Andy Yentriyani, expert for the Indonesia Migrant Worker Union (SBMI as Relevant Party), delivering her expertise at the judicial review hearing of Law on the Protection of Indonesian Migrant Workers (PPMI Law), Monday (31/8) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—The Protection of Indonesian Migrant Workers (PPMI Law) is a crucial legal breakthrough because it provides an affirmation on anti-trafficking by punishing crimes committed by individuals, corporations, and public officials, said Andy Yentriyani of the National Commission on Violence Against Women (Komnas Perempuan) at a judicial review hearing of Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers (PPMI Law) on Monday, August 31, 2020. She was presented by the Relevant Party the Indonesia Migrant Worker Union (SBMI) as an expert.
The case No. 83/PUU-XVII/2019 was filed by the Association of Migrant Worker Placement Companies (ASPATAKI), which challenges Article 54 paragraph (1) letters a and b, Article 82 letter a, and Article 85 letter a of the PPMI Law. At the tenth hearing, Andy explained that, based on observation by Komnas Perempuan, emigration in Indonesia is dominated by women and there have been violence and exploitation therein on the basis of both sex and occupation.
Based on the commission’s data, violence and exploitation highly correlate with human trafficking, despite the existence of legislation on Indonesian workers. Indonesian migrant worker placement companies (P3MI) often feign ignorance whenever exploitation on women workers occurs. Meanwhile, the Government, who facilitated mediation, focuses more on resolving employment disputes, leaving workers who face violence be the most disadvantaged parties.
Workers’ Protection
Andy said the state actually guarantees the right to work and migrate because these are human rights and citizens’ rights and the promotion and protection of human rights is the state’s responsibility, reflected in Law No. 6 of 2012. In addition, the states recognized a special vulnerability of women and passed Law No. 7 of 1984 to ensure protection of workforce for eliminating all forms of discrimination against women.
The articles in the PPMI Law, she added, stipulates that countries of origin and destination shall regulate and supervise the private sector to ensure adequate facilities and access, promote workers’ safety, and protect women workers. Efforts to manage migration are inseparable from the national action plan on business and human rights, which ensures protection, respect, and rehabilitation. The state is obligated to protect individuals from human rights violations by third parties through adequate regulatory and judicial policies (protection). Placement companies have the responsibility to respect human rights by avoiding and preventing negative impacts from company operations (respect).
“Following the principle of rehabilitation of victims, there shall be more access of effective rehabilitation, through both judicial and non-judicial mechanisms,” Andy said before the Court led by Chief Justice Anwar Usman, along with the other constitutional justices.
State’s Obligation
Andy stated that the state has the obligation to monitor the implementation of licensing, including imposing fines. Only agents who meet the requirements should operate. The a quo articles regulate the Government\\'s obligation in managing migration in accordance with human rights standards. Andy saw the deposit required of P3MIs as guarantee should P3MIs fail to carry out their duties. Therefore, rehabilitation for migrant workers are guaranteed with compensation from the deposit.
“[I] don’t believe that the deposit reduces the P3MIs’ rights to run a business; instead, it ensures the enforcement of respect of human rights as mandated by the 1945 Constitution,” she added.
Andy said that the articles have legal loopholes needing correction, such as impunity for violators in migrant workers cases due to obscure regulation on the placement of migrant workers, fraud and coercion regarding work agreements, the absence of guidelines in reading work agreements, and placements that are not according to work agreements.
The state is obligated to ensure that work agreements are valid and protect women from discrimination and violence and that there are legal consequences for violators. The state also has the obligation of due diligence in eliminating violence through prevention, conviction, as well as victim rehabilitation. The a quo articles regulate criminal sanctions for those who deliberately place prospective workers in positions and occupations that are not in accordance with the work agreements. There is no causality between this and the Petitioner.
“In contrast, the articles provide justice for workers, eliminate impunity, and [provide] the right for equal treatment in work and living and the freedom from torture and discrimination. Komnas Perempuan doesn’t acknowledge any constitutional loss on the part of the Petitioner. Therefore, we request that the Court reject the entire petition,” Andy appealed.
Guarantee of Worker Safety
Another expert, Aviyanthi Aziz, stated that the deposits are a reflection of P3MIs’ good faith and their readiness to carry out their duties following existing laws. She said that it is simpler that the requirements in other countries, which include screening of the agencies’ criminal records. In other countries, P3MIs must have good reputation. She said that the a quo articles must be interpreted by P3MIs as a reflection of their accountability. The articles, she added, are important to limit P3MIs as intermediators that serve to meet the supply demand of workers.
“P3MIs are responsible for job opportunities, starting from placement, with the obligation to match prospective workers’ skills and job availability, to worker safety guarantee, which largely depend on pre-departure mechanisms. So, P3MIs take part in ensuring worker safety," she explained.
The third experts, Henry Thomas Simarmata, said that the a quo articles clarifies the Petitioner’ legal standing in relation to the criminal provisions in the a quo law. He added that the a quo articles are an important part in the protection of Indonesian migrant workers because the norms for protecting citizens are based on constitutional standing and property.
“This provision uses a criminal framework that is legally intended to protect citizens, namely prospective workers and effective workers. This protection confirms the constitutional standing of the workers,” he said.
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The Plight of Three Migrant Workers
The Petitioner, the Association of Migrant Worker Placement Companies (ASPATAKI), argued for their constitutional right in freedom of business, and that the criminal threats they received were uncalled for and violated the principle of material acts. They had to bear the unfortunate consequences for the actions carried out by parties who employ migrant workers.
Before concluding the session, Chief Justice Anwar reminded that the hearing would resume on Wednesday, September 16, 2020 at 11:00 WIB to hear the statements of the Relevant Party’s (SBMI) witnesses.
Writer: Sri Pujianti
Editor: Nur R.
PR: Andhini S. F.
Photographer: Gani
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 9/2/2020 12:52 WIB
Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.
Monday, August 31, 2020 | 18:43 WIB 333