CcONSTITUTIONALonstitutional RIGHTSrights OF REFUGEESof refugees AND ASYLUM SEEKERSand asylum
INseekers in IiNDONESIAndonesia
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 IndonesiaIndonesia luthfi_we@mahkamahkonstitusi.go.id
Aabstract
According to UNHCR, there were more than 14000 personn of concern (refugees and asylum seeker‐ ) in IndonesiaIndonesia. This figure includes refugees and asylum seekers from 44 nationality. Meanwhile, indonesiaIndonesia 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. indonesiaIndonesia government allows refugees and asylum seekers to stay in indonesiaIndonesia as long as they have registration documents from the UNHCR.
Iindonesia 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 IndonesiaIndonesia have difficulty living in this country. They do not have work permits and do not receive enough social assistance from the IndonesiaIndonesia n government. In late 2016 the President of the Republic of Indonesia 1 Luthfi Widagdo Eddyono is currently employed by the Constitutional Court of IndonesiaIndonesia as a researcher. He is also active at Center for Democratization Studies, IndonesiaIndonesia . He was part of “Democracy and Human Rights in Malaysia and IndonesiaIndonesia : 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.
signed the Presidential regulation on the Handling of Refugees, which which contains crucial definitions and sets out processes for the detection, shelter and safeguarding 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.
Kkeyword: Rrefugees and Aasylum seekers, Cconstitutional rights, 1945 Constitution, UNCHR
Introduction
Surrounded by countries hosting large numbers of asylum-seekers and refugees, such as malaysian, thailand and australia, IndonesiaIndonesia is impacted regularly by mixed population movements. After a lull during the late 1990s, the number of asylum- seekers arriving in IndonesiaIndonesia 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.
IndonesiaIndonesia hosts some 13840 refugees from some 49 different country as of December 2017, with roughly half originating from Afghanistan.2
IndonesiaIndonesia 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
2 [https://www.unhcr.org/id/en/unhcr-in-indonesiaIndonesia ].
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 IndonesiaIndonesia 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. 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 IndonesiaIndonesian 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 Ppresidential regulation Numberomor 125 Year tahun 2016 and other rules to find a solution for fulfilling the rights of refugees and asylum seeker in IndonesiaIndonesia.
Cconstitutional rights of refugees and asylum seeker
According to Jjimly Aasshidddiqie, 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 Ppeople Cconsultative Aassembly (Majelis Permusyawaratan Rakyat, MPR)
3 Ibid.
4 Jimly Asshiddiqie, “Struktur Ketatanegaraan IndonesiaIndonesia 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.
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
In the reform era, IndonesiaIndonesia 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,
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 IndonesiaIndonesia 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 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 IndonesiaIndonesia ”, 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 IndonesiaIndonesia ”, paper is presented in the World Conference on Constitutional Justice, Cape Town, January 23-24, 2009, p. 1. Also see Pan Mohamad Faiz, 2019, Amaendemen Konstitusi, Jakarta, Rajawali Press.
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
(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.
9 Jimly Asshiddiqie, The Role of Constitutional Courts, Op.Cit., p. 5-6.
10 IndonesiaIndonesia n Constitution (1945, Consolidated) - Asian Human ..,
http://www.humanrights.asia/indonesiaIndonesia n-constitution-1945-consolidated/.
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.
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.
(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,
11 Read more Syamsudin Noer, “Recusal at the Constitutional Court of IndonesiaIndonesia”, http://jcil.lsyndicate.com/wp-
content/uploads/2018/08/Recusal-at-the-Constitution.
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 IndonesiaIndonesia n Law against the 1945 Constitution.13 In the 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 Aabbasi Cchika, a Nigerian citizen who stumbles on legal issues in IndonesiaIndonesia. 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 IndonesiaIndonesia. IndonesiaIndonesia claims to be a state of law. Agbasi has been convicted by using IndonesiaIndonesia n law, so that he deserves the same legal treatment as IndonesiaIndonesia n citizens (WNI), including requesting a review of IndonesiaIndonesia 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 IndonesiaIndonesia 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
12 Read more Luthfi Widagdo Eddyono, The Constitutional Court And Consolidation Of Democracy In IndonesiaIndonesia, 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 Indonesia / .
IndonesiaIndonesia, 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 IndonesiaIndonesia.
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 IndonesiaIndonesian Nnational Llaw 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 IndonesiaIndonesia 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.
Ppresidential Rregulation Nnumber 125 of 2016 concerning handling of refugees from abroad and its implementation
Ppresidential Rregulation 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
14 Ibid.
15 Penny Naluria Utami, “IMPLEMENTASI PERATURAN PRESIDEN NOMOR 125 TAHUN 2016 TENTANG PENANGANAN PENGUNGSI DARI LUAR NEGERI DI PROVINSI KEPULAUAN RIAU”, Jurnal Legislasi IndonesiaIndonesia , Vol 16, No 3 (2019), http://e-jurnal.peraturan.go.id/index.php/jli/article/view/509/pdf.
General of Immigration. In the Immigration Act, it is limited that immigration is related to the traffic of people entering or leaving IndonesiaIndonesia 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
IndonesiaIndonesia 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 IndonesiaIndonesia, not designed to accommodate thousands.18
Data shows that the number of immigrants or refugees entering IndonesiaIndonesia as many as 14425 peoples, who consisting of 8039 refugees and 6386 asylum seekers. The refugees spread to the entire territory of IndonesiaIndonesia 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 IndonesiaIndonesia 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
16 https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada- masalah-regulasi-penanganan-pengungsi-di-indonesiaIndonesia / 17 Ibid.
18 Ibid.
19 https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi- indonesiaIndonesia -ini-langkah-pemerintah .
regarding the monitoring of refugee mobility in IndonesiaIndonesia 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
IOM (international organization for migration) IndonesiaIndonesia receives financial support refugees from Australia alone so that the Aaustralian government issued a policy only in the form of limitation/reduction of assistance in handling the problem of asylum seekers and refugees in IndonesiaIndonesia. 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 IndonesiaIndonesia. 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
20 Ihttps://www.hukumonline.com/berita/baca/lt597853eb3280a/ada- masalah-regulasi-penanganan-pengungsi-di-indonesiaIndonesia / 21 Ibid.
22 Ibid.
23 Penny Naluria Utami, Op.Cit., p. 305-306.
24 Ibid.
25 Ibid.
IndonesiaIndonesia has become a serious concern by the government IndonesiaIndonesia. 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 IndonesiaIndonesia 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 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
26 Ibid., p. 304-305.
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.
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
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 IndonesiaIndonesia : State Responsibility?
30 [https://www.unhcr.org/id/en/unhcr-in-indonesiaIndonesia ].
31 Ibid.
32 Ibid.
33 Ibid.
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
“Resettlement can be formally made only to a Country which is a party to the United Nations Refugee Convention. IndonesiaIndonesia 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
34 https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything- indonesia Indonesia s-refugees-in-limbo-as-money-runs-out
35 https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and- refugee/
36 Ibid.
37 Ibid.
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, IndonesiaIndonesia is not signatory to the International Refugee Convention and cannot officially accept refugees for permanent resettlement. Many refugees may be in IndonesiaIndonesia for a long time, many years, and informally integrate into IndonesiaIndonesia by getting to know their IndonesiaIndonesia n neighbours and taking part in day to day life in their community. At this point, refugees in IndonesiaIndonesia 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 IndonesiaIndonesia may be repatriated back to their home country. This process is complex and does not 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 Jjulio Ccastor, Human rights lawyer and member of SUAKA, an association advocating protection for asylum seekers and refugees in IndonesiaIndonesia, IndonesiaIndonesia has a responsibility as a state in protecting refugees and asylum seekers.
IndonesiaIndonesia 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 IndonesiaIndonesia ?41
As a member of the UN, IndonesiaIndonesia is a signatory to eight-core international human rights conventions, some of which have been adopted in domestic regulations.
38 Ibid.
39 https://suaka.or.id/2017/02/22/resettlement-information-for-asylum- seeker-and-refugee/
40 Ibid.
41 Ibid.
Apart from international conventions, presidential regulation 125/2016 on the treatment of refugees and asylum seekers in IndonesiaIndonesia 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 IndonesiaIndonesia?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 IndonesiaIndonesia .44
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 IndonesiaIndonesian society. The refugees have already started integrating into society ever since they arrived in IndonesiaIndonesia.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 IndonesiaIndonesia . Assuming the average waiting time is lengthened due to the minimal successful resettlement cases and a steady influx of refugees into IndonesiaIndonesia , the
42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid.
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 IndonesiaIndonesia ’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, IndonesiaIndonesia can create a kartu izin tinggal sementara untuk pengungsi (Refugee Temporary Stay Permit Card) or collaborate in partnerships with local and international agencies to establish livelihood opportunities. IndonesiaIndonesia 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
Cclosing
The Constitutional rights of refugees and asylum seeker have shown by the 1945 Constitution. As a member of the UN, IndonesiaIndonesia is a signatory to eight-core
46 Ibid.
47 Ibid.
48 Ibid.
49 Ibid.
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 IndonesiaIndonesia 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 IndonesiaIndonesia 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 IndonesiaIndonesia 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 IndonesiaIndonesia have difficulty living in this country. They do not have work permits and do not receive enough social assistance from the IndonesiaIndonesia n government. The IndonesiaIndonesia n government allows refugees and asylum seekers to stay in IndonesiaIndonesia 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.
Rreferences
Eddyono, Luthfi Widagdo Eddyono, 2021 Dinamika Konstitusionalisme di IndonesiaIndonesia, Jakarta , Rajawali Press, Jakarta. 2021
Asshiddiqie, Jimly Asshiddiqie, “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 Universal Peace and Meeting of Civilizations”, Ankara, April 25, 2007.
50 Read more UNHCR, “IndonesiaIndonesia Fact Sheet February 2016 Final, https://www.unhcr.org/50001bda9.pdf.
Luthfi Widagdo Eddyono, “The Constitutional Rights To Water And Food In IndonesiaIndonesia ”, 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
IndonesiaIndonesia , Vol 16, No 3 (2019), http://e-jurnal.peraturan.go.id/index.php/jli/article/view/509/pdf.
Syamsudin Noer, “Recusal at the Constitutional Court of IndonesiaIndonesia ”, JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7,
http://jcil.lsyndicate.com/wp-content/uploads/2018/08/Recusal-at-the-Constitutio.
UNHCR, “IndonesiaIndonesia Fact Sheet February 2016 Final, https://www.unhcr.org/50001bda9.pdf.
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).
Pan Mohamad Faiz, 2019, amendemen konstitusi, Rajawali Press, Jakarta.
IndonesiaIndonesia n Constitution (1945, Consolidated) - Asian Human ..,
http://www.humanrights.asia/indonesiaIndonesia n-constitution-1945-consolidated/.
https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di- indonesiaIndonesia /
https://www.unhcr.org/id/en/unhcr-in-indonesiaIndonesia .
https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi-indonesiaIndonesia -ini-langkah- pemerintah .
https://www.unhcr.org/id/en/unhcr-in-indonesiaIndonesia
https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything-indonesiaIndonesia s- refugees-in-limbo-as-money-runs-out
https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-refugee/
INDEX
A Abbasi
8
able 5 about
2–4, 8, 10–12, 17 Abstract
1 adheres 3, 9 ad-hoc 17 australia 2, 11, 15 B
between 2, 3, 11, 16 bottleneck 17 C
capabilities 12
Carlo 11 Certificate 16 channels 5
Civilization 3, 18 complex 13, 14 conducted 3, 4
constitutional 1–4, 7, 8, 17, 18 Council
7
E
Eddyono 1, 4, 7, 18
enslaved 6 European 15 exodus 16 F facility 10 Fostering 3
framework 12 G
government-related 11
Guardian 13 H hospital 11
hukumonline 7, 9, 10, 18 humanitarian 9, 10, 14 humanrights 4, 18 I
immigration 9, 10, 12, 18 Indonesia
1–4, 7–11, 13–18 Islamophobia 15
J Jakarta
1, 4, 18 Jayapura 10 K
Kemenko 11
Ketatanegaraan 3
L
Law-making 4
Legal
8, 10, 15–17 M
Mahfud 3, 4, 18 Malaysia 1, 16 Mohamad 4, 18 Myanmar 16 N national
2–4, 8, 10, 15, 17 nationality
1, 5 Nigerian 8
non-refoulment 15
nonrenewable 16 A ……….
B ……….
C ……….
D ……..