Australian Journal of Asian Law, 2013, Vol 14 No 2, Article 1: 1-19

The Criminalisation of People Smuggling: The Dynamics

of Judicial Discretion in Indonesia
Antje Missbach * and Melissa Crouch ♣

The issue of people smuggling is one of global concern that many states have responded to by introducing a specific criminal offence
of people smuggling. In Indonesia, a country that is a key transit point for asylum seekers heading to Australia, new offences have
been introduced since 2011 in order to criminalise people smuggling. In this article we analyse the legal framework that has been
established to combat people smuggling in Indonesia, both before and after the reforms of 2011. We consider how arrests for people
smuggling have been dealt with by the public prosecutor and the judiciary in practice. We argue that the implementation and
outcome of the new offences for people smuggling in Indonesia must be considered within the broader social and political context in
which courts are situated. We demonstrate that sentencing practices in people smuggling trials are informed by a range of factors
in addition to corruption, including judicial discretion and broader social attitudes towards people smugglers.

The pressing issue of people smugglers and asylum seekers in the Asia-Pacific region has been
overshadowed by the reactions of the Australian media and the inability of Australian governments to
reach a consensus on the most appropriate response. The increase in numbers of asylum seekers and
the humanitarian crises created by sinking boats have led to one political crisis after another in
Australia (Marr and Wilkinson, 2003). In response, some analysis has been undertaken about the
prosecution of people smugglers in Australia (Hunyor, 2001; Martin, 2011; Schloenhardt and Martin,
2012). By comparison, there is little analysis available of the efforts taken by other countries in the
region, such as Indonesia, to address the dilemma presented by people smuggling. In this article we
analyse legal processes and practices concerning people smuggling in Indonesia. We do so through a
survey of court cases between 2007 and 2012 that could be accessed by the authors, either in person at
Indonesian courts or, less often, online. It is also based on documents obtained from police and the
Office of the Public Prosecutor (Kejaksaan Agung), as well as interviews with officials working in these
areas. 1
Fieldwork for this research was conducted over a period of eight months between March 2010 and
December 2012. 2 We focused on the provinces of West Java and Nusa Tenggara Timor in particular,
because both areas are notorious exit points for irregular migrants attempting to reach Australia by
boat. The nearest point from Nusa Tenggara Timor is Australia’s Ashmore reef, which is only 12 hours
by boat or 140 km away from the final border island, Rote, whereas Christmas Island is about 400 km
from the south coast of Java. Both destinations have, however, seen high numbers of interceptions over
the last few years. Irregular migrants were arrested by Indonesian authorities either on their way to
the coast or when their boats failed due to technical problems or bad weather conditions. Arrests by
maritime police, the authorities responsible for policing Indonesian waters, rarely occur. 3

* Melbourne Law School, the University of Melbourne, antje.missbach@unimelb.edu.au. Antje would like to acknowledge the
support of her McKenzie Postdoctoral Fellowship at the University of Melbourne and the Fritz Thyssen Stiftung.
♣
Law Faculty, National University of Singapore, melissacrouch@nus.edu.sg. Melissa would like to acknowledge the support
of the International Institute for Asian Studies, Leiden, during her time as a Postdoctoral Fellow from July to August 2012.
All translations in the article are the authors’ own. The titles of all laws and court cases have been translated into English.
While every attempt has been made to include all cases that occurred during this period, our data is limited by the
1

willingness of personnel in the courts, the police force and the public prosecutors’ office to share this information with us.
We therefore do not claim that our data is comprehensive.
2
The field research for this article was conducted by Antje Missbach.
We have only been able to identify five court cases brought under Law No 17 of 2008 on Shipping, the statute usually
3

applied in the case of arrests by the maritime police.

Australian Journal of Asian Law Vol 14 No 2

In light of this, we address three central questions in this article. First, who are the actors involved
in people smuggling in Indonesia and to what extent do they appear in court trials? Second, how has
the domestic legal framework to address people smuggling changed since the introduction of democracy
in 1998? Finally, how have the courts interpreted and applied the offence of people smuggling?
To address these questions, we highlight the multiple actors involved in people smuggling, and
then contrast this with the reality that most people convicted for people smuggling have played only
minor roles, for example, as drivers. We use the term ‘people smugglers’ because this is the direct
translation of the term used in Indonesian legislation (penyelundupan manusia). We examine the legal
framework prior to 2011 in the broader context of the criminal system in Indonesia, and introduce a
number of case studies to illustrate how people smugglers and irregular migrants were prosecuted in
creative ways under the old Law No 9 of 1992 on Immigration. The final section explores offences
against people smuggling contained in the new Law No 6 of 2011 on Immigration. The main concern
we identify is that while the law imposes a minimum five-year sentence on those found guilty, some
judges have handed down lower sentences as an expression of their disagreement with the law.

The ‘Business’ of People Smuggling in Indonesia

We begin by locating people smuggling trials within the broader context of people smuggling networks
as business operations. People smuggling can be understood as a transnational service industry linking
service providers (‘smugglers’) with their clients (‘smuggled migrants’) (Bilger et al, 2006). People
smuggling occurs for many reasons, primarily because there is the demand from people who, for a
range of reasons, cannot migrate through legal channels. Although it is generally assumed that people
smugglers are in the business for lucrative financial rewards, such a view can be simplistic and
misleading. Some smugglers may be driven by altruistic motives and sympathy for the migrants, who
may be genuine refugees or rejected asylum seekers. The relationship between migrants and people
smugglers is typically one of dependence as the former lack the connections and knowledge necessary
to organise their migration.
In terms of national laws on people smuggling, we will show that the legal framework rarely pays
attention to, or distinguishes between, the different actors and the roles they play in the process. It is
important first, however, to identify the multiple actors involved in these enterprises. The term ‘people
smuggler’ is rather misleading, as these networks include multiple actors who undertake different
roles that diffuse the responsibility for people smuggling operations. Içduygu and Toktas (2002: 36)
have distinguished ten different roles in the process of people smuggler. A journey for asylum seekers
from their home country to their final destination may include contact with people who play the role of
‘arrangers’ to oversee the operation; ‘transporters’ who arrange the journey by land, air or sea and their
‘crew’; ‘support staff’ who arrange matters such as food and accommodation; and, of course, ‘debt
collectors’ and ‘money movers’, who complete the financial transactions involved. Other crucial actors
in the process in Indonesia are also ‘protectors’, that is, corrupt government officials in immigration,
the military, the police and the public prosecutor’s office, who ensure smuggling operations remain
undetected. These actors have the greatest potential to undermine the legal prosecution of people
smugglers, and are rarely prosecuted for their involvement in people smuggling operations.
While some irregular migrants choose to risk their luck by boat, others remain as registered
refugees. By the end of March 2012, there were officially 1,140 recognised refugees and 3,781 asylum
seekers in Indonesia who were registered with the United Nations. The number of actual irregular
migrants is likely to be far greater. There are no statistics available on the number of people based in
Indonesia involved in people smuggling. One indication is the number of people arrested for people
smuggling, although not all these cases proceed to court. In 2009, there were more than 32 people
arrested for people smuggling and in 2010 another 35 (Tempo, 2012). Of this number, 16 were
foreigners and the rest Indonesian nationals. In 2011, the Indonesian police arrested 24 people
smugglers, three of them non-Indonesians (Powell, 2012). These numbers, may, however, be only the

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‘tip of the iceberg’ in terms of the true numbers of people involved at various stages of the people
smuggling process.
People smuggling in Indonesia is often part of a transnationally organised network (Perdana, 2010;
Meliala, 2011). The majority of asylum seekers, refugees and other transit migrants are originally from
conflict-ridden countries, such as Afghanistan, Iraq, Sri Lanka, Burma/Myanmar and Somalia. 4 In
order to reach Indonesia, most rely on the services of smugglers, who equip them with visas and/or
passports – fake or genuine – to enter the country by plane. People from Afghanistan who face greater
difficulties obtaining a tourist or business visa for Indonesia often travel to Malaysia first, and then
enter Indonesia clandestinely by boat, thereby using the same routes as irregular Indonesian labour
migrants. 5 Some people enter legally but then become illegal by overstaying their visas. Others have no
papers at all, as they lack the capacity or funding to access either legal or fake documents.
Some of the roles in these operations are filled by local Indonesian citizens, others by foreigners.
One example is Sayed Abbas, a former asylum seeker whose claims have been rejected multiple times.
Instead of being deported or repatriated, Sayed remained in Indonesia and married an Indonesian
wife. 6 Like others, he learned from a previous generation of people smugglers and opened his own
business. In November 2008, he was arrested for the first time for people smuggling in Banten,
although he was later acquitted at first instance. 7 The prosecutor appealed, and he was found guilty by
the Supreme Court and sentenced to two years and six months in prison and ordered to pay a fine of
Rp 5 million (A$ 545). 8 Although he was due to be released in September 2011, at the time of an
interview with him in 2012, he was still in prison due to ongoing investigations regarding his suspected
involvement in a smuggling case in Trenggalek (East Java). 9
Organisers like Sayed have, however, been affected by the policies of other countries. For example,
during the years of the Australian Prime Minister John Howard’s ‘Pacific Solution’ policy (2001-2007),
people smuggling from Indonesia to Australia largely ceased. According to Munro (2011), the
smuggling infrastructure nevertheless remained intact during those years and was later reactivated.
In 2012, there were approximately more than 30 main smuggling networks in Indonesia. 10 There is
fierce ‘trade rivalry’ between some of the networks, while others overlap due to the dynamic and
flexible structures. As a result of increased border controls in both Indonesia and Australia, smugglers
have now been forced to find new, and often longer or riskier, routes.
What used to be amateur and spontaneous smuggling operations are now larger, more
sophisticated operations that involve not just foreign arrangers and local transporters but also a range
of criminal Indonesian authorities (oknum). Most asylum seekers resort to the service of people
smugglers with the aim of travelling to Australia as soon as possible because it is the closest safe
country in the region.

Corruption, the Courts and Government Officials

In this section we contextualise the prosecution of people smugglers in the broader environment of a
weak and corrupt judicial system in Indonesia.
Criminal prosecutions of people smugglers, like many criminal cases in Indonesia, are affected by
the weak state of the Supreme Court (Mahkamah Agung) and the system of general courts below it.
These have gained the reputation for being notoriously corrupt and some judges have been prosecuted

4
Interview by Antje Missbach with Hongky Juanda, Department of Immigration, 5 March 2012 in Jakarta.
5
Interview by Antje Missbach with members of Maritime Police, 22 March 2012, Batam.
6
Interview by Antje Missbach with Sayed Abbas, 11 April 2012, in Jakarta.
7
District Court of Serang Decision No 17/Pid.B/2009/PN.Srg, 1 July 2009 (Sayed Abbas).
8
Supreme Court Decision No 2422K/Pid.Sus/2009, 26 February 2011 (Sayed Abbas). The exchange rate for all amounts
referred to in this article is that which applied on 2 August 2013, when A$ 1 was the equivalent of Rp 9,136.
9
Interview by Antje Missbach with Sayed Abbas, 11 April 2012, Salemba prison Jakarta.
10
Interview by Antje Missbach with Alfis Suhaidi, police investigator, 10 May 2012, in Jakarta.

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for accepting bribes. For example, in March 2013, a judge in the Bandung District Court was arrested
by the Corruption Eradication Commission on suspicion of having taken a bribe (Setu et al, 2013). Butt
and Lindsey (2011) have conducted a detailed examination of the different forms that illegality takes in
the courts in Indonesia, which continues to persist post-1998, when democratisation began. Lindsey
and Santosa (2008: 10) have also highlighted the ‘political nature of judicial decision-making’ and
‘ingrained judicial corruption’. The extent of illegality and corruption within the judicial system affects
all cases heard by the courts, including cases of people smuggling.
Criminal cases are shaped by a lack of effective reform of the office of the public prosecutor and the
police. The reality is that the office of the public prosecutor has remained ‘essentially unchanged since
Soeharto’ and suffers serious shortcomings (Lindsey, 2004: 26). Similarly, the police are also infamous
as an institution that remains ‘resistant’ to attempts at reform (Lindsey, 2004: 27). Problems in
obtaining convictions of people smugglers once they are arrested therefore need to be seen as
symptomatic of the broader issues facing the criminal justice system in Indonesia.
Further, it is an open secret that smuggling networks in Indonesia only operate due to
collaboration with corrupt officers within the Indonesian police, the military and immigration. Officers
from these institutions are, however, rarely prosecuted for their involvement in these networks (ABC
News, 2012). One of the few cases that have been brought to court since 2011 involved the prosecution
of officers accused of facilitating the journey of 200 asylum seekers, who drowned because their
overcrowded boat sank in a storm. In September 2012, five army personnel were put on trial in the
Military Court (Pengadilan Militer) in Malang for their involvement in the tragedy. They were accused
of breaching art 120(1) of Law No 6 of 2011 which, as we will explain in more detail later, makes people
smuggling an offence punishable by a minimum of five years in prison, up to a maximum of 15 years.
The soldiers in this case received minimal sentences of between five and six years imprisonment and
fines of Rp 500 million (A$ 54,551). 11 The accused appealed these decisions, as they claimed that there
were more senior people in the syndicate who should be held responsible in this case, but their appeals
were unsuccessful. 12
These trials are just one indication that people smuggling networks and operations are
perpetuated and protected by a range of law enforcement authorities that includes police, military and
immigration officials, as well as public prosecutors and the local courts. Ferdinand T Andi Lolo, an
Indonesian scholar who previously worked in the Attorney General’s Office in Jakarta, claims that
corruption within the courts and law enforcement agencies is the largest threat to law enforcement
relating to people smuggling:
On the one hand, [the law enforcers] formally seek the eradication of human smuggling; on the other,
however, [they] are involved in transactional encounters with the people smugglers. Smugglers tend to have
good links with the authorities and they are aware what is happening on the ground, if arrests have to be
made, they are often engineered and selective as it is often the less important agents that fall victim to
arrests, whereas the organizers whose role is more substantial will walk free (Lolo, 2012: 31).

This is crucial to understanding the implementation of the law, which requires knowledge of the
complex networks and multiplicity of actors involved that blur the lines between law enforcement
agencies and people smugglers. These networks largely operated in a legal vacuum up until 2011.
One illustration is the case of Imanuel Pulungan, a former immigration officer who was arrested at
the airport in Kupang in 2010, together with nine Afghanis. Although he had already retired, he was
still wearing his old uniform, which suggests he may have been attempting to use his former status as
an immigration official to smuggle people through (Timor Express, 2010). The local police launched an
investigation but Pulungan ultimately never stood trial, despite the fact he could clearly have been
prosecuted under Law No 9 of 1992. Our inquiries were met with different explanations from different

11
Supreme Court Decision No 42-K/PM. III-13/AD/VIII/2012, 27 September 2012 (Kornelis Nama and others).
12
Supreme Court Decision No 86-K/PMT.III/BDG/AD/XI/2012, 11 December 2012 (Kornelis Nama and others).

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officials involved. The public prosecutor claimed that he had received an incomplete file from the police
and that his request for additional information was never fulfilled. The police claimed that the file had
gone missing because the main investigator had died and that the computer containing case documents
had broken down and they could not be recovered. 13 Further, we were informed that a medical
assessment had allegedly determined that Pulungan suffered from health conditions that prevented
him from standing trial, although no evidence of this was provided.
This case demonstrates just a few of the many issues that arise in prosecutions for people
smuggling, and the many reasons, real or fabricated, why a person arrested on charges related to
people smuggling may never actually be tried in court. For the prosecution, there may also be practical
difficulties due to the fact that asylum seekers may no longer be available to give evidence at trial
because they have been resettled, detained or deported. Even if an accused is arrested, found guilty
and sentenced to prison, the practice of corruption is endemic in Indonesian prisons, with some
prisoners able to access funds and bribe guards in order to leave the prison for short periods of time. 14
These difficulties have arisen in some of the cases tried under Law No 9 of 1992 on Immigration, as
we now show. Yet we also argue that the outcome in these cases cannot be explained by corruption
alone. Rather, the exercise of judicial discretion is also determined by factors such as social attitudes
towards people smugglers and the level of media attention a court case generates.

Legal Vacuum on People Smuggling: Law No 9 of 1992 on Immigration

Prior to 2011, there was no criminal offence of people smuggling in Indonesia. The absence of such an
offence was not unusual because, until recently, many other countries also lacked specific legal
provisions that made people smuggling a crime. In general, the criminalisation of people smuggling is a
more recent global trend. The result of this legal void was that a person who was caught people
smuggling could not be charged specifically for people smuggling. Instead, law enforcement agencies
had to rely on several general immigration offences in Law No 9 of 1992 on Immigration, the Criminal
Code, and, since 2008, Law No 17 of 2008 on Shipping, to put people smugglers in prison. An
increasing number of boats and asylum seekers continued, however, to reach Australia. In 2009, 60
boats carrying 2,727 people arrived, and in 2010 132 boats carrying 6,502 people followed (Project Safe,
2012). The rise in asylum seekers suggests that this amalgam of laws and the inconsistent manner in
which they were applied had little deterrent effect on people smuggling networks.
The old immigration framework, Law No 9 of 1992 on Immigration, was introduced during
Suharto’s New Order regime (1966-1998) and covered a wide range of general immigration matters
such as the rights of citizens to leave and re-enter Indonesia, and the need for foreigners obtain an
appropriate visa to travel to Indonesia. There were three main provisions used to convict people
smugglers and asylum seekers. Article 48 concerned the failure to pass through the Immigration
Office:
A person who enters or exits Indonesia without being checked by an Immigration Official at an Immigration
Office may be imprisoned for up to three years or fined up to Rp 15 million (A$ 1,636).

This offence was used against foreign people smugglers and asylum seekers in at least 15 cases.
Another provision was art 52, which stipulated that if a foreigner overstayed his or her visa by more
than sixty days, he or she would face a significant prison sentence or fine:

13
Interview by Antje Missbach with members of the Special Unit for the Surveillance of Foreigners (Pengawasan Orang
Asing), 27 April and 22 May 2012, in Kupang.
14
This became a public controversy in the case of Gayus Tambunan, a tax official imprisoned for corruption, who bribed
guards in order to be able to attend a tennis match in Bali, among other things. See Rachman, 2011.

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If a foreigner’s immigration permit has expired and he or she still resides in Indonesia after 60 days from the
expiry of his or her permit, he or she may be sentenced to 5 years prison or given a fine of Rp 25 million (A$
2,727).

This provision could, of course, only be applied to foreign asylum seekers or people smugglers. This was
problematic, because most people smugglers arrested are Indonesian nationals and therefore could not
be convicted of this offence. This is probably why we found only five foreigners convicted between 2007
and 2011. 15 Another key provision used to convict people smugglers was art 54, which made it a
criminal offence to assist a person who stayed in Indonesia illegally:
a. A person who intentionally hides, protects, provides accommodation, gives practical assistance to or
employs a foreigner, where it is known or suspected that:
b. they have previously been banned or deported and they have been in Indonesia before illegally, will
be liable to a maximum prison sentence of six years and/or a maximum fine of Rp 30 million (A$
3,273).
c. they are in Indonesia illegally, will be liable to a maximum prison sentence of five years and/or a
maximum fine of Rp 25 million (A$ 2,727).
d. his or her immigration permit has expired, will be liable to a maximum prison sentence of one year
or a maximum fine of Rp 5 million (A$ 545).

This offence could also be applied to Indonesian people smugglers as there was no requirement that the
person must be a foreigner. Finally there were other provisions that were used. For example, under art
60, it was a criminal offence for a person to provide accommodation to a foreigner without informing
the local authorities. Further, under art 53, it was an offence for a person deported to later return to
Indonesia illegally.
There are also a handful of provisions in the Indonesian Criminal Code 16 that were occasionally
used by the public prosecutor to imprison people smugglers or irregular migrants, depending on the
circumstances. For example, some asylum seekers who escaped from a detention centre, and in the
process had beaten and tied up the security guards, were convicted of ‘denying a person of their liberty’
and ‘resisting an official in the performance of his or her official duties’. 17 In these ways, the Criminal
Code has been used to punish irregular migrants who escaped from detention. Prior to 2011, there
were few regulatory controls over the detention centres. In the absence of a statutory offence for a
person who escaped from detention, the punishment for an escapee who had been rearrested has at
times been left to the discretion of the head of the detention centre, and may include serving time in
isolation. 18 There does not appear to be any legal basis or authority for the head of a detention centre to
act in this way.
In addition to the Criminal Code, Law No 17 of 2008 on Shipping has also been used in cases
where people smugglers are caught with asylum seekers on board their boats. The key provision is art
323(1), which makes it illegal for the captain of a boat to sail without the relevant permit and can
result in up to five years prison or a fine of Rp 600 million (A$ 65,462). For example, during a routine
patrol in November 2009, the maritime police captured a boat with 61 Middle Eastern migrants
aboard. The Indonesian captain, Rahya Abdul Syaid, claimed that he was promised Rp 10 million (A$
1,091) to take the migrants from Lombok to Ashmore, although he had not yet been paid. In February
2010, Syaid was sentenced to just four months prison by the District Court of Kupang. 19 In another
case, in July 2011, Makesu Selvakumaran, the organiser of a group of more than 64 asylum seekers,

15
For a more detailed discussion on the court cases pre and post 2011, see Crouch and Missbach, 2013.
16
Indonesian Criminal Code. There have been proposed amendments to the Criminal Code in 2005 and 2008, but neither
gained support. The 2008 version included an offence of people smuggling (art 734).
17
Articles 333(1) and 212 of the Criminal Code.
18
Interview by Antje Missbach with head of the Detention Centre, 24 April 2012, in Kupang, Indonesia.
19
District Court of Kupang Decision No 257/Pid.B/2009/PN.KPG, 25 February 2010 (Rahya Abdul Syaid).

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was arrested in Indonesian waters. In May 2012, Selvakumaran was charged in the Batam District
Court with the offence of sailing without an art 219(1) permit (Batam Today, 2011).
In some situations, people smugglers may themselves be asylum seekers. In such a case, a people
smuggler may face several possible consequences if arrested. One is for the illegal migrant to register
with the United Nations High Commissioner for Refugees (UNHCR) and have their claim for asylum
processed, which could take years (Taylor and Rafferty-Brown, 2010). In this situation, the criminal
charges against them would be suspended and, while awaiting the outcome of their refugee
determination process, they would be placed in one of 13 immigration detention centres in areas
including Kupang, Jakarta and Makassar. 20 If the asylum seekers’ claim is eventually rejected, they
may be deported, although this only occurs in situations where they have valid travel documents and
are able to pay for the tickets, which is rare. Another option is voluntary repatriation to their home
country. This is funded by the International Organisation for Migration (IOM) and requires valid
travel documents. In both cases, it may be difficult to produce valid travel documents, and the
voluntary repatriation may, in any case, not be feasible because the asylum seeker may be unwilling to
return to his or her home country. The person may then instead remain in Indonesia as an
undocumented asylum seeker if they are able to evade, or perhaps bribe, the authorities involved.
In summary, prior to 2011, there was a variety of laws that could be used to convict people
smugglers, depending on the circumstances. What happened once they were arrested is, however, also
an important part of understanding how these laws were applied, as the following cases below
demonstrate.

Stories behind the Prosecution of People Smugglers: 2007-2011

People smuggling cases are usually tried at first instance in the Indonesian District Courts
(Pengadilan Negeri), the lowest general courts in the judicial hierarchy. While the Supreme Court
established a website with court decisions in the mid-2000s, decisions of the District Courts are often
posted several months after the decision being made, if at all. Attempts to obtain access to court
decisions through the Indonesian bureaucracy are a time-consuming and complex process. In order to
reconstruct the legal process in these cases, we rely on court decisions in combination, where possible,
with prosecutor’s files, media reports, and interviews with some of the accused and Indonesian
authorities involved in the cases.
We focus on cases brought before the courts over a five-year period prior to the introduction of the
reforms, between 2007 and April 2011, in order to provide an illustration of the enforcement of general
immigration laws to convict people smugglers. Of the 15 cases we located, all the accused were male
and about half were foreigners. The majority were found guilty of misusing a visa; overstaying their
visa; or assisting a person who is in Indonesia illegally (arts 50, 52 or 54 of Law No 9 of 1992). The
average sentence sought by the prosecution was two and a half years prison, although the maximum
sentence was five years. The courts in these cases often imposed a very short prison sentence of just
four months, although in some cases the accused were sentenced to two and a half years.
In the cases below, we focus on the actors involved in people smuggling and the roles they play, as
well as how they navigated the legal system. 21

20
Since 2011, plans have been developed to establish a detention centre in every province of Indonesia. Interview by Melissa
Crouch with Andry Indrady, Ministry of Law and Human Rights, 29 January 2013. For an analysis of Australia’s role in
funding immigration detention centres in Indonesia, see Nethery et al, 2013.
21
We do not discuss the reasoning of the court because the court decisions of lower courts usually do not offer detailed reasons
for their decisions.

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Big Fish, Short Sentence: Captain Bram and Chandra Babu

Between 2007 and 2008, there were separate trials of two key people smugglers. The first, Abraham
Louhenapessy, also known as Captain Bram, was a 50-year-old man from Ambon. 22 He was suspected
of being involved in several operations, including in the smuggling of 100 Iraqi asylum seekers in 2001;
a failed attempt to transport asylum seekers to Australia in October 2006; and a third attempt in 2007.
He was charged with assisting illegal migrants under art 54(b) of Law No 9 of 1992. The prosecutor
sought a five-year prison term, with his sentence to be reduced to five months if a fine of Rp 25 million
(A$ 2,727) was paid. At first instance, he was only sentenced to two years prison. The accused appealed
to the Jakarta High Court, and the sentence was reduced further to just one year. In a subsequent
appeal to the Supreme Court by the public prosecutor, the sentence of the court at first instance was
reinstated.
The second, related, case concerned Chandra Babu, a Sri Lankan national and high profile people
smuggler, who was allegedly paid by Captain Bram to take asylum seekers on board. Babu had lived in
Indonesia since 1990, returning to Sri Lanka between 2004 and 2006. By August 2006, he returned to
Indonesia, although his tourist visa had expired. In 2007 he obtained a false passport, which allowed
him to obtain a new tourist visa. Part of his role as people smuggler was to arrange accommodation
and food for people coming from Sri Lanka who intended to go on to Australia. In June 2007, a police
raid found 107 irregular migrants from Sri Lanka in Indonesia, who had intended to go on to
Australia. Chandra Babu was arrested in connection with this raid, and the Indonesian authorities
were praised by the Australian government for their success in arresting Babu (Australia, Minister for
Foreign Affairs and Minister for Immigration and Citizenship, 2007).
Criminal trials depend in part on the strength of the case put forward by the public prosecutor and
the punishment sought. In the Cibinong District Court (Bogor), Babu was charged with forgery under
art 263 of the Criminal Code for forging travel documents, which is punishable by up to eight years
prison. The public prosecutor, however, sought a sentence of just two years. Babu was also charged
with the more specific offence of using a false passport (art 49), which is punishable with a maximum
prison term of six years and a fine of Rp 30 million (A$ 3,273). The prosecution additionally submitted
several subsidiary charges under Law No 9 of 1992. Those included being in Indonesia for more than
60 days without a permit, residing in Indonesia illegally, and giving assistance to illegal migrants (art
52-54). There were therefore a range of crimes that could have seen Babu imprisoned for several years.
At first instance in the Cibinong District Court (Bogor), Babu was found guilty on the primary
charge of forgery. The court could have handed down a sentence of up to eight years, but instead Babu
was sentenced to just four months and 21 days prison. 23 This was clearly a disappointing result, and
the public prosecutor appealed to the High District Court, and then to the Supreme Court, which
ultimately handed down a longer sentence of two years prison and ordered Babu to pay a fine of Rp 30
million (A$ 3,273). 24 By the time the Supreme Court handed down its decision in the final appeal, Babu
had already served most of his sentence and was released soon after.

22
Supreme Court Decision No 809K/Pid.Sus/2008 (Abraham Louhenapessy alias Bram); District Court of Central Jakarta No
1787/Pid/B/2007/PN.JKT.PST, 10 December 2007 (Abraham Louhenapessy alias Bram); and High Court of Jakarta No
23/Pid/2008/PT.DKI, 6 March 2008 (Abraham Louhenapessy alias Bram).
23
District Court of Cibinong (Bogor), Decision No 381/Pid.B/2007/PN.Cbn, 12 November 2007 (Sithaparapillai Santhirababu
alias Chandra Babu alias Babu).
24
Supreme Court Decision No 523K/Pid/2008, 27 October 2008 (Sithaparapillai Santhirababu alias Chandra Babu alias
Babu).

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Australian Journal of Asian Law Vol 14 No 2

Assisting Escapees: Hamdan Saleh Batjo

Another example is the case of people smuggler Hamdan Saleh Batjo, a 40-year-old man from Rote
Island. 25 In August 2010, he was involved in assisting about 20 of 44 asylum seekers who had escaped
from an immigration detention centre in Kupang. Hamdan and his driver picked them up at different
locations around Kupang and then brought them back to his home. The other escapees were re-
arrested by the police (Seo, 2010a).
Saleh had arranged for three of the escapees to fly to Jakarta. He accompanied them to Jakarta in
order to receive payment from someone known as ‘Sayed Omid’, allegedly a friend of one of the
escapees. Ten other escaped asylum seekers remained at his house, most without a passport. On his
return, his driver went to pick up several more escapees from the beach, but was arrested by police on
the way. Arsaad Bajo, his driver, appeared as a witness in the case, although it appears that he was
not charged with any offence for his involvement in the operation.
Saleh was charged with assisting illegal immigrants and failing to notify local authorities that
foreigners were staying at his house (art 54, 60). The prosecutor sought a sentence of 6 months prison,
which was very low by comparison to the maximum sentence for this crime, and a fine of Rp 1 million
(A$ 109). He was sentenced to just four months in prison by the Kupang District Court, when the
judiciary could have imposed a sentence of up to five years. Further, the court decision indicates that
Saleh was allowed to serve part of the four-month prison term while on probation. This was justified on
the basis that he had been respectful during the trial, did not have any prior criminal convictions, and
had to provide an income for his wife and young children. The judge appears to have exercised
discretion here to justify probation rather than time in prison. His driver, Arsaad Bajo, appears to have
been undeterred and continued in his role. He was later implicated in the arrest of another people
smuggler (Victory News, 2012). As this suggests, the old legal framework and the penalties it attracted
generally had little deterrent effect.

Detention Centre Breakout: Ali Cobra

A third case is the Ali Cobra Case, which concerned the escape of a group of 18 detainees in January
2009 from the Kupang detention centre. The escapees were all Muslims originally from Afghanistan, 26
Pakistan and Myanmar, who had been held in immigration detention for breaking Indonesian
immigration regulations. They refused to be deported to their home countries but instead applied for
asylum with the UNHCR. Outside the detention centre, the group had arranged to be picked up by car
and transported to the beach, where they boarded a boat. The boat, typical of others boarded by asylum
seekers heading to Australia, was small (only 11 m long and 3.5 m wide) and unfit for the journey to
Australia’s Ashmore Reef. The weather conditions were unfavourable and the boat capsized at Selat
Pukuafu, a dangerous area where three different currents meet. Only five of the escapees managed to
swim ashore to neighbouring islands. Apart from the captain, all the boat crew survived.
The case attracted significant local, and later international, attention. The initial focus was on the
group’s violent breakout from detention. According to local media, the 18 asylum seekers had assaulted
three detention centre guards on duty and tied up the guards with torn pieces of an Indonesian
national flag. The fact that foreigners had dared to dishonour an Indonesian national symbol in this
way caused public outrage (Kompas, 2009). This only heightened negative public sentiment towards
the detainees.
External helpers were complicit in planning the escape. According to the confession of one of the
skippers, the main external accomplice was Labasa Ali (alias Ali Cobra) (Pong, 2009). Ali Cobra had

25
District Court of Kupang, Decision No 467/Pid.B/2010/PN/KPG, 9 February 2011 (Hamdan Saleh Batjo); Case File No
BP/56/VIII/2010/DitReskrim, 24 August 2010 (Hamdan Saleh Batjo).
26
Many Afghani asylum seekers in Indonesia are Shi’a Muslims. There are approximately 1 million Indonesian Shi’a Muslims
in Indonesia and there are tensions between them and the majority Sunni population.

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Australian Journal of Asian Law Vol 14 No 2

paid Rp 30 million (A$ 3,273) to two men to arrange the fishing boat and the crew, and organise the car
and a driver to pick up the escapees. Ali Cobra had lived most of his life in Rote Island and earned a
reputation as a people smuggler. In May 2009, he was finally arrested in Makassar (South Sulawesi)
with ten Afghani irregular migrants whom he had planned to smuggle (Fitzpatrick, 2009).
The arrest of Ali Cobra was hailed as a major success in the media. He was even referred to as the
‘Noordin M Top’ of people traffickers, Noordin M Top being a notorious terrorist, then wanted for
several bomb attacks in Indonesia (Hwang, 2012). Cobra’s arrest was part of a joint operation between
Indonesian authorities and the Australian Federal Police (Fitzpatrick and Taylor, 2009).
In September 2009, the criminal trial of Ali Cobra began with the prosecution demanding a four-
year prison sentence. Initially, the prosecution intended to charge Ali Cobra under Law No 7 of 2008 on
Shipping, but ran into difficulties when it was realised that it could not apply because Ali Cobra was
not on the boat when it was intercepted. Instead, Cobra was charged with assisting suspected irregular
immigrants and helping detainees to escape (art 54).
In September 2009, the Kupang District Court found Cobra guilty of organising the breakout from
the immigration detention centre in West Timor, before putting 18 escaped asylum seekers on a fishing
boat bound for Australia. He was sentenced to two years and six months in prison. 27 Despite being
viewed as one of the major king-pins of people smuggling in Indonesia, Ali Cobra was granted early
release on 3 May 2011, having served just two years in prison. Although he was required to report
regularly to the authorities in Kupang, he never did so. 28
In contrast to Ali Cobra’s lenient sentence, three of the escapees were also put on trial for breaking
out and detaining the guards under art 333 of the Criminal Code. They were sentenced to two years
imprisonment. 29 They did not have an interpreter to assist them argue their case in court, and, unlike
Ali Cobra, did not receive remissions. 30 On 23 February 2011, their appeal to the Supreme Court
(Mahkamah Agung) was rejected. 31
In cases like those just described, people smugglers often received lenient sentences, in some cases
just a few months prison, and in others no more than two and a half years. The cases that proceeded to
court against asylum seekers and people smugglers seemed to be only against those whom the police
were willing to catch. Some of those convicted were also granted a remission and released on parole.
These factors greatly reduced any punishment or deterrent effect of the law. More importantly, foreign
people smugglers were often not deported after their release, but remained in Indonesia. This allowed
them the opportunity to rebuild their contacts with Indonesian authorities in order to recommence
their operations.

Legislative Reform
Since 2011, Indonesian authorities have no longer had to rely on general immigration offences to
convict people smugglers. For the first time in Indonesia, Law No 6 of 2011 on Immigration introduced
a criminal offence of people smuggling. The Elucidation 32 noted that among the reasons for reform of
the law on immigration were the inadequacies of Law No 9 of 1992, which had led to ‘an increase in
international and transnational crimes, such as illegal immigration, people smuggling, human
trafficking, terrorism, narcotics and money laundering’. The passage of Law No 6 of 2011was also
intended to fulfil Indonesia’s international obligations and responsibilities under the Protocol against

27
District Court of Kupang Decision No 358/Pid.B/2009/PN.KPG (Ali Cobra).
28
Interview by Antje Missbach with head of the Correctional Centre, 19 June 2012, in Kupang.
29
District Court of Kupang Decision No 197/Pid.B/2009/PN.KPG, 18 June 2009 (Muhamad Farid, Naser Rajabi and
Muhammad Zubair).
30
Interview by Antje Missbach with one of the escapees [anonymous], 26 June 2012, in Yogyakarta.
31
Supreme Court Decision No 136K/Pid/2010, 23 February 2010 (Muhamad Farid, Naser Rajabi and Muhammad Zubair).
32
An Elucidation (Penjelasan) is a guide to the interpretation of a law, which may be issued by the legislature at the time the
law is passed. See the Elucidation to Law No 10 of 2004 on Law-making.

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Australian Journal of Asian Law Vol 14 No 2

the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention
Against Transnational Organised Crime, which Indonesia ratified in 2009.
The introduction of Law No 6 of 2011 is a significant step forward in acknowledging the pressing
issue of asylum seekers and addressing the criminal networks of people smugglers. We recognise the
broader debates over the utility of criminalising people smuggling, and the questions such an approach
raises about deterrence and the failure to address the reasons why people seek out irregular means to
go to another country. Our focus is, however, on how these laws have been interpreted and applied in
Indonesian courts.
The offence of ‘people smuggling’ (penyelundupan manusia) is defined in art 1(32) of Law No 6 of
2011 as follows:
People Smuggling is an act that aims to make a profit, either directly or indirectly, for him or herself33 or for
another person who takes a person or group of people, whether organised or unorganised, or instructs others
to take a person or group of people, either organised or unorganised, who have no legal right to enter or exit
the territory of Indonesian or outside the territory of Indonesia and/or into another country and the person
mentioned34 does not have a right to enter the territory legally, either by using legal documents and false
documents, or without a Travel Document, with or without undergoing immigration checks.

Asylum seekers are characterised in Law No 6 of 2011 as victims of people smuggling who should not
be prosecuted. Like victims of trafficking, 35 Law No 6 of 2011 requires these people to be placed in
immigration detention or another suitable location, although other arrangements may be made for
vulnerable women or children (art 83(2), 86). Immigration officials are instructed to arrange for asylum
seekers to be returned to their country of origin (art 88).
Law No 6 of 2011 also sets out several new offences, some of a general nature and others specific to
people smuggling. In terms of offences for illegal migrants and foreigner people smugglers, art 119(1)
makes it an offence punishable with a maximum sentence of five years prison and a fine of Rp 500
million (A$ 54,551) for a foreigner to be in Indonesia without a valid travel document and visa. It is
also an offence for a foreigner to knowingly use a false travel document.
In terms of offences specific to people smuggling, the main provision is art 120, which repeats the
definition of people smuggling in art 1(32) (above) and specifies that the offence carries a severe
penalty of between five to 15 years prison and a minimum fine of Rp 500 million (A$ 54,551), up to a
maximum of Rp 1,500 million (A$ 163,655). 36 This offence includes an attempt to smuggle people.
In a booklet on operational procedures published by the IOM, seven elements of the offence in art
120 are identified (IOM, 2012: 29-32):
1. Any person [who];
2. [c]ommits an act for the purpose of obtaining benefits, directly or indirectly, for the person
him/herself or for the other person;
3. [b]y taking a person or a group of persons, in an organised or unorganised manner;
4. [o]r ordering other person to take a person or a group of persons, in an organised or unorganised
manner;
5. [where the] person who does not have the right to enter the territory of Indonesia or exit the territory
of Indonesia and/or lawfully enter the territory of another country;
6. [e]ither by using a legitimate document or false document, or without any travel document;
7. [e]ither undergoing immigration checks or otherwise.

33
That is, the people smuggler.
34
The drafting of this provision is vague but presumably here the reference is to the migrant.
35
Indonesia is also a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized Crime.
36
This fine is a large sum of money, given that more than half of Indonesia’s population of 240 million still live on less than
US$2 per day: see UNDP <www.undp.or.id/mdg/>.

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Australian Journal of Asian Law Vol 14 No 2

This document and its interpretation of the offence is not legally binding on the court, and does not
appear to have been followed by judges. Instead, the common interpretation of art 120(1) by judges is
to identify four elements that need to be satisfied if a person is to be found guilty. The first two are the
same, the third combines elements three and four above, and the fourth combines points five to seven.
Nevertheless, regardless of how many elements are identified, the key elements of this offence are
clearly that a people smuggler must intend to make money from the venture, and the irregular
migrant must not have the right to enter or exit Indonesia legally. To prove the offence has been
committed, it does not matter how many people are being smuggled, and it does not necessarily have to
be done as part of an ongoing, structured operation.
Law No 6 of 2011 also includes art 124 on assisting illegal migrants, which is the same as art 54 of
the old Law No 9 of 1992, but with significantly increased penalties. The offence of assisting an illegal
migrant now attracts a prison term of up to two years and a fine of up to Rp 200 million (A$ 21,820).
The authorities have the power to detain a person suspected of these offences, according to arts 109,
119, 120 and 124, among others. A clear process has therefore been established to guide sentencing
practices when a person is arrested and found guilty.
Finally, Law No 6 of 2011 further provides that it is an offense to escape from a detention centre,
punishable with up to five years prison (art 134). The inclusion of this offence is no doubt related to the
breakouts from detention centres that have already occurred, such as in the Ali Cobra case described
above, and in Kupang in 2010 and 2012 (Seo, 2010b; Amalo, 2012). A detainee can only remain in
detention for a maximum duration of ten years if they are not deported or voluntarily repatriated. This
is a significant improvement on the past, as there was previously no limit on the number of years a
person could spend in detention.
There are also offences specific to immigration officials who fail to perform their duties or
knowingly allow a person to breach one of a number of offences under Law No 6 of 2011 (arts 132-33).
Other government officials, such as the police or the military, are not specified under Law No 6 of 2011.
If such officers were involved in people smuggling operations, they could potentially be punished under
the general provisions above.
There is also a range of preventative measures that immigration officials are required to undertake
(art 89). These include working together with other countries, educating the community about people
smuggling, and increasing the quality of travel documents to make it more difficult to falsify them. It
also confers power on immigration officials to conduct investigations into people smuggling operations,
and all are linked to requirements under the Protocol.

Enforcement of People Smuggling Offences

In May 2013, the conviction of an Australian by an Indonesian court for people smuggling highlighted
the connections between networks in Indonesia and Australia. Ali Qaseem, an Afghani who first
arrived in Australia as a refugee in 1999, was sentenced to six years in prison and fined Rp 500 million
(A$ 54,551) by the Pandeglang District Court in West Java (Bachelard, 2013). This is just one of a
large number of cases brought to the courts concerning the provisions on people smuggling since Law
No 6 of 2011 came into force on 1 May 2011. In this section we provide an overview of these cases, and
discuss their trends and implications.
From May 2011 until December 2012, there were at least 30 prosecutions for people smuggling
brought to court under Law No 6 of 2011, many of them in Java. Most of the accused were drivers, boat
crew or ‘protectors’ acting as security guards. Indonesian authorities primarily intercepted people
smuggling operations and made arrests on land rather than at sea. This suggests that land arrests are
easier to carry out and that there are fewer risks for law enforcement officials involved, such as
Maritime Police, who may be wary of taking asylum seekers on board in case they are outnumbered or
overpowered.

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Australian Journal of Asian Law Vol 14 No 2

Many of the arrests were made on the southern coast of Java, which has become a more significant
departure site for asylum seekers, due to increased border surveillance in Eastern Indonesia, especially
in West Timor and nearby offshore islands, such as Rote. Since May 2011, there have been numerous
cases in which individuals have been charged with the offence of people smuggling in court. Despite the
fact that they are usually found guilty, the judges have, at times, failed to impose the minimum
sentence required under Law No 6 of 2011.
One example is the Pacitan case. In late August 2012, five Indonesian men, received a phone call
from ‘Sis’, who offered them a lucrative deal to earn Rp 5 million (A$ 500) for picking up a group of
asylum seekers in Jakarta and driving them to Pacitan, a regency located in the south-western
province of East Java. Sis, who is still wanted by the Indonesian police, provided the unemployed men
with Rp 1.5 million (A$ 150) to cover their expenses for the trip to Jakarta and promised them their
salary upon delivery of the asylum seekers in Pacitan. Motivated by the offer, the five men drove to
Jakarta and picked up seven asylum seekers. On their return to Pacitan in September 2012, they were
arrested by the police.
The men were quickly brought to court. They were all found guilty under art 120(1) of Law No 6 of
2011 and sentenced to two years prison and a fine of Rp 500 million (A$ 54,551). 37 While the fine is an
enormous sum, the sentence is below the five-year minimum term for this crime. The judges justified
this lower sentence in two ways. First, they pointed to the individual circumstances of the accused,
such as the fact that the accused did not have criminal records, promised to not repeat their actions,
and were the prime income earners for their families. Second, the judges’ decision reflected their
ambivalent attitudes towards asylum seekers and the criminalisation of people smuggling. The court
recognised that ‘the actions of the accused are opposed to the government’s program to eradicate the
crime of people smuggling’ 38 but felt the law was inconsistent in its application: ‘The outcome of this
Law [Law No 6 of 2011] is that it does injustice to Indonesian citizens who should be protected by their
country, while the law is more lenient to foreigners’. 39 It is unclear why some judges may think that the
offences on people smuggling only apply to Indonesians and not foreigners, as foreigners can be (and
some have been) convicted under these laws. The issue appears to be that some Indonesian judges feel
that the asylum seekers themselves also deserve to be punished, rather than just deported.
The judges went on to emphasise that ‘Indonesia is not a country of origin nor a destination
country, but only a place of transit’. 40 They accused the asylum seekers (who cannot be tried for seeking
asylum) of having ‘seriously damaged the country’. 41 The judges further labelled the minimum penalty
of five years as ‘very unjust’, 42 yet they appear to have been inconsistent in their approach and do not
seem concerned by the exorbitant mandatory minimum fine. The judiciary also appears to conflate
judicial independence with judicial discretion in its perception that Law No 6 of 2011 limits judicial
independence. 43
Further, the judiciary emphasised that ‘the role and motivation of the accused was not to cause
evil’. 44 The judgment emphasised that the accused was only the driver, a victim, and incidental to the
wider people smuggling operation. 45 The court even compared Law No 6 of 2011 with the anti-

37
District Court of Pacitan (East Java) Decision No 114/Pid.Sus/2012 (Eko Suprianto); District Court of Pacitan (East Java)
Decision No 115/Pid.Sus/2012 (Rurip Sukatno bin Suryadi); District Court of Pacitan (East Java) Decision No
116/Pid.Sus/2012 (Agus Dianto); District Court of Pacitan (East Java) Decision No 117/Pid.Sus/2012 (Yuwardis); and
District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012 (Choirul Anam).
38
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012 (Agus Dianto), p 38.
39
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012, 3 December 2012 (Agus Dianto), p 36.
40
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012 (Agus Dianto),, p 37.
41
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012 (Agus Dianto),, p 37.
42
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012 (Agus Dianto),, p 37.
43
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012 (Agus Dianto),, p 36-7.
44
District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012, 3 December 2012 (Choirul Anam), p 34.
45
District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012, 3 December 2012 (Choirul Anam), p 35.

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corruption and narcotics offences. It claimed that despite the fact that the crimes in these laws are
what is known in Indonesian law as ‘extraordinary crimes’, they do not attract a mandatory minimum
sentence. In contrast, the court argued, people smuggling is not an ‘extraordinary crime’. 46
This suggests that some judges do not see the five-year term as stipulated in legislation as being,
in fact, a binding minimum sentence. Instead, they have retained discretion in practice and exercise it
in cases where they see mitigating factors as favouring the accused. However, decisions such as these
potentially create uncertainty over the application and interpretation of art 120(1). It also raises
further questions about why the prosecutor did not appeal on the grounds that a prison term below five
years is clearly inconsistent with the sentencing requirements in Law No 6 of 2011.
From discussions with judges and prosecutors about sentences below the minimum legislative
requirement, it became clear that many were lenient because they were aware that the accused were
often poor fishermen who had been recruited into people smuggling operations by more powerful
organisers. The organisers minimise their own risk of being caught by having others, such as
fishermen and transporters, do the physical work and run the risk of being found in direct contact with
asylum seekers. While they are often offered relatively significant sums, the boat crews may, in fact,
never be paid in full or at all, because the promise of payment is almost always contingent on returning
to Indonesia. This is usually impossible, at least for some years, once an individual is arrested and
tried in Australia.
In addition, law enforcement agencies are concerned about the exploitation that commonly takes
place within people smuggling operations. The least powerful actors in people smuggling chains are the
transporters and boat crew, yet these are often the only ones arrested and put in prison, whether in
Australia or Indonesia. Further, many law enforcement officers in Indonesia perceive that people
smuggling causes significant damage to the Indonesian population by drawing them into criminal
networks.
Another example is the case of Captain Amin Bire and two crew members, Husin Bin Huyada and
Hamka Hamda. This case is particularly illuminating because, again, only the boat crew and captain,
rather than the main organisers of the operation, were punished. In December 2011, their boat
departed from the island of Bima with more than 40 asylum seekers on board. The boat became
stranded near the island of Rote due to engine failure. Those on board were soon arrested by police,
after being alerted by local residents. Captain Amin Bire received seven years in prison for the offence
of people smuggling under art 120(1), while his two crew members received five years (Timor Express,
2012). The sentence of Captain Amin is high compared to past cases, although it is within the five to
15-year term maximum set for this offence. Captain Amin Bire, however, claimed to be working for the
main operator of the network, Haji Bonbon, although he was never arrested by the police.
Further, there have been some arrests of members of the Indonesian military implicated in people
smuggling operations, such as in December 2011 when five soldiers from the Brawijaya Command in
East Java were arrested. In Indonesia, there is a system of Military Courts to try all offences involving
the military, although this came under sharp criticism in 2013 (Paath, 2013). The accused in the
Trenggalek Case were therefore tried in the Military Court in Madiun, East Java. Ilmun Abdul Said,
who had convinced his fellow soldiers to join the smuggling operation, was found guilty of offences
under art 120(1) of Law No 6 of 2011 and the prosecutor sought a prison term of eight years and a fine
of Rp 100 million (A$ 10,910), or an additional two months prison. The trial received a large amount of
media attention because it was one of the first cases in which military officers were convicted under the
new Law. On 24 September 2012, the court sentenced Said to six years prison and a fine of Rp 500
million (A$ 54,551), or an additional two months imprisonment. The accused was unsuccessful on
appeal. 47 His colleagues were sentenced to five years prison and equally high fines were imposed. 48

46
District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012, 3 December 2012 (Choirul Anam), p 36.
47
Military High Court III Surabaya (East Java) Decision No 79-K/PMT.III/BDG/AD/XI/2012 (Ilmun Abdul Said); Military
Court III-13 Madiun (East Java) Decision No 38-K/PM.III-13/AD/VII/2012 (Ilmun Abdul Said).

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Meanwhile, in a separate incident in July 2012, five soldiers were arrested for escorting asylum
seekers to a boat set to leave from West Java (Arnaz, 2012). All the accused were low-ranking officers
and there is no evidence that their superiors were implicated in any way. The five soldiers were tried
in two separate cases in the Military Court in Bandung, where the public prosecutor brought charges
under art 120(1) and sought prison sentences of between 11 to 16 months – again well below the five-
year minimum sentence. Unlike the military officers in East Java who received long prison sentences,
the military officers tried in Bandung received prison sentences of between only 14 months and 16
months. The prosecution has since appealed. 49 One of the main differences between these two cases
and the Trenggalek Case is that the former received almost no media attention. There was therefore
little pressure from the public to ensure the trial was conducted fairly and that the accused received
sentences proportionate to the crime. 50

Conclusion
The legal framework to address people smuggling and illegal migrants in Indonesia underwent
significant reform in 2011. Our case studies demonstrate that the Indonesian authorities did manage
to use Law No 9 of 1992 on Immigration, as well as the Criminal Code and Law No 17 of 2008 on
Shipping, in creative ways to prosecute some people smugglers. Those convicted under the old Law No
9 of 1992 usually held low to middle positions within smuggling networks, as recruiters, field
coordinators and boat crew. The low rate of arrests and the light sentences imposed on those found
guilty also reduced any deterrent effect the law might have had.
In addition, there are indications that law enforcement efforts – both pre and post-2011 – against
people smuggling may be the result of corruption among government officials. Indeed, there is an
absence of clear evidence that people smuggling trials are conducted in a fair and clean manner. It
would require a significant effort from an independent agency, such as the Indonesian Corruption
Eradication Commission (Komisi Pemberantasan Korupsi, KPK), to begin to address this issue. People
smuggling, however, is not high on the priority list for corruption investigation, with the KPK
generally targeting the highest levels of government (see generally Butt, 2012).
The new Law, No 6 of 2011 on Immigration, has the potential to be a more effective tool in the
punishment and deterrence of people smugglers because it specifically criminalises people smuggling.
Law No 6 of 2011 does not, however, differentiate between the various actors involved in people
smuggling operations. This is a problem, because it imposes a relatively high minimum sentence on
anyone found guilty, including those who only play minor roles in the broader people smuggler
network. The issue of mandatory sentencing for crimes of people smuggling is a controversial one. It
has been debated in other jurisdictions such as in Australia, for example, although no amendments to
the Migration Act have been passed to date in that country. 51
Further, it is not just corruption, but social attitudes towards asylum seekers and media coverage,
that influence the judges exercise of discretion in sentencing. Judges have demonstrated willingness to
hand down sentences less than the five-year minimum. This is a reflection of the general perception
that Indonesians are being victimised and exploited by irregular migrants. Some judges have gone as
far as to lament the ‘injustice’ of the Law on Immigration because it requires judges to impose a

48
Military High Court III Surabaya (East Java) Decision No 86-K/PMT.III/BDG/AD/XI/2012 (Kornelius Nama).
49
Military Court in Bandung Decision No 203-K/PM.II-09/AD/X/2012 (Rustam Mamulaty); and Military Court in Bandung
Decision No 215-K/PM.II-09/AD/X/2012 (Rahman Tuasalamony).
50
Butt and Lindsey (2011: 212) also emphasise the key role that the media can play in pushing for court cases to be conducted
in a fair and impartial manner.
51
For a thorough discussion on the nature of the debate on mandatory sentencing for people smuggling offences in Australia,
see Trotter and Garozzo, 2012. District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012, 3 December 2012
(Choirul Anam), p 38.

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Australian Journal of Asian Law Vol 14 No 2

minimum five-year sentence and does not allow the judge to evaluate the extent of the accused’s
involvement in the people smuggling operation in deciding punishment.
There is a need for clarification of whether the five-year penalty is, in fact, mandatory. This is vital
to ensure legal certainty, consistency and the potential deterrent effect of the offences in Law No 6 of
2011. Law No 6 of 2011 is still in its infancy in terms of enforcement. Its implementation poses many
challenges, although these are partly a symptom of the broader state of the criminal justice system in
Indonesia. A single Law on its own, of course, will rarely be sufficient to address criminal activities
that arise due to complex global, social, political and economic causes. The prosecution of people
smugglers and irregular migrants in Indonesia is also connected to broader questions about the
effectiveness and utility of criminalising people smuggling and who these laws ultimately target. One
of the gaps in the court cases to date is that no immigration officials or other government authorities,
aside from low-level military officers, have yet been arrested under Law No 6 of 2011. The emphasis to
date appears to have been on prosecuting a large number of people at relatively low levels in the people
smuggling hierarchy. A more targeted approach to prosecutions of key actors, combined with
clarification of judges’ sentencing options, would greatly strengthen the implementation of the offence
of people smuggling in Indonesia.

References
ABC News (2012) ‘Tackling Smugglers Futile While Corruption Flourishes, Analyst Says’, 19 July
<www.abc.net.au>.
Amalo, P (2012) ‘11 Imigran Gelap yang Ditangkap di Kupang Kabur’, Media Indonesia, 12 July
<www.mediaindonesia.com>.
Arnaz, Farouk (2012) ‘Two More Suspects Named in TNI People Smuggling Case: Police’, The Jakarta
Globe, 19 July <www.thejakartaglobe.com>.
Australia, Minister for Foreign Affairs and Minister for Immigration and Citizenship (2007) ‘Joint
Media Release: Indonesia Disrupts People Smuggling Syndicate’, 14 June
<www.foreignminister.gov.au>.
Bachelard, Michael (2013) ‘Australian Guilty of People Smuggling’, Sydney Morning Herald, 7 May.
Batam Today (2011) ‘87 Immigran yang Diamankan, Diduga Dikoordinir Mafia Traffiking’, 11 July,
<http://batamtoday.com>.
Bilger, Veronika; Hofmann, Martin; and Jandl, Michael (2006) ‘Human Smuggling as a Transnational
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Fitzpatrick, Stephen and Paige Taylor (2009) ‘Ali Cobra Accused over Deaths of 14 Illegal Immigrants’,
The Australian, 8 May <www.theaustralian.com.au>.
Hunyor, Jonathon (2001) ‘Don’t Jail the Ferryman: The Sentencing of Indonesian People Movers’, 26(5)
Alternative Law Journal 223-228.
Hwang, Julie Chernov (2012) ‘Terrorism in Perspective: An Assessment of “Jihad Project” Trends in
Indonesia’, 104 Asia Pacific Issues, Honolulu: East-West Center.
Içduygu, Ahmet and Sule Toktas (2002) ‘How Do Smuggling and Trafficking Operate via Irregular
Border Crossings in the Middle East? Evidence from Fieldwork in Turkey’, 40(6) International
Migration 25-54.

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Trotter, Andrew and Garozzo, Matt (2012) ‘Mandatory Sentencing for People Smuggling: Issues of Law
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Laws (Indonesia)
Criminal Code
Law No 9 of 1992 on Immigration
Law No 6 of 2011 on Immigration
Law No 17 of 2008 on Shipping
Regulation of the Director General of Immigration No IMI-1489.UM.08.05 of 2010 on the Processing of
Illegal Migrants
Law No 10 of 2004 on Law-making
Law No 31 of 1997 on the Military Court

Court Decisions (Indonesia)

District Court of Serang Decision No 17/Pid.B/2009/PN.Srg, 1 July 2009 (Sayed Abbas)
Supreme Court Decision No 2422K/Pid.Sus/2009, 26 February 2011 (Sayed Abbas)
Supreme Court Decision No 42 -K/PM. III-13/AD/VIII/2012, 27 September 2012(Kornelis Nama and
others)
Supreme Court Decision No 86-K/PMT.III/BDG/AD/XI/2012, 11 December 2012 (Kornelis Nama and
others)
District Court of Kupang Decision No 257/Pid.B/2009/PN.KPG, 25 February 2010 (Rahya Abdul Syaid)
Supreme Court Decision No 809K/Pid.Sus/2008, 4 June 2008 (Abraham Louhenapessy alias Bram)
District Court of Central Jakarta No 1787/Pid/B/2007/PN.JKT.PST, 10 December 2007 (Abraham
Louhenapessy alias Bram)
High Court of Jakarta No 23/Pid/2008/PT.DKI, 6 March 2008 (Abraham Louhenapessy alias Bram)
District Court of Cibinong (Bogor), Decision No 381/Pid.B/2007/PN.Cbn, 12 November 2007
(Sithaparapillai Santhirababu alias Chandra Babu alias Babu)
Supreme Court Decision No 523K/Pid/2008, 27 October 2008 (Sithaparapillai Santhirababu alias
Chandra Babu alias Babu)
District Court of Kupang, Decision No 467/Pid.B/2010/PN/KPG, 9 February 2011 (Hamdan Saleh
Batjo)
Case File No BP/56/VIII/2010/DitReskrim, 24 August 2010 (Hamdan Saleh Batjo)
District Court of Kupang Decision No 358/Pid.B/2009/PN.KPG, 15 September 2009 (Ali Cobra)District
Court of Kupang Decision No 197/Pid.B/2009/PN-KPG, 18 June 2009 (Muhamad Farid, Naser
Rajabi and Muhammad Zubair)
Supreme Court Decision No 136K/Pid/2010, 23 February 2010 (Muhamad Farid, Naser Rajabi, and
Muhammad Zubair)
District Court of Pacitan (East Java) Decision No 114/Pid.Sus/2012, 3 December 2012 (Eko Suprianto)
District Court of Pacitan (East Java) Decision No 115/Pid.Sus/2012, 3 December 2012 (Rurip Sukatno
bin Suryadi)
District Court of Pacitan (East Java) Decision No 116/Pid.Sus/2012, 3 December 2012 (Agus Dianto)
District Court of Pacitan (East Java) Decision No 117/Pid.Sus/2012, 3 December 2012 (Yuwardis)
District Court of Pacitan (East Java) Decision No 119/Pid.Sus/2012, 3 December 2012 (Choirul Anam)
Military High Court III Surabaya (East Java) Decision No 79-K/PMT.III/BDG/AD/XI/2012, 11
December 2012 (Ilmun Abdul Said)
Military Court III-13 Madiun (East Java) Decision No 38-K/PM.III-13/AD/VII/2012, 24 September
2012 (Ilmun Abdul Said)

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Military High Court III Surabaya (East Java) Decision No 86-K/PMT.III/BDG/AD/XI/2012, 11

December 2012 (Kornelius Nama)
Military Court in Bandung Decision No 203-K/PM.II-09/AD/X/2012, 20 December 2012 (Rustam
Mamulaty)
Military Court in Bandung Decision No 215-K/PM.II-09/AD/X/2012, 3 January 2013 (Rahman
Tuasalamony)
Constitutional Court Decision No 64/PUU-IX/2011 concerning Review of Law No 6 of 2011 on
Immigration, 13 June 2012.
Constitutional Court Decision No 40/PUU-IX/2011 concerning Review of Law No 6 of 2011 on
Immigration, 24 January 2012.

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