2015

International Journal of Business, Economics and Law, Vol. 7, Issue 3 (Aug.)

PROTECTING MIGRANT WORKERS, AN INDONESIAN EXPERIENCES

I Made Pasek Diantha

ABSTRACT

Indonesian had placed a lot of migrant workers in overseas as well as in ASEAN countries. There had two sides effect of migrant
workers working in abroad, such as positive effects and negative effects. Positive side, their existence of migrant workers in
abroad could anticipated the problem of unemployment in the country, while negative effects was they often to be as victims of
cruel and inhuman treatment from her employers. Indonesia recently had ratified the International Convention On Migrant
Workers and Their Families 1990 (ICMW). By doing so hopely the other fellow member of ASEAN countries doing the same
except the Philippine. The main purpose to ratify, is in order the Indonesian migrant workers which exist in ASEAN countries be
able to get optimum protections as enshrined in the ICMW respectively.

Key words : Protecting, Migrant Workers, Indonesian Experiences, ICMW

Introduction

In this era of globalization, the migration of people a cross the world were most increasingly. Migration is the right of person to
move to other countries which guarantee by the international law of human rights as enshrined in the International Bill of Rights.
The purpose of this basic rights is to improve development of economic, social and cultural life of those persons (Stephen James;
2007 : 195). By the end of twentieth centurys, the moral truth of human rights clearly recognized by the international
community and often said that rest on a sympathetic identification of deep conscience of human being (Robert Meister; 2011 :
20). Thus, the rights to gain job in other countries through migration mechanism may be deemed as a rights of persons to
improve their economic life, actually can be said as universal human rights, since it is part of the right to life. (Paulina
Tambakaki; 2010 : 8).

In conjunction with person of migrant workers, those basic rights further has been formulated in details by the United Nations in
1990. The 1990 UN Convention concerning, the protection of the rights of all migrant worker and members of their families
(ICMW) entry into force on 2003, 13 years after its passing (Jennifer Yau, 2005). Due to the elaborate of its formulation L Rao
Penna called the ICMW as modern Magna Charta of migrant workers (L Penna Rao; 1993 : 179)
.
The ICMW consit of 9 parts and 93 articles. Most of the provisions of ICMW, derived from the substance of several main
international instruments of human rights such as; Universal Declaration of Human Rights; International Covenant of Economic,
Social and Cultural Rights; International Covenant of Civil and Political Rights; International Convention of the Elimination of
All Forms of Racial Discrimination; Convention on the Eliminations of Discrimination Against Women; Convention of the
Rights of the Child; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment; as well as
the substance of some ILO conventions as long as any retaliation with migrant workers and their families. Those all were stated
in the preamble of ICMW.

The main parts of the ICMW are Part III, Part IV and Part V. Part III contain provisions applicable to all migrant workers and
members of their families irrespective provisions applicable to migrant worker and members of their families which possessing
legal status. While Part V regarding the rights of particular categories of migrant workers.

Part III of ICMW consist of 28 articles, from article 8 to article 35, embodying rights of undocumented and documented migrant
workers and their families such as among other; rights to freedom movement to and from their countries of origin; right to life; to
free from slavery; freedom of thought, expression, conscience and religion; right to privacy and property; rights in connection
with all aspects of due process; right of equal treatment with national dealing with remuneration etc; right same treatment as
national regarding social security etc; right to emergency medical care; rights in retaliation with children; right to preserve a
cultural identity; right to transfer earning and saving; rights to information by state of origin, state of employment and state of
transit especially concerning the right arising from the ICMW.

The validity of Part III, or the ambit of article 8 to article 35 can be traced upon the pivotal provision of article 7 of the ICMW,
which stated that :
States parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to
all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in
the present convention (Addition underline).

53
 2015
International Journal of Business, Economics and Law, Vol. 7, Issue 3 (Aug.)
ISSN 2289-1552

The phrase with underline saying : within their territory and not saying by license to permit to their territory, it mean that
who ever foreigner exist in the territory irrespective of their license to permit or irrespective of their legal or illegal status, are
entitle to gain their rights enshrines in the ICMW.

Meanwhile, Part IV of ICMW consist of article 57, contain rights only applicable to documented migrant worker and their
families such as, among others : right to temporarily absent; right to freedom of movement in the territory of employment; rights
to from association and trade union; right to equality with national in respect of protection against dismissal; rights to address his
or her case to local authorities in the state of employment dealing with violation of work contract by their employer; right to
participate in public affairs of the state of origin; political right in the state of origin; and the rights to information.

On the other side, Part V which consist of 7 articles as from article 57 to article 63 applicable to migrant workers and their
families which have particular categories. Such categories are : frontier workers, seasonal workers, itinerant workers, project-tied
workers, specified employment workers and self employed workers. In general, all of them also have the rights in accordance
with Part IV.

Due to the strategic values of the substances of ICMW in protecting migrant workers, of course it can be said as a break through
of the UN effort in realizing the principle of dignity of human kind belong to migrant workers and their families. In such away
the character of ICMW was gained a character of law making treaty, since its adopted by general assembly which need
further consent of states for it binding force (J.G. Starke; 1967 : 41-42). International law doctrine recognized two kinds of
consent : tacit consent and express consent. Tacit consent mean that a state tacitly absorbed some points of principles or norms
of the treaty, then formulated it on national regulation, and this way of course did not generating and international obligation
emerge from the treaty concern. While, express consent mean, states express their consent by several ways such as, by signature,
exchange of instrument, ratification and accession (Malcolm N Shaw; 2008 : 909 910).

In connection with the ASEAN atmosphere to day, and on behalf of the spirit of cooperation among its member countries, it is
time for them to pay more attention to pivotal values of ICMW in handling their regional issues of migrant workers and their
families. Concrete action will be seen in their conduct in implementing the ICMW, wether by tacit consent or by express
consent.

I. Indonesian experience on migrant workers

Until right now on 2013, Indonesian population estimated around 250 millions, and around 28.07 millions among them were in
category of poor inhabitant (http://www.bps.go.ic/news=1203; 6-8-2013). This circumstances presumably as a factor to
encourage and effort of the poor increasing their level of economic life by seeking job in abroad as migrant worker. They
migrated to countries all over the world, among others to the ASEAN countries such as : Brunei, Malaysia and Singapore. Most
of them were consist of maids or household servant which often facing sadness treatment from their employer as well as torture
and sexual humiliation which degrading their dignity as human being.

Some secondary facts demonstrated those outrage and inhuman treatment such as :

(1) Reported on 31 May 2012, that Hartati a maid from Central Java getting paralyzed and permanent disable
due to often tortures by her cruel employer by way of soldering electrical tool to her body. Then, she
thrown away and abandoned in Penang, Malaysia. (http://www.merdeka.com/peristiwa/tkw-asal-tegal-
dijebloskan-ke-penjara-dan-dibuang; 1-8-2013).
(2) Reported on 12 November 2012; Violence against Indonesian maid occurred again in Malaysia. On this
occasion the culprits was 3 individual Malaysia polices. Some commentator in Indonesia said, this was
actually a conduct which degrading women dignity and hopely never done again in the future. Due to the
good relationship principle among neighboring countries, especially in the frame work of establishing
ASEAN community harmonically. (http://luar-negeri-kompasiana.com/2012/11/12/tki-wanita-kembali-
menjadi-korban-kekerasan-di-malaysia-507687.html; 4-8-2013).
(3) Reported on 28 November 2012, the sources said that a maid from Deli Serdang, North Sumatera falling
down from fourth store of an apartment in Penang, Malaysia and then she died. She escaped from her
employer using a string and soon the string became broken off. (http://www.merdeka.com/peristiwa/jatuh-
dari-lantai-4-tkw-meninggal-di-malaysia.html; 1-8-2013).
(4) Sources said on November 2012, fugitive incident occurred again in Selayor Malaysia. A maid from
Kalumpang, West Sulawesi, Sukini escaped from her cruel employer and the was feld irresistible from
several conducts of her employer. Her employer often tutored, giving abusive words and prohibit her to
communicate with others person including with her family. She some occasions wrote some massages on
a tissue and send to her friend, hopely her friend could take effort to save her from her employer. Should
her friend fail to help, she will escapes by jumping from ninth floors of the condonium, due to irresistible
feeling. Her friend which has equal profession as a maid has not any power to save her, and finally she
take serious risk jump from ninth floors and found died. (http://www.merdeka.com/peristiwa/hindari-
siksaan-tki-di-malaysia-tewas-saat-melarikan-diri.html; 1-8-2013.
(5) Another story from Singapore, reported on 21 February 2012. A Singaporean man 44 years old had
conducted an outrage action by rape and torture to Indonesian maid. The maid who was cleaning electrical
box beyond her boss room, suddenly being embraced by him from behind and forced her to do sexual
intercourse in his room. After finishing his immoral conduct, he thrown down the maid from second

54
 2015
International Journal of Business, Economics and Law, Vol. 7, Issue 3 (Aug.)
ISSN 2289-1552

floor and then the police found the maid with seriously wounded. In Singapore, source said, in 2012
maids often suffering from abuse manner as it was reported by Indonesian mass-
media.(http://www.merdeka.com/ dunia/aniaya-penjara-seumur-hidup.html; 1-8-2013).
(6) Sad story also reported on 28 February 2013. A sexual harassment happened over Indonesian maid in
Singapore. Ibrahim Mohamad 51 years old humiliates an household servant by torturing, embracing,
kissing and caressing her breast and buttocks. The maid was hired by his daughter in law to work in his
house. After severals hearing in the court, finally Ibrahim found guilty and sentenced in jail for 2 months.
(http://www.merdeka.com/dunia-tki-pria-singapura-di-penjara-22-bulan.html; 1-8-2013.

The cases mentioned above just a few of salients cases which happened at the member of ASEAN countries e.g. Malaysia and
Singapore. Actually many other cases was occurred in Malaysia and Singapore every year since presumable five years later, but
not all reported here in this writing. Beyond ASEAN countries for instance in Saudi Arabia and Jordan also often reported such
equal sad stories.

In Arab Saudi as reported on 17 November 2010 had already happened an incident with take great concern of human conscience.
Employer as mother and daughter had conducted an outrage action to cut her maids mouth with scissors, skin of mouth and skin
of head of the maid being peeled off, her legs being struck until paralyzed. She also often suffered from illness due to her
employers without a pity to ironed her skin cruelly. (http://news.detik.com/read/ 2010/11/17/0395525/1495985/10/pemerintah-
harus-jamin-keamanan-tki; 1-8-2013).

In Jordan as reported on 17 April 2013 two Indonesia sibling maids get tortured from their employer during their work to make
bread with unclear reason. Sadly, their salaries never paid during years they work. Their recruitment agent did not care about this
and escape from responsibility, whereas the placement of those maid were inofficially procedures. Soon after they came back
home to Sukabumi (west Java) both of them suffering mental break down and then tied by chains. Their rights to gain payment
from their employer in Jordan then handled by the Local Union of Migrant workers in Sukabumi in Coordination with National
Agency on Placement and Protection of Indonesian Migrant Workers or BNP2TKI. (htpp:www.merdeka.com/ peristiwa/disiksa-
gaji-tak-dibayarkan-tki-ini-pulang-ke-rumah-jadi-gila.html; 1-8-2013).

The question is, why did generally migrant workers especially those which categories as maid or household servant often treated
inhuman, tortured, raped, and others degrading actions from their employers ? There are many factors may be caused that
problems such as : (1). Maids as migrant workers are particularly a vulnerable groups due to their very low standard of economic
life; (2). They face serious obstacles in term of access to information services; (3). They seldom have the equal degree of access
of protection as citizens; (4). Local populations did not always appreciate or understand the impact and value of migrant workers
on economics and societies. (Vernand de Varennes; 2003 : 7).

However, from legal perspective apparently should be envisaged the lack of legal instrument wether bilateral, regional or
international level dealing with protection of migrant workers, especially in a country which does not ratify the ICMW yet.

II. Main obstacles

The main obstacle for Indonesian in protecting its migrant workers in abroad is that the of the host state does not ratify the
ICMW yet. According to the basic principle of international law; a state does not ratify an international convention, there is no
international legal obligation and responsibility emerged from that convention. In other words, that a breach of convention by
a state party, entails its international responsibility over the other state parties, that is to say as internationally wrongful act. An
internationally wrongful act of a state may consist of one or more action or omission or combination of both. (James Crawford;
2005 : 77). In last analysis; should a state does not ratifies the ICMW its never has legal obligation to obey all of ICMW
provisions, since the ICMW has not legal binding to that state concern.

From Indonesian side, Indonesia had already signed the ICMW on 22 September 2004 and ratified on 31 May 2012. This ratify
was based on the Law No. 6 / 2012, concerning ratification of International Convention of Migrant Workers and Their Families,
1990.
How is the positions of ASEAN members countries relating to status of ICMW ? The status as seen on 16 July 2013 was :
Combodia had signed on 27 September 2004, but did not ratify yet; Indonesia as mentioned above, signed on 22 September
2004, ratified on 31 May 2012, Philippine signed on 15 November 1993 and ratified on 5 July 1995. Those were all consist of
the full member countries of ASEAN, while the candidate of member country such as Timor Leste had ratified on 30 January
2004. (http://treaties.un.org/pages/viewdetails.aspx?src; 27-7-2013). That phenomenon shwon, most of the full members of
ASEAN countries seen reluctantly to ratify the ICMW. Above all, Malaysia and Singapore as founding fathers of ASEAN which
Indonesia had placed in great number of migrant workers in both countries also did not ratify ICMW yet. This is the real
obstacle of Indonesia in giving protection to its migrant workers in overseas especially in countries as fellow member of
ASEAN. Indonesia as founding father ASEAN ought to urge the fellow members to ratify the ICMW at least absorb them to its
national legislation based on universal moral rights as was enshrined in Universal Declation of Human Rights (David Reidy;
2012 : 43). Besides, as pointed out by Antonio Cassese, the dignity of human being is a basic value that every state should try to
protect (Antonio Cassese; 2005 : 397).

What did the general reasons, why countries reluctantly to ratify the ICMW ? There were at least five reasons for doing so, such
as : (1). Its incompatibility with the national legislations; (2). Domestic challenges in matters of administration to implement

55
 2015
International Journal of Business, Economics and Law, Vol. 7, Issue 3 (Aug.)
ISSN 2289-1552

those ambitious texts of ICMW; (3). Lack of awareness and knowledge of the ICMW; (4). The absence of adequate promotional
activity; (5). And most saliently, lack of political will (Ryszard Choleinsky; 2005).

Lack of political will also caused lack of optimum function of diplomatic protection since the diplomatic protection is an
elementary protection according to international law (Carmen Triburcio; 2001, 37).

Indeed, lack of political will was the main factor caused countries reluctantly to ratify the ICMW. Many countries try to
overcome their reluctance by making reservation or declaration in ratifying the ICMW. On the ground of complication between
ICMW and their national legislation for instance, Chile made reservation to article 22 paragraph (5) concerning compensation of
migrant worker in case of facing deporting; Columbia puts reservation in the implementation of articles 15, 14 and 47 dealing
with the right to compensations, the right to free import-export text, the right to transfer assets, which stated that all of those right
are perform according to Columbian legislation; Srilangka imposed reservation to article 8 (2), 29, 49, 54 each concerning the
right to enter and remain in Srilangka, the qualifications a child to be citizen when they born in the territory of Srilangka, kinds
of job which need certain qualifications, protection against dismissal; also Turkey puts declaration to article 40, 45, and 46; each
regarding Turkish law allows only Turkish citizen to form trade union in Turkey, integration and language education for children
of migrant workers, and right to freely from import export text. On the other hand, reservation or declaration often made on the
ground of abilities to perform; for instance : Turkey made declaration to articles 76 and 77 stating that Turkey will recognize the
competence of committee on the protection of the rights of all migrant workers and member of their families at a later time;
mean while Uganda puts reservation to article 18 which said that the Republic of Uganda cannot guarantee at all times to provide
free legal assistance in accordance with the privations of article 18 paragraph 3 (d).
(http://treaties.un.org/pages/viewdetail.aspx?src; 27-7-2013).

III. Next steps

In anticipating the obstacles, Indonesia in the next future ought to make every effort such as :

(1) To encourage the fellow of ASEAN members to pay more attention to ICMW, although it is with full of
difficulties exhausted and patients. For the countries which reluctantly to ratify, they could absorb some
points and principles of ICMW in to their national legislation.
(2) In the legislation, should they have any political will, in long run urge the ASEAN members wish to ratify
the ICMW, they can put any reservations or declarations as others countries beyond ASEAN members
had done. Again it needs political will of ASEAN member countries which did not ratify the ICMW yet.
(3) Indonesia has already umbrella law in protecting its migrant workers in overseas, it is Law No. 39/2004
concerning placement and protection of Indonesian Migrant workers in abroad, apparently this law was
unbalance in regulating between the matters of placement and the matter of protection. Too much number
of provisions to regulate the matter of placement which consist of 67 provisions e.g. from article 10 until
article 76 (Part IV and V), on the other hand provision concerning protection just consist of 7 articles e.g.
from article 77 until article 84 (Part VI). Many suggestions arise from viewers, NGOs, migrant workers,
they affirmed this law soon be improved, provided for the need of more detail and more concrete
protection of migrant worker in abroad. It seen now the process of improvement is on going. Parliaments
should give priority deliberation, in order shortly the improvement of this law could be finished.
(4) In connection with protection of migrant workers which had categories as a maid or house-hold servant,
the government of Indonesia must uphold the implementation of article 102 strictly and tightly. This
article imposing criminal sanction to some one or to unlicensed agent which placed migrant workers in
abroad with minimum 2 years in jaild and maximum 10 years. Due to maid are vulnerable group of life
and poverty, lack of knowledge and information, they often become victims of their employer.
(5) For the more effective protection of Indonesia migrant workers in abroad, several main provisions of law
no. 39/2004 must be considered. Article 6 stating that government responsible for increasing protection of
migrant workers in abroad. Article 7 (d) said that for the optimal protection, government has to conduct
diplomatic efforts in receiving state. Regarding control to migrant workers in abroad article 92 (2) gives
power to the office of Indonesian embassy or consular. The very important provision is article 27 stating
that the placement of Indonesian migrant workers only in the country which had already a written
agreement with Indonesia. For this purpose article 78 (2) said the government may set up an office of
attach of man power in those certain Indonesian embassy.

Considering the wording of article 27, it is relevant to perform in ASEAN countries which did not ratify the ICMW yet. For
Indonesia, such bilateral agreement is solely legal ground for regulated their rights and obligations in a very detail norms on
those existing bilateral agreement. Including for instance the rights of the sending state to do random visit as directly protection
to the address of the maid or address of her employer, as well as the maid reports regularly to the office of embassy or consular,
regarding her real existence. This must be allowed by the receiving state since according to general principle of international law,
any sovereign state can not perform their sovereignty in another sovereign state (par imparem non habet imperium). Also for
instance, the receiving state agree to provided a call center in local authority to which the maid could immediately call for help if
any emergency situation occurred to herself. It considered also importance in bilateral agreement imposing the obligation of the
employers to report regularly concerning the existence of their maid to local official of the receiving state, hence through the
local official then submit the report to embassy or consoler of the sending state.

56
 2015
International Journal of Business, Economics and Law, Vol. 7, Issue 3 (Aug.)
ISSN 2289-1552

Since such bilateral agreement need to regulate a real and detail obligation, it legal status many increased to higher status to be a
bilateral treaty by reason : (a) Parliament of receiving state must recognized and give consent, especially in connection with the
state budget due to wide obligation of government added in the agreement; (b) a treaty which made in bilateral character is
actually a law making treaty both of them and have strong legal basic for addressing their bilateral problems; (c). for those
countries which did not ratify the ICMW, within the bilateral treaty they can absorb the relevant principles of ICMW and others
UN Human Rights Instrument.

Conclusion

Indonesia has a great number of migrant workers in abroad among others in ASEAN fellow member countries. Most of those
migrant workers are consist of maids or house hold servants whether they sent by legal procedures or illegal procedures. They
often suffering from treatment of cruel, inhuman, and degrading their dignity as human being. This was occurred in many
countries including in ASEAN countries, due to their vulnerable condition.

As democratic state, Indonesia had ratified the International Convention on Migrant Workers and Their Families (ICMW). By
doing so, Indonesia wish to express its respect for human rights of migrant workers which sent to Indonesia. Nevertheless, it is
regrettable, most of ASEAN countries did not ratify the ICMW yet, except Philippine, as well as Combodia just had signed it.
Indonesia as one of the founding father of ASEAN, ought to have strong effort and without exhausted, urges the fellow ASEAN
members wish to ratify ICMW based on spirit of ASEAN cooperation.

Should the member countries failed to ratify, it urge in short term, be sufficienly to absorb ICMW into its national legislation as
further become the legal basic in establishing bilateral or multilateral treaty or agreement concerning protection of migrant
workers within ASEAN countries.

References

Cassese, Antonio (2005). International Law, Oxford University Press, Exfor etc.
Cholewinski, Ryzard (2005). Protecting Workers in Globalized World, University of Leicester.
Crawford, James (2005). The International Law Commissions Articles on State Responsibility, Cambridge University Press,
New York.
James, Stephen (2007). Universal Hunan Rights, Origin and Development, LFB Scholarly Publishing LLC, New York.
Meister, Robert (2011). After Evil, A Politics of Human Rights, Columbia University Press, New York.
Penna, L Rai (1993). Some Salient Human Rights in the Convention on Migrant Workers, Asian and Pacific Migration Journal,
Vol. 2, No. 2.
Reidy, David (2012). Philosophy and Human Rights, Contemporary Perspective, in the Philosophical Dimensions of Human
Rights, edited by Claudio Corradetti, Springer, London.
Shaw, Malcolm N. (2008). International Law, Cambridge University Press, New York, etc.
Starke, J G. (1967). Introduction to International Law, Butterworths, London.
Tambakaki, Paulina (2010). Human Rights or Citizenship, Birkbeck Law Press, New York.
Tiburcio, Carmen (2001), The Human Rights of Aliens Under International and Comparative Law, Martinus Nijhoff Publishers,
The Hague, etc.
VArennes, Ferdinand de (2003). Strangers in Foreign Land, Diversity, Vurnerability and the Rights of Migrants, UNESCO
Management of Social Transformation Programme, New York.
Yau, Jennifer (2005). Promise and Prospect of the UNs Convention on Migrant Workers, Migration Policy Institute,
Washington.
_______; International Convention on Migrant Workers and Their Families, 1990.
_______; Law No. 39, 2004 Concerning Placement and Protection of Migrant Workers.

57