Blog post by Mahardhika Sjamsoe’oed Sadjad (PhD Candidate at the International Institute of Social Studies, Erasmus University Rotterdam) and Max Walden (Research Assistant and PhD student under the Australian Research Council Discovery Project ‘Indonesia’s refugee policies: responsibility, security and regionalism’).

Like most of its Southeast Asian neighbours, Indonesia is not a signatory to the 1951 Refugee Convention nor the 1967 Protocol. A long-awaited Indonesian presidential regulation on refugees, abbreviated as PR 125/2016, was initially praised by some academics and advocates as a positive development for the protection of refugees, despite being focused on procedural matters.

PR 125/2016 largely formalised existing practices by various government stakeholders including immigration, police and other authorities regarding asylum seekers and refugees coming to Indonesia. Importantly, however, it is the first time that an Indonesian legal instrument has adopted the definition of a refugee which is almost the same as that used in the 1951 Refugee Convention.

It defines a refugee as “a foreigner who resides within the territory of the Republic of Indonesia due to a well-founded fear of persecution due to race, ethnicity, religion, nationality, membership of a particular social group, and different political opinions, and does not wish to avail him/herself of protection from their country of origin and/or has been granted the status of asylum-seeker or refugee by the United Nations through the United Nations High Commissioner for Refugees (UNHCR).”

PR 125/2016 assigns greater responsibility to local governments – responsibility that observers say they are highly unlikely to fulfil due to budgetary limitations and a lack of political will. As Missbach et al. note, “there is widespread concern that the Regulation places many expectations on local governments that they cannot live up to; furthermore, it does not specify any sanctions for reluctant and recalcitrant local governments.”

Ultimately the PR 125/2016 reflects the Indonesian government’s view that refugees should be dealt with primarily as a security and management issue, leaving little consideration for basic rights laid out for non-citizen refugees under Indonesian law, let alone international human rights or refugee law.

International law versus local practice

While it is not bound by the Refugee Convention, the Indonesian government’s response to asylum seekers and refugees within its territory is shaped by a patchwork of domestic and international laws.

The Constitution declares: “Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country.” Indonesia’s 1999 Law on Foreign Relations allows the president to grant asylum to individuals via presidential decree and “determine policy with respect to foreign refugees taking into account the views of the Minister [of Foreign Affairs].”

Indonesia is also party to various international human rights documents, including the Convention Against Torture (CAT) which prohibits states from committing refoulement – returning people to a place where they could potentially face persecution or other serious human rights violations.

Due to its general adherence to the principle of non-refoulement, Indonesia argues that it follows the Refugee Convention “in spirit”, despite continuing to view itself as a transit country. In practice, however, there is a tension between Indonesia’s human rights obligations towards refugees and the fact that refugees are generally viewed by Indonesian authorities through a security prism consistent with the migration laws discussed below.

Indonesian Immigration claims its approach is informed by a balance of adhering to non-refoulement principles at the same time as enforcing “selective migration”. It routinely claims that asylum seekers and refugees have engaged in people smuggling, drug dealing and other serious criminal activities. A 2018 article by Syahrin et al., a doctoral candidate who is also an Immigration official, argued that: “refugees often create chaos in neighborhoods, because of differences of language and culture … [and] most of them have an economic motive to search for protection and a decent livelihood.”[i]

For most government officials, human rights are secondary to security concerns. As the director of human rights at the Ministry of Foreign Affairs, Dicky Komar, said in 2017: “The government has no obligation to fulfill the rights of refugees […] This is a temporary process, they will not stay long in Indonesia as integration is not part of our policy.”

The Indonesian navy, maritime police, and national search and rescue agency (BASARNAS) view refugees as an issue of emergency response – people in need of assistance or rescue at sea. This is largely because of the circumstances under which the PR emerged – coming into force in the wake of Indonesia’s response to the Andaman Sea crisis of 2015.

Legal scholars and members of civil society, meanwhile, more often advocate a rights-based approach to Indonesia’s response to refugees and asylum seekers. Enny Soeprapto, a former commissioner for Indonesia’s national human rights commission argues that Indonesia needs specific legislation dealing with refugees which goes beyond the merely procedural nature of PR/2016 and extends to rights to education, mobility, quality healthcare and livelihoods.

The Indonesian Civil Society Network for Refugee Rights Protection (SUAKA) has echoed calls for a comprehensive law on refugees and asylum seekers, which would overcome current confusion faced by various government agencies and enable the law and Indonesian society to better deal with an increased population of people seeking asylum. SUAKA’s chairperson Febi Yonesta has argued that there are “many inconsistencies between the international human rights instruments, the Constitution, domestic statutes and regulations, which create confusion and misconceptions among government officials, police, the judiciary, and civil society about the place of these rights in the Indonesian legal system.”

The Securitisation of Refugees and Asylum Seekers in Indonesia

Many studies have highlighted the relationships between the securitisation of international migration and the militarisation of border regimes with refugee reception in various host countries, such as Australia, Europe and the United States of America. Correspondingly, collaboration between Australia and Indonesia particularly during the period of 2008-2013 influenced the formulation of Law 6/2011 “Concerning Immigration” and stricter security measures at Indonesian borders. As Kneebone[ii] writes: “Australia ‘exported’ its policies of preventing movement of asylum seekers, as well as detention, to Indonesia.”

PR 125/2016 mentions the act of securing refugees several times, such as in Chapter II Article 18 during the discovery of refugees on land and in Chapter IV titled “Pengamanan” (security measures) when refugees are found and are in shelters. The word pengamanan can be ambiguous in the Indonesian language, meaning either the act of securing someone from a threat towards him/herself or the act of neutralising someone that is deemed as a potential threat towards others.  Language used by government officials routinely reflects this notion that refugees pose a threat.

Whilst PR 125/ 2016 does not provide rights for refugees as such, it does provide standards for their care. Chapter II Article 26, for example, lists standards that must be met by refugee shelters and breaks down refugees’ basic needs such as clean water, food, shelter, health and sanitation facilities. The mention of shelters in the PR marks progress in Indonesia’s treatment of refugees, moving away from the practice of refugee detainment in Immigration Detention Centres. Around two-thirds of asylum seekers and refugees in Indonesia are now housed in community shelters provided by the International Organisation for Migration (IOM) Indonesia, largely funded by Australia.

The facilitation of shelters and basic needs are not, however, presented as rights that are guaranteed for refugees. Instead they are mentioned in Article 26.3 as facilities that can be provided by international organisations that operate in the field of migration with permission from the Ministry of Law and Human Rights. The Indonesian auxiliary verb used in Articles 26.3 and 26.5 on the facilitation of shelters and basic needs is dapat (may)instead of harus (must) or akan (will/ shall). These articles allow the Indonesian government to continue its approach of devolving the responsibility of facilitating refugees’ shelter and basic needs to international organisations. This becomes a problem when international organisations cannot offer support to all refugees in Indonesia.

Makeshift camps outside an Indonesian detention centre at Kalideres in West Jakarta. Photo ©Ayaa J

As of 15 March 2018, Australia cut off further financial support to IOM Indonesia. In turn, the IOM announced that it could not provide support for refugees who are not registered as IOM beneficiaries before this cut-off date. As a result, around 400 refugees resided in makeshift camps outside of the Immigration Detention Centre in Kalideres, West Jakarta, with the hopes of getting registered to IOM. While most of these people were put on the IOM caseload in the first half of 2018, thus receiving accommodation and a modest monthly stipend, many remain in and around Kalideres without reliable support.

PR 125/ 2016 ignores ‘independent refugees’ or ‘unsupported refugees’ who are formally registered with UNHCR but are not financially supported by any international organisation. Independent or unsupported refugees make up about a third of the refugee and asylum seeker population in Indonesia. As refugees’ time in Indonesia has been extended indefinitely due to limited opportunities for resettlement, many unsupported refugees are running out of means to support themselves and their families. The PR does not guarantee refugees’ rights to obtaining shelter or a source of livelihood, thus leaving many unsupported refugees without a place to go.

Addressing misconceptions

The growing emphasis on security instead of rights during a time when refugees are forced into indefinite ‘transit’[iii] and amidst rising concerns over xenophobia, may contribute to refugees’ vulnerability while living in Indonesia. We propose three major themes which reinforce connected narratives of security and fear regarding asylum seekers and refugees in Indonesia.

The first is the use of cases where individual refugees have broken national laws and local norms in order to paint entire groups of refugees with a wide negative brush. This selection bias not only disregards law-abiding refugees, it also ignores the harsh realities that may push some to violate certain laws, such as those that criminalise refugees who obtain employment.

The second is misinformation that is still rampant in society’s perception of refugees. In contexts such as Indonesia, rumours and misinformation can exacerbate tension between locals and transit migrants. Exaggerated accounts of the stipend value that some refugees receive from organisations such as IOM can trigger social jealousy among Indonesian locals. The comment that “refugees do not have to work, but can enjoy stable income”, is one that often comes up when talking to communities living near refugees. Assumptions that refugees will become a burden to the state or are undeserving of help, continue to colour refugees’ relationships with host communities in Indonesia.

Third, there is a tendency to use fear of potential conflict between host communities and refugees as justification to place refugees under greater scrutiny. It is important here to remember that just like the refugee population, Indonesian society is also ethnically and religiously diverse. Scholars and activists working with refugees in Aceh, Makassar, Jakarta, and Bogor have illustrated significantly different responses from local communities in different locations across the archipelago.

The PR 125/ 2016 mentions masyarakat (society)three times, all of which are related to the act of reporting refugees’ presence at sea and on land to authorities, therefore including society in the act of refugee surveillance. Meanwhile, it completely ignores the role played by civil society organisations and grass root initiatives to help cater to refugees’ needs while living in Indonesia. At best, reinforcing fears of social conflict ignore these nuances and at worst, it justifies further rejection of refugees by the Indonesian host communities. Over two years after the signing of PR 125/ 2016, it is clear many challenges still lie ahead to better living conditions for refugees in Indonesia. High on the agenda for better treatment of refugees are: advocating for rights-based treatment of refugees as stated in national and international laws, countering misinformation and strengthening society’s understanding on refugee issues, and keeping security concerns in check through more nuanced dialogue about and between Indonesian society and refugees.

[i] Syahrin, M. Alvi; Artono, Harry Budi; and Santiago, Faisal (2018) ‘Legal Impacts of the Existence of Refugees and Asylum Seekers in Indonesia’ International Journal of Civil Engineering and Technology Vol.9(5). Pp.1051-1058

[ii] Kneebone, Susan (2017) ‘Australia as a Powerbroker on Refugee Protection in Southeast Asia:  The Relationship with Indonesia’ Refuge Vol.33(1). pp.29-41

[iii] Missbach, Antje (2015) Troubled Transit: Asylum Seekers Stuck in Indonesia. Singapore: ISEAS Yusof Ishak Institute.

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law InitiativeWe welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.