District legislation and access to justice: a case study of female migrant workers in Cianjur.

• Author: Novirianti, Dewi
• Position: Access to Justice in Indonesia

1. Introduction

   District legislation is increasingly seen as a useful avenue for NGOs to help disadvantaged Indonesians address injustices. A number of migrant workers' organizations that work at district level in Indonesia--in the districts of Cianjur, Cirebon, Sukabumi, Brebes, Grobogan, and Blitar, among others--are currently using District Regulation to address the ongoing violation of the rights of female migrant workers (FMW). They argue that '[we] should have District Regulation to ensure the safe mobility of migrant workers at home and in the destination country to ensure the enforcement of the migrant workers' rights.' (2) The NGOs' operations are sometimes supported by government officials who believe that the monitoring of migrant workers' mobility in the destination country would not be effective without active participation of the sub-national government, mainly at the district level. (3)

   The current national law to protect FMW has provoked criticism (Komnas Perempuan, 2006; Arnold, 2007; Solidaritas Perempuan, 2010). The Law on the Placement and Protection of Indonesian Migrant Workers (Law No.39/2004) does not have a clear vision to protect Indonesian migrant workers. It does not provide comprehensive ideas to deal with abuses of migrant workers inside and outside the country. Furthermore, labour ministerial decrees are needed to get this law implemented. The Law No.39/2004 is not equipped with adequate instructions for sub-national government to support migrant workers' protection. The national government's effort to encourage nation-wide support to increase migrant rights protection through the Presidential Instruction No.6/2006 (The Instruction) was a complete failure.

   Between 1999 and 2005 the Indonesian government gradually transferred both budgets and discretionary powers in fields such as labour relations, land tenure and trade from the central government in Jakarta to Indonesia's district governments. Observers of Indonesian politics have argued that this process of government decentralization in Indonesia supports the process of democratization and the strengthening of civil society, as the ongoing decentralization enables sub-national government to respond more effectively to societal demands (Antlov 2003; Goffar et. al. 2003; Schulte Nordholt and Van Klinken 2007). But for the struggle for gender rights, decentralization has been a mixed blessing (Arnold 2009): while on the one hand discriminatory district regulations have been adopted in several regions, (4) on the other hand decentralization has created new avenues for activism (Siahaan 2003) and some regional parliaments have adopted policies to support gender equality. Decentralization opens up possibilities for civil society organizations to participate in the district regulation process with the aim of improving the condition of FMW (Arnold, 2009).

   FMW face abuses before, during and after their stay abroad: many of them face physical, mental and sexual abuse, are discriminated against and are also regularly tricked out of their hard-earned salaries. (5) These abuses need to be addressed at both National and sub-national government policy levels. The central question in this article is whether sub-national or district level legislation in Indonesia provides an effective new avenue for access to justice for FMW. For example, a district level regulation could address data falsification of the prospective FMW, include provisions against illegal recruitment of migrant workers or female trafficking or regulate the activities of sub-national branches of migrant workers' recruitment agencies and provide instructions for monitoring them.

   This paper includes data from field research in the Cianjur District. SBMC (Solidaritas Buruh Migran Cianjur or Cianjur Migrant Workers Solidarity), a local NGO in that district, used district level regulation to defend the rights of FMW. A case study of returned FMW in Girijaya village in Cianjur indicates how SBMC assists FMW to deal with these injustices. The case study will serve to examine to what extent the legislation process in Cianjur District was an effective avenue to tackle the injustices faced by the FMW.

   SBMC functions as an intermediary, as it helps FMW to translate their experiences into the language of the violation of basic human rights (Merry: 2006). It helps victims to name the injustices they faced, and to attribute blame (Felstiner et. al. 1981). SBMC recorded stories of the returned FMW and the organization facilitated a public hearing in order to inform local parliament members and local government officials of their plight. (6) SBMC decided to advocate the rights of FMW by pressurizing the local government to adopt a new District Regulation.

   After providing a brief overview of the challenges involved in protecting the rights of FMW, this paper will identify problems that hampered implementation of the existing legislation regarding migrant workers' protection. Subsequently I will discuss the efforts of SBMC to get the district parliament in Cianjur to adopt a new District Regulation to better protect the rights of migrant workers. I will show that district level legislation throughout Indonesia is to some extent more of a symbolic instrument for politicians and NGOs to show commitment and to secure funds. Instead of actually tackling the problems of migrant workers, local regulation serves to help NGOs gain access to government funding, while district governments try to use this legislation to receive a larger percentage of the migrant workers' income. Nevertheless, this case study does show that the local legislation process in Cianjur did boost the awareness of both government officials and the wider public of the various ways in which the rights of migrant workers are being violated.

2. Female Migrant Workers in Cianjur

   The National Agency for the Placement and Protection of Indonesian Migrant Workers (Badan Penempatan dan Perlindungan Tenaga Kerja Indonesia--BNP2TKI) (7) states that 696,746 Indonesian migrant workers worked abroad in 2007, of which 78 percent were female. According to the Indonesian Ministry of Manpower and Transmigration, 76% of Indonesian FMW worked in informal sectors in Saudi Arabia, Malaysia, Singapore, United Arab Emirates and Kuwait in 2007. The volume of remittances that migrant workers sent home prompted government support to provide greater opportunities for Indonesians working abroad. A World Bank Report (2008) acknowledged that the majority of migrants were from rural areas where poverty is greatest, and that the remittances would have an impact on poverty reduction. As yet, however, no information is available on the macroeconomic impact of remittances on economic growth, their net effect on poverty alleviation, and the extent to which such flows have influenced social welfare indicators in the beneficiary community.

   As a contribution to improving information on practices in the home area of FMW, I conducted field research in Girijaya village in the south of Cianjur district in West Java. 5,027 villagers live on the fertile lands that are mostly not their own property, as they have had to sell their land to wealthy landlords owing to poverty. Most villagers are farm labourers with daily earnings between 1 and 1% US$. With this income, villagers are generally not able to own houses or provide proper education to their children. To escape this misery, most female villagers have decided to leave Girijaya and work as domestic workers in big cities in Indonesia (8) or in Saudi Arabia. (9) This migration for family reasons is not specific to Girijaya but is common in other parts of Java as well. (10) 'I want to work as domestic helper in Saudi Arabia so that my son is able to study in university,' said a female villager in Girijaya. Apart from that, buildings their houses was also one of the main motivations for FMW to work in Saudi Arabia. (11)

   Advanced education and skills are not required for female villagers who want to work as domestic helpers abroad. Article 51 Law No.39/2004 requires that prospective migrant workers should have, among other things, an Identity Card, an education diploma, a birth certificate, a marriage certificate, a permission letter from husbands or wives or the guardian, a passport and a medical certificate. For work in Saudi Arabia, recruiters require that the potential workers be Muslim as well. (12)

   The recruiters in villages assist the prospective FMW to meet the documentary requirements, and the potential recruits are transferred to and stay in a holding centre in Jakarta to undergo training. A village official in Girijaya acknowledged that obtaining work in Saudi Arabia has been getting easier for female villagers. They do not have to pay recruitment fees, and some former FMW in Cianjur mentioned that they even received money when they applied for a job through an official recruitment agency. (13)

   Unfortunately there have been many cases of abuse of FMW. Migrant Care, a Jakarta-based NGO that works on the migrant worker issues, documented a variety of abuses suffered by Indonesian migrant workers in Malaysia, Saudi Arabia, and Kuwait. (14) In February 2008, the International Non-Governmental Organization Forum on Indonesian Development (INFID) presented data on the serious problems faced by Indonesian migrant workers to the UN Human Rights Council. (15) The INFID report stated that 206 Indonesian migrant workers (including 114 females and 90 males) died during 2007, from which 71 died in Malaysia, 36 in Taiwan, 31 in Saudi Arabia and 18 in South Korea, among other countries. During the same year, 303 Indonesian migrant workers were in detention awaiting execution in Malaysia (297 workers), Saudi Arabia (4 workers), and 1 worker each in Egypt and Singapore. Moreover, 600 Indonesian migrant workers were in detention in Saudi Arabia and other countries. Also, there are regular reports of extreme abuses of...