Article:

Filling the Legal Vacuum

Written by Sophie Duxson

Indonesia has no overarching legal framework governing the treatment of asylum

seekers and refugees in its territory. This legal vacuum stems from the country’s historical
reluctance to sign the 1951 Refugee Convention, an attitude that has been characterised by
scholars as a wholesale ‘rejection’ of international refugee law that pervades the entire
Southeast Asian region.

Encouragingly, there have been some indications that Indonesia is willing to embrace
international refugee protection obligations in the future. This could provide a foundation for
the development of laws specifically to protect the welfare of asylum seekers and refugees
and provide them with legal pathways to settle permanently in the country.

Additionally, there are many international, regional and domestic instruments already
in place that could inform and bolster the development of a robust domestic legal framework
to protect refugees in Indonesia, should there be sufficient political will to do so.

Signing the Refugee Convention

The Refugee Convention is the key international treaty governing the treatment of
refugees. It provides the foundation for the development of national laws protecting asylum
seekers and refugees.

Historically, many Asian governments, including Indonesia, have been sceptical about
the value of the Convention and its associated 1967 Protocol. They have perceived it as a
deeply Eurocentric document developed in response to mass displacement after World War II
and therefore not applicable in an Asian context. Furthermore, Indonesia has traditionally
viewed itself as a transit country for refugees hoping to make their way to Australia, and
therefore without obligations to provide for refugees in the long term.
 Indonesia has also expressed concern that ratification of the Convention may serve as
a ‘pull factor’ for asylum seekers. Finally, there is reportedly a perception across the political
spectrum in Indonesia that the large numbers of displaced people seeking asylum around the
world is the responsibility of those western countries that, by virtue of their intervention in
foreign conflicts, created the problem. These are all significant hurdles to ratification.

Nevertheless, there have been some recent indications that the Indonesian government
is increasingly willing to engage with international refugee law. After extensive lobbying by
the United Nations High Commission for Refugees (UNHCR), Indonesia declared an
intention to sign the Convention in its last two National Action Plans on Human Rights, in
2004 and 2011. It issued two presidential decrees to that effect. A bill for parliamentary
ratification of the Convention and Protocol had apparently been drafted by November 2013,
as had a parliamentary decree for partial ratification. To date, however, neither the bill nor the
decree has been enacted and the Convention remains unratified.

Laws relevant to refugee protection in Indonesia

As it stands, there is no legal framework in Indonesia that relates specifically to

refugees, but there is a disparate collection of laws that govern their treatment, at least to
some extent. The Indonesian Constitution itself contains a right of every person to ‘obtain
political asylum from other countries.’ The meaning of this provision is open to
interpretation, but its use of ‘every person’ suggests it applies to foreigners as well as
Indonesians. This right is mirrored in Law No 39 of 1999 on Human Rights.

The legal instrument most relevant to asylum seekers in Indonesia is a 2010

Regulation of the Indonesian Director-General of Immigration. It allows ‘irregular migrants’
to register as asylum seekers with the local office of the UNHCR and stay in the country on a
temporary basis while their asylum claims are processed and a durable solution is identified
for them. The Regulation also ensures that they retain no formal legal status in Indonesia and
that the cost of housing and food for registered asylum seekers is borne entirely by UNHCR.

The legal status of regulations like this is largely unclear. No Indonesian court is
empowered to review their constitutionality. This is highly problematic because these
instruments are also regularly promulgated without being subject to the rigours of the
parliamentary process. The fact that the principal legal document governing refugee treatment
in Indonesia at the moment did not pass through parliament and cannot be constitutionally
reviewed by an Indonesian court, is troubling.

Two other statutes that the parliament has enacted give immigration authorities and
the president broad discretionary powers in relation to asylum seekers. Law No. 37 of 1999
on Foreign Relations gives the president wide-ranging discretion to grant asylum to
individuals by presidential decree as he or she sees fit, and authority to ‘determine policy
with respect to foreign refugees taking into account the views of the Minister [of Foreign
Affairs]. I am not aware of this discretion ever having been exercised to date.

Law No. 6 of 2011 on Legal Practice on Immigration provides immigration

authorities with the power to prevent the entry and departure of foreigners on a wide range of
grounds. It prescribes that victims of people smuggling be put in detention or be returned to
their home countries. The law uses the term ‘illegal immigrant’ and makes no mention of
asylum seekers or refugees. But it also grants those with UNHCR documents special status,
which ostensibly prevents them from being arrested or deported (although there is no way to
enforce this), while also imposing strict rules regarding their conduct.

In practice, Indonesia does not deport asylum seekers while their claims are
processed, but those found to be refugees are not legally allowed to settle in Indonesia. There
is widespread detention of asylum seekers, although many more live in the community,
awaiting resettlement for years. They have no access to government services and are barred
from working or studying. For this reason, scholars have suggested that Indonesia ‘merely
tolerates’ asylum seekers, treating them with ‘benevolent neglect’.

But it is also worth pointing out that the Indonesian government has been remarkably
tolerant of the presence of asylum seekers and refugees in the country, particularly compared
to Australia’s increasingly restrictive policies. One example of this was the provision, by the
Indonesian and Malaysian governments, of temporary protection to Rohingya asylum seekers
stranded at sea.
International human rights law and regional frameworks

Domestic refugee protections in Indonesia are inadequate. However, Indonesia’s

changing attitudes towards human rights law, the existence of several under-utilised regional
frameworks, and the efforts of robust civil society in the region, provide potential for
significant improvements to the domestic protection regime.

Martin Jones, a lecturer in international human rights law at the University of York,
has pointed out that the Refugee Convention is not the only source of state obligations
towards refugees, and that a domestic ‘asylum law’ could be developed from alternative
sources, without needing to sign the Convention.

In the past two decades, Indonesia has ratified a significant number of international
human rights treaties into its domestic law which should have direct application to asylum
seekers and refugees. These include the Convention against Torture (CAT), the Convention
on the Rights of the Child, and the International Covenant on Civil and Political Rights.
Ratification of the CAT engaged the non-refoulementprinciple, a fundamental tenet of
international refugee law, which provides that states must not return a person to a risk of
persecution or serious harm. Other domestic obligations should flow from these laws, but
they seem to be rarely upheld in relation to refugees.

There are also valuable regional instruments that, although they remain
unimplemented, have the potential to provide substantial protection to refugees in Indonesia
and the region. The Bangkok Principles, developed in 1966 in a concerted demonstration of
post-colonial regional cooperation, contain protections broader than those in the Convention
itself, but to date have led to no domestic laws. The 2012 ASEAN Human Rights Declaration
confirms the right of every person to seek and receive asylum in another state. Finally, the
2013 Jakarta Declaration emphasises the protection of victims of people smuggling, and
commits to ‘encouraging’ legal avenues for migration in their territories and improvements to
economic and social conditions to prevent ‘irregular movements’.

The work of civil society

There are also many civil society groups in Indonesia and the region, linked by the
Asia Pacific Refugee Rights Network (APRRN), which advocate for the rights of refugees in
Indonesia and beyond. APRRN serves a capacity-building function, supporting its members
to advocate directly for individual asylum seekers and refugees, and for policy reform. For
example, APRRN’s Indonesian members helped the Indonesian government to draft Standard
Operating Procedures in relation to the treatment of asylum seekers and refugees (which are
still awaiting final approval).

These civil society groups provide a source of research, capacity-building and

advocacy for the implementation of the existing regional frameworks into workable domestic
legislation, or the enforcement of international human rights law already ratified in Indonesia
in favour of asylum seekers and refugees. Grassroots efforts like this may be more useful than
attempting to ratify the Convention, as it may help to avoid the public perception of the
imposition of western ideas irrelevant to the region.

While Indonesia should be applauded for not returning asylum seekers to the
countries from which they are fleeing, it only tolerates their presence in the short term and
does not address the arrival of asylum seekers in a holistic or norms-based way. Movements
towards embracing international human rights obligations to refugees have occurred in fits
and starts, and are often delayed by indecision and bureaucracy. But they demonstrate a slow
but positive change in attitude towards asylum seeker flows in Indonesia. The Indonesian
government must take a systematic approach to enacting national legislation governing the
treatment of refugees, or enlivening the operation of laws, norms and frameworks that,
usefully, already exist. Engagement with civil society will allow for the development of
principled, evidence-based, and locally specific policy.

Sophie Duxson was a research assistant at the Andrew and Renata Kaldor Centre for
International Refugee Law at UNSW.

From: Inside Indonesia 124: Apr-Jun 2016