Volume 5 Number 3, September - December 2015 INDONESIALaw Review
editorial
Indonesia is located in the heart of South East Asia region, between Asian and Australian continents and the enormous Pacific and Indian Oceans. Consisted of more than 17,000 islands, which are stretched from West to East, Indonesia is the largest archipelagic country in the world. Its unique geography is pictured like a two-side coin. It does bring massive benefits to Indonesia; however, it also exposes Indonesia with more hardships.
In the third edition of Indonesia Law Review (ILRev) in the year of 2015, authors of articles wish to enlighten readers on several distinctive issues which are the current problematic situations in Indonesia related to its geographical location.
The territory of Indonesia is divided into 34 provinces, 415 districts (in Bahasa:
kabupaten) and 93 administrative cities.1 These numbers have increased since 1999 when the government enacted Law No. 22 Year 1999 regarding Regional Governments in which decentralization (in Bahasa: desentralisasi) was declared as one of the principles in implementing regional governance.2 Desentralisasi is the basis of administrative structures and relations between central government and regional governments in unitary state, like Indonesia. Decentralization is much viewed as a element of democratization, by which power is delegated from central government to regional governments.3 One of the purposes of decentralization is to create more accountability and to ensure better public service delivery.4 However, autonomy of regional governments on certain sectors, especially in investment sectors, has long been accused as a barrier of investment since early 2000. This view was opposed by regional governments and some experts, who claimed that desentralisasi opened wider opportunities for investment in the local regions.5 In 2014, minister of Internal Affairs admitted that there are numbers of regional regulations counted as barriers of local investments.6 In the first article titled “Multiple Authorisation: the Legal Complexity of Desentralisasi in Indonesia and the potential Contribution of IIAs in Reducing Confusion,” authors raise the issue of desentralisasi in Indonesia and deeply elaborate on investment problems caused by multiple authorizations.
As the largest archipelagic state, Indonesia has huge benefits come from the sea. Furthermore, president of Indonesia, Joko Widodo, declared that Indonesia will gain its maritime power in the region.7 However, the declaration has to be well
1 Directorate General of Regional Autonomy, Ministry of Internal Affaris (1), “Jumlah Provinsi, Kabupaten dan Kota (Total Numbers of Provinces, Districts and Administrative Cities),” http://otda.kemendagri.go.id/
index.php/2014-10-27-09-15-39, accessed 23 December 2015.
2 Ade Cahyat, “Perubahan Perundangan Desentralisasi: Apa yang Berubah? Bagaimana Dampaknya pada Upaya Penanggulangan Kemiskinan? Dan Apa yang Perlu Dilakukan?” Center for International Forestry Re- search Governance Brief No. 22 (August 2005): 1. In 2004, Indonesian government produced new law (Law No.
32 Year 2004) replacing the Law No. 22 Year 1999.
3 Glenys Kirana, “Decentralization Dilemma in Indonesia: Does Decentralization breed Corruption?” Inde- pendent Study Project Collection School for International Training (Fall 2014): 8.
4 Ibid.
5 Hukumonline, “Tidak Benar, Otonomi Daerah Hambat Investasi,” http://www.hukumonline.com/beri- ta/baca/hol6185/tidak-benar-otonomi-daerah-hambat-investasi, accessed 26 December 2015.
6 Directorate General of Regional Autonomy, Ministry of Internal Affaris (2), “Mendagri: Cabut Perda yang Hambat Investasi,” http://otda.kemendagri.go.id/index.php/berita-210/1529-mendagri-cabut-perda- yang-hambat-investasi, accessed 26 December 2015.
7 Vibhanshu Shekhar and Joseph Chinyong Liow, “Indonesia as a Maritime Power: Jokowi’s Vision, Strate- gies, and Obstacles Ahead,” http://www.brookings.edu/research/articles/2014/11/indonesia-maritime- liow-shekhar, accessed 22 December 2015.
Volume 5 Number 3, September - December 2015 INDONESIALaw Review
balanced in conserving and managing Indonesia’s fishery resources. This ongoing issue is discussed in the article titled “Legal framework and Mechanism of Marine fisheries subsidies in the Aspects of International trade and sustainable development.”
Acknowledging Indonesia’s position in the region with neighboring countries, there are lots of troubles faced by government of Indonesia dealing with migration, particularly with Indonesia’s overseas labor migrants and irregular migrants.
Indonesia is well known as a major sending country of overseas labor migrants8 which are called Tenaga Kerja Indonesia (TKI). They leave the country to seek better employment opportunities in other countries.9 In early 2015, BNP2TKI, a national agency for placement and protection of TKI, stated that during 2014 there are 492,872 Indonesians placed as TKIs in various countries, with the top receiving countries are as follows: Malaysia, Taiwan, Saudi Arabia, Hong Kong and Singapore.10In the same year, there has been an increase in the numbers of deportation of troubled Indonesian overseas workers.11 For instance, only in early December 2014, 20,000 Indonesian overseas workers were deported.12Through the year of 2014, total of 22,373 Indonesian workers were deported via Tanjung Pinang, Riau Province from Malaysia and most of them violated immigration regulations.13Anticipating the problems, government of Indonesia is preparing a grand design for deportation of troubled Indonesian overseas workers with collaboration between related ministries and institutions.14 However, massive deportation in Riau has caused significant problems.
In the article titled “proposing an Integrative-progressive Model in handling troubled Indonesian overseas workers in the transit Area (A socio-Legal Research in tanjung pinang City, kepulauan Riau province),” readers will be presented a proposed mechanism in handling troubled Indonesian overseas workers in transit area.
As a country which bridges two continents, Indonesia is one of the most favorite transit country for migrants to reach their destination country, Australia. This growing phenomenon makes Indonesia faces problems of irregular migration. Even though there is no unified definition of irregular migration, it is commonly understood as movement that takes place outside the regulatory norms of the sending, transit and receiving countries.15 The irregularity is seen when people enter or exit a country in the absence of legal document(s).16 The handling of these irregular migrants has
8 Michele Ford, “Migrant Labour in Southeast Asia, Country Study: Indonesia,” p. 2, http://www.fes.de/
aktuell/focus_interkulturelles/focus_1/documents/5_000.pdf, accessed 23 December 2015.
9 IOM (1), Labour Migration from Indonesia(Jakarta: IOM, 2010), p. 9, https://www.iom.int/jahia/webdav/
shared/shared/mainsite/published_docs/Final-LM-Report-English.pdf
10 Ibid. Listed from the highest receiving rates.
11 Tempo, “Era Jokowi, Pemulangan TKI Bermasalah Meningkat,” http://nasional.tempo.co/read/
news/2014/12/26/078631081/era-jokowi-pemulangan-tki-bermasalah-meningkat, accessed 22 Decem- ber 2015.
12 Ibid.
13 Republika, “KJRI Johor Bahru Pulangkan 22.373 TKI Bermasalah,” http://nasional.republika.co.id/
berita/nasional/umum/14/12/27/nh7eaz-kjri-johor-bahru-pulangkan-22373-tki-bermasalah, accessed 26 December 2015.
14 Kompas, “Menaker Buat “Grand Design” Pemulangan TKI Bermasalah,” http://bisniskeuangan.kom- pas.com/read/2015/01/23/143445926/Menaker.Buat.Grand.Design.Pemulangan.TKI.Bermasalah, ac- cessed 22 December 2015.
15 IOM (2), “Key Migration Terms,” https://www.iom.int/key-migration-terms, accessed 26 December 2015.
16 Ibid.
Volume 5 Number 3, September - December 2015 INDONESIALaw Review to be in line with international obligations and internationally recognized rights of these migrants. IOM Indonesia Deputy of Chief of Mission, Steve Hamilton, praised the Indonesian National Police for Indonesia’s humane handling of irregular migrants.17 However, in the article titled “explaining Crimmigration in Indonesia: A discourse of the fight against people smuggling, Irregular Migration Control, and symbolic Criminalization,” author argues that Indonesia has to improve its practice in fighting transnational organized crimes and controlling migration. The author’s research shows that criminalization of immigration misconduct happens frequently in Indonesia. By this article, the author extensively describes the crimmigration phenomenon in Indonesia.
Along with the stream of irregular migration, including people smuggling and human trafficking, Indonesia is also a transit country for asylum seekers and refugees from conflict countries. These asylum seekers and refugees come to Indonesia hoping that they will reach Australia as their destination. Many of them are minors (children under 18 years old) who travel alone, called unaccompanied minors. Beside Indonesia, they also seek asylum in Malaysia. Unaccompanied minors are vulnerable to be detained, persecuted or even deported to their unsafe home country. The most important principle in dealing with unaccompanied children seeking asylum is the principle of the “best interest of the child”.18 Furthermore in the guidelines, UNHCR suggests that an unaccompanied child should have a guardian or adviser, who has the necessary expertise in the field of child caring.19 “unaccompanied & denied:
Regional Legal framework for unaccompanied Minors Asylum seekers,” is a comprehensive article discussing issues of guardianship of unaccompanied minors in south east Asia, including Indonesia and Malaysia, mirroring countries which are marked as having the best practice in this regard. this article is written in acknowledgement that both Malaysia and Indonesia are not parties tothe Convention Relating to the Status of Refugees (Refugee Convention).
Suggestion addressed to Indonesia to become a party of the Refugee Convention has long been heard. In contrast, there are opposing views that are not supporting Indonesia to sign the Convention. Each opinion is built on strong foundations. In the last article of ILRev 5.3, “should Indonesia Accede to the 1951 Refugee Convention and its 1967 protocol?”tries to unveil the pros and cons on the necessity of Indonesia to accede Refugee Convention.
Finally, as a strategic country, Indonesia has to be aware of its advantages and disadvantages. Planning and taking necessary steps in controlling problems faced by Indonesia due to its geographic location and situation will lead Indonesia to be a role player in the region.
In this closing remark, board of editors of ILRev hope that articles published in this edition will give readers extensive understanding on current legal development in Indonesia and the region. We welcome scholars or practitioners to publish their manuscripts in the upcoming editions of ILRev.
17 IOM Indonesia, “Indonesia: A Regional Leader in Managing Irregular Migration,” http://www.iom.
or.id/indonesia-regional-leader-managing-irregular-migration#sthash.wT4UJ8fr.dpuf, accessed 26 Decem- ber 2015.
18 UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (February, 1997).
19 Ibid.
