The Government’s witnesses taking oath before testifying at a judicial review hearing of the Law on the Protection of Indonesian Migrant Workers, Thursday (2/22/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Migrant workers receive legal and adequate protection. The state makes national regulations and follows treaties that protect these vulnerable people. National protections should be better than those in treaties.
The statement was made by Arie Afriansyah, an instructor in international law at the Law Faculty of Universitas Indonesia, as an expert for the Indonesian Migrant Seafarers Advocacy Team (Relevant Party) at the fifth judicial review hearing 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 for case No. 127/PUU-XXI/2023 on Thursday, February 22, 2024 in the Constitutional Court’s (MK) plenary courtroom. The hearing was presided over by Chief Justice Suhartoyo and Deputy Chief Justice Saldi Isra alongside the other seven constitutional justices.
Constitutional Justice Suhartoyo asserted that international conventions are rather multilateral, where there are many interests that the documents must accommodate. Therefore, the agreement reached within a treaty is the result of a very high compromise. This means that the level of protection in treaties is agreed as a minimum protection.
Arie emphasized that the PPMI Law is the most comprehensive national regulation of the state’s efforts to protect Indonesian citizens (both migrant workers and their families) who seek a living outside the territory of Indonesia. It strongly ensures the preparation and legality of migrant workers starting from departure, work, to the completion of their work. In addition, it also ensures that labor placement meets all legal requirements for the sake of optimum protection.
“All this is regulated to protect and ensure that migrant workers get decent working conditions and prevented from negative practices such as smuggling and human trafficking,” he explained.
State’s Responsibility
Arie explained that the implementation of the obligations and rights given in the agreement will be carried out according to the procedure and rules in state. In addition to the procedure for implementing obligations, the state also determines whether it will provide or implement obligations that are the same as or even better than treaties.
The implementation of better or higher commitment at the domestic level than the obligations in treaties cannot be protested or considered as a violation of international law. This is because better protection should be afforded to citizens rather than foreign nationals.
He asserted that Indonesia’s position in the implementation of treaties into national laws is not clearly stated in the 1945 Constitution. However, Indonesia will always strive to implement its commitment and fulfill rights protected in treaties nationally. This can be seen in the implementation of regulations or transformation regulations needed to ensure the effective implementation of international obligations or rights at the domestic level.
At the hearing, the Government presented three witnesses: Purwanti Uta Djara, Abdul Rahmat, and Herman Suprayogi. Purwanti Uta Djara, head of the Employment Division of the Indonesia Economic and Trade Office to Taipei (KDEI), said that the PPMI Law is very important for labor attachés as the main guide in providing protection for migrant seafarers and fishery crews. Without it, labor attachés and KDEI to Taipei would have difficulties handling various cases involving migrant seafarers and finshing crews.
He also hoped that the PPMI Law and Government Regulation (PP) No. 22 of 2022 would continue to be a reference in handling cases of migrant seafarers and fishing crews. He believes there would be no overlapping rules if all parties carry out their duties and roles in accordance with existing regulations.
“[I] need to convey at this hearing that during [my] duty in Taiwan, [I] have never received complaints from migrant commercial ship crews and migrant fishing crew members regarding the loss of protection for them since they were categorized as Indonesian migrant workers in the PPMI Law,” he said.
Meanwhile, Abdul Rahmat, a fishing crew member of a Taiwanese ship, revealed that in 2011, the ship operated in the Atlantic Ocean. He also said his agency and/or employer did not comply with the work agreement they had agreed upon.
“I was not given wages and other rights. Approximately two years’ worth of wages were not paid on the grounds that the agency and/or employer was bankrupt,” Rahmat explained.
Upon arrival in Indonesia, he complained to the relevant agency and the Ministry of Manpower and Transmigration. However, the agency could not settle the problem because there were no rules and/or laws regarding seafarers in the fishery sector abroad.
“So the only way was to make a criminal report to the Criminal Investigation Unit of the National Police related to the criminal acts of human trafficking (TPPO) based on [my] attorney’s advice. However, in the criminal domain, [my] rights during work would automatically be lost because there are no provisions in Law No. 21 of 2007 on TPPO on [the obligation to] fulfill my rights during work,” he continued.
Rahmat emphasized that the old law has not provided protection for crew members, especially fishing crews. “I personally thank God for and welcome Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers, because the government is present to provide legal protection and exercise the mandate of Article 28 paragraph (1) of the 1945 Constitution that everyone is entitled to recognition, guarantee, protection, fair legal certainty, and equal treatment before the law, so it is very clear that this PPMI Law through Article 4 paragraph (1) letter c has provided legal protection for Indonesian migrant workers [including] fishing crews,” he said.
Also read:
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Petitioners’ Expert: Seafarers Are Not Migrant Workers
On Wednesday, October 11, the Court held the preliminary material judicial review hearing of Article 4 paragraph (1) letter c of Law No. 18 of 2017 (PPMI Law). The case No. 127/PUU-XXI/2023 was filed by chairman of the Association of Indonesian Fishery Workers (Asosiasi Pekerja Perikanan Indonesia or AP2I) Imam Syafi’i, Untung Dihako, and PT Mirana Nusantara Indonesia director Ahmad Daryoko (Petitioners I-III).
The Petitioners argue 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.
The ship crew agency company of Petitioner III 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.
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.
Author : Utami Argawati
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.
Thursday, February 22, 2024 | 16:20 WIB 196