AP2I, Ship Crew Agent Object to Inclusion of Fishing Crews as Migrant Workers

The Petitioners’ legal counsels at the panel preliminary hearing of the material judicial review of Wednesday Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers, Wednesday (10/11/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — General chairman of the Association of Indonesian Fishery Workers (Asosiasi Pekerja Perikanan Indonesia or AP2I) Imam Syafi’i and PT Mirana Nusantara Indonesia director Ahmad Daryoko (Petitioners I-II) challenges the material of Article 4 paragraph (1) letter c of Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers (PPMI Law) as amended by Law No. 6 of 2023 on the Stipulation of the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law to the Constitutional Court (MK). The preliminary hearing for case No. 127/PUU-XXI/2023 took place on Wednesday, October 11, 2023 in one of the Court’s panel courtrooms.

Through legal counsel Denny Ardiansyah, the Petitioners argued that Article 4 paragraph (1) letter c of the PPMI Law (“Migrant workers of Indonesia shall include: … c. ship crews and fishing crews.”) is against Article 28D paragraphs (1) and (2), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution.

Petitioner I believes that the enforcement of the norm has led to overlapping regulations at several levels, such as Law No. 17 of 2008 on Shipping, Government Regulation (PP) No. 22 of 2022 on the Placement and Protection of Migrant Commercial Ship Crews and Migrant Fishing Ship Crews. The transfer of authority on shipping from the Ministry of Transportation to the Ministry of Manpower and the Indonesian Migrant Worker Protection Agency (BP2MI), so that the guarantee of protection and rights for ship crews and fishing crews that has been formulated in shipping statutory legislation cannot be applied.

Meanwhile, Petitioner II is the director of a ship crew agency, whose company has also been harmed by the a quo norm. He was obligated to have a migrant worker recruitment permit issued by the head of the BP2MI as referred to in Article 72 letter c of the PPMI Law. Due to this provision, he was declared a suspect and is undergoing detainment process with the investigators of the Police Criminal Investigations Directorate of Central Java on a human trafficking charge. In addition, the norm could potentially harm him in doing ship crew agency business. He used to cooperate with foreign ship crew agencies of countries that Indonesia both does and does not have diplomatic ties.

“So, the loss of Petitioner I due to this norm in relation to the need for protection and different rights of migrant workers residing in a certain country and seamen who are nomad workers. Meanwhile, for Petitioner II, it relates to business sustainability and criminalization due to overlapping administrative requirements,” Denny said before Constitutional Justices Manahan M. P. Sitompul, Arief Hidayat, and Daniel Yusmic P. Foekh.

Therefore, in the petitum, the Petitioners request the Court to declare Article 4 paragraph (1) letter c of the PPMI Law as amended by the Job Creation Law in violation of Article 28D paragraphs (1) and (2), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution and not legally binding.

Justices’ Advice

Constitutional Justice Daniel Yusmic P. Foekh stressed the Petitioners’ need to emphasize the contradiction between the norm being petitioned and articles in the 1945 Constitution, not regulations under a law, since the Constitutional Court’s authority is reviewing laws against the 1945 Constitution.

Meanwhile, Constitutional Justice Arief Hidayat said the petition’s object, the elaboration of the Constitutional Court’s authority and its legal bases, the petition’s background, and the petitum must be accurate. “In the petition’s background, there should be an elaboration of the contrast between the norm being petitioned and articles in the 1945 Constitution; whether it is consistent or not with what is wished for,” he said.

Next, Constitutional Justice Manahan M. P. Sitompul stressed the need for proof of the Petitioner’s representation for his legal entity to argue about his constitutional impairment, not just economic loss from the concrete case.

At the end of the hearing, Justice Manahan announced that the Petitioners would have 14 workdays to revise the petition. The revised petition must be submitted to the Registrar’s Office no later than Tuesday, October 24, 2023 at 09:00 WIB.  

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Wednesday, October 11, 2023 | 15:21 WIB 356