CONSTITUTIONAL RIGHTS OF REFUGEES AND

ASYLUM SEEKERS IN INDONESIA

by:
Prof. Luthfi Widagdo Eddyono, S.H., M.H., LL.M., Ph.D.1
Researcher at Mahkamah Konstitusi
Jalan Medan Merdeka Barat Nomor 6 Jakarta Pusat Indonesia
[email protected]

Abstract
According to UNHCR, there were more than 14000 person of concern (refugees and asylum‐
seeker) in Indonesia. This figure includes refugees and asylum seekers from 44 nationality.
Meanwhile, Indonesia is not a party to the 1951 Refugee Convention or its 1967 Protocol.
However, it has a long tradition of hosting refugees and asylum‐seekers, and the government has
authorised UNHCR to help protect and find solutions for them. Indonesia government allows
refugees and asylum seekers to stay in Indonesia as long as they have registration documents from
the UNHCR.
Indonesia rules ensure that refugees and asylum‐seekers have access to UNHCR and allow them
to remain temporarily in the country until their refugee status can be confirmed, and appropriate
solutions can be found for them. Unfortunately, refugees and asylum seekers (and stateless people)
in Indonesia have difficulty living in this country. They do not have work permits and do not
receive enough social assistance from the Indonesia n government. In late 2016 the President of
the Republic of Indonesia signed the Presidential regulation on the Handling of Refugees, which
which contains crucial definitions and sets out processes for the detection, shelter and safeguarding

1 Luthfi Widagdo Eddyono is currently employed by the Constitutional Court of

Indonesia as a researcher. He is also active at Center for Democratization Studies,
Indonesia . He was part of “Democracy and Human Rights in Malaysia and Indonesia :
Path and Outcomes” a SHAPE-SEA project organized by the Southeast Asian Human
Rights Studies Network (SEAHRN), the ASEAN University Network (AUN) and
University of Malaya, Malaysia as a researcher. In 2015, he selected as an Asia Young
Leader for Democracy from Taiwan Foundation for Democracy.

1
of refugees and asylum-seekers. Indonesia hosts some 13840 refugees from some 49 different
country as of December 2017, with roughly half originating from Afghanistan. It is anticipated
that provisions contained within the Presidential Regulation will be implemented shortly and that
it will bring about closer working relationships between the Indonesian Government and UNHCR,
including joint registration of asylum-seekers. As result, the Government authorizes UNHCR to
carry out its refugee protection mandate and to identify solutions for refugees in the country. on
2016 and 2017 the number of persons registering with UNHCR has remained relatively
stable. Indonesia is not a party to the 1951 Convention relating to the Status of Refugees or its
1967 Protocol, nor does it have a national refugee status determination system. Arrivals slowed
down from 2003 to 2008 but again picked up in 2009.
This paper intends to find out if refugees and asylum‐seekers have constitutional rights as regulated
by the 1945 Constitution and domestic law. Furthermore, this paper aims to review legislation that
can provide assistance and protection, including Presidential Regulation Number 125 of 2016 and
other rules.

Keyword: Refugees and Asylum seekers, Constitutional rights, 1945 Constitution, UNCHR

Introduction
Surrounded by countries hosting large numbers of asylum-seekers and refugees, such as
malaysian, thailand and australia, Indonesia is impacted regularly by mixed population
movements. After a lull during the late 1990s, the number of asylum-seekers arriving in Indonesia
began to increase in late 2000, 2001 and 2002. Arrivals slowed down from 2003 to 2008 but again
picked up in 2009. on 2016 and 2017 the number of persons registering with UNHCR has remained
relatively stable. Indonesia hosts some 13840 refugees from some 49 different country as of
December 2017, with roughly half originating from Afghanistan. 2
Indonesia is not a party to the 1951 Convention relating to the Status of Refugees or its
1967 Protocol, nor does it have a national refugee status determination system. as result, the
Government authorises UNHCR to carry out its refugee protection mandate and to identify
solutions for refugees in the country. In late 2016 the President of the Republic of Indonesia signed
the presidential regulation on the Handling of Refugees, which contains crucial definitions and

2 https://www.unhcr.org/id/en/unhcr-in-Indonesia .

2
sets out processes for the detection, shelter and safeguarding of refugees and asylum-seekers. It is
anticipated that provisions contained within the Presidential Regulation will be implemented
shortly and that it will bring about closer working relationships between the Indonesian
Government and UNHCR, including joint registration of asylum-seekers.3
This paper intends to find out if refugees and asylum‐seekers have constitutional rights as
regulated by the 1945 Constitution and domestic law. Furthermore, this paper aims to review
legislation that can provide protection, including Presidential regulation Number 125 Year 2016
and other rules to find a solution for fulfilling the rights of refugees and asylum seeker in Indonesia.

Constitutional rights of refugees and asylum seeker

According to Jimly Asshidddiqie, the original text of the 1945 Constitution contains 71
points of provisions, then, after going through four amendments, between 1999 and 2002, the
material or content of the 1945 constitution covers 199 aspects of rules.4 The change was
stipulated and conducted gradually and became one of the agendas of the meetings of the People
Consultative Assembly (Majelis Permusyawaratan Rakyat, MPR) from 1999 until 2002.5 It
happened after the resignation of President Soeharto on 21 May 1998, that already in power for
almost 32 years.6

3 Ibid.
4 Jimly Asshiddiqie, “Struktur Ketatanegaraan Indonesia Setelah Perubahan Keempat
UUD Tahun 1945”, paper was presented in the Symposium convened by the National
Law Fostering Agency (Badan Pembinaan Hukum Nasional), the Department of Justice
and Human Rights, 2003, p. 1 on Jimly Asshiddiqie, “The Role of Constitutional
Courts In The Promotion of Universal Peace and Civilization Dialogues Among
Nations”, paper was presented in the International Symposium on “the Role of
Constitutional Courts on Universal Peace and Meeting of Civilizations”, Ankara, April
25, 2007, p. 6-7.
5 Jimly Asshiddiqie, The Role of Constitutional Courts, p. 5.
6 Moh. Mahfud MD, ini his speech of the World Conference on Constitutional Justice,

Cape Town 2009, states, “In the era prior to the amendments to the 1945 Constitution
made in 1999–2002, authoritarianism had always been the actual practice, despite the
fact that Indonesia adheres to a democratic system in the formal provisions of the
Constitution. During this era, many legislations were deemed to be contradictory to
the Constitution, but there was only one way to have them amended, namely through
legislative review. It was difficult to do considering that the legislative body was

3
 In the reform era, Indonesia has taken comprehensive reform measures by bringing the
sovereignty back to the hand of the people. The peak of such efforts was the amendments to the
1945 Constitution which were made within four consecutive years, namely the First amandment
in 1999, the Second amandment in 2000, the Third amandment in 2001, and the Fourth amandment
in 2002. 7 The objectives of the amandment were to complement the basic rules of living as a state,
which caused the abuse of power in the past.8
The Second amandment that stipulated on August 18, 2000 was conducted in the Annual
Meeting of the People’s Consultative Assembly in 2000, which covers article 18, article 18a,
article 18b, article 19, article 20 paragraph (5), article 20a, article 22a, article 22b, Chapter IXA,
Article 28A, Article 28B, Article 28C, Article 28C, Article 28D, Article 28E, Article 28F, Article
28G, Article 28H, Article 28I, Article 28J, Chapter XII, Article 30, Chapter XV, Article 36A,
Article 36B, and Article 36C of the 1945 Constitution. This Second Amendment covers issues
regarding state territory and regional governance, perfecting the first amendment in the matters
about the strengthening of the position of the House of People’s Representative, and detailed
provisions regarding Human Rights.9

SECTION XA - FUNDAMENTAL HUMAN RIGHTS10

Article 28A
Each person has the right to live and the right to defend his life and existence.

Article 28B

politically dominated by the President, either due to his position as a state body which
is also involved in the law-making process together with the People’s Legislative
Assembly or his cooptation of all political parties. Such executive heavy configuration
placed the President as the determiner of all national political agenda.” Moh. Mahfud
MD, “Speech” in the World Conference on Constitutional Justice, Cape Town, 2009, p.
2.
7 Read more Luthfi Widagdo Eddyono, “The Constitutional Rights To Water And Food

In Indonesia ”, http://www.ocerints.org/intcess19_e-publication/papers/104.pdf.
8 Moh. Mahfud MD, “The Role of the Constitutional Court in the Development of

Democracy in Indonesia ”, paper is presented in the World Conference on

Constitutional Justice, Cape Town, January 23-24, 2009, p. 1. Also see Pan Mohamad
Faiz, 2019, Amandemen Konstitusi, Jakarta, Rajawali Press.
9 Jimly Asshiddiqie, The Role of Constitutional Courts, Op.Cit., p. 5-6.
10 Indonesia n Constitution (1945, Consolidated) - Asian Human ..,

http://www.humanrights.asia/Indonesia n-constitution-1945-consolidated/.

4
(1) Each person has the right to establish a family and to generate offspring through a lawful
marriage.
(2) Each child has the right to live, grow up, and develop as well as the right to protection from
violence or discrimination.

Article 28C
(1) Every person has the right to self-realization through the fulfilment of his basic needs, the
right to education and to partake in the benefits of science and technology, art and culture, to
improve the quality of his life and the well-being of mankind.
(2) Each person has the right to self-improvement by way of a collective struggle for his rights
to develop society, the nation, and the country.

Article 28D
(1) Each person has the right to recognition, security, protection and certainty under the law that
shall be just and treat everybody as equal before the law.
(2) Every person is entitled to occupation as well as to get the income and fair and proper
treatment in labour relations.
(3) Each citizen has the right to equal opportunity in government.
(4) Each person has a right to a nationality.

Article 28E
(1) Each person is free to worship and to practice the religion of his choice, to choose education
and schooling, his occupation, his nationality, his residency in the territory of the country that
he shall be able to leave and to which he shall have the right to return.
(2) Each person has the right to be free in his convictions, to assert his thoughts and tenets, by
his conscience.
(3) Each person has the right to freely associate, assemble, and express his opinions.
Article 28F
Each person has the right to communication and to acquiring information for his own and his
social environment's development, as well as the right to seek, obtain, possess, store, process,
and spread information via all kinds of channels available.

5
Article 28G
(1) Each person is entitled to the protection of self, his family, honor, dignity, the property he
owns and has the right to feel secure and to be protected against threats from fear to do or not to
do something that is part of basic rights.
(2) Each person has the right to be free from torture or inhuman and degrading treatment and
shall be entitled to obtain political asylum from another country.

Article 28H
(1) Each person has a right to a life of well-being in body and mind, to a place to dwell, to enjoy
a good and healthy environment, and to receive medical care.
(2) Each person has the right to facilities and special treatment to get the same opportunities
and advantages in order to reach equality and justice.
(3) Each person is entitled to social security enabling him to develop his entire self-unimpaired
as a dignified human being.
(4) Each person has the right to own private property and such ownership shall not be
appropriated arbitrarily by whomsoever.

Article 28I
(1) The rights to life, to remain free from torture, to freedom of thought and conscience, to
adhere to a religion, the right not to be enslaved, to be treated as an individual before the law,
and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human
rights that shall not be curtailed under any circumstance.
(2) Each person has the right to be free from acts of discrimination based on what grounds ever
and shall be entitled to protection against such discriminative treatment.
(3) The cultural identities and rights of traditional communities are to be respected in
conjunction with progressing times and civilisation.
(4) Protecting, promoting, upholding, and the full realisation of human rights are the
responsibilities of the state, foremost of the government.

6
 (5) To uphold and protect human rights by the principles of a democratic and law-based state,
the implementation of fundamental human rights is to be guaranteed, regulated, and laid down
in laws and regulations.

Article 28J
(1) Each person has an obligation to respect the fundamental human rights of others while
partaking in the life of the community, the nation, and the state.
(2) In exercising his rights and liberties, each person has the duty to accept the limitations
determined by law for the sole purposes of guaranteeing the recognition and respect of the rights
and liberties of other people and of satisfying a democratic society's just demands based on
considerations of morality, religious values, security, and public order.

Article 28G paragraph (2) of the 1945 Constitution states that every person has the right to
be free from torture or treatment which demeans human dignity and has the right to obtain political
asylum from other countries. In order to guard constitutional rights, Article 24C 1945 Constitution
states, the Constitutional Court create and has the authority to adjudicate at the first and final
instance, the judgment of which is final11, to review laws against the Constitution, to judge on
authority disputes of state institutions whose authorities are granted by the Constitution, to judge
on the dissolution of a political party, and to judge on conflict regarding the result of a general
election. constitutional court also shall render a judgment on the petition of the People’s
Representative Council regarding an alleged violation by the President and the Vice President
according to the Constitution.12
However, the Constitutional Court closed the door for foreign citizens (foreigners) to
submit a request for judicial review of the Indonesia n Law against the 1945 Constitution.13 In the

11 Read more Syamsudin Noer, “Recusal at the Constitutional Court of Indonesia”,

http://jcil.lsyndicate.com/wp-content/uploads/2018/08/Recusal-at-the-
Constitution.
12 Read more Luthfi Widagdo Eddyono, The Constitutional Court And Consolidation Of

Democracy In Indonesia, Jurnal Konstitusi Vol 15, No 1 Tahun 2018.

http://ejournal.mahkamahkonstitusi.go.id/index.php/jk/article/download/1258/350
.
13 https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-

regulasi-penanganan-pengungsi-di-Indonesia/.

7
latest ruling on case No. 137/PUU-XII/2014, constitutional court stated that the application
submitted by a foreign national and several legal advisors was not acceptable. Explicitly, about
foreigners, the Court noted that applicants with the status of foreigners did not have legal standing
or legal status to submit the petition.
This decision was taken at the request of Abbasi Chika, a Nigerian citizen who stumbles
on legal issues in Indonesia. Other applicants are several Agbasi attorneys from the IDCC &
Associates Law Office. Agbasi submits review Article 51 paragraph (1) of Law no. 24 of 2003
concerning the Constitutional Court, as amended by Law No. 8 of 2011. This article regulates
constitutional impairment as a basis for applying for judicial review to the Constitutional Court.
The Agbasi considers the coming into effect of Article 51 paragraph (1) of the
Constitutional Court Law to reduce, impair and limit its constitutional rights in Indonesia.
Indonesia claims to be a state of law. Agbasi has been convicted by using Indonesia n law, so that
he deserves the same legal treatment as Indonesia n citizens (WNI), including requesting a review
of Indonesia n Law.
However, the Constitutional Court has another opinion. The court firmly stated that the
Agbasi as foreigners did not have legal standing. In its argument, the Court refers to the
formulation of Article 51 paragraph (1) of the Constitutional Court Law that those who are allowed
to submit judicial reviews are Indonesia n citizens. Also, the subject that may be a customary law
community unit as long as it is still alive and by the development of the community and the
principles of the Unitary Republic of Indonesia, public or private legal entity; and state
institutions. 14 It means that it depends on the parliament and government to fulfil the constitutional
rights of refugees and asylum seeker in Indonesia.
Unfortunately, the parliament and government as a join legislature never made Law for
strengthening the constitutional right of refugees and asylum seeker. The only law about the
handling of foreign refugees in Indonesia National Law is Law No. 37 of 1999 concerning Foreign
Relations (Law on Foreign Relations). It was said that related to refugees was regulated later by
Presidential Regulation. In late 2016 the President of the Republic of Indonesia signed the
Presidential Regulation on the Handling of Refugees, which contains crucial definitions and sets
out processes for the detection, shelter and safeguarding of refugees and asylum-seekers.

14 Ibid.

8
Presidential Regulation Number 125 of 2016 concerning handling of refugees from abroad
and its implementation
Presidential Regulation number 125 of 2016, among others, regulates the security of
asylum seekers and refugees, coordinates the government and UNHCR regarding their status, and
respects the fundamental rights of refugees. This regulation provides the basis for services
provided by immigration officials to refugees.
Many problems faced in the implementation of presidential regulation 125/2016 including:
lack of socialization to the Regional Government regarding the Presidential Regulation so that
there are still regional heads reject the arrival of refugees; there is no task force for handling
refugees from abroad; limited human resources and budget; unavailability of shelter land for
refugees; and cause social jealousy for refugees who receive free humanitarian assistance while
residents live in shortages.15
Factual, the problem of refugees is not only the area of immigration responsibility.
Moreover, immigration has limitations in dealing with refugees reaching tens of thousands of
people. Immigration adheres to Law No. 6 of 2011 concerning Immigration (Immigration Law).
The 2016 Presidential Regulation adds to the authority to handle refugees to the Directorate
General of Immigration. In the Immigration Act, it is limited that immigration is related to the
traffic of people entering or leaving Indonesia n territory and its supervision to maintain the
country's sovereignty. Its services also only include law enforcement, state security, and
community welfare development facilitators. Immigration duties are different from humanitarian
services that must be provided to refugees. 16
Immigration personnel were not trained as social workers with expertise in handling humanitarian
issues. From the beginning, the Immigration officer played a part as an immigration law enforcer.
Presidential Regulation has only become a brief solution that has not yet been resolved regarding
the issue of handling refugees.17

15 Penny Naluria Utami, “IMPLEMENTASI PERATURAN PRESIDEN NOMOR 125 TAHUN

2016 TENTANG PENANGANAN PENGUNGSI DARI LUAR NEGERI DI PROVINSI
KEPULAUAN RIAU”, Jurnal Legislasi Indonesia , Vol 16, No 3 (2019), http://e-
jurnal.peraturan.go.id/index.php/jli/article/view/509/pdf.
16 https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-

regulasi-penanganan-pengungsi-di-Indonesia /
17 Ibid.

9
 Indonesia also faces a lack of refugee accommodation facilities. Some are still entrusted to
immigration detention centres. The facility, which is a temporary prison for foreigners involved in
immigration violations, is also used to accommodate refugees. There are 13 immigration detention
centres in Indonesia, not designed to accommodate thousands. 18
Data shows that the number of immigrants or refugees entering Indonesia as many as 14425
peoples, who consisting of 8039 refugees and 6386 asylum seekers. The refugees spread to the
entire territory of Indonesia is 2177 peoples being at the Immigration Detention House (Rudenim),
2030 people at the Immigration Office (Kanim), 4225 people in the community house, and as many
5993 are independent immigrants. In terms of Indonesia only has 13 Rudenim, but only one
Rudenim capacity is adequate, namely in Jayapura.19
The state does not have a budget post to deal with refugees. There had been involvement
from UNHCR and other international humanitarian agencies as donors to overcome the problem
of foodservice and basic needs of refugees. The use of the detention centre's budget is misplaced
and very limited. Finally, Immigration implements a policy to allow refugee children, pregnant
women, and elderly to stay in a donor-funded community house. But it becomes complicated
regarding the monitoring of refugee mobility in Indonesia n territory because it is not within reach
of immigration officers. 20
In addition to technical problems, Immigration is also concerned about the long-term
impact of the presence of refugees. If there is a legal vacuum in handling refugees, the impact is
on social problems and state resilience. Even there is a Presidential Regulation on Foreign
Refugees; this regulation only regulates a small part during the first emergency response; on the
contrary, it does not yet regulate prevention, repatriation, and who is fully responsible. 21 Some
social problems also happened. In terms of national resilience, government aware of whether any
foreigner who claims to be a refugee turns out to be a foreign spy or a member of an international
terrorist network who intends to spread his ideology. 22

18 Ibid.
19 https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi-Indonesia
-ini-langkah-pemerintah .
20 Ihttps://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-

regulasi-penanganan-pengungsi-di-Indonesia /
21 Ibid.
22 Ibid.

10
 IOM (international organization for migration) Indonesia receives financial support
refugees from Australia alone so that the Australian government issued a policy only in the form
of limitation/reduction of assistance in handling the problem of asylum seekers and refugees in
Indonesia. Facilities and infrastructure for refugees are provided by IOM in the form of supplies
clean water, beds and sports areas. If refugees get sick, they can go straight to treatment the nearest
health centre, and when further action is needed, they will send to the hospital for treatment with
a referral letter.23 If refugees want to repatriate, the financing is charged to family or repatriating
party and not to IOM.24
UNHCR is a UN organisation carrying out refugee protection mandates and dealing with
refugee problems and owning representatives in several cities in Indonesia. UNHCR
accommodates aspirations from local government-related issues and refugees looking for solutions
about negative issues, social problems, ideology, religion and sociality so that it doesn't happen
friction between immigrants and the local area. Many of the asylum seekers are doctors and
architects and other workers who were they come out of their area due to conflict and can be
empowered to help the community voluntarily. 25
According to the deputy for security coordination and community order, coordinating
ministry of politics, law and security (Kemenko Polhukam), Carlo B. Tewu, refugee problems in
Indonesia has become a serious concern by the government Indonesia. The government has tried
various things efforts to deal with refugee issues from abroad, among others through the formation
Desk for Handling Refugees from Abroad and People Smuggling. Establishment of Handling Desk
is through Ministerial Coordinator for Politics, Law and Security Republic of Indonesia Decree
Number 37 of 2018 concerning Refugee Handling Desk from Overseas and Human Smuggling.
The coordinator for this desk is Coordinating Ministry for Politics, Law and Security which
coordinate with ministries/Institutions and related organisation in the region. 26
Based on the explanation from Carlo B. Tewu, local government participation is key in
handling refugees as stipulated in Presidential Regulation. Related to the supervision of refugees
and asylum seekers in temporary shelters, local governments need to develop rules or procedures
orderly with Rudenim by adjusting customs local customs and local wisdom. It is aimed to

23 Penny Naluria Utami, Op.Cit., p. 305-306.

24 Ibid.
25 Ibid.
26 Ibid., p. 304-305.

11
handling refugees from abroad in at least three fundamental aspects namely: first, handling and
coordination in the field; second, respect for human rights; and third, aspects of surveillance of
foreigners and state security. 27
According to Yuliana Primawardani and Arief Rianto Kurniawan, In the context of
immigration supervision, as regulated in Article 35 and Article 36 Presidential Regulation, the
forms of immigration surveillance are fulfilling administrative aspects and have not touched on
aspects of respecting refugee rights as human rights, especially in terms of respect economic, social
and cultural rights of refugee. 28
How to the handling problems refugees and asylum seekers, both on the spot shelter and outside
the shelter is very diverse, like for example problems social community with the environment
around, the problem of fulfilling economics rights and other problems, it is interesting to be
researched about how capabilities and Detention House capacity handling problems referred to in
the framework for implementing the Presidential Regulation Number 125 of 2016.29

UNHCR Roles
UNHCR’s protection activities begin with ensuring that refugees and asylum-seekers are
protected from forced return to a country or territory where their lives or freedom might be in
danger. UNHCR then undertakes a process of verification of identity for registration and issuance
of proper documentation. 30
Registered asylum-seekers will then be scheduled to have their claims for refugee status
thoroughly assessed by UNHCR in what is known as a refugee status determination (RSD)
Procedure. This procedure offers each individual asylum-seeker an opportunity to be interviewed
in his/her language by an RSD officer assisted by a qualified interpreter, who will assess the merits
of the individual’s claim for international protection. 31

27 Ibid.
28 Yuliana Primawardani and Arief Rianto Kurniawan, “PENANGANAN PENGUNGSI
DARI LUAR NEGERI OLEH PETUGAS RUMAH DETENSI IMIGRASI DI PROVINSI
SULAWESI SELATAN (Treatment to International Refugees by the Officuals of
Immigration Detention Center in the Province of South Sulawesi)”, Jurnal Ilmiah
Kebijakan, Vol 12, No 2 (2018), p. 182.
29 Ibid.
30 [https://www.unhcr.org/id/en/unhcr-in-Indonesia ].
31 Ibid.

12
 The asylum-seeker will be then provided with a reasoned decision on whether they qualify
for refugee status under UNHCR’s mandate. In case one’s claim for protection is initially rejected,
the RSD procedure grants the asylum-seeker an opportunity to appeal the unfavourable decision.
For those found to be refugees, UNHCR will begin to look for one of a range of what UNHCR
calls comprehensive solutions. Traditionally, these solutions have included resettlement to a third
country, voluntary repatriation (if a person can return in safety and dignity), and local integration
in the state of asylum. 32
However, in the current global refugee crisis, with more than 65 million persons displaced
around the world, UNHCR is working to identify a range of other solutions, including: temporary
stay measures that allow refugees access to self-reliance opportunities until a longer-term solution
can be found; complementary pathways, such as university scholarships, labor migration schemes,
and State-facilitated family reunification. Finding an appropriate longer-term solution for each
refugee is a complex and often lengthy process that involves considering the particular
circumstances of the individual or family and identifying answers that match their specific needs.33

Protection for refugees in Indonesia : State Responsibility?

The Guardian made a report that, of the 14000 refugees in the country, many are caught in
a debilitating bind. Unable to legally work, they are told by the UNHCR, that there is no money to
support them. Resettlement could be decades away if it happens at all. The situation has been
compounded by an Australian government decision to cut funding to IOM for any new refugee
arrivals.34
There are three official durable solutions for someone who has been recognized as a refugee
by UNHCR. First, resettlement to a Third Country that accepts refugees from UNHCR; Second,
integration with a local population of the country they were found to be a refugee in; Third,
repatriation to Country of Origin – if the risk of persecution is no longer present.35

32 Ibid.
33 Ibid.
34 https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything-

Indonesia s-refugees-in-limbo-as-money-runs-out
35 https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-

refugee/

13
 “Resettlement can be formally made only to a Country which is a party to the United
Nations Refugee Convention. Indonesia has not signed the Refugee Convention. Once an
asylum seeker is recognized as a refugee, and if they meet resettlement criteria, a refugee
may be asked to attend UNHCR for a resettlement interview. After this, their basic
information may be sent to the embassy of resettlement Countries. The resettlement
Country does not receive your complete file, only basic information along with an
application from UNHCR, called a ‘Resettlement Registration Form (RRF).”36

Under UNHCR guidelines, and the policies of resettlement countries, resettlement priority is given
to most vulnerable persons – those with serious medical conditions, unaccompanied children,
women at risk, etc. Waiting is tough, but there are only a minimal number of resettlement places
and a vast number of people waiting to be resettled. The decision to resettle a refugee is made by
the resettlement Country only. Not by UNHCR. The resettlement Country will consider
applications made by UNHCR, in line with their Countries resettlement and humanitarian
policies. 37
The time provided by each Country to consider a resettlement request depends on many
factors, including each Countries resettlement and humanitarian policies, and the number of
refugees the Country offers to resettle every year. Quotas for each Country may change from year
to year, depending on the policies of that country.38
Currently, Indonesia is not signatory to the International Refugee Convention and cannot
officially accept refugees for permanent resettlement. Many refugees may be in Indonesia for a
long time, many years, and informally integrate into Indonesia by getting to know their Indonesia
n neighbours and taking part in day to day life in their community. At this point, refugees in
Indonesia do not have the right to work. Refugee children do have a right to education; however,
in practice, language, cultural barriers and costs often make attending school very difficult. 39
If UNHCR decides a country is safe for return, refugees from that country living in
Indonesia may be repatriated back to their home country. This process is complex and does not

36 Ibid.
37 Ibid.
38 Ibid.
39 https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-

refugee/

14
occur very often. A refugee may also decide to return to their home country voluntarily. UNHCR
will consider all of the available information and decide whether it is safe for the refugee to return.
If it is, UNHCR partners such as IOM will assist in organising the return. If UNHCR does not
think it is safe, they will be unable to assist the refugee in returning. The refugee may still decide
to return on their own without the assistance of UNHCR. 40
According to Julio Castor, Human rights lawyer and member of SUAKA, an association
advocating protection for asylum seekers and refugees in Indonesia, Indonesia has a responsibility
as a state in protecting refugees and asylum seekers. Indonesia is not a signatory to the 1951
Refugee Convention and its 1967 Protocol. However, is being a signatory to the conventions above
the only pre-requisite for a state in protecting refugees in Indonesia ?41
As a member of the UN, Indonesia is a signatory to eight-core international human rights
conventions, some of which have been adopted in domestic regulations. Apart from international
conventions, presidential regulation 125/2016 on the treatment of refugees and asylum seekers in
Indonesia has acknowledged and recognised refugees in a national legal context, even though
protection clauses are lacking within the said regulation. 42
Ratifying an international convention may require the state to do more work, but further
research is needed on the potential impacts on the state’s readiness in adhering to the international
standards of human rights fulfilment, among other things. What are the current solutions for
refugees and asylum seekers in Indonesia?43
According to Castor, The UN cites three main durable solutions: assisted voluntary
repatriation, resettlement and integration with the local community. A first choice is hardly a
possible option as the conflicts in refugees’ country of origin rarely subside; while the non-
refoulment principle under international customary law considers making refugees return to their
own country and endangering their safety a breach of international law. Resettlement, which is
highly hoped by refugees as the best solution for them, also does not seem possible with the rise
of extreme nationalism, Islamophobia and resistance from countries such as Australia, the United
States as well as European countries who used to accept refugees from Indonesia .44

40 Ibid.
41 Ibid.
42 Ibid.
43 Ibid.
44 Ibid.

15
 This situation leaves the third option. As a non-signatory member of the 1951 Refugee
Convention and its Optional Protocol of 1967, the government might say integration with the local
community is not a possible option. However, integration is inevitable between the refugee
community and Indonesian society. The refugees have already started integrating into society ever
since they arrived in Indonesia.45
“Ending the conflicts in the respective countries would be a utopic solution for refugee
migration in general. With a minimum chance of going back to their countries and being
resettled, living in limbo for more than eight years as the average waiting time to be resettled,
has greatly affected the mental health of refugees in Indonesia . Assuming the average waiting
time is lengthened due to the minimal successful resettlement cases and a steady influx of
refugees into Indonesia , the government must start preparing for the unavoidable consequences
of the current situation by starting to provide basic rights to refugees and legal recognition.”46

Castor made an example in India. Tibetan refugees’ right to residency is contingent upon
a Registration Certificate (RC) which is a legal document issued by Indian authorities, equivalent
to an identity card. RC issuance to Tibetans started in 1956 when the Dalai Lama was exiled,
followed by a mass exodus of Tibetan refugees into India. RCs are valued as they allow Tibetans
to legally travel and work within the country, serving as an identity document and a prerequisite
for an Identity Certificate. Although currently, the process to acquire an RC is arduous, the legal
recognition remains clear for Tibetans in India. 47
on 2000, Malaysia, as the host of more than 150,000 refugees and asylum seekers, provided
nonrenewable six-month work permits for Rohingya refugees from Myanmar. on 2015, Malaysia
had considered, in multiple cases, the creation of temporary work permits. The licenses were
supposed to benefit Rohingya refugees to be legally employed in Malaysia, though the plan did
not materialise.48
Castor recommends Indonesia ’s government to learn from the practices in India and Malaysia as
progressive commitments from states who are not signatory to the 1951 Refugee Convention and
its 1967 Protocol. For instance, Indonesia can create a kartu izin tinggal sementara untuk

45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid.

16
pengungsi (Refugee Temporary Stay Permit Card) or collaborate in partnerships with local and
international agencies to establish livelihood opportunities. Indonesia has to adopt long-term
strategies rather than ad-hoc policies to prevent a bottleneck in providing legal recognition as well
as sufficient protection for refugees and asylum seekers. 49

Closing
The Constitutional rights of refugees and asylum seeker have shown by the 1945
Constitution. As a member of the UN, Indonesia is a signatory to eight-core international human
rights conventions, some of which have been adopted in domestic regulations. Unfortunately, the
parliament and government as a join legislature never made Law for strengthening the
constitutional right of refugees and asylum seeker. The only law about the handling of foreign
refugees in Indonesia n national law is Law No. 37 of 1999 concerning Foreign Relations (Law on
Foreign Relations). It was said that related to refugees was regulated later by Presidential
Regulation. In late 2016 the President of the Republic of Indonesia signed the Presidential
Regulation on the Handling of Refugees, which contains vital definitions and sets out processes
for the detection, shelter and safeguarding of refugees and asylum-seekers.
Even Indonesia is not a party to the 1951 Refugee Convention or its 1967 Protocol, it has
a long tradition of hosting refugees and asylum‐seekers, and the government has authorised
UNHCR to help protect and find solutions for them. Regulation ensures that refugees and asylum‐
seekers have access to UNHCR and allows them to stay temporarily in the country until their
refugee status can be confirmed, and appropriate solutions can be found for them.50 Unfortunately,
refugees and asylum seekers (and stateless people) in Indonesia have difficulty living in this
country. They do not have work permits and do not receive enough social assistance from the
Indonesia n government. The Indonesia n government allows refugees and asylum seekers to stay
in Indonesia as long as they have registration documents from the UNHCR. The government need
to provide work permits to refugees and asylum seeker to support their additional necessity.

49Ibid.
50Read more UNHCR, “Indonesia Fact Sheet February 2016 Final,
https://www.unhcr.org/50001bda9.pdf.

17
References

Eddyono, Luthfi Widagdo, Dinamika Konstitusionalisme di Indonesia, Jakarta , Rajawali Press,. 2021

Asshiddiqie, Jimly, “The Role of Constitutional Courts in The Promotion of Universal Peace and Civilization Dialogues
Among Nations”, the paper was presented in the International Symposium on “the Role of Constitutional Courts on
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Luthfi Widagdo Eddyono, “The Constitutional Rights To Water And Food In Indonesia ”,
http://www.ocerints.org/intcess19_e-publication/papers/104.pdf.

Moh. Mahfud MD, “Speech” in the World Conference on Constitutional Justice, Cape Town, 2009.

Penny Naluria Utami, “IMPLEMENTASI PERATURAN PRESIDEN NOMOR 125 TAHUN 2016 TENTANG PENANGANAN
PENGUNGSI DARI LUAR NEGERI DI PROVINSI KEPULAUAN RIAU”, Jurnal Legislasi Indonesia , Vol 16, No 3 (2019),
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UNHCR, “Indonesia Fact Sheet February 2016 Final, https://www.unhcr.org/50001bda9.pdf.

Yuliana Primawardani and Arief Rianto Kurniawan, “PENANGANAN PENGUNGSI DARI LUAR NEGERI OLEH PETUGAS
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Indonesia n Constitution (1945, Consolidated) - Asian Human .., http://www.humanrights.asia/Indonesia n-

constitution-1945-consolidated/.

https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di-
Indonesia /

https://www.unhcr.org/id/en/unhcr-in-Indonesia .

https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi-Indonesia -ini-langkah-pemerintah .

https://www.unhcr.org/id/en/unhcr-in-Indonesia

https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything-Indonesia s-refugees-in-limbo-
as-money-runs-out

https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-refugee/

18
INDEX

A
B ……….
C ……….
D ……..

19