2013 2014 2015 2016 (185) (220) (197) (232) (114) m
C o DEPORTER BURIED IN SARAWAK n s u l ate General of the Republic of Indonesia in Kuching, Sarawak, Malaysia
Table above shows the number of Indonesian workers who died in Sarawak,62 where the majority of workers who died are generally illegal workers and the average of them died due to workplace accidents, illness, or because of pressure. Accidents that arise due to the lack of knowledge of the illegal workers themselves in operating heavy equipment used by the company and also the lack of awareness of companies that employ illegal workers to teach the workers to work safely and inhumane treatments.63
62 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. 63 Kompas.com news on their interview with Consul General Mr Jahar Gultom retrieved on Monday, December 5, 2016 website: http://nasional.kompas.com/read/2016/04/06/08133051/200.TKI.Meninggal.Dunia.di.Sarawak.Set iap.Tahunnya
26
The Consul General of the Indonesia Consulate in Kuching Jahar Gultom once stated that, IMW came to Sarawak as a legal worker with legal status. Harsh treatment by the companies render the Indonesian workers to move to another companies or to find for another people employer. This results IMW to lose their legal status and become illegal workers.64
II.3 Push and Pull Factor of Huge Number of Illegal Migrant in Sarawak
To understand the "push" and "pull" factor, it could be seen from the condition faced by each places, origin and destination country. Indonesia is facing a high level of unemployment which serves as a problem and the relatively low earnings of workers. This brings about the "push" factor to act.65 Sarawak on the other hand, have high demand and opportunity in many sectors such as infrastructure and domestic helper.66 This serves as the "pull" factor to act. In the case of West Kalimantan and Sarawak, the lower quality of life in West Kalimantan acts as a "push" factor. This cause workers from West Kalimantan to migrate from their current environment to a new environment with better opportunity and also to improve the quality of life, which now serve as a "pull" factor by Sarawak. Proximity of geography and the significant difference in development, both infrastructure and human resource, between West Kalimantan and Sarawak fuel the "push" and "pull" factors.67
The movement to Malaysia for employment, whether it is legal or illegal, is an important factor to the acceleration of the economic development programmes and to the sustaining the economic growth in Malaysia of over
64 ibid 65Sarawak Seek to Local Worker retrieved on Monday, October 31 2016 website: http://www.freemalaysiatoday.com/category/nation/2016/02/21/sarawak-to-seek-local-workers- not-bangladeshis/
66 ibid 67 ibid
27 around three decades. This cause the influx of migrant workers as a coping factor with the increasing demand in the Malaysian labour market.68
Demand for labour increases as several strategic infrastructure developments are implemented and urban development projects are increased. On the contrary, Malaysian workers adjust themselves to better economic opportunities between the industrial sectors in the economy, leading labour "shortages" experienced by other sectors such as plantations, service and forestry sectors. Salary degree and conditions of employment offered by employers in the respective industries or sectors respond to the inadequate number of workers. Rapid urbanisation increases the demand for domestic maids and assistants, in addition to greater participation of women in the labour market and better income opportunities for Malaysians. This demand was initially met by women and men from rural areas in Indonesia.69
II.3.1. Factor Contribute Number of Indonesia Illegal Workers in Sarawak
Through a study in 2007, The Institute for Ecosoc Rights identifies five main circumstances leading labour migrants to turn into illegal migrants.70
First, illegal means of migration to Malaysia is even considered by Indonesian Migrant Workers as the legal channels are notorious for their complexity, impracticality, cost and time consuming. Although it is safer through legal channels, illegal channels are deemed more beneficial for both workers and employers as they tend to be faster, less costly and relatively more practical.
Second, illegal migrant workers have greater freedom in choosing their employer and the type of work they will do as the Malaysian migration law places the migrant with a specific employer. The large employment market facilitates this act with addition of the lower costs associated with illegal migration.
68Migrant Worker- Labour Education by International Labour Organizations retrieved on Monday, October 31 2016 website: http://www.ilo.org/wcmsp5/groups/public/-- ed_dialogue/actrav/documents/publication/wcms_111462.pdf 69 Labour migration in Malaysia – trade union views retrieved on Monday, December 5, 2016 website: http://library.fes.de/pdf-files/gurn/00086.pdf - 70 Review of labour migration policy in Malaysia, International Labour Organization 2016
28
Third, migrant workers in Malaysia can also lose their legal status when they leave their current employer, as their working permit is tied to only one employer. This happens when the migrant workers experienced mistreatments, which includes exploitative working conditions, unpaid wages and physical and psychological abuses. The mistreatments thus, render the workers hopeless but to leave their employers and resulting in the loss of their legal status.
Fourth, the Memorandum of Understanding between Indonesia and Malaysia allows the employer to keep the labour migrants' travel document. Thus, leaving an employer results in a loss of immigration status and identity documents.
Fifth, migrant workers are vulnerable to be victimised of con acts and trafficking, as they are inadequately informed on their endeavour. This condition is often advantaged by irresponsible parties from both Indonesia and Malaysia. Potential IMW mostly have little access to informations regarding migration procedures and future working conditions. There are two main forms of con acts may be experienced by potential IMW. It can take place during the migration process where victims become unknowingly involved and become illegal migrant workers. Besides that, cons can be performed by giving false informations about the jobs and working conditions to potential migrant workers, which often promises higher wages and better working conditions than actual.
Elaborate more about the factor that lead and support Indonesia people become illegal migrant workers in Malaysia, we have to look on some point below:
1. Transnational Crime – Border between Sarawak and West Kalimantan
The state jurisdiction borders between Indonesia and Malaysia are affected by the evolution of transnational crimes. Crimes such as piracy, illegal logging, human trafficking and smuggling and drug trafficking are concerns of both countries in many aspects. According to Nelken (1997),71 globalization
71 D.Nelken(1997), “The globalization of crime and criminal justice: Prospects and Problem” current legal problems, 50
29 processes invite and open new opportunities for transnational corporate and organized crime. These crimes are often troubling the territorially-bound state criminal justice agencies, as these agencies are poorly placed to stem.
Transnational crimes involving Indonesia and Malaysia are better defined as trans-border crime. According to Castells,72 transnational crime generally includes the cross-border smuggling of people, weaponries, drugs, radioactive materials, informations and stolen goods. Furthermore, transnational crime includes trafficking of illegal migrant, women and children (often to work in the sex industry) and organs. In addition, crimes such as counterfeiting, international fraud, and kidnapping can also be included in the list. In the case of the border region between Indonesia and Malaysia, trans-border crimes took many forms including piracy, illegal longing, people trafficking, people smuggling, arm weapon smuggling, money laundering, Illegal Migrant, and also cyber-crime.73
The length of the land border between Sarawak, Malaysia and West Kalimantan, Indonesia make the supervision in the border region regarding the flows in and out of citizen or workers are not well monitored. There are three official borders namely Tebedu-Entikong, Lundu-Lizard, and Aruk-Sambas. That directly connect West Kalimantan and Sarawak. The Government of Sarawak admitted as many as 49 'Rat Road' and 14 'Jalan Gajah' along the land border connecting Indonesia and State of Sarawak, Malaysia.74
The activity pass through the border region is usually done not only by people living in border areas, but also by those who come from other areas. Close relationship between the citizens of Indonesia and Malaysia can be one of the reasons used for passing the border, which is visiting family, especially the citizen in the border area. With the excuse to visit family in Malaysia, the citizen can cross the border posts and stay in Sarawak for a month just by showing their passport and stamped by the section of Immigration, the citizen does not need to
72 M.Castells(1998), The Information age: economy, society and culture: Vol. III-end of millennium, Oxford: Basil Blackwell, pg. 168-180 73 ibid 74 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak.
30 complete the wide range of documents such as Card Overseas Employment (KTKLN), Health Insurance, and other documents. From where then appear illegal practices where there are people who do not have the complete document, only a passport, but would like to work in Sarawak, Malaysia.75
As buffer zones in Bau, Serian, Lubok Antu, Ulu Rajang and Lawas has also been breached by the oil palm plantations, illegal migrant can flow of easily into Sarawak. Deputy Home Minister Sarawak Wan Junaidi Tuanku Jaafar explains that, breaching of buffer zones between Sarawak and Indonesian Kalimantan by the oil palm plantations presents some 300,000 illegal Indonesian workers in the sector.
“Now the so-called „jalan tikus‟ (secret jungle paths) have become „jalan gajah‟ (big roads), thus allowing people to cross the border without needing travel passes”
2. People Smuggling and Human Trafficking Flow People smuggling issue has caught the attention of the world. Protocol against Smuggling of the migrants by land, sea and air was brought up into a discussion, in supplement to the United Nation Convention Against Transnational Organised Crime (2000) ("Anti-Smuggling Protocol"). The protocol on human smuggling supplies internationally recognised definitions. It focuses on the illegal entry of a foreign national into the territory of a State Party in exchange for financial or other material benefit. Definitions by the Protocol covers:76 Smuggling of migrants: Benefitting for any means, directly or indirectly, from the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. Illegal entry: Crossing borders without complying with the necessary requirements for legal entry into the receiving State Fraudulent travel or identity document:
75 Tinjauan Hukum Terhadap TKI Ilegal di Perbatasan Indonesia-Malaysia (Studi Kasus di Entikong, Kalimantan Barat) 76 UNHCR- Refugee Protection and Human Trafficking, First edition 2008 Retrieved on Saturday, November 5th 2016 website: http://www.refworld.org/pdfid/498705862.pdf
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o Document that has been falsely made or altered in some material way by anyone other than a person or agency lawfully authorized to make or issue the travel or identity document on behalf of a State. o Document that has been improperly issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner. o Document that is being used by a person other than the rightful holder.
Vessel: Any type of water craft, including non-displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non- commercial services.77 “Exploitative use” is defined as the involuntary movement of people to conditions that aggregate trafficking. The human trafficking concept is often mistaken or misunderstood with slavery and forced labour practices. These two other practices terms were respectively defined by the Slavery Convention13 and the Convention Concerning Forced or Compulsory Labour. Importantly to understand, that it is not the affair of the Anti-Trafficking Protocol to embargo the use of slavery or forced labour per se. Anyhow, the practices were mentioned clearly in the protocol. The jurisdiction of the Anti-Trafficking Protocol is to inhibit the preparative or abettor acts taking place afore or alongside theses human right abuses, that facilitates the crimes to be accessible. Therefore, the Anti-Trafficking Protocol enhances the conventions specified in fighting slavery, forced labour and other forms of exploitations, but not substitute them.
77 ibid
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In the international law, can be found a significant overlap between the term human trafficking and slave trade. Article 1(2) of the Slavery Convention however, defined the term slave trade as:
The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. With the shown definition of slave trade and assuming that slavery compulsorily includes violence force, threat and coercion, the term “human trafficking” has all the essence of the term “slave trade”. Anyhow, the definitions of both terms are not congruent. “Human trafficking” has a wider definition jurisdiction than “slave trade”, as the definition of “human trafficking” also includes the movement of people for other intentions than slave trade, for example sexual exploitations, forced labour, etc.78
With illegal migrants are assisted by any third parties to enter the country, it induces another source of problem to rise. This process is generally referred as smuggling or trafficking.
Significant increase is observed in the organised crime activities of migrant smuggling and other related criminal activities. These crimes are harming the states involved.79 The issue has concerned the international forums. Smuggling of migrants can endanger and terrorise the migrant. “Smuggling of migrants” is defined by the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime as:
“The procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party
78 UNHCR- Refugee Protection and Human Trafficking, First edition 2008 Retrieved on Wednesday, December 7, 2016 website: http://www.refworld.org/pdfid/498705862.pdf 79 General Assembly. (2000). Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime. A protocol from United Nations.
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of which the person is not a national or a permanent resident.” (General Assembly, 2000) The form of trafficking in persons in west Kalimantan is divided into several types, which is migrant workers as domestic maid and plantation in Malaysia, prostitution exploitative used booking brides, infant and pregnant women market, and internal refugees, which majority of the victims are women vulnerable to be a victim of trafficking in persons.80
It is known that the trafficking in persons' case flow from West Kalimantan to Malaysia proceeds in three steps and they involve other parties in the process. In this trafficking in person‟s case from West Kalimantan to Malaysia, includes traffickers as actors in this criminal act. The trafficking in person‟s crime involves traffickers from Indonesia and traffickers from Malaysia, which shows that trafficking in persons is a transnational crime that involves two countries in the process. Trafficking in persons' case flow from West Kalimantan to Malaysia is divided into three steps, which are recruitment, transport and entry and acceptance in destination country.81
The first step is recruitment. In this step, traffickers will try to recruit potential victim by any means, exploiting their vulnerability. For West Kalimantan to Malaysia route, victims mostly come from West Java, respectively Sukabumi, Cianjur, Subang, Indramayu and Cirebon. Then, Jakarta, Lampung, Pontianak, Sangau, Sambas, Madura, Sulawesi and Sumbawa. Many victims are from West Java, as this region becomes the largest victim supplier for trafficking in persons in Indonesia. Pontianak and Sangau (Entikong) are also the recruiting area of the trafficking in persons' victims.82
Recruitment by panders and unofficial Indonesian Labor Provider Organization (PJKTKI) agents uses any means to recruit victims. The means of promising the victims to be able to work as waiters, domestic helpers and so on,
80 ibid 81General Assembly. (2000). Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime. A protocol from United Nations. 82 Ibid
34 by tempting them with high salary and a better life standard in Malaysia. Many of the deported troubled IMW were victims of the practices, where the actual condition in Malaysia is not as it was promised.83
Second step is transport and entry. In this step, the victims will be sent to destination until the destination country and later then be transferred to the to the destination country's traffickers. In the case of trafficking in persons from West Kalimantan to Malaysia, it is known that in the process, the victims are first sent from their origin to Jakarta. The victim will have issued their passes like passports in the immigration Office at East Jakarta, but mostly have issued their ID and passports in Entikong.84
Third step is acceptance in the destination country, where after successfully crossing the Indonesian national border and entering to Malaysia, there will be Malaysian agents that will transport the victims to their employer or "users", either in Kuching or in Kuala Lumpur using a bus or a car. After that, the Malaysian agent will give the victims' to their employers (users) so their employers can keep them to secure the victims making sure they would not go home or leave without the permission of the employers.85
Problems are always faced by migrant workers in their migration process. A study by the International Labour Organization clarifies that workers face problems through whichever means of migration they chose, legal or illegal migration. Some problems like dirty fees to middlemen and officials, term of employment problems, inadequately informed and journey problems. These problems are faced by both legal or illegal migrant workers. Studies of Indonesian migration identifies some problems faced by IMW as:86
83 Ibid 84 General Assembly. (2000). Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime. A protocol from United Nations. 85 ibid 86 Migrant Worker-Labour Education by International Labour Organization retrieved on Wednesday, December 7th, 2016 website: http://www.ilo.org/wcmsp5/groups/public/--- ed_dialogue/---actrav/documents/publication/wcms_111462.pdf
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Migrant workers are inadequately informed on the details of the migration process. Compulsory dirty fees requested by middlemen and corrupt officials. The need to pay for useless “services”. Inadequate social protections. Sexual abuse on female workers. Unsatisfactory pre-departure accommodations where legal workers may stay for lengthy periods. Contract foul play, where a fake contract is disclosed to authorities, while the actual contract have lesser terms. Employment of workers, especially illegal workers, on below legal minimum standard terms and conditions. Problems with payment of debts incurred to recruiters and middlemen. Some situations of forced and bonded labour. Deaths resulting from unsafe departures, especially sea travels by illegal workers to Malaysia. Restrictions on freedom of expression and association. Illegal confinement. Extortion vis-à-vis migrant workers returning home with money. Increasing trafficking of women and children
II.4 Social Problem Issues on Indonesia Illegal Migrant Workers
Malaysians, in general, are now facing securities issues in their own lawn due to the influx of migrant workers which results in the increasing rate of crime. Some foreign workers who do not have permanent jobs and salary resort to committing crimes like robbery to survive and support their families back in their home countries. This leads to the increase in number of crimes particularly involving Indonesia illegal migrant workers.87
87Strategy in the Prevention of Illegal Immigrant Worker in Malaysia retrieved on December, Monday, 12th 2016 website: Https://Www.Researchgate.Net/Publication/286447791_Strategies_In_The_Prevention_Of_Influx _Of_Illegal_Immigrant_Workers_In_Malaysia
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It is shown from the data below that some Indonesia Migrant have cost some problem such as Murdered, robbery, rape and drug cases in Sarawak, Malaysia:
Table 1: Indonesian Migrant Committed to Crime in Sarawak
NO Name Case Number Gender Case Prison Description On September 26th 2016, the convict was exempted Case No. Q-05- from a death sentence and was put into Sentosa Mental 1 Sukardin Said 157-07/2014(Q) Male Murder (302) RSJ Sentosa Asylum for rehabilitation. Waiting for a consent from the Governor of Sarawak to be moved to Indonesia Convict was sentenced to death. The final attempt by the 2 Ricky Purba Male Murder (302) Puncak Borneo representative to request clemency from Tuan Terutama Di Pertuan Negeri Sarawak. Case No. Q-05- Accused of a murder case of a Malaysian, named 3 Asis Bin Loka Male Murder (302) Lambir, Miri 367-12-2015 Sepey Ak Tukau. 4 Ayu Hasbullah Female Murder (302) 4) Ayu Hasbullah was charged guilty under Section 5 Nazib Male Murder (302) 304(a) on abuse, which causes the death of Jinmorris Sarpudding Anak Jenggot and 304, which causes injury to Flora (a 6 Male Murder (302) Baharudin girl on the crime scene). The convict was sentenced for 7 Ludiono Male Murder (302) 15 years of prison since her arrest in February 2013. Case No. MYY- Nazib, Ludiono, Sapruddin Baharudin, Muhammad 45-302-2/8- Lambir, Miri Pirman Laonding were concluded not guilty and were 2013 freed from any charges and then be deported to M.Pirman 8 Male Murder (302) Indonesia. Kuching KJRI, through their attorney, Ranbir Loanding Singh Sangha, had received a letter from the Malaysian Lawyer Firm for the Indonesian General Prosecutor to request an appeal for the verdict. 5) Convict of a murder case between Indonesians Case No. SBW- named Daud Duma (a.k.a. Dosa), was charged for a 9 Daud Passarin 45-7/4-2014 Male Murder (302) Sibu death sentence by the Sibu High Court on June 29th 2015. Now requesting appeal to the Federal Court and awaiting for trial date. 6) Their baby life-burrying case in Jalan Ladang 10 Herna Mola Case No. MYY- Female Murder (302) Miri Alamwasa Sdn. Bhd., Suai, Niah, Miri. 45B-2/7-2014 11 Soha Beta Male Murder (302) Case No. SBW- 7) Allegedly involved in the execution of a murder in the 12 Riman Male Murder (302) Sibu 45-6/8-2016 Sibu prison Case No. BTU- 8) Risman Abbas was accused for the murder of another 81-2/4-2015 Indonesian, named Surahman Lasaile. 13 Risman Abas Male Murder (302) Bintulu /BTU-45B-3/8- 2015 9) Carrying 4.3 Kg of crystal meth from New Delhi, India. On November 3rd 2016, KJRI received letter from Puncak Borneo Prison dated October 25th 2016 informing an Indonesian arrestee, named Okavius Jerrick Case No. KCH- Pui, with arrest number SMPP 49-14-00521 and case 14 Octavius Jerick Male Drug 39 (b) Kuching 45A-4/11-2014 number KCH – 45A-4/11-2014 for the case of carrying crystal meth from New Delhi, India had been sentenced to hang by the neck until death. The attorney is requesting appeal on the verdict and await for the court‟s decision. Case No. KCH- Carrying 3.48 Kg of crystal meth from Hong Kong and 15 Eva Syliviana Female Drug 39 (b) Kuching 45A-2/2-2015 was sentenced to hang until death Case No. KCH- Carrying 1,804.7 grams of crystal meth from Hong 16 Wahyudi Male Drug 39 (b) Kuching 45A-3/2-2015 Kong 12) On march 28th 2015, an Indonesian, named Erwing, was murdered in Kemena area, Bintulu, Sarawak. Trial was held at the Bintulu High Court. On December 26th Case No. BTU- 2016, the accused was sentenced to hang until death. 17 Basri Takadir Male Murder (302) PC Bintulu 45B-2/7-2015 One of the reason why the judge made the sentence was, Basri Takadir had stabbed the victim more than 6 times. The attorney is requesting appeal to the Persuasion Court Case No. SBW- Suspected for the murder of an Indonesian, named Awal 18 Muhajir Tajudin Male Murder (302) Daro, Sibu 45-12/11-2016 Abdul Asis, on May 25th 2016. Accused for the murder of Ropinus Muda Tabu and Stepanus Dara Hondu on August 6th 2014, with Yosep Case No. SBW- Puncak Borneo, 19 Male Murder (302) punishment of hanged until death. With result to the Yangubani 45-1/1-2015 Kuching February 13th 2017 appeal trial as a lost and now requesting plead to the General Court. Iwan Bujang Murder while robbing, sentenced for 34 years in prison 20 Case No. BTU- Male Dare Murder (302) PC Bintulu and 22 caning. Convicted on article 304(a). Plead Court 45-1/1-2015 21 Urai Kimli Male rejected the appeal. Now requesting appeal to the Main suspect of a murder between Indonesian, named Gerson Bani on September 14th 2016 at Belaga, Welem Bali Case No. BLG- 22 Male Murder (302) Belaga, Bintulu Sarawak. Currently, he doesn't want to talk or share any Mema 81-2/9/2016 information to anyone. He is suspected to have a mental disorder. On january 17th 2014 for the murder of an MYY-45B-3/8- Indonesian, named Salasiah Binti Jama, Which is 2014 Q- executed by her husband, Tompo Bin Yara. He also 23 Tompo Bin Yara 05(M)-306- Male Murder (302) Lambir, Miri slit his own throat in and was alleged for an attempted 11/2015 05- suicide. The court sentenced for 18 years of prison 161-07/2016(Q) with article 304(a) but, JPU requested appeal to the Federal Court. Source: Data from Consulate General of the Republic of Indonesia in Kuching, Sarawak Issues regarding IMW in Malaysia surfaces and becoming a concern, as the IMWs have become more obvious, contentious and politicised. IMWs had
37 more closely associated with criminal acts and had caused worries among Malaysian media, government and citizens. This is also supported by the fact that majority crime reports involve Indonesian. These crimes including burglary, rape and murder. Health hazard issue also rises with the increase inflow of illegal migrants, causing spread of disease like HIV, Malaria and Leprosy. Fraudulent marriage had also become an issue. Fraudulent marriage between Indonesian men and Malaysian women are deemed as socially distasteful and immoral.88.
Negative sentiments among Malaysian towards immigrants developed as they were considered to kick out the Malaysian workers. Furthermore, as Indonesian migrants can easily assimilate to the Malay society, a Chinese- dominated political party in Sarawak known as the Democratic Action Party (DAP) has suspicion that the Indonesian migrants would significantly increase the number of Malay population. Additionally, the rioting by Indonesian migrants at the Malaysian immigration had jeopardised the stability and security, and had widely debated to becoming an issue. The IIMW phenomenon had fast becoming a "thereat" to Malaysia's "national security" and is potentially rupturing the Malaysian society.89
88 ibid 89 The affect of Illegal Migrant retrieved on Monday 5 December 2016, http://studymoose.com/the-effect-of-illegal-immigraneing ts-in-malaysia-essay
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CHAPTER III
INDONESIA-MALAYSIA COOPERATION
III. Introduction
This chapter will explain about the cooperation between Malaysia and Indonesia in general by focusing both countries commitment in dealing with huge number of Indonesia illegal migrant workers working in the State of Sarawak. We will take a closer look at the illegal activity through the border of Entikong between West Kalimantan and the State of Sarawak. This chapter will start with elaborating the bilateral relation to see how the relation is in general and on the next chapter will explain more on both governments‟ approach in solving the problem.
This reaserch will describe the historical background of the bilateral relations between Indonesia and malaysia, in regards of the cooperation. The first sub chapter will give a deeper explanation about the relations of both countries by elaborating the past and current situation of the relations. In the present chapter, the cooperations in economic, trade and investment between Indonesia and Malaysia will be explained and it describes the agreement and cooperations.
In this chapter, the writer will also get closer to the agreement and Memorandum of Understanding (MOU) that has been signed by both government in the relationship on labor sending and receiving Indonesia migrant worker to Malaysia.
III.1 Regional and International Cooperation on Migrant Workers
Since there is no international legal framework governing labour migration and the right to determine who enters a country and their privileges on purposes and time limit is considered an issue of state sovereignty, implementation of policies regarding labour migration is done through bilateral agreement between involving countries. With the absence of enforcement
39 mechanism or binding legal framework governing international migration, several international convention compensates in dealing with the rights for migrants‟ workers and their families.90
These international conventions are essential for the protection of migrant workers around the world as they play a major standard-setting role to it. Here are several establishment involving Indonesia and Malaysia in recent years which includes:91
1. ASEAN Forum on Migrant Labour (AFML) 2. The Global Forum for Migration and Development (GFMD) 3. The Ministerial Consultations for Asian Labour Sending Countries (the Colombo Process) 4. The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers.
The annual ASEAN Forum on Migrant Labour (AFML) is a regional agreement on various aspect of migration. It functions as an open platform aimed to review, analyse and discussion of good practices and ideas on the key issues faced by migrant workers in Southeast Asia. Participation ranges from governments, workers and employers organization, to civil society stakeholders. AFML draws series of meetings allowing participants to share experiences, develop relationship and have an interchangeable understanding of common problems.
AFML meetings develop recommendations to advancing implementations of the principle of the ASEAN Declaration on Protection and Promotion of the Rights of Migrant Workers. This opens opportunities for stakeholders to implement AFML recommendation and develop the draft for the ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers..92
90 Review on the labour Migration by International Labor organizations retrieved on Friday, September 2nd 2016 website: http://apmigration.ilo.org/resources/review-of-labour-migration- policy-in-malaysia/at_download/file1 91 ibid 92 ibid
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III.2 Malaysia Bilateral Relation with Indonesia
The signature characteristic of a country's interaction with other actors and the country's ideology are revealed through their foreign policy. This understanding is the fundamental behavior development in international relation. The foreign policy is an essential tool for a government of a sovereign country to develop relationship, through international relation, with other actors in an international politic to achieve the country's national interest.93
According to Frankel, the concept of the national interest gives an idea on the aspirations of the country and it is, as a whole, to be advocated by the nation itself. The national interest can be used operationally, which is revealed through their applications of the real wisdom and plans intended. All in all, the national interest is an orientation of the real wisdom and the plans intended. Conceptually, course of the foreign policy is explained from the national interest. Minimum meaning inherent in the concept of national interest is the survival94 So in this regard, Hans J. Morgenthau said that the minimum ability to protect the identity of the nations are physical, political and cultural identity by the interference of other countries.95
This is what happened to Indonesia and Malaysia where both country come together into a cooperation in order to gain their national interest. As neighboring country, the relationship between Indonesia and Malaysia have a long history of state relations, both in the bilateral and regional scope. Along with the process of globalization is increasingly widespread, including in Southeast Asia, then there is a change in running the cooperation that does not always work smoothly, then cause some problems. The changes are cannot be avoided because the things that plays an important role in the relationship between countries is the national interests of each country. One of the examples of bilateral relations agreed by Indonesia and Malaysia:
93 Aleksius Jemadu. 2008. Politik Global dalam Teori dan Praktek. Yogyakarta: Graha Ilmu. hal. 61. 2 R. Soeprapto. 1997. Hubungan Internasional Sistem Interaksi dan Perilaku. Jakarta: Raja Grafindo Persada. hal.188. 94 P. Anthonius Sitepu. 2011. Studi Hubungan Internasional. Yogyakarta: Graha Ilmu. page.165 95 Ibid
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Malaysia Bilateral relation with Indonesia in Socio-economic Sector-Malindo (SOSEK MALINDO)
A cooperation on social and economic development between Indonesia and Malaysia border was signed since 1983. The cooperation discusses multitudinal problems on border development including border post, trans border trade and other issues regarding border infrastructure.96
The state border is a major exhibition of the territorial sovereignty of a country. It brings a major role in the determination of the boundary of the sovereignty itself. Such boundary which gives privileges to resource utilisation, security and territorial integrity. State border were, in various ways, resolved through historical processes, political and national and International laws. With this, boundary delimitation is inclusive in the constitution of a country.97
In the perspectives of socio-economic and defense and security, state border has a vital and strategic meaning. Looking through the defense and security's point of view, potential conflicts may rise between states regarding border associated with the sovereignty of a country and the interest of territorial expansion as the existence of a state. While, from the socio-economy's point of view, we can see how adjacent border areas have the chance for modern economic activities to be built alongside the traditional social cultural relations.98
State border is an essential aspect, politically to a nation‟s sovereignty, security, ideology, social, economy, etc. Border region is described as the separator of two political power system and can occur between countries or even within a country. This enable government to regulate on their own for anything related to exports and imports, tariffs and non-use instrument rates and visa and immigration permits for people entering area at border.
96 Trans Border Cooperation Between Indonesia-Malaysia And Its Implication To The Border Development - International Journal of Business, Economics and Law, Vol. 1 ISSN 2289-1552 retrieved on Wednesday, December 21st 2016 website: http://ijbel.com/wp- content/uploads/2014/06/Trans-Border-Cooperation-Between-Indonesia-Malaysia-And-Its- Implication-To-The-Border-Development-Saru-Ariffin-SH.pdf 97 Ibid 98 ibid
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Generally, Indonesian border has yet to be well managed. Lack of infrastructure and security forces on border shows as evident. This leads to a continuous legal and safety issues like displacement of border points, smuggling of goods and services and transnational crimes.99
A report from the World Economic Forum's Global Competitiveness Report 2014-2015 states that, Indonesia and Malaysia made progress in terms of their economic competitiveness. Both nations moved up by 4 spots in the ranking and they are continuing to lead the ASEAN. Also, their recent relation development signals a commitment on bilateral and multilateral cooperation aiming to solve their mutual challenges.100
Looking into the Indonesia‟s and Malaysia‟s economic competitiveness, they are still facing challenges competitiveness and integration. This is due to the inadequate infrastructure and the slow growth in services. Their consistence corruption and environmental scandals also add up to this argument.101
III.3 Cooperation on Worker Sending and Receiving Country
In order to establish harmonious bilateral relations, both Malaysia and Indonesia have signed several bilateral agreements regarding the labor sending, receiving and also the protection of IMW working in Malaysia.
1. Medan Agreement
The history of labour export in Indonesia goes back to 1970, when the earliest labour export program was to send domestic migrant workers to the Middle East. Though, the significant increase in sending IMW abroad was
99Trans Border Cooperation Between Indonesia-Malaysia And Its Implication To The Border Development - International Journal of Business, Economics and Law, Vol. 1 ISSN 2289-1552 retrieved on Wednesday, December 21st 2016 website: http://ijbel.com/wp- content/uploads/2014/06/Trans-Border-Cooperation-Between-Indonesia-Malaysia-And-Its- Implication-To-The-Border-Development-Saru-Ariffin-SH.pdf 100 Challenge Key to Indonesia and Malaysia Cooperation retrieved on Friday, October 7th 2017 website: http://globalriskinsights.com/2015/12/shared-challenges-key-to-indonesia-malaysia- cooperation/ 101 ibid
43 happened since 1980. In 1990s, government of Indonesia had put more attention on the labor migration since the issues of labor migration was uploaded in General Lines of National Development (Garis-Garis Besar Haluan Negara, GBHN) and in late 1990s, a decree signed by ministry of Manpower to regulate the process of labor migration.102
The earliest government to government labour agreement made by Indonesia and Malaysia was signed On 12th May 1984, in Medan, Sumatra. In the signing, Malaysia was represented by the Malaysian Deputy Prime Minister, Datuk Musa Hitam and Indonesia was represented by the Indonesian Ministry of Manpower of Indonesia, Mr. Sudomo.103
This agreement is known as the Medan Agreement. The agreement stipulates on the acquisition of the Indonesian labour by future employers in Malaysia, which has to be made through official channels, such as through the Ministry of Home Affairs, Ministry of Labour, Malaysian Immigration Department and Indonesian Immigration Ministry of Manpower. With this, Indonesian Manpower Ministry will recruit workers and facilitate their entry to Malaysia, by the mean of providing the travel documents and to relieve them from exit tax, based on the demand on amount and type of labour by Malaysia. Both parties hoped, by channelling the inflow of labour through government bureaucracy, activities of illegal migration can be restricted. Also with this, IMW in Malaysia can be kept tracked to safeguard them against exploitations by their employers.104
2. Memorandum of Understanding (MoU) Regarding the Labour Placement in the Formal Sector
The MoU regarding the labour placement in the formal sector was signed in May, 10, 2004. Before signed the MoU, the government of Indonesia and Malaysia used to use what they called nota exchange for formal and informal
102 The Unwelcome Guests: Indonesian Immigrants and Malaysian Public Responses by Azizah Kassim https://kyoto-seas.org/pdf/25/2/250205.pdf 103 ibid 104 ibid
44 placement workers in Malaysia. Memorandum of Understanding (MoU) regarding formal workers, namely workers who work the mining sector, agriculture and factory then Memorandum of Understanding regarding the informal IMW, namely workers who work in the household sector.105
The MoU formalize the sending and receiving nation‟s commitment to ensure that migration takes place in accordance with agreed principles and procedures. The framework of agreement signed between Malaysia and Indonesia included several clauses covering the responsibilities of both signing parties. Of significance are the following clauses:106
ensure the home country is responsible for repatriating the migrant workers upon expiry of their work permits; the migrant workers does not have a criminal record; he or she is a genuine jobseeker The migrant workers should be proficient in Bahasa Malaysia or English; and the exporting country must also conduct pre-departure orientation programs to provide foreign workers with basic knowledge of the Malaysian way of life and cultural sensitivities, and of their contractual rights.
3. Memorandum of Understanding (MoU) on "The recruitment and placement of Indonesian domestic workers
The Memorandum of Understanding between Indonesia and Malaysia on the Recruitment and Placement of Indonesian Domestic Workers was signed in Bali on 13th of May 2006. The MoU discusses about employment and contracts under two appendixes. Appendix A talks about the responsibilities of parties
105 “Memorandum of Misunderstanding” Policy Brief on Bilateral Labor Agreement of Indonesian website: I1_Memorandum-of-Missunderstanding-PolBrief-on-BilLabor-AgreeonMW-2008.pdf 106 ibid
45 involving in the employment of Indonesian domestic workers. While, Appendix B is the template for the Contracts of Employment.107
Under Appendix A, responsibilities of parties involving, which are Malaysian Recruitment Agency (MRA), Indonesian Recruitment Agency (IRA), the employer and the domestic workers are stated. In general, the responsibilities employer and the workers is to abide the agreed and signed Contract of Employment. In respect to this, the employer is also responsible for the payments required regarding employment process (including work pass, annual levy, processing fees, etc.). While, the domestic workers are responsible to the payments regarding to fulfilling employment requirements (including visa, travel documents, medical examination prior to employment, etc.). Also, the employer and the workers themselves are responsible for the necessary documents to be possessed by the workers.108
Also under Appendix A, the MRA is generally responsible for providing the domestic workers to potential employer. They are also responsible to apply approvals on recruitment from the relevant authorities in Malaysia on behalf of the employer. Furthermore, they are responsible to provide biodata of potential domestic workers and ensure they fulfil employer's requirements. Besides that, MRA are also subjected to the arrangement of the worker‟s entry. The IRA on the other hand, is generally responsible on providing potential workers to the MRA. They are responsible to obtain necessary travel documents and other requirements on behalf of the workers and they need to explain and make understood of the Contract of Employment to the potential domestic workers.109
Appendix B is the template for the Contract of Employment. It consists of points that needs to be looked after for the agreement between the two party. This
107 Memorandum of Understanding Between the Government of the Republic of Indonesia and the Governement of Malaysia on The Recruitment and Placement of Indonesia Domestic Worker in Malaysia http://treaty.kemlu.go.id/uploads-pub/1642_MYS-2006-0099.pdf 108 ibid 109 Memorandum of Understanding Between the Government of the Republic of Indonesia and the Governement of Malaysia on The Recruitment and Placement of Indonesia Domestic Worker in Malaysia http://treaty.kemlu.go.id/uploads-pub/1642_MYS-2006-0099.pdf
46 point includes the duration of the contract, place of work or residence of domestic workers, duties and responsibilities of both parties, termination of contract by both parties, payment of wages, rest periods, etc.110
4. Protocol Amending the Memorandum of Understanding (MoU) Between Indonesia and Malaysia on the Recruitment and Placement of Domestic Indonesian Workers 2006.
The Moratorium was imposed since 26th June 2009 due to reports on cases of abuse on Indonesian domestic workers. It was lifted on 1st December 2011. A decision leading to the revoke was from a discussion between Indonesia and Malaysia in their annual consultation, on October 2011. Indonesia and Malaysia had agreed to sign a Protocol Amending the MoU 2006. This Protocol was signed on May 30th 2011. Both parties saw future in the Protocol for the betterment of the domestic workers.111
“We have therefore agreed to give protection and assistance to these workers. We have also agreed that the amendment to the 2006 memorandum of understanding on recruitment and placement of Indonesian domestic workers will bring about positive impact to Indonesia.” – President Susilo Bambang Yudhoyono. 112 The Protocol discuss changes in the agreement of the MoU 2006. The changes were made by substitution, conversion and addition of points into the MoU 2006113. Some of the examples of these changes are:
ARTICLE 2 Article 1 of the MOU 2006 shall be amended by inserting after the definition of "Work Pass" the following paragraphs:
110 ibid 111 The Memorandum of Understanding retrieved on Monday, January 2nd 2017 website: http://treaty.kemlu.go.id/uploads-pub/1642_MYS-2006-0099.pdf 112 http://www.theborneopost.com/2011/10/21/indonesia-to-resume-sending-maids-to-malaysia- from-dec-1/ 113 The Memorandum of Understanding http://treaty.kemlu.go.id/uploads-pub/1642_MYS-2006- 0099.pdf
47
(a) "Abscond' means a voluntary conduct by the Domestic Workers to leave the place of work, as stipulated in the Contract of Employment within the valid period of the Contract of Employment, without the consent of the Employer, but such act does not include abscond due to personal safety reasons, abuse or ill-treatment by the Employer. (b) "Incompetent' means a state of incompetence due to inability of the Domestic Workers to perform his/her assigned household duties in accordance with the job specification based on the Skills Competence Certificate as certified by Badan Nasional Sertifikasi Profesi (BNSP) Indonesia." ARTICLE 4 The MOU 2006 shall be amended by inserting a new Article 12 A of the MOU 2006 as follows:
"Article 12 A (1) The Parties agreed, for the purpose of technical implementation of the MOU and its Protocol, to establish a Joint Task Force (hereinafter referred to as "the JTF") based each in Jakarta and Kuala Lumpur; (2) The JTF shall be comprised of the representatives to be appointed by the respective Parties; (3) The JTF shall endeavor to provide appropriate solutions on matters concerning Indonesian Domestic Workers; (4) The JTF shall report regularly to the Joint Working Group in accordance with Article 12 of the MOU and its Protocol; and (5) Detailed arrangement on the establishment and functions of the JTF shall be stipulated in the Terms of Reference to be agreed upon by the Parties." Article 5 – Amending Appendix A of MoU 2006
5.6 by substituting paragraph A (xii) with the following:
a) The Passport shall remain in the possession of the Domestic Workers; and
48
b) The Passport may be allowed to be kept by the Employer, with prior consent of the Domestic Workers for safekeeping purposes. The passport shall be returned at any time requested.
5.7 by substituting paragraph A (xvii) with the following:
a) The Domestic Workers shall be entitled to 1 (one) rest day; and b) The Domestic Workers may agree to work on his/her rest day; and c) In the event the Domestic Workers agree to work on any of his/her rest day, the Domestic Workers shall be paid a certain amount of money to be calculated on pro-rate basis in lieu of the rest day as agreed upon by the Employer and the Domestic Workers in the Contract of Employment.
Article 6 – Amending Appendix B of MoU 2006
6.7 by substituting paragraph 6 with the following: "6. Rest Day (a) The Domestic Workers shall be entitled to 1 (one) rest day every week. (b) In the event the Domestic Workers waives the entitlement of the right as mentioned in sub-paragraph (a) above, the Domestic Workers shall be paid a certain amount of money to be calculated on pro-rate basis in lieu of the rest day or as agreed upon by the Employer and the Domestic Workers."
5. Letter of Intent on Migrant Worker Protection
The latest agreements between Indonesia and Malaysia was signed in 23 of September 2016 regarding the cooperation in placing Indonesian Migrant Workers (IMW) in Malaysia through a single channel system.114 The agreement is written in the Letter of Intent (LoI) signed by the Minister of Labour Indonesia
114 Daftar Perjanjian International (tersimpan di Kementrian Luar Negeri Republik Indonesia) http://treaty.kemlu.go.id/index.php/treaty/index?fullPage=1&Treaty_page=100&sort=treaty_title
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M. Hanif Dhakiri and Malaysian Human Resources Minister Dato 'Sri Richard Riot Anak Jaem.115
The single channel system is an interconnected system between Indonesia and Malaysia that loads the labour market information. The system basically, will intergrade information about job vacancies, employers‟ profile and IMW candidates‟ profile. The system also makes the employer to employ based on specific job competency, categorised under the Kepmen 354/2014. This is what defined by the Indonesian government as zero PLRT (Penata Laksana Rumah Tangga),116 where generally there will no longer be any Indonesian workers working as domestic workers who multi-task on all the house chores in any country. This will have the prospect IIMW from the domestic sector to have duty based on their specific position and on a clear working hour.117
There several advantages from this system. Through this, Job vacancy information obtained are verified by the human resource authorities of both countries. In addition, Malaysian employer will not be able to employ Indonesian workers who travelled illegally to Malaysia, as employers can only employ through the single channel system. These will help IMW to receive valid vacancy information from a verified source, have clearer document and terms applications and have IMWs‟ placement conducted by credible and registered PPTKIS. Thus, these maximise the protection on IMWs. IMWs can also have access to their potential employer‟s profile to have a better view on their future job and to have a better preparation for it. Refer to the new agreement the Indonesian Human Resource Ministry‟s Communication Team once stated:118
115 Indonesia-Malaysia Tanda Tangani Kerjasama Baru Terkait TKI retrieved, Tuesday, December 6 2016. Website: website: http://www.tribunnews.com/nasional/2016/09/24/indonesia-malaysia- tanda-tangani-kerjasama-baru-terkait-tki 116 Realisasi Zero PLRT Tahun 2017 dengan Sinergitas Pemerintah Pusat dan Daerah by BNP2TKI retrieved, Tuesday, December 6 2016. Website: http://www.bnp2tki.go.id/read/11185/realisasi-zero-plrt-tahun-2017-dengan-sinergitas- pemerintah-pusat-dan-daerah 117 Pemerintah Tuntaskan Zero PLRT retrieved on Tuesday, 22 January 2017 website: http://www.krjogja.com/web/news/read/20823/2017_Pemerintah_Tuntaskan_Zero_PLRT 118 ibid
50
“We do not want to just extend and renew the MoU. We will take this momentum as a stepping stone to improve the safety and security of Indonesia Migrant Workers. There will no longer be housework‟s multi-tasking in the domestic sectors for Indonesia Migrant Workers.”
III.4 Both Countries Annual Meeting on Discussing About Indonesia Illegal Migrant Workers in Malaysia
Looking into the commitment to tackle the illegal migrant issues, Indonesia and Malaysia had several meetings discussing the matter. These are several examples of meetings by governmental elements of both countries in recent years.
October 2011,
The Annual Consolations Between President Dr. H. Susilo Bambang Yudhoyono and Prime Minister Dato‟ Sri Mohd Najib bin Tun Abdul Razak, have several discussions on the IIMW issue. President Dr. H. Susilo Bambang Yudhoyono noted the Malaysian 6P programme from the discussion. Moreover, they both welcomed the signing of the Protocol Amending the 2006 Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers in Malaysia. Also, the discussion reiterated their strong commitment in tackling the trafficking in persons issue. 119
February 2014,120
Head of Malaysian Police), General Inspector Tan Sri Dato‟ Sri Khalid bin Abu Bakar visits Head of Indonesian Police, Police General Sutarman, at the Indonesian Police Headquarter. The visit aims to strengthen the cooperation between Malaysia and Indonesia in fighting against transnational crimes.
119 Joint statement between the republic of indonesia and malaysia at the annual consultations between president dr. H. Susilo bambang yudhoyono and prime minister dato‟ sri mohd najib bin tun abdul razak in lombok, indonesia, 20 october 2011 retrieved on Monday, October 3rd 2016 website: https://www.kln.gov.my/archive/content.php?t=3&articleId=1754579 120 Cegah Imigran Ilegal, Polri Kerja Sama dengan Polisi Malaysia retrieved on Monday, October 3rd 2016 website: http://nasional.news.viva.co.id/news/read/481043-cegah-imigran-ilegal-polri- kerja-sama-dengan-polisi-malaysia
51
December 2014,121
The Indonesian and Malaysian governments talk discusses on how to deal with the problems of illegal and non-procedural Indonesian migrant workers (IMW) working in Malaysia. At this meeting, both countries agreed to legalize illegal migrant workers so that they can become legal workers by completing a number of workers requirements or immediately returning illegal migrant workers to their homeland.
The meeting was conducted by Minister of Manpower Muh Hanif Dhakiri and Malaysian Interior Minister Dato Seri DR Ahmad Zahid Hamidi in Putra Jaya, Kuala Lumpur, Malaysia. As states by Minister of Manpower Muh Hanif Dhakiri:
The direction of Indonesian President Joko Widodo, the Indonesian and Malaysian governments will make improvements and make various efforts to deal with illegal workers who work in Malaysia,
January 2015,122
Meeting between Indonesian and Malaysian Foreign minister, Retno Marsudi and Anifah Aman respectively, in Kinabalu. Talk discusses the steps to intensify cooperation between the two countries and to strengthen both governments‟ commitment to increase bilateral cooperation. Retno notes that the Joko Widodo government is prioritising the protection of IMWs. Retno also expresses her gratitude for the introduction of the 6P programme.
III.5 Malaysian Laws Governing Affairs of Foreign Workers
The government of Malaysia has introduced and implemented certain rules and regulations with regard to the matters pertaining to hiring, employment, repatriation of foreign workers and law enforcement on illegal migrant. Currently,
121 Indonesia-Malaysia Sepakat Hentikan TKI Ilegal retrieved on Monday, October 3rd 2016 website: http://www.republika.co.id/berita/nasional/umum/14/12/18/ngs7ax-indonesiamalaysia- sepakat-hentikan-tki-ilegal 122 Indonesia and Malaysia Agree to Intensify economic cooperation retrieved on Monday, October 3rd 2016 website: http://m.antaranews.com/en/news/100935/indonesia-malaysia-agree-to- intensify-economic-cooperation
52 here are the main applicable law governing the matters pertaining to foreign workers and immigration in Malaysia:
1. Immigration Act 1955/63 (Act 155) 2. Passport Act 1966 (Act 150) 3. Employment Act 1955 4. Workmen‟s Compensation Act 1952 (Act 273) (which lays out rules and regulations for the employer and their liability to insure their workmen. This ordinance also lays down the scale of compensation which an employer is legally obliged to pay their employee or dependents as the case) 5. Anti-Trafficking in Person and Anti-Smuggling Act 2007 (Act 670).
These acts provide protection for legal foreign workers by providing public services in various sectors while residing in this Malaysia. With regards to the matters of imprisonment or detention of the illegal migrant, the Prison Act 1995 (Act 537), Prison Rules 2000 and Rules (Administration and Management of Detention Depot) Immigration 2003 are the regulation matters.123
1. Types of violations under the immigration act 1959/63 (act 155) 124 - sect. 6(1)(c) – entering Malaysia with no possession of any valid pass. - sect.15(1)(c) – a person staying in Malaysia more than the due of any pass issued to him/her - per. 11(7)(a) - holder is prohibited to be involved in any paid work, businesses or professional job. - per. 39(b) - failure to comply with the terms and conditions of the permit pass 2. employers who employ illegal workers are subject to investigations and accusations - Section. 55b - employing anyone without any valid passes.
123 Attending the seminar with the topic of Management of Foreign worker conducted by Indonesia consulate in Kuching and Sarawak Imigration Department on 19 May 2016 124 ibid
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- Section. 55e - citizens allowing illegal migrants to enter and stay in the premise. 3. Punishment for both side employer and workers - Section. 6(3) – fine of more than RM10 thousand or prison not exceeding 5 years or both and whipped not more than 6 times. - Section. 15(4) - fine of more than RM10 thousand or prison not exceeding 5 years or both. - per. 39 – prison not exceeding 6 months or fine of less than RM 1 thousand or both. - Section. 55b(1) - fine exceeding RM 10 thousand, but not more than RM 50 thousand or prison for not more than 12 months or both, per person employed. - Section.55e(2) - and in second conviction onwards, fine exceeding RM 10 thousand but not more than r RM 60 thousand or prison not more than 2 years or both, per person of illegal migrant found on the premises. - Section. 55b(3) - (employing more than 5 people) prison not exceeding 6 months but not more than 5 years and liable to cane strike not more than 6 times. - Section. 55e(2) - fine exceeding RM 5 thousand and not more than RM 30 thousand or prison for not more than 12 months or both, per person of illegal migrant found.125
All the existing laws are sufficient pertaining to the hiring process of foreign workers to avoid any plausible problems. Unfortunately, there are still IIMWs simply because of their reluctance to abide by the laws imposed by the government.126 The UN Working Group on Arbitrary Detention has concluded that “criminalizing illegal entry into a country exceeds the legitimate interest of
125 Attending the seminar with the topic of Management of Foreign worker conducted by Indonesia consulate in Kuching and Sarawak Imigration Department on 19 May 2016 126 Ibid
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States to control and regulate illegal immigration and leads to unnecessary detention.”127
127 See UN General Assembly, Human Rights Council, 7th sess., provisional agenda item 3, Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/7/4 (2008), ¶ 53.
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CHAPTER IV
ANALYSIS ON THE COOPERATION AND PROGRAM IMPLEMENTATION IN SOLVING INDONESIA ILLEGAL MIGRANT WORKER IN SARAWAK
IV. Introduction
This chapter will give an explanation about each countries approach toward the problem of huge number of Indonesia illegal migrant workers in the State of Sarawak, Malaysia. This chapter will also explain on the dilemma faced by both Indonesia and Malaysia in dealing with the issues while national interest play important role for both countries. The government of Sarawak in which the needs of cheap labor from Indonesia in expanding the infrastructure and help the economic development. As well as Indonesia, the remittances brought by Indonesia migrant workers has boost the economic.128
The next sub chapter will explain the effort of both Federal and the State of Sarawak in cooperating with Indonesia to solve and encounter illegal migrant workers coming to Sarawak. It describes the agreements and programs that have been made by the two countries in regards to resolve the problem of illegal workers.
IV.1 Malaysia Government Approach in Combating Illegal Migrant Workers
Entry of Indonesia migrant workers to Malaysia was started since 1984s. Clandestine entry was a norm and workers are usually illegally engaged by employers. The workers mainly work in agricultural and rural sectors. As foreign workers increase in number, they eventually move to urban areas and take jobs in construction and service. They then become conspicuous to the general public. As a result, they started to compete with the poor local urban for resources that are
128 BNP2TKI. Indonesia Remittance Service Improving, Retrieved February, 27, 2017 web site: https://www.oxfordbusinessgroup.com/analysis/indonesias-remittance-services-improving
56 limited. This resources that are limited is included with paid employment, affordable housing, public amenities, social services, and self-employment opportunities through petty trading. The problems and issues exacerbates with their involvement in criminal activities and by illegally occupying the land. Due to this, resentment against foreign workers by general public and politicians rise and they are viewed not only as a threat to the border security, but also as a serious challenge to internal political stability. 129
The Cabinet Committee on Foreign Workers and Illegal migrants (CCFWII) is a high-powered committee that is chaired by the Deputy Prime Minister. CCFWII is a main body that is responsible in formulation of policy measures. The member of the committee is comprised thirteen related ministries. Policy measures were taken through stages in responding to socio-economic that is specific, security political and problems that arose over the following years. Many policies came up by CCFWII aiming to address the issue of legal recruitment and to curb the expansion for illegal migrants. Some of the major measures taken are:130
1) Regularization of Illegal Migrants.
Foreign workers policy was fully implemented in early 1992. Legislation that is related to illegal migrant workers and illegal immigrants is the Immigration Act 1959/1966 and Passport Act 1996, the Anti-Trafficking in Persons and Anti- Smuggling of Migrant Act 2007 and the penal code. From the beginning, of the implementation of policy, Malaysia‟s stand regarding the issue remains constant until 2009. Illegal migrants are seen as “public enemy number 2” and as a security threat. They also seemed to not receive any kind basic rights as resident or even as a worker. They will waiting to be rounded up and attended the court to be sentenced. They will be deported right after their sentences were served.131
129 Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf
130 ibid 131 ibid
57
The legalization programmes are done in several stages. The beginning of the exercise was carried out in 1985, right after the signing of Medan Agreement in 1984. The following two more exercises were implemented between around 1987 to 1989. These staging was initiated to pave the way to full implementation in 1992. Since then, more exercises were done in the following years, whenever the government sees it is necessary to do so.132
2) Introduction of Ops Nyah I
The Ops Nyah I is a continuing border control and surveillance exercise, initiated in January 1992. The operation is design to restrict foreigners that commit border intrusion into Malaysia. It involves land borders patrolling activity by army and General Operation Force (GOF) and Sea border by the Marine Operation Force and Malaysian Maritime Enforcement Agency (MMEA). In 2010 anyhow, the GOF was released from the border surveillance duty.133
3) Introduction of Ops Nyah II
Ops Nyah II on the other hand, focuses more on rooting out illegal migrants within Malaysia. Not every single of illegal migrants participated with the legalization and amnesty programmes also border surveillance was unable to fully stop clandestine entry entirely. Ops Nyah II was aiming to further target these problems and was first implemented in July 1992. The agency leading the program is the Division for Enforcement in the Immigration Department and assisted by other agencies, which are the police, Urban enforcement authorities, and lastly the National Registration Department (NRD). Since then, there are thousands of small scale operations were conducted and targeting at specific groups of migrants that are illegal and were carried out annually. In 2010, there
132 Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf 133 ibid
58 were around 6,017 operations were carried out with different codenames, depending on the target of the groups (eg. Ops Sayang, Ops Sapu, etc.)134
Illegal migrants that were nabbed under the Ops Nyah I and II operations will be sent to the immigration holding centres (known as MOHA depot) in the Peninsula and Sarawak. In Sabah, they are held in Pusat Tahanan Sementara (Temporary Detention Center) where illegal immigrants will be charged for immigration laws violation and is depending on the nature of the offence itself, then they will be sentenced to fine, jail and/or being canned. They then be deported after their sentence is served. See table below on the description of the place arrested:135
134Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf 135 ibid
59
Table 2. Place of Arrest/ Surrender of the Ops Nyah Operation
TYPES OF LOCATION FREQUENCY % SRATEGY When they are entering Malaysia
on the border between Malaysia and Thailand in 3 0.8 Kedah
Ops Nyah 1 Operation In Perlis, while working in - Border Control 2 0.5 sugar cane plantation When they are Leaving Malaysia On the airport 5 1.4 On Terminal Bus 3 0.8 CIQ Complex 2 0.5 Official Centers on the Police station 6 1.6 on the Immigration Office 1 0.3 on the Embassy or Consulate 2 0.5 On the Work Place restaurant 9 2.5 Karaoke Longuge 4 1.1 Ops Nyah 2 Operation- Internal Hotel 2 0.5 Weeding Out Sea 4 1.1 Exercises others work place 181 49.9 On the street when they are travelling 37 10.2 on their way to work 3 0.8 Others Places market or shopping place 6 1.6 home 94 25.9 TOTAL 364 100
Source: Survey conducted by Azizah Kassim and Ragayah Haji- Policy analysis regarding illegal migrant workers in Malaysia
4) Amnesty exercises.
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Amnesty exercises were carried out occasionally in 1996-1998, 2002 and 2004-2005, specifically at the state and/or national levels. Illegal migrants will be given certain periods to leave the country without being charged with any Immigration Laws violations. Otherwise, failing to comply will results the illegal migrants subject to arrest, charged and deported.136
5) Amendment to the Immigration Act 1959/63 and Passport Act 1969 in 1998 and in 2002. 6) Establishment of a special court, the Mahkamah PATI (special court for illegal migrants workers) at the end of 2005. 7) The application of the Anti – trafficking in Persons and Smuggling of Migrant Act 2007 (ATIPSOM) to forced labour in 2009. In mid-2009 anyhow, ATIPSOM extended its cover toward forced labour. This is important to the implication on status of illegal migrants, as cases of Immigration Act violation that were committed by the foreign nationals will first being investigated by ATIPSOM. Right after the accused are proven as a non- victim, they will then be investigated under immigration law of human trafficking or smuggling. Victims are “rescued” rather than “arrested” by ATIPSOM and then they will need to be sent to one of five home shelter ran by Ministry of Women, Family and Community Development (shelters targeted for children and women) or run by Ministry of Home Affairs (Male shelter). In the shelter, victims will be rehabilitated and protected, while each of their perpetrators are charged in court. In the case of unpaid wages or forced labour, the victims could also file a report to the Department of Labour and claim their wages. The victims then will be sent home after their case is disposed of, which usually took three months.137 8) Implementation of 6P programme Besides the Ops Nyah operation programme, Malaysia also introduced the 6P programme. 6P programme is a series of process to legalise and aimed to reduce expansion of illegal migrants workers. There are six processes which are
136 Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf 137 ibid
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Pendaftaran, Pemutihan, Pengampunan, Pemantauan, Penguatkuasa and lastly, Pengusiran. The explanation for the processes are as follows:138 Pendaftaran (Registration)
The process of identifying and registering illegal migrant workers. This process also aims to gain their biometric and information about their employers. This process was first executed on July 11th 2011
Pemutihan (Legalization)
The process of filtering registered illegal migrant workers and to legalize them to stay and fill their current position in the sector. They are legalized if the requirements are fulfilled and if the vacancy is urgently needed to be filled.
Pengampunan (Amnesty)
In this process, illegal migrant workers who are legalized, but are willing to be repatriated, will be forgiven and allowed to be deported.
Pemantauan (Monitoring)
Large scale surveillance operation undergoes in this process. The operation covers the employer‟s premisses to further search of illegal migrant workers and to explain the law implies on illegal migrant workers employment to the employers.
Penguatkuasa (Rehabilitation)
This process enforces the law through large scale operations to identify any illegal migrant workers and employers who are still uncooperative to the P6 programme.
138 ibid
62
Pengusiran (Deportation)
In this process, any violation on the illegal migrant workers laws will be prosecuted. Uncooperative illegal migrant workers will be deported and blacklisted. While, uncooperative employers will be punished accordingly. VI.2 Indonesia and Sarawak Approach on Indonesia Illegal Migrant Workers
Looking into the cooperation between Indonesia and State of Sarawak in resolving IIMW, there are two initiatives taken by both parties in the deportation and repatriation programmes. One initiative is taken by the Malaysian government by the deportation or the 3+1 programme and repatriation programme. Another initiative is taken by the Indonesian government through the Consulate General of the Republic of Indonesia in Kuching, Sarawak, by the Service and the Protection programme.139
The initiative from the Malaysian government has emphasises more on deporting and repatriating the illegal migrant workers. The latest programme taken by the immigration Department of Sarawak is the 3+1 programme or the Voluntary return programme, it is a form of the repatriation programme. The 3+1 Program covered140:
IIMW which have obtained "Perintah Tangkap Usir" (PTU) will back through the process of Deportation Citizens who already protected and stay in the House Local Government Protection Citizens who are terminally ill and are covered by Local Governments (Home Protection, Immigration Detention, Prison, Immigration Depot, etc.)
139 Data from Consulate General of the Republic Indonesia in Kuching regarding deportation process for Indonesia citizen 140 ibid
63
The programme focusses more on illegal migrant workers by overstaying or end of working permit, but still have a valid passport and are willing to be deported. They will be charged for RM400 by the Malaysian government, where RM300 is for the Check Out Memo payment and RM100 is for the Special Pass payment.141 On the table below shown number of Indonesia Migrant deported to Indonesia.
Figure 4. Number of Indonesian Deported from Sarawak
Dec 2500 DATA YEAR 2016 UNTIL 20 Nov DECEMBER 2016 Oct 2000 Sep
1500 Aug Jul 1000 Jun May 500 Apr Mar 0 Feb 2013 2014 2015 2016 (1327) (1409) (1827) (2173) Jan
Source: Data from Consulate General of the Republic of Indonesia in Kuching, Sarawak, Malaysia
From 2013 until 20 of December 2016, Consulate General of the republic of Indonesia in Kuching has deported around 6.736 people.142Of these, most of them are Indonesian citizens who come and live in the state of Sarawak without a working visa or without legal documents, which some other number is a citizen of
141 ibid 142 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak.
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Indonesia who have various problems in the workplace such as salaries not paid, victims of human trafficking, escaped from an employer, a job that is not in line with expectations.143 On the other hand, troubled IMW or over stayer Indonesian citizens, Indonesian citizens in Malaysian‟s local government protection house and Indonesian citizens who are badly ill or under the care of the local government (Protection house, Immigration custody, Imprisoned, Immigration depots, etc.) will be sent home through the deportation programme. The deportation undergoes three main processes: 144
143 ibid 144 ibid
65
Figure 5. Indonesia Migrant Deportation Flow
Indonesia Consulate will coordinate with involving • Indonesian consulate will record the data of parties from Indonesia • Indonesia Immigration will record the data to Indonesa Migrant Worker in imigration match the directories received from depot to issue SPLP/legal document Indonesia Consulate in Kuching and Sarawak • report the number of departees and when to • Rely the letters to BNP3TKI pontianak and Imigration department be deported P4TKI Entikong, Dinso West Kalimantan, • P4TKI will record the date of IMW to be sent • to report their violence/abuse Entikong Police Department, etc home through BP3TKI Pontianak dan West • Indonesia Consulate will issues SPLP/ legal kalimantan's Social Service document as the valid information for • Entikong health quarantine will record data Indonesia Institution of sick IMW
Malaysian imigration send Indonesia Institution will letters to Consulate General of receive deportees and record the Republic of Indonesia their data to be sent home. Kuching, sarawak
Source: Data From Consulate General of the Republic of Indonesia Kuching, Sarawak
1. The Malaysian immigration will send all the information regarding the Indonesian citizens who will be deported by Immigration Department of Sarawak to Consulate General of the Republic of Indonesia, Kuching, Sarawak 2. Consulate General of the Republic of Indonesia, Kuching will pass the informations to the involving parties in Indonesia to receive the deportees (eg. BP3TKI of Pontianak, P4TKI of Entikong, Entikong‟s police department, West Kalimantan‟s Ministry of Social Service, etc.). 3. Institutions in Indonesia will receive the deportees and have their data recorded to be sent back to their respective homes.
The other initiative taken by Consulate General of the Republic of Indonesia, Kuching, Sarawak is emphasised more on service and protection programme which provides shelter house for protection of the Indonesian citizens, and service programme for those who are still escalating the request for
66 repatriation facilities. The Consulate shelter house shelters IMW/citizens who escaped from their employer, are rescued, are victims of human trafficking, illegal migrant and are stateless.145
The Indonesian Consulate in Kuching also had come up with a recognition award program for the best Indonesian workers in Sarawak. The program is called the Indonesian Migrant Workers Award (IMWA). This award was initiated by the Consul General Mr. Jahar Gultom and was held on April 9th - 11th 2016. The overall program involves independent committees comprising of various Indonesian professional expatriates, diplomats and Indonesian Consulate (KJRI) staffs and university students.146
The key of the objectives of this program are as follows:
To help create a stable pool of good Indonesian migrant workers that can help propel the growth of Sarawak economy in specific and the Malaysian economy in general. To identify good Indonesian migrant workers in each industry to be role model. To provide rewards and recognitions for the workers‟ fine performances that can be an asset to them in a long term and help them improve their living standards. To promote legal recruitment of Indonesian migrant workers for a long term (because their participation in this program is strictly for those with valid work permits & registered with the Consulate General of the Republic of Indonesia). To encourage employers of Indonesian migrant workers to provide conducive work environment that can allow the workers to progressively develop into better workers.
145 Data dan Fakta perlindungan WNI/TKI di Sarawak by Consulate General of the Republic of Indonesia in Kuching, Sarawak. 146 Indonesia Migrant Worker Award by Consulate General of The Republic of Indonesia in Kuching Sarawak website: http://imwa-sarawak.org/docs/IMWA-Booklet.pdf
67
The Consul General of Indonesia Consulate in Kuching Mr. Jahar Gultom was stated:
“Through IMWA, we hope to motivate and inspire the workers to work properly and minimise the number of workers who run away/abscond; follow the correct procedure of employment; be loyal to their employers and compassionate to their colleagues”
Through the participation of the IMWA, the consulate general would be able to encourage respective employers to give more attention and appreciation to their Indonesian workers. This would also encourage proper recruitment and employment procedures of workers and provide a conducive working environment for the workers to betterment.147 This program act as an approach from the Indonesian representative in Kuching Sarawak in order to reduce the number of illegal workers in the state of Sarawak.
The government of Sarawak also supports this programme as stated by the Chief Ministry of Sarawak Datuk Patinggi Tan Sri Dr Haji Adenan Satem:
” This programme should be seen as an effort to improve the quality and productivity of Indonesian migrant workers so that they can contribute positively to the Sarawak economy and at the same time reduce the incidence of illegal workers. I am confident that the success of this programme will create a win-win situation for Sarawak and the Republic of Indonesia”
IV.3 Viewing Closer into the Ties Between the Two Countries
The law of the Republic of Indonesia Number 13 of 2003 in the MoU between Indonesia and Malaysia 2004 on Labour does not recognise the protection for domestic workers nor to fulfil the rights and obligations of the
147 Indonesia Migrant Worker Award In Sarawak Retrieved Sunday, December 18th 2016 web site: http://www.theborneopost.com/2016/03/03/consulate-general-comes-up-with-award-for- indonesian-workers/
68 workers. Also, domestic workers are considered different than ordinary labour.148 This shows the need for a separate agreement to implement the rights and protection of the Indonesian domestic workers in Malaysia. This notion drives the signing of the Memorandum of Understanding between Indonesia and Malaysia on the Recruitment and Placement of Indonesian Domestic Workers 2006.149
Despite the signing of the MoU, protection of Indonesian workers was considerably inadequate. This proven by the data from Migrant Care 2004-2014, which ranked Malaysia second in the rate of violence against migrant workers after Saudi Arabia was the highest in 2009. This leads the Indonesian government to impose a moratorium for informal sector in June of 2009. Even with the implementation, still several cases of violation and abuse strike during the moratorium. The moratorium also caused about 500,000 undocumented workers to migrate illegally into Malaysia. These shows that the MoU, even with moratorium, were yet to show significance in the protection of domestic workers. Even after signing the Protocol Amending the MoU 2006, cases of human rights were still in continue.150
Looking into the agreements themselves, we can see how the MoU and the Protocol were inadequate to protect the Indonesian domestic workers. Generally, the MoU of 2006 and the Protocol were not based on the needs of the domestic workers and they are not based on the actual field condition. Rather, they are limited to the legality of the cooperation between Indonesia and Malaysia in the field of domestic employment. The role of the actors that are formulating regulations related to protection of Indonesian domestic workers are still vague. These actors need to be more familiar with the actual condition.151
148 “Memorandum of Misunderstanding” Policy Brief on Bilateral Labor Agreement of Indonesian website: I1_Memorandum-of-Missunderstanding-PolBrief-on-BilLabor-AgreeonMW-2008.pdf
149 Legal Protection on Indonesian Domestic Workers in Malaysia: From Actors‟ View conducted by Malahayati, University of Malikussaleh supported by Ministry of Education and Culture Republic of Indonesia http://www.iiste.org/Journals/index.php/JLPG/article/viewFile/27173/27856
150 ibid 151 ibid
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In the MoU 2006 itself, there two main flaws that can be observed. Firstly, the clauses of the MoU are mainly set regarding the placement of the workers, rather than protection. Secondly, the purpose and objectives of the MoU is still unclear. Thus, the MoU is limited to the legality of the cooperation. Protection is only subjected to Appendix B, the Contract of Employment. It was theorised that, as if the law doesn‟t guarantee any legal protection and that the contract is the only instrument of protection.152
The protocol amending the MoU 2006 was signed on May 30th 2011. Through the Protocol, some agreements were changed. This agreement changes discuss for the salary for domestic workers should be to market condition, right for one day off per week or replacement for a one-day salary, right for workers to hold their own passport and the new agreement does not discuss minimum salary. Implementing the Protocol, Indonesia and Malaysia agreed on the formation of the Joint Task Force, which is comprised of the Manpower Ministry, Health Ministry, BNP2TKI and the Malaysian representative in Indonesia. The duty of the JTF is for surveillance of any MoU violations.153
There are two fundamental weaknesses in the Protocol itself. First, there is no law enforcement mechanism or strict sanctions for violators. Next, the supervision mechanism is still unclear. Under article 13 of the Protocol, parties should approve the JTF establishment and function. Though, JTF may not be optimum in defending migrant workers‟ problems.154
According to the Executive Director of the Migrant Care Indonesia, Anis Hidayah, Indonesia and Malaysia have no law to regulate domestic workers. Eleven points made to the change under the Protocol still not have guarantee legal protection for domestic workers. Also added into this argument, The Chairman of
152 The Memorandum of Understanding accessed on Monday 5th of February 2017 website: http://treaty.kemlu.go.id/uploads-pub/1642_MYS-2006-0099.pdf 153 Legal Protection on Indonesian Domestic Workers in Malaysia: From Actors‟ View conducted by Malahayati, University of Malikussaleh supported by Ministry of Education and Culture Republic of Indonesia http://www.iiste.org/Journals/index.php/JLPG/article/viewFile/27173/27856 154 ibid
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Jaringan Nasional Advokasi Pekerja Rumah Tangga (JALA PRT), Lita Anggraini stated:155
„Both MoU 2006 as well as Protocol 2011 are ineligible in protection and decent work situation for domestic workers. In examples, there is no minimum wage standards; Malaysia has not signed the ILO Convention 189 on decent work of domestic workers and Convention on the Protection of the Rights of All Migrant Workers and their Families (CMW); the agreed employment contracts still do not meet the minimum standards of decent work contract.‟. These conclude that the existing agreements were not enough to fulfil the rights and protections of the IMW. A Memorandum of Understanding itself, is a non-law-binding agreement. Thus, any parties are not protected by the law from any violations, especially the workers.
Malaysia‟s two decades of policy experiments on controlling illegal migration reveal that the policy requires close collaboration of both sending and receiving countries. Although recruitment procedures can be done at the bilateral level, regional mechanisms to search for viable longer-term solutions to reduce cross-border labour flows through increased trade and investment is necessary.156
According to the research conducted by Vijayakumari Kaniphaty.157 the cooperation and joint efforts of Indonesia and Malaysia in the attempt to solve the IIMW were deemed inadequate. This is due to the lack of talks between the two countries and the lack of bilateral agreement regarding on the Indonesian illegal migration itself.158 The 2006 MoU, for example, only mentions the formal sectors. While, most IMW work in informal sector, mostly in domestic helper. Also, the MoU has no explicit and direct sanctions for any contraventions of the agreement by the Malaysian employers. The MoU also allows every employer to
155 ibid 156 Vijaya Kumari, Controlling Irregular Migrantion: Malaysia Experience- International Labour Organization Retrieved Monday,28 Dec 16 web: http://ilo.org/wcmsp5/groups/public/---asia/--- ro-bangkok/documents/publication/wcms_160587.pdf 157 Supported by International Labour Organization (ILO) Asian Regional Programe o Governement of Labour migration website: http://ilo.org/wcmsp5/groups/public/---asia/---ro- bangkok/documents/publication/wcms_160587.pdf 158 ibid
71 hold workers‟ passports and other documents for the purpose of “safekeeping”, which put the workers‟ position vulnerable to lose their legal status.159
Vijayakumari Kaniphaty found that the MoU itself demands more toward Indonesians, but pays less. It places Malaysia on a stronger bargaining position, as terms and conditions, wages, allowances, working hours and other benefits are fully determined by Malaysian employer. Furthermore, Indonesia is assumed to accept Malaysian employer‟s right to conduct selection and qualification requirements. This requirements sometimes are unable to be met by the workers.160
The policies and programmes from the Malaysian government are also ineffective to cope with the issue. The amnesty programme and the illegal migrant control operation (Ops Nyah I and II) target more on the illegal migrant workers instead of those who abet them. This results in the still-ongoing demand for illegal migrant workers and employers to roam freely still to recruit. On the other hand, the “Hire Indonesian Last” policy was carried out without prior consultation or negotiation with Indonesia, causing tensions in the tie161.
Adding to the view for the cooperation, 350,000 migrant workers and also their families entered Nunukan, Sabah. Prior to the release of the new immigration laws on 1st August 2002, 85 deaths were reported including children. There were four Indonesians were sentenced to be fined, caned and jailed under the new laws. On this matter, respective governments finger-pointed each for not doing its part regarding the joint attempt to eradicate the problem162.
These show the lack in cooperation of both countries in tackling the IIMW issue. Inability to find a solution of IIMW remain a as thorn on both sides and it is shadowing the relationship between them in the long run. From the point of view
159 Supported by International Labour Organization (ILO) Asian Regional Programe o Governement of Labour migration website: http://ilo.org/wcmsp5/groups/public/---asia/---ro- bangkok/documents/publication/wcms_160587.pdf 160 ibid 161 Vijaya Kumari, Controlling Irregular Migrantion: Malaysia Experience- International Labour Organization Retrieved Monday,28 Dec 16 web: http://ilo.org/wcmsp5/groups/public/---asia/--- ro-bangkok/documents/publication/wcms_160587.pdf 162 ibid
72 of Indonesia Consulate in Kuching regarding some constrain between both government in cooperating to reduce number of IIMW in the State of Sarawak.163
The constrain on the cooperation come from the government of Sarawak, which are dualism policy between the federal government and the government of Sarawak on foreign laborers working in Malaysia, there is still a lack of enthusiasm of the Sarawak government in collaboration with the Consulate General of the republic of Indonesia Kuching in handling cases of illegal workers, government of Sarawak is still very weak in giving the sanction toward the companies that employ illegal workers and the lack of action taken by the government of Sarawak.164
IV.4 Foreign Workers Dilemma
According to the Bank Negara 2015 Annual Report, Malaysia's dependent on foreign workers that are low-skilled continues to rise with a demand of 2.14 million people last year in comparison of 2.07 people demanded for 2014. The report explained that construction and agriculture holds the highest dependence on foreign workers. Malaysia employed for over 13.8 million workers in 2015 with a rise from 13.5 million in 2014. There is a total of 226,000 jobs mainly came from the service sector, particularly in the distributive trade, education, human health and social work sub-sector.165 There are several main reasons why Malaysia is continued with high demand for Indonesian workers in Malaysia. First, there are general demographic and economic imbalances between Malaysia and Indonesia. Second, there are networks of brokers, sponsors and work placement agents have been institutionalized. In these networks brokers also function as sponsors, resulting in the intensification with the flow of migrant‟s workers to Malaysia. Third, the linguistic, cultural and historic relationship between the two countries allows an
163 Vijaya Kumari, Controlling Irregular Migrantion: Malaysia Experience- International Labour Organization Retrieved Monday,28 Dec 16 web: http://ilo.org/wcmsp5/groups/public/---asia/--- ro-bangkok/documents/publication/wcms_160587.pdf 164 Ibid 165 The Borneo Post, Malaysia Dependency on Foreign Worker retrieved on Monday 5th of February 2017 website: http://www.theborneopost.com/2016/04/10/the-foreign-worker-dilemma/ 3 januari
73 easier working relationship between employers and Indonesian migrants workers, compared to migrants workers from other countries.166
The strong growth shown in the export income is motivated by the higher export value, especially with the ones contributed by the manufacturing industry. Therefore, the entry of foreign workers into Malaysia does not only fulfill the demand of workers that are needed in this country but they also have helped the country‟s economic growth tremendously. In fact, former Malaysian Prime Minister, Tun Abdullah Ahmad Badawi has stressed:
“We want to decrease the intake of foreign workers but if we were to stop (their entry) altogether at this point, it may jeopardise the industry that highly depends on them”. Same goes with the then Deputy Prime Minister, Datuk Seri Najib Razak as the Chairman of the Cabinet Committee on Foreign Workers and Illegal migrants, stressed:
“For a very long period of time, Malaysia still needs foreign workers to fill up the vacancies, especially the ones that the local citizens are not willing to participate in. Even then, it does not mean that we will continue to use this policy without taking into account factors to motivate the locals to fill those vacancies” (Utusan Malaysia, February 23, 2015). In order to reduce dependency on foreign workers, the Federal government had imposed levy on foreign workers. The foreign workers levy system was restructured into two level, each industry differs and was clustered according to its own categories. Levy is set at RM1,850 for the first category, comprising the manufacture, construction and service sector It is set at RM640 for the second category, comprising the agriculture and agro-industries, in the other hand for domestic helper, levy is set at RM410 per person.167
166 Labour Migration from Indonesia an Overview of Indonesia Migrant to selected destinations in Asia and the Middle East by IOM International Organization for Migration 167 ASEANTUC 2016 website: http://aseantuc.org/2016/11/malaysias-zahid-two-million-foreign- workers-hold-temporary-working-permits/
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This will discourage employer to hire foreign workers and to prioritize the local labor thus reducing unemployment among locals168 and this is also cause the workers to receive a lower take-home pay, as they then have to pay the levy through salary deduction. The levies are to be paid before the workers are given visas to enter Malaysia. Often, the levy payments are advanced by the employers.169
In the State of Sarawak, there are three types of levy payment methods
1. Borne fully by the company 2. Salary cut of RM50 from the workers for 2 years, which the money is then given back fully by the employer, after the working contract is finished. 3. Borne fully by the workers 170
However, policy regarding the levy does not affect much on the use of labor services in Malaysia. According to statistics by the Home Ministry of Malaysia Datuk Seri Dr Ahmad Zahid Hamidi, the number of social work visit passes issued to foreign workers has increased from 2.073 million in 2014 to 2.135 million last year. The total remittance volume sent home by foreign workers from Malaysia increased 23.2 per cent to RM34.75 billion in 2015 in compared with RM28.21 billion in 2014. A statement, made by the Malay Contractors Association (PKMM) president Datuk Mokhtar Samad, says that 93 percent of workers in the construction industry are foreigners, which made this industry very dependent to the participation of foreign workers. This shows that foreign workers make more important contributions to the economy in terms of output, employment and export earnings.
168 University Sain of Malaysia 2016 Strategies in the preventing of influx of illegal immigrant workers in Malaysia . retrieved on Mand 5th February 2017 website: https://www.researchgate.net/publication/286447791_strategies_in_the_prevention_of_influx_of_ illegal_immigrant_workers_in_malaysia 169 ibid 170 Interviewed Bapak Abdullah, minister of consular in Consulate General of the Republic of Indonesia, Kuching, Sarawak. Jakarta 22-December-2016
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At the same time, the migration process is usually associated with the money transfer issue, or also known as a remittance, which actually means that the outflow of money from one country to another. According to the Ministry of Finance Malaysia, Indonesia was at the top recipient of remittances from 2011 to 2015, followed with Bangladesh, Nepal, India and the Philippines. The remittances from all workers abroad grew from 17.1 per cent in 2011 to 23.2 per cent in 2015. The total remittance volume jumped to RM28.21 billion in 2014 from RM22.7 billion (2013), RM18.4 billion (2012), and RM15.7 billion (2011).
Figure 6. Foreign Workers Remittance from Malaysia
Remittance 2015 in Ringgit Malaysia (RM)
7 6,2 6
5 4,6
4 3,6
3 BILLION 2 2 1,1 1
0 Indonesia Bangladesh Nepal India the Philippines COUNTRY
Source: Data from BNP2TKI 2016
The BNP2TKI data also show that remittances from IMW amounted to Rp 119.7 trillion (US$8.65 billion) in 2015, making Indonesia as the world‟s fourth- highest remittance-receiving country.171
171 ASEANTUC 2016. Urgent Improvement in Migrant Worker Management Needed needed website: http://aseantuc.org/2016/11/urgent-improvements-in-migrant-worker-management- needed/
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On the other hand, the number of illegal foreign workers is to be at least twice with the number of those with work passes, so it means that there are around more than four million foreign workers currently working in Malaysia. In total of foreign workers sent RM34.7 billion back to their countries, which is equal to 2.37 per cent of the Gross Domestic Product. It is approximated that the actual number of foreign workers in Malaysia is higher as some of the money sent back to the country of origin is through unofficial channels.172
Federal Minister for Human Resource Datuk Seri Richard Riot Jaem made a statement during the human resource Summit Seminar in Sarawak
“We (federal government) also don‟t want (to have so many foreign workers), but we cannot do without them. If we don‟t employ foreign workers, particularly as labourers, our economy will be at a standstill.”173
The need for labor is also felt by the state of Sarawak, the government of Sarawak need more Indonesian workers to be placed in many sector in Sarawak. According to the Consulate General of the republic of Indonesia in Kuching, for the state of Sarawak, Indonesia is a source of labor that became the mainstay for Sarawak to remain well developed in the fields of infrastructure and economy. Without labor, Sarawak with a small population and very wide area cannot achieve rapid economic growth as perceived today174. It is also be clear by the Minister of Infrastructure Development and Transformation Sarawak Tan Sri Datuk Amar Dr. James Jemut Anak Masing that Sarawak need foreign workers especially foreign workers from Indonesia to grow and develop infrastructure and economic in Sarawak where the plantations would suffer losses of up to RM1.5 billion a year for lack of workers to harvest fresh fruit bunches175.
172 The dilemma on Migrant Worker in Sarawak (2016) retrieved on Sunday 5th February 2017 website: http://www.theborneopost.com/2016/04/10/the-foreign-worker-dilemma/ 173 1.7 Million Migrant worker in Malaysia http://asklegal.my/p/a-total-of-1-7-million-illegal- foreign-workers-in-malaysia acces i 27 december 2016 174 Rencana Strategis Consulate General of the Republic of Indonesia Kuching year 2015-2016 175 Sarawak seek to local government 2016 website: http://www.freemalaysiatoday.com/category/nation/2016/02/21/sarawak-to-seek-local-workers- not-bangladeshis/ access on 27 Dec 2016
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Changing the alignment of Malaysia's workers force has been proven difficult to achieve, with employers that are complaining of severe shortages in some industries when more restrictive policies have been applied. On the contrary, The New Economic Model of Malaysia in 2010 and other related policy documents have sought to reduce its dependency on the migrant workers through various kind of strategies, including charging a levy for their employment, introducing the minimum wage, raising the retirement age and increasing the number of women entering paid employment. Meanwhile, The Eleventh Malaysia Plan (2016–2020) maintains this objective and envisaging a limit on the employment of low-skilled migrant workers of 15 per cent of the total workforce by 2020176. Ad hoc policies to manage labour migration has generally been remained since they were introduced to fill labour shortages as an "interim solution", over two decades ago.
Prominent features of the policy framework have included a detailed quota system for entry of migrant workers and efforts to regularize migration through temporary amnesties177. These measures have often been followed by bans on new admissions and large-scale law enforcement actions to detain and deport those migrants who do not register with authorities. The policies have been consistently admitting migrant workers only for the purpose of meeting the immediate labour needs of employers rather than allowing for longer term settlement, though frequent changes has occurred throughout.
It is clear to actually say that illegal migrant issues have become one of the major problems in Malaysia. The increasing of the number of illegal migrant has shown that the government needs to implement serious immigration policy in order to solve the issue from continuously threatening national security of Malaysia in the future. Moreover, the issue also has reflected the topic of human security in Malaysia, as a part of non-traditional security threat.
176 Ibid 177 Ibid
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IV.5 Malaysia Policy Has Been Implemented
Despite of the efforts, the number of illegal had not go down as anticipated. On the contrary, the number grew and was demonstrated by the repeatedly high number of detainees in the 16 holding centres and the increasing number of deportees every year. In the mid-1990s, number of illegal migrant remained high. In addition, there was a general agreement among the policy makers later stating that the available provisions in the Act were inadequate to deter unauthorised entry and to stay in Malaysia.
In order to be legalized through the legalization programme, the workers have to get a working permit and to pay their annual levy, visa fees and the processing fees. Also, the legalization programmes aim only at the workers and does not take account for their family members who may be with them. Since April 2010, levy payment was made compulsory by the government and it is the responsibility of the workers to pay. For this reason, many failed to renew legalization annually and they will revert back their illegal status in the following year.
Many employers opposed the legalization and amnesty programmes. The programmes are deemed disruptive to production and increase it‟s cost. Besides that, illegal migrant workers are easier to be controlled, as they are in no position to demand higher pay and better work condition, which had been an advantage for the employers to exploit.
Arrest on illegal migrant workers for working without a working permit is low due to the difficulty to be proven in the court. Also, if employers don't keep records of illegal migrants in their workforce nor their wages. Arrest and charges could only be done if they are caught red-handed. The main reason illegal migrant workers do not have working permit is the high levy cost also the time consuming bureaucratic process.
The Immigration Act has provisions for the sanction against people who employs, traffic or harbour illegal migrants. Many parties including the NGOs and Malaysian Trade Union Congress (MTUC), stated that these provisions are
79 not fully enforced. The MTUC was sceptical to the relatively few employers were apprehended. Arrest of illegal workers often followed by arrest of employer, but the difficulty in proving the illegal employment render the employer scot free.
From these we can see that the measures addressing target more on the Illegal migrant themselves. There‟s still no measures to target whoever abet the illegal act (eg. Employers, traffickers and harbours).
IV.6 Liberalism and Indonesia-Malaysia Cooperation
As from the view of Liberalism, the cooperation between Indonesia and Malaysia is fit each other in achieving both countries national interest. However, as describe on the previous chapter that the existence both legal and also illegal Indonesia migrant worker has perceived as both advantage and also disadvantage for both countries, then it is clear that the cooperation are needed in solving the Indonesia illegal migrant worker in Sarawak.
From this study, Indonesia and Malaysia forms an international relation with each other to achieve their national interests then there will be a cooperation among state as what has been done between Indonesia and Malaysia in cooperating regarding labour sending and receiving country. Generally, Sarawak with the lack of workers in developing their infrastructure and in order to growth their economic really need the contribution of foreign worker, especially worker from Indonesia. In the other hand, Indonesia in which is to reduce the huge number of unemployment problem also see the opportunity offered by Sarawak. For this case, the problem faced by both countries fit each other. On the contrary, the path of achieving these national interests is not to be taken lightly. Issues regarding migrant workers rise eventually. Cases of migrant workers abuses surfaces the Indonesian national interest to protect their migrant workers in Malaysia. In conjunction, Malaysia also experienced the surfacing a problem in protect its citizen from their security and humanities issues where crime committed by both legal and illegal Indonesia Migrant Worker in Malaysia gave
80 rise to the security issues in Malaysia. These areas stated by Malaysia Ambassador to Indonesia Zahrain Mohamed Hashim:
“Malaysia Priority is to prevent Indonesia Ilegal Migrant from entering Malaysia”
Sarawak government has declared and getting ride to solve the problem of Indonesia illegal migrant worker in Sarawak. In fact, the cooperation toward the problem has not yet created until today. The dualism perspective between Sarawak and Federal government has shown the lack of cooperation within Malaysia itself in preventing illegal migrant coming to Malaysia.
In 2016, Federal government imposed moratorium to freeze foreign worker recruitments to focus on local worker recruitments. Despite the moratorium, the Sarawak government still allow firms to recruit foreign workers. Sarawak was having a unnerving manpower shortage in their plantation sector. They have a demand for 30,000 to 35,000 workers to cushion the RM 1 billion losses from the uncollected fresh fruit bunches. As stated by the Sarawak state Land and Development Minister Tan Sri Dr James Masing:
“We don't have enough workers in the oil palm industry, and we cannot afford to lose RM1 billion a year due to uncollected fresh fruit bunches FFB”
In respond to the freeze foreign workers recruitment imposed by Federal government, the other statement made by the Sarawak state Land and Development Minister Tan Sri Dr James Masing:
“The state government has not yet adopted the freeze, so applications are still open to hire foreign workers to work in the State of Sarawak.”
As well as Indonesia, World Bank Group's Global Knowledge Partnership on Migration and Development produced a report on remittance received by nations. The report listed Indonesia as 14th among the world's recipients of migrant remittances in 2015. An estimated of $10.5 billion received by Indonesia from workers who are living abroad. This is an increase of 22 percent from the
81 year 2014, which stood at $8.55 billion. Additionally, India stands at the top with total of $72.2 billion, followed by China at $63.9 billion, Philippines at $29.7 billion, Mexico at $25.7billion and France at $24.6 billion. This is significantly show that the cooperation on the labour sending country between Indonesia and Malaysia are interdependence.
The remittance from Malaysia has contribute a lot to the Indonesia income and the remittances brought by Indonesia migrant workers has boost the Indonesian economic. According to the date reported by BNP2TKI, here are the list of remittance bought by Indonesian citizen staying in Malaysia.178
Table 3: Indonesia‟s Remittance from Malaysia179
Year Remittance (USD)
2013 $2,560,396,190.00 2014 $2,540,742,074.00 2015 $2,193,764,664.00 2016 $2,299,662,977.00 Source: Data from BNP2TKI
Looking into the high demand and profits on both countries, Indonesia and Malaysia shows that the solution to the Indonesian illegal worker issue had turn up to be a dilemma, where the existence of both legal and illegal labour force is crucially needed by both parties. Respectively, until this moment on, their cooperation is limited to the MoUs and agreements regarding the illegal migrant worker itself is yet to be realised between Indonesia and Sarawak.
Although with their meetings in February 2014 and January 2015, and the September 23rd 2016 Letter of Intent regarding the cooperation in placing Indonesian Migrant Workers in Malaysia, there are still no signs of concrete result in their cooperation.
178 Oxford Business Group . Indonesia Remittance Service Improving, Retrieved February, 27, 2017 web site: https://www.oxfordbusinessgroup.com/analysis/indonesias-remittance-services- improving 179 BNP2TKI 2016. Data Penempatan Dan Perlindungan Tenaga Kerja Indonesia Tahun 2016 website: http://www.bnp2tki.go.id/uploads/data/data_08-02-2017_111324_Data- P2TKI_tahun_2016.pdf
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IV.7 Challenge in solving the Indonesian Illegal Migrant Problem
The steps taken to combat Illegal Migrant Worker considerably as failure, several policies and approaches already implemented by each countries as Malaysia implemented Ops Nyah I, Ops Nyah II, Amnesty exercises, Amendment to the Immigration Act 1959/63 and Passport Act 1969 in 1998 and in 2002, The Court of 2005, The ATIPSOM 2009 and the 6P Program and Indonesia initiated the Indonesia Migrant Workers Program has not providing significant changes to the number of illegal workers in Malaysia, and vice versa. The failure of Indonesia and Malaysia in solving Indonesia illegal migrant worker can be seen also through some aspects below:180
1. Policies Shift and dualism perspective between the Federal government and Sarawak In Malaysia, Policy measures regarding illegal migrant worker often change due to the response toward the economic, social, political and security issues. For example, Malaysian government decided to ban Indonesian workers and was reversed in less than a month. The other example is the Malaysia Immigration Act 1959/63 was amended in 1998 when the penalty for breach of immigration law with regards to illegal entry was raised and canning was presented. The dualism perspective on migrant worker intake in Peninsula and Sarawak also make the cooperation within the Malaysia itself is do not walk one direction as discussed above.
2. Lack of Punitive Action against Employers The Malaysia Immigration Act 1959/63 was amended again which include provision to sanction employers, human traffickers and harborers of illegal migrants. Speciously, it is difficult to charge employers for engaging
180 Azizah Kassim and Ragayah Haji Mat Zin title: Policy On Irregular Migrants In Malaysia: An Analysis Of Its Implementation And Effectiveness retrivied on Monday, December 19 2016 website: http://dirp4.pids.gov.ph/ris/dps/pidsdps1134.pdf
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illegal migrant workers because employers can only be charged if illegal migrants are caught red-handed working in their premises. Even then, employers still can deny because there is no written evidence signed by both employer and worker.
3. The High Cost of Recruitment and its Bureaucratic Procedures
The cost of legal recruitment is high-priced, especially for those engaged in the service, construction and manufacturing sectors. Beside the cost to become migrant worker, the new policies imposed by Indonesia government. The Directorate General of Immigration at the Ministry of Justice and Human Rights of Indonesia issues regulations for Indonesian citizens who wish to work abroad. Each prospective worker must have money in the account of at least Rp25 million before leaving Indonesia.181 This indirectly makes the prospective worker initiative to find an alternative way of being an illegal worker that actually more practical and less time consuming.
The other problem came from its bureaucracy where according to the consulate general of the republic of Indonesia in Kuching, the illegal worker who were caught by immigration Sarawak and live under the protection house are those who easily get a passport using broker, come to Sarawak as a tourist and enggange with employer as a worker
4. Diplomatic Consideration
Introducing the program for illegal migrant are often done by one such party as Malaysia, one of its programs is the introduction of caning as a punishment for illegal migrant took years to emerge as Malaysia did not want to offend the source countries, especially Indonesia, a close neighbour and a major source country. When caning was eventually introduced in 1999, Malaysia was subjected to a barrage of criticisms
181 CNN Indonesia Imigrasi Wajibkan Calon TKI Punyai Tabungan Minimal Rp25 Juta Accessed on 5th of June 2017 website: http://www.cnnindonesia.com/nasional/20170307143250-12- 198436/imigrasi-wajibkan-calon-tki-punyai-tabungan-minimal-rp25-juta/
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from the Indonesian public and some of its politicians (Marja Azlima Omar, 2006).
CHAPTER V
CONCLUSION
Malaysia is attempting to become a high-income society by undergoing socio-economic transformation. On the other hand, foreign workers utilization as labour force, especially illegal migrants, discourages employers on production technology improvement. As well as with Indonesia, the existence of illegal Indonesia migrant workers in the Malaysia has attracted the attention of the Indonesia government since the number is very big and a disadvantage for the Indonesian government and citizen itself where the illegal Indonesia migrants workers do not have legal access to get protection while they are staying in Sarawak, Malaysia.
Both government have declared that it is a need to solve and reduce the number of illegal Indonesian migrant workers in the State of Sarawak, it could be seen from the meetings and programs implemented. One of the cooperation between Indonesia and Malaysia is visible through their bilateral relations on the Sosek Malindo Agrement. The Sosek Malindo agreement, had led to the cooperation regarding socio-culture, economy, trade, tourism, security and education of both countries as mentioned before. Adding to the point The Sosek Malindo also contribute to the border protection and the restriction of any illegal border activities like drug smuggling, trafficking in person, illegal migration, etc.
Bilateral agreements between the Indonesia and Malaysia also determine on their bilateral relations which contained in several agreements and MOUs such the Medan Agreement, MoU 2004, MoU 2006, Moratorium and Protocol 2011,
85 and the latest letter of Intent. The annual consultation between Indonesia and Malaysia on October 2011 leads to the revoke of the Moratorium. The decision was made based on the signing of the Protocol 2011. This adds to a form of cooperation between both government in running the sending and receiving Indonesia migrant workers into Malaysia and also discussing on the problem regarding illegal Indonesia migrant workers through some meeting mentioned before. However, the existing of MOU on labor migrant worker only covered the legal migrant worker as elaborated above.
The lack of cooperation between Indonesia and Malaysia on Indonesia illegal migrant worker problem in the state of Sarawak could see from one side policies and program implemented toward the problem. The Malaysia government has a focus on amnesty based programmes. The 6P programme as mentioned is an example of this amnesty programme, while Ops Nyah (I and II) are identifying operations to support the 6P programme implementation. Amnesty based programme is supportive to cope with the high demand for labour in Malaysia. as well as from Indonesia representative in Sarawak, beside the protection and process of deportation, the new program conducted which is Indonesian Migrant Workers Award (IMWA) encourages Indonesian migrant workers to use legal procedure to work in Sarawak.
However, the program implemented by each government Sarawak and Indonesia representative in Kuching has yet to reduce the number of illegal Indonesia migrant workers in Sarawak, as seen on data above that there are around 400.000 Indonesian migrant workers working in Sarawak.
As discussed through the liberalism theory, the interdependence between Indonesia and Malaysia on labour sending and receiving country in fulfilling the national interest of each country that suit each other remain lacking and fail in tackle the issue of Indonesia Illegal Migrant Worker in the state of Sarawak.
Even in the Malaysia itself, the dilemma of the dualism perspective between the Federal government and Sarawak's government on receiving IMW to
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Malaysia, where the Federal government stop the activity of receiving Indonesia migrant workers, but on the other hand the Sarawak government still requested the workers from Indonesia to be placed in Sarawak. This situation showing that the cooperation within the Malaysia itself is unclear.
In this thesis, the writer concludes that the cooperation between Indonesia and Malaysia in resolving the issues of illegal Indonesia migrant workers in Sarawak is fail. Although there had been cooperation attempts by each countries there is still no evidence showing progress in in reducing the number of Indonesian illegal migrant workers.
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BIBLIOGRAPHY Official Document Consulate General of the Republic of Indonesia Kuching (2016) Data dan fakta Perlindungan WNI/TKI di Sarawak, Pelaksana Fungsi Konsuler 1, 24-08-2016
Consulate General of the Republic of Indonesia Kuching (2016) Data of Indonesia Citizen committed to crime in Sarawak
Consulate General of the Republic of Indonesia Kuching (2016) SOSEK MALINDO Cooperation Report
Consulate General of the Republic of Indonesia Kuching guidance Book 2016
Consulate General of the Republic of Indonesia Kuching Indonesia Migrant Worker Award (IMWA) booklet
Sarawak Immigration Department – Attending the Seminar Management of Foreign Workers in Sarawak - TPPA & Foreign Workers- Legislative Changes in the Labour Landscape. Kuching, 19th May 2016
Journals and Internet Source
Abdul, H. and A.R. Abdul Aziz. 1997. Illegal foreign labor in Malaysia in the construction industry.
Azizah Kassim & Terence Too, 2010. The Management of Foreign Workers in Malaysia: Institutions and Governance Regime.
Azizah Kassim .1997. Illegal alien workers in Malaysia: Its influx, utilisation, and ramifications. Indonesia and the Malay world.
Azizah Kassim, 2004, National Policy and Labour Migration in the Asia Pacific: Security and Social Implications.
Azizah Kassim, 2004. Illegal Immigrants in Sabah: Their Metamorphosis and Survival Strategies.
1
Azizah Kassim, 2005a. Security and Social Implications of Cross-National Migration in Malaysia.
Azizah Kassim, 2005b. Cross-border Movement of Foreign Workers in Malaysia: A Comparative Analysis.
Azizah Kassim. 1995. From Neglect to Legalisation: The Changing State Response to the Inflow of Illegal Labour into Malaysia.
Azizah, K. 2008. Managing strangers in our midst: A critical analysis of Malaysia‟s foreign worker policy. Paper presented at the Malaysian Social Science Conference.
Badan Perencanaan Pembangunan Nasional. (2004). Strategy and Development of West Kalimantan Border, Direktorat Pengembangan Kawasan Khusus dan Tertinggal Deputi Bidang Otonomi Daeerah dan Pengembangan Regional Badan Perencanaan Pembangunan Nasional, Jakarta.
Bilson Kurus 1998. “Migrant Labour: The Sabah Experience” in Asia-Pacific Migration Journal.
CNN Indonesia (2016) Imigrasi Wajibkan Calon TKI Punyai Tabungan Minimal Rp25 Juta Accessed on 5th of June 2016 website: http://www.cnnindonesia.com/nasional/20170307143250-12-198436/imigrasi- wajibkan-calon-tki-punyai-tabungan-minimal-rp25-juta/ ILO (1959). International migration, 1945-1957, Geneva, International Labour Office
ILO, 2004, Towards a Fair Deal for Migrant Workers in the Global Economy, International Labour Conference, 92nd Session, 2004, International Labour Office, Geneva.
ILO, 2016, Review of labour migration policy in Malaysia - Tripartite Action to Enhance the Contribution of Labour Migration to Growth and Development in ASEAN (TRIANGLE II Project)
ILO. (1997). Sending workers abroad: A manual for low- and middle-income countries: ILO, Geneva.
ILO. (2004). A fair deal for migrant workers in the global economy, Geneva: Report VI, International Labour Conference, Ninety-second Session, International Labour Office. http://www.ilo.org/public/ english/standards/relm/ilc/ilc92/pdf/rep-vi.pdf
ILO. (2006). The ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration, Geneva: International Labour Office. http://www.ilo. org/public/english/protection/migrant/download/multilat_fwk_en.pdf
ILO. (2015) Bilateral Agreements and Memoranda of Understanding on Migration of Low Skilled Workers: A Review, Geneva, International Labour Office
International Relations by Mohd Azizuddin Sani, Knocks Tapiwa Zengeni
Joint statement between the republic of indonesia and malaysia at the annual consultations between president dr. H. Susilo bambang yudhoyono and prime minister dato‟ sri mohd najib bin tun abdul razak in lombok, indonesia, 20 october 2011 retrieved on Monday, October 3rd 2016 website: https://www.kln.gov.my/archive/content.php?t=3&articleId=1754579 Kanapathy, V. 2008. Controlling illegal migration: The Malaysia experience. Working Paper No. 14. ILO Regional Programme on Governance and Labour Migration, Regional Office for Asia and the Pacific.
Kanapathy, Vijayakumari. 2001. International Migration and Labour Market Adjustments in Malaysia
Kanapathy, Vijayakumari. 1997. Labour Market Issues and Skills Training: Recent Developments in Malaysia
Kanapathy, Vijayakumari. 2007 High-Skilled versus Low-Skilled Migration: Managing a Complex Agenda in Malaysia, paper presented at the International Conference and Panel Discussion on East Asian Labour Migration, Manila, 9 March (forthcoming publication by ISEAS Singapore).
Kanapathy, Vijayakumari. 2008b. „Managing Cross-border Labor Mobility in Malaysia: Two Decades of Policy Experiments.‟ PECC-ABAC Conference on International Labor Mobility, Seoul, Korea. http://www.pecc.org/resources/doc_details/690-managing-crossborder-labor- mobility-in-malaysia-two-decades-of-policy-experiments, accessed July 22, 2009.
Lahnisafitra, I. (2005), Kajian Pengembangan Wilayah Pada Kawasan Perbatasan Kalimantan Barat- Sarawak, (Study on West Kalimantan-Serawak Border Development) - Institute Teknologi Bandung.
Liow, J. 2004. Malaysia‟s approach to its illegal Indonesian migrant labour problem: Securitization, politics, or catharsis?
Liow, Joseph, 2003. Malaysia‟s Illegal Indonesian Migrant Labour Problem: In Search of Solutions, Contemporary Southeast Asia,
Mohd Zamberi Abdul Aziz. 2011. Pendatang Asing Tanpa Izin: Dasar dan Pelaksanaannya. Paper presented at the Seminar Pekerja Asing dan Pendatang Asing Tanpa Izin di Malaysia. Organised by IKMAS, UKM, 5 May.
Nor Azizan Idris. 2005. Hubungan Malaysia-Indonesia dan isu pendatang tanpa izin. In Siti Daud & Zarina Othman (eds.), Politik Dan Keselamatan. Penerbit Universiti Kebangsaan Malaysia, Bangi.
Nor Azizan, I. 2005. Hubungan Malaysia Indonesia dan isu pendatang tanpa izin. In Politik dan Keselamatan edited by D. Siti and O. Zarina. Bangi, Selangor: Penerbit Universiti Kebangsaan,
Nur Aini Zulkiflee, 1984. Refugees: A case study of Vietnamese „boat people‟ at the Sungai Besi Holding Centre, Malaysia. Academic Exercise (LLB), Law Faculty, University of Malaya.
Parveen Kaur Sarjeet Singh, 1988. Penghijrahan Pelarian/Pendatang Haram Vietnam di Malaysia: Satu kajian di Pulau Bidong, Trengganu. Academic Exercise (B.A), Jabatan Pengajian Asia Tenggara, Universiti Malaya.
Rachagan, S. S. 1991. Refugees and illegal Immigrants: The Malaysian experience with Filipino and Vietnamese refugees. In Rogge, J.R (ed.), Refugees: A Third World Dilemma,Rowman& Littlefield, University of Manitoba, pp. 253- 268.
Ragayah Haji Mat Zin. 2010. Economic Activities of Migrants in the Klang Valley, paper presented at the Malaysian Studies Conference 7, Penang, 16-18 March.
Rencana Strategis Consulate General of the Republic of Indonesia Kuching year 2015-2016
Sadiq, K. 2005. When states prefer noncitizens over citizens: Conflict over illegal immigration in Malaysia.
Sadiq, Kamal. 2005. When states prefer non-citizens over citizens: Conflict over illegal immigration into Malaysia. International Studies Quarterly, No. 49, pp. 101-122.
Sandy Nur Ikfal Raharjo, 2013. Indonesia‟s Policy on The Land Border Area Management With Malaysia (An Evaluative Study In the Entikong District)
Seminar Procedures on Employing Non-Resident Employee In Sarawak by Labour Department Sarawak. Kuching, 19th May 2016
Technical Issues and Job Order Mechanism in the Recruitment and Management of Indonesian Workers in Sarawak by Consulate General of the Republic of Indonesia
The dilemma on Migrant Worker in Sarawak (2016) retrieved on Sunday 5th February 2017 website: http://www.theborneopost.com/2016/04/10/the-foreign- worker-dilemma/