constitutional Constitutional rRights of refugeeRefugees Refugees and

asylum Asylum seekers Seekers in indonesiaIndonesia

by:
Prof. Luthfi Widagdo Eddyono, S.H., M.H., LL.M., Ph.D.1
Researcher at Mahkamah Konstitusi
Jalan Medan Merdeka Barat Nomor 6 Jakarta Pusat Indonesia
luthfi_we@mahkamahkonstitusi.go.id

abstractAbstract
According to UNHCR, there were are more than 14000 person people of concern
(refugeeRefugees and asylumAsylum‐Sseeker) in Indonesia. This figure includes
refugeeRefugees and asylum Asylum-Sseekers from 44 nationalitynationalities. Meanwhile,
indonesia is not a party to the 1951 RefugeeRefugee Convention or its its 1967 Protocol.
However, it has a long tradition of hosting refugeeRefugees and asylumAsylum‐Sseekers,
and the government has authorised UNHCR to help protect and find solutions for them.
indonesia Indonesian goverment allows refugeeRefugees and asylum Asylum-Sseekers to stay
in indonesia Indonesia as long as they have registration documents from the UNHCR.
indonesia Indonesian rules ensure that refugeeRefugees Refugees and asylumAsylum‐seekers -
Seekers have access to UNHCR and allow them to remain temporarily in the country until
their refugeeRefugee status can be confirmed, and appropriate solutions can be found for
them. Unfortunately, refugeeRefugees and asylum Asylum seekers (and stateless people) in
Indonesia have difficultiesy living in this country. They do not have work permits and do
not receive enough social assistance from the Indonesian government. This paper intends to
find out if refugeeRefugees and asylumAsylum‐seekers Seekers have constitutional rights as
regulated by the 1945 Constitution and domestic Domestic lawLaw. Furthermore, this paper
1
Luthfi Widagdo Eddyono is currently employed by the Constitutional Court of Indonesia as
a researcher. He is also active at Center for Democratization Studies, Indonesia. He was part
of “Democracy and Human Rights in Malaysia and Indonesia: Path and Outcomes” a SHAPE-
SEA project organized by the Southeast Asian Human Rights Studies Network (SEAHRN), the
ASEAN University Network (AUN) and University of Malaya, Malaysia as a researcher. In
2015, he selected as an Asia Young Leader for Democracy from Taiwan Foundation for
Democracy.

1
aims to review legislation that can provide assistance and protection, including Presidential
Regulation Number 125 of 2016 and other rules.

keyword: refugeeRefugees and asylum seekers, constitutional rights

Introduction
Surrounded by countries hosting large numbers of Refugees and Asylum-Seekers
asylum-seekers and refugees, such as malaysianMalaysia, thailand Thailand and
australiaAustralia, Indonesia is impacted regularly by mixed population movements. After a
lull during the late 1990s, the number of Aasylum-seekersAsylum-Seekers arrived arriving in
Indonesia began to increase in late 2000, 2001 and 2002. Arrivals slowed down from 2003
to 2008 but again picked up in 2009. Inon 2016 and 2017, the number of persons registering
with UNHCR has remained relatively stable. Indonesia hosts some 13840 refugeeRefugees
from some 49 different countrycountries as onof December 2017, with roughly half
originating from Afghanistan.2
Indonesia is not a party to the 1951 Convention relating to the Status of
RefugeeRefugees or its 1967 Protocol, nor does it have has a national refugeeRefugee status
determination system. as As the result, the Government authorises UNHCR to carry out
its RrefugeeRefugee Pprotection mMandate and to identify solutions for RrefugeeRefugees in
the country. In the late of 2016, the President of the Republic of Indonesia signed the
presidential Presidential regulation Regulation on the Handling of RefugeeRefugees, which
contains crucial definitions and sets out processes for the detection, shelter and
safeguarding of refugeeRefugees and asylum-seekersAsylum-SeekersAsylum-Seekers. It is
anticipated that provisions contained within the Presidential Regulation will be shortly
implemented shortly and that it will bring about closer working relationships between the
Indonesian Government and UNHCR, including joint registration of asylum-
seekersAsylum-Seekers.3
This paper intends to find out if refugeeRefugees and asylum‐seekersAsylum-Seekers
have constitutional rights as regulated by the 1945 Constitution and domestic Domestic
lawLaw. Furthermore, this paper aims to review legislation that can provide protection,

2
[https://www.unhcr.org/id/en/unhcr-in-indonesia].
3
Ibid.

2
including presidential regulation Nomor 125 tahun 2016 and other rules to find a solution
for fulfilling the rights of refugeeRefugees and asylum Asylum-seeker Seeker in Indonesia.

constitutional Constitutional rights Rights of refugeeRefugees and asylum Asylum-sSeeker

According to jJimly asshidddiqieAsshidddiqie, the original text of the 1945
Constitution contains 71 points of provisions, then, after going through four amendments,
between 1999 and to 2002, the material or content of the 1945 constitution covers 199
aspects of rules.4 The change was stipulated and gradually conducted gradually and became
one of the agendas of the meetings of the people People consultative Consultative assembly
Assembly (Majelis Permusyawaratan Rakyat) from 1999 until 2002. 5 It happened after the
resignation of President Soeharto on 21 MayMay, 21st 1998, that already in power for
almost 32 years.6
In the reform era, Indonesia hashad taken comprehensive reform measures by
bringing the sovereignty back to the hand of the people. The peak of such efforts was the
amendments Amendments to the 1945 Constitution which were made within four
consecutive years, namely the First amandmentAmendment in 1999, the Second
amandmentAmendment in 2000, the Third amandmentAmendment in 2001, and the Fourth
amandmentAmendment in 2002.7 The objectives of the amandmentAmendment were to

4
Jimly Asshiddiqie, “Struktur Ketatanegaraan Indonesia Setelah Perubahan Keempat UUD Tahun 1945”,
paper was presented in the Symposium convened by the National Law Fostering Agency (Badan Pembinaan
Hukum Nasional), the Department of Justice and Human Rights, 2003, p. 1 on Jimly Asshiddiqie, “The Role
of Constitutional Courts In The Promotion of Universal Peace and Civilization Dialogues Among Nations”,
paper was presented in the International Symposium on “the Role of Constitutional Courts on Universal
Peace and Meeting of Civilizations”, Ankara, April 25, 2007, p. 6-7.
5
Jimly Asshiddiqie, The Role of Constitutional Courts, p. 5.
6
Moh. Mahfud MD, ini his speech of the World Conference on Constitutional Justice, Cape Town 2009,
states, “In the era prior to the amendments to the 1945 Constitution made in 1999–2002, authoritarianism
had always been the actual practice, despite the fact that Indonesia adheres to a democratic system in the
formal provisions of the Constitution. During this era, many legislations were deemed to be contradictory to
the Constitution, but there was only one way to have them amended, namely through legislative review. It
was difficult to do considering that the legislative body was politically dominated by the President, either due
to his position as a state body which is also involved in the law-making process together with the People’s
Legislative Assembly or his cooptation of all political parties. Such executive heavy configuration placed the
President as the determiner of all national political agenda.” Moh. Mahfud MD, “Speech” in the World
Conference on Constitutional Justice, Cape Town, 2009, p. 2.
7
Read more Luthfi Widagdo Eddyono, “The Constitutional Rights To Water And Food In Indonesia”,
http://www.ocerints.org/intcess19_e-publication/papers/104.pdf.

3
complete complement the basic rules of living as a state, which caused the abuse of power in
the past.8
The Second amandmentAmandment that stipulated on August 18th, 2000 was
conducted in the Annual Meeting of the People’s Consultative Assembly in 2000, which
covers article 18, article 18a, article 18b, article 19, article 20 paragraph (5), article 20a,
article 22a, article 22b, Chapter IXA, Article 28A, Article 28B, Article 28C, Article 28C,
Article 28D, Article 28E, Article 28F, Article 28G, Article 28H, Article 28I, Article 28J,
Chapter XII, Article 30, Chapter XV, Article 36A, Article 36B, and Article 36C of the 1945
Constitution. This Second Amendment covers issues regarding state State territory Territory
and regional Regional governanceGovernance, perfecting the first First amendment
Amendment in the matters about the strengthening of the position of the House of People’s
Representative, and detailed provisions regarding Human Rights.9

SECTION XA - FUNDAMENTAL HUMAN RIGHTS10

Article 28A
Each person has the right to live and the right to defend his life and existence.

Article 28B
(1) Each person has the right to establish a family and to generate offspring through a
lawful marriage.
(2) Each child has the right to live, grow up, and develop as well as the right to protection
from violence or discrimination.

Article 28C
(1) Every person has the right to self-realization through the fulfilment of his basic needs,
the right to education and to partake in the benefits of science and technology, art and
culture, to improve the quality of his life and the well-being of mankind.

8
Moh. Mahfud MD, “The Role of the Constitutional Court in the Development of Democracy in Indonesia”,
paper is presented in the World Conference on Constitutional Justice, Cape Town, January 23-24, 2009, p. 1.
Also see Pan Mohamad Faiz, 2019, Amendemen Konstitusi, Jakarta, Rajawali Press.
9
Jimly Asshiddiqie, The Role of Constitutional Courts, Op.Cit., p. 5-6.
10
Indonesian Constitution (1945, Consolidated) - Asian Human .., http://www.humanrights.asia/indonesian-
constitution-1945-consolidated/.

4
(2) Each person has the right to self-improvement by way of a collective struggle for his
rights to develop society, the nation, and the country.

Article 28D
(1) Each person has the right to recognition, security, protection and certainty under the
law that shall be just and treat everybody as equal before the law.
(2) Every person is entitled to occupation as well as to get the income and fair and
proper treatment in labour relations.
(3) Each citizen has the right to equal opportunity in government.
(4) Each person has a right to a nationality.

Article 28E
(1) Each person is free to worship and to practice the religion of his choice, to choose
education and schooling, his occupation, his nationality, his residency in the territory of
the country that he shall be able to leave and to which he shall have the right to return.
(2) Each person has the right to be free in his convictions, to assert his thoughts and
tenets, by his conscience.
(3) Each person has the right to freely associate, assemble, and express his opinions.
Article 28F
Each person has the right to communication and to acquiring information for his own
and his social environment's development, as well as the right to seek, obtain, possess,
store, process, and spread information via all kinds of channels available.

Article 28G
(1) Each person is entitled to the protection of self, his family, honor, dignity, the
property he owns and has the right to feel secure and to be protected against threats
from fear to do or not to do something that is part of basic rights.
(2) Each person has the right to be free from torture or inhuman and degrading
treatment and shall be entitled to obtain political asylum from another country.

Article 28H

5
(1) Each person has a right to a life of well-being in body and mind, to a place to dwell, to
enjoy a good and healthy environment, and to receive medical care.
(2) Each person has the right to facilities and special treatment to get the same
opportunities and advantages in order to reach equality and justice.
(3) Each person is entitled to social security enabling him to develop his entire self-
unimpaired as a dignified human being.
(4) Each person has the right to own private property and such ownership shall not be
appropriated arbitrarily by whomsoever.

Article 28I
(1) The rights to life, to remain free from torture, to freedom of thought and conscience,
to adhere to a religion, the right not to be enslaved, to be treated as an individual before
the law, and the right not to be prosecuted on the basis of retroactive legislation, are
fundamental human rights that shall not be curtailed under any circumstance.
(2) Each person has the right to be free from acts of discrimination based on what
grounds ever and shall be entitled to protection against such discriminative treatment.
(3) The cultural identities and rights of traditional communities are to be respected in
conjunction with progressing times and civilisation.
(4) Protecting, promoting, upholding, and the full realisation of human rights are the
responsibilities of the state, foremost of the government.
(5) To uphold and protect human rights by the principles of a democratic and law-based
state, the implementation of fundamental human rights is to be guaranteed, regulated,
and laid down in laws and regulations.

Article 28J
(1) Each person has an obligation to respect the fundamental human rights of others
while partaking in the life of the community, the nation, and the state.
(2) In exercising his rights and liberties, each person has the duty to accept the
limitations determined by law for the sole purposes of guaranteeing the recognition and
respect of the rights and liberties of other people and of satisfying a democratic society's
just demands based on considerations of morality, religious values, security, and public

6
order.

Article 28G paragraph (2) of the 1945 Constitution states that “Every every person
has the right Right to be free Free from torture Torture or treatment Treatment”, which
demeans human dignity and has the right Right to obtain Obtain political Political asylum
Asylum from other countries. In order to guard constitutional Constitutional rightsRights,
Article 24C 1945 Constitution states, the Constitutional Court create and has the authority
to adjudicate at the first and final instance, the judgment of which is final 11, to review laws
against the Constitution, to judge on authority disputes of state institutions whose
authorities are granted by the Constitution, to judge on the dissolution of a political party,
and to judge on conflict regarding the result of a general election. constitutional court also
shall render a judgment on the petition of the People’s Representative Council regarding
an alleged violation by the President and the Vice President according to the Constitution.12
However, the Constitutional Court closed the door for foreign citizens (foreigners)
to submit a request for judicial review of the Indonesian Law against the 1945
Constitution.13 In the latest ruling on case No. 137/PUU-XII/2014, constitutional court
stated that the application submitted by a foreign national and several legal advisors was
not acceptable. Explicitly, about foreigners, the Court noted that applicants with the status
of foreigners did not have legal standing or legal status to submit the petition.
This decision was taken at the request of abbasi chika, a Nigerian citizen who
stumbles on legal issues in Indonesia. Other applicants are several Agbasi attorneys from
the IDCC & Associates Law Office. Agbasi submits review Article 51 paragraph (1) of Law
no. 24 of 2003 concerning the Constitutional Court, as amended by Law No. 8 of 2011. This
article regulates constitutional impairment as a basis for applying for judicial review to the
Constitutional Court.

11
Read more Syamsudin Noer, “Recusal at the Constitutional Court of Indonesia”,
http://jcil.lsyndicate.com/wp-content/uploads/2018/08/Recusal-at-the-Constitutio.
12
Read more Luthfi Widagdo Eddyono, The Constitutional Court And Consolidation Of Democracy In
Indonesia, Jurnal Konstitusi Vol 15, No 1 Tahun 2018.
http://ejournal.mahkamahkonstitusi.go.id/index.php/jk/article/download/1258/350.
13
https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di-
indonesia/.

7
 The Agbasi considers the coming into effect of Article 51 paragraph (1) of the
Constitutional Court Law to reduce, impair and limit its constitutional rights in Indonesia.
Indonesia claims to be a state of law. Agbasi has been convicted by using Indonesian law, so
that he deserves the same legal treatment as Indonesian citizens (WNI), including
requesting a review of Indonesian Law.
However, the Constitutional Court has another opinion. The court firmly stated
that the Agbasi as foreigners did not have legal standing. In its argument, the Court refers
to the formulation of Article 51 paragraph (1) of the Constitutional Court Law that those
who are allowed to submit judicial reviews are Indonesian citizens. Also, the subject that
may be a customary law community unit as long as it is still alive and by the development
of the community and the principles of the Unitary Republic of Indonesia, public or private
legal entity; and state institutions.14 It means that it depends on the parliament and
government to fulfil the constitutional rights of refugeeRefugees and asylum seeker in
Indonesia.
Unfortunately, the parliament and government as a join legislature never made Law
for strengthening the constitutional right of refugeeRefugees and asylum seeker. The only
law about the handling of foreign refugeeRefugees in Indonesian national law is Law No. 37
of 1999 concerning Foreign Relations (Law on Foreign Relations). It was said that related
to refugeeRefugees was regulated later by Presidential Regulation. In late 2016 the
President of the Republic of Indonesia signed the Presidential Regulation on the Handling
of RefugeeRefugees, which contains crucial definitions and sets out processes for the
detection, shelter and safeguarding of refugeeRefugees and asylum-seekersAsylum-Seekers.

Presidentialpresidential regulation Regulation number Number 125 of 2016 concerning

handling Handling of refugeeRefugees from abroad Abroad and its
implementationImplementation
Presidentialpresidential regulation number 125 of 2016, among others, regulates the
security of asylum seekers and refugeeRefugees, coordinates the government and UNHCR
regarding their status, and respects the fundamental rights of refugeeRefugees. This regulation
provides the basis for services provided by immigration officials to refugeeRefugees.

14
Ibid.

8
 Many problems faced in the implementation of presidential regulation 125/2016
including: lack of socialization to the Regional Government regarding the Presidential
Regulation so that there are still regional heads reject the arrival of refugeeRefugees; there is no
task force for handling refugeeRefugees from abroad; limited human resources and budget;
unavailability of shelter land for refugeeRefugees; and cause social jealousy for refugeeRefugees
who receive free humanitarian assistance while residents live in shortages.15
Factual, the problem of refugeeRefugees is not only the area of immigration
responsibility. Moreover, immigration has limitations in dealing with refugeeRefugees reaching
tens of thousands of people. Immigration adheres to Law No. 6 of 2011 concerning Immigration
(Immigration Law). The 2016 Presidential Regulation adds to the authority to handle
refugeeRefugees to the Directorate General of Immigration. In the Immigration Act, it is limited
that immigration is related to the traffic of people entering or leaving Indonesian territory and its
supervision to maintain the country's sovereignty. Its services also only include law enforcement,
state security, and community welfare development facilitators. Immigration duties are different
from humanitarian services that must be provided to refugeeRefugees.16
Immigration personnel were not trained as social workers with expertise in handling
humanitarian issues. From the beginning, the Immigration officer played a part as an
immigration law enforcer. Presidential Regulation has only become a brief solution that has not
yet been resolved regarding the issue of handling refugeeRefugees.17
Indonesia also faces a lack of refugeeRefugee accommodation facilities. Some are still
entrusted to immigration detention centres. The facility, which is a temporary prison for
foreigners involved in immigration violations, is also used to accommodate refugeeRefugees.
There are 13 immigration detention centres in Indonesia, not designed to accommodate
thousands.18
Data shows that the number of immigrants or refugeeRefugees entering Indonesia as
many as 14425 peoples, who consisting of 8039 refugeeRefugees and 6386 asylum seekers. The
refugeeRefugees spread to the entire territory of Indonesia is 2177 peoples being at the
15
Penny Naluria Utami, “IMPLEMENTASI PERATURAN PRESIDEN NOMOR 125 TAHUN 2016
TENTANG PENANGANAN PENGUNGSI DARI LUAR NEGERI DI PROVINSI KEPULAUAN RIAU”,
Jurnal Legislasi Indonesia, Vol 16, No 3 (2019), http://e-jurnal.peraturan.go.id/index.php/jli/article/view/509/pdf.
16
https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di-
indonesia/
17
Ibid.
18
Ibid.

9
Immigration Detention House (Rudenim), 2030 people at the Immigration Office (Kanim), 4225
people in the community house, and as many 5993 are independent immigrants. In terms of
Indonesia only has 13 Rudenim, but only one Rudenim capacity is adequate, namely in
Jayapura.19
The state does not have a budget post to deal with refugeeRefugees. There had been
involvement from UNHCR and other international humanitarian agencies as donors to overcome
the problem of foodservice and basic needs of refugeeRefugees. The use of the detention centre's
budget is misplaced and very limited. Finally, Immigration implements a policy to allow
refugeeRefugee children, pregnant women, and elderly to stay in a donor-funded community
house. But it becomes complicated regarding the monitoring of refugeeRefugee mobility in
Indonesian territory because it is not within reach of immigration officers.20
In addition to technical problems, Immigration is also concerned about the long-term
impact of the presence of refugeeRefugees. If there is a legal vacuum in handling
refugeeRefugees, the impact is on social problems and state resilience. Even there is a
Presidential Regulation on Foreign RefugeeRefugees; this regulation only regulates a small part
during the first emergency response; on the contrary, it does not yet regulate prevention,
repatriation, and who is fully responsible.21 Some social problems also happened. In terms of
national resilience, government aware of whether any foreigner who claims to be a
refugeeRefugee turns out to be a foreign spy or a member of an international terrorist network
who intends to spread his ideology.22
IOM (international organization for migration) Indonesia receives financial support
refugeeRefugees from Australia alone so that the australian government issued a policy only in
the form of limitation/reduction of assistance in handling the problem of asylum seekers and
refugeeRefugees in Indonesia. Facilities and infrastructure for refugeeRefugees are provided by
IOM in the form of supplies clean water, beds and sports areas. If refugeeRefugees get sick, they
can go straight to treatment the nearest health centre, and when further action is needed, they will

19
https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi-indonesia-ini-langkah-pemerintah .
20
Ihttps://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di-
indonesia/
21
Ibid.
22
Ibid.

10
send to the hospital for treatment with a referral letter. 23 If refugeeRefugees want to repatriate,
the financing is charged to family or repatriating party and not to IOM.24
UNHCR is a UN organisation carrying out refugeeRefugee protection mandates and
dealing with refugeeRefugee problems and owning representatives in several cities in Indonesia.
UNHCR accommodates aspirations from local government-related issues and refugeeRefugees
looking for solutions about negative issues, social problems, ideology, religion and sociality so
that it doesn't happen friction between immigrants and the local area. Many of the asylum
seekers are doctors and architects and other workers who were they come out of their area due to
conflict and can be empowered to help the community voluntarily.25
According to the deputy for security coordination and community order, coordinating
ministry of politics, law and security (Kemenko Polhukam), Carlo B. Tewu, refugeeRefugee
problems in Indonesia has become a serious concern by the government Indonesia. The
government has tried various things efforts to deal with refugeeRefugee issues from abroad,
among others through the formation Desk for Handling RefugeeRefugees from Abroad and
People Smuggling. Establishment of Handling Desk is through Ministerial Coordinator for
Politics, Law and Security Republic of Indonesia Decree Number 37 of 2018 concerning
RefugeeRefugee Handling Desk from Overseas and Human Smuggling. The coordinator for this
desk is Coordinating Ministry for Politics, Law and Security which coordinate with
ministries/Institutions and related organisation in the region.26
Based on the explanation from Carlo B. Tewu, local government participation is key in
handling refugeeRefugees as stipulated in Presidential Regulation. Related to the supervision of
refugeeRefugees and asylum seekers in temporary shelters, local governments need to develop
rules or procedures orderly with Rudenim by adjusting customs local customs and local wisdom.
It is aimed to handling refugeeRefugees from abroad in at least three fundamental aspects
namely: first, handling and coordination in the field; second, respect for human rights; and third,
aspects of surveillance of foreigners and state security.27
According to Yuliana Primawardani and Arief Rianto Kurniawan , In the context of
immigration supervision, as regulated in Article 35 and Article 36 Presidential Regulation, the
23
Penny Naluria Utami, Op.Cit., p. 305-306.
24
Ibid.
25
Ibid.
26
Ibid., p. 304-305.
27
Ibid.

11
forms of immigration surveillance are fulfilling administrative aspects and have not touched on
aspects of respecting refugeeRefugee rights as human rights, especially in terms of respect
economic, social and cultural rights of refugeeRefugee.28
How to the handling problems refugeeRefugees and asylum seekers, both on the spot shelter and
outside the shelter is very diverse, like for example problems social community with the
environment around, the problem of fulfilling economics rights and other problems, it is
interesting to be researched about how capabilities and Detention House capacity handling
problems referred to in the framework for implementing the Presidential Regulation Number 125
of 2016.29

UNHCR Roles
UNHCR’s protection activities begin with ensuring that refugeeRefugees and
asylum-seekersAsylum-SeekersAsylum-Seekers are protected from forced return to a
country or territory where their lives or freedom might be in danger. UNHCR then
undertakes a process of verification of identity for registration and issuance of proper
documentation.30
Registered asylum-seekersAsylum-SeekersAsylum-Seekers will then be scheduled to
have their claims for refugeeRefugee status thoroughly assessed by UNHCR in what is
known as a refugeeRefugee status determination (RSD) Procedure. This procedure offers
each individual asylum-seeker an opportunity to be interviewed in his/her language by an
RSD officer assisted by a qualified interpreter, who will assess the merits of the individual’s
claim for international protection.31
The asylum-seeker will be then provided with a reasoned decision on whether they
qualify for refugeeRefugee status under UNHCR’s mandate. In case one’s claim for
protection is initially rejected, the RSD procedure grants the asylum-seeker an opportunity
to appeal the unfavourable decision. For those found to be refugeeRefugees, UNHCR will
begin to look for one of a range of what UNHCR calls comprehensive solutions.
28
Yuliana Primawardani and Arief Rianto Kurniawan, “PENANGANAN PENGUNGSI DARI LUAR
NEGERI OLEH PETUGAS RUMAH DETENSI IMIGRASI DI PROVINSI SULAWESI SELATAN
(Treatment to International Refugees by the Officuals of Immigration Detention Center in the Province of
South Sulawesi)”, Jurnal Ilmiah Kebijakan, Vol 12, No 2 (2018), p. 182.
29
Ibid.
30
[https://www.unhcr.org/id/en/unhcr-in-indonesia].
31
Ibid.

12
Traditionally, these solutions have included resettlement to a third country, voluntary
repatriation (if a person can return in safety and dignity), and local integration in the state
of asylum.32
However, in the current global refugeeRefugee crisis, with more than 65 million
persons displaced around the world, UNHCR is working to identify a range of other
solutions, including: temporary stay measures that allow refugeeRefugees access to self-
reliance opportunities until a longer-term solution can be found; complementary pathways,
such as university scholarships, labor migration schemes, and State-facilitated family
reunification. Finding an appropriate longer-term solution for each refugeeRefugee is a
complex and often lengthy process that involves considering the particular circumstances
of the individual or family and identifying answers that match their specific needs. 33

Protection for refugeeRefugees in Indonesia: State Responsibility?

The Guardian made a report that, of the 14000 refugeeRefugees in the country,
many are caught in a debilitating bind. Unable to legally work, they are told by the
UNHCR, that there is no money to support them. Resettlement could be decades away if it
happens at all. The situation has been compounded by an Australian government decision
to cut funding to IOM for any new refugeeRefugee arrivals.34
There are three official durable solutions for someone who has been recognized as a
refugeeRefugee by UNHCR. First, resettlement to a Third Country that accepts
refugeeRefugees from UNHCR; Second, integration with a local population of the country
they were found to be a refugeeRefugee in; Third, repatriation to Country of Origin – if the
risk of persecution is no longer present.35
“Resettlement can be formally made only to a Country which is a party to the
United Nations RefugeeRefugee Convention. Indonesia has not signed the
RefugeeRefugee Convention. Once an asylum seeker is recognized as a
refugeeRefugee, and if they meet resettlement criteria, a refugeeRefugee may be
asked to attend UNHCR for a resettlement interview. After this, their basic
32
Ibid.
33
Ibid.
34
https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything-indonesias-refugees-in-limbo-as-
money-runs-out
35
https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-refugee/

13
 information may be sent to the embassy of resettlement Countries. The resettlement
Country does not receive your complete file, only basic information along with an
application from UNHCR, called a ‘Resettlement Registration Form (RRF).”36

Under UNHCR guidelines, and the policies of resettlement countries, resettlement

priority is given to most vulnerable persons – those with serious medical conditions,
unaccompanied children, women at risk, etc. Waiting is tough, but there are only a
minimal number of resettlement places and a vast number of people waiting to be resettled.
The decision to resettle a refugeeRefugee is made by the resettlement Country only. Not by
UNHCR. The resettlement Country will consider applications made by UNHCR, in line
with their Countries resettlement and humanitarian policies. 37
The time provided by each Country to consider a resettlement request depends on
many factors, including each Countries resettlement and humanitarian policies, and the
number of refugeeRefugees the Country offers to resettle every year. Quotas for each
Country may change from year to year, depending on the policies of that country.38
Currently, Indonesia is not signatory to the International RefugeeRefugee
Convention and cannot officially accept refugeeRefugees for permanent resettlement. Many
refugeeRefugees may be in Indonesia for a long time, many years, and informally integrate
into Indonesia by getting to know their Indonesian neighbours and taking part in day to
day life in their community. At this point, refugeeRefugees in Indonesia do not have the
right to work. RefugeeRefugee children do have a right to education; however, in practice,
language, cultural barriers and costs often make attending school very difficult. 39
If UNHCR decides a country is safe for return, refugeeRefugees from that country
living in Indonesia may be repatriated back to their home country. This process is complex
and does not occur very often. A refugeeRefugee may also decide to return to their home
country voluntarily. UNHCR will consider all of the available information and decide
whether it is safe for the refugeeRefugee to return. If it is, UNHCR partners such as IOM
will assist in organising the return. If UNHCR does not think it is safe, they will be unable

36
Ibid.
37
Ibid.
38
Ibid.
39
https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and-refugee/

14
to assist the refugeeRefugee in returning. The refugeeRefugee may still decide to return on
their own without the assistance of UNHCR.40
According to julio castor, Human rights lawyer and member of SUAKA, an
association advocating protection for asylum seekers and refugeeRefugees in Indonesia,
Indonesia has a responsibility as a state in protecting refugeeRefugees and asylum seekers.
Indonesia is not a signatory to the 1951 RefugeeRefugee Convention and its 1967 Protocol.
However, is being a signatory to the conventions above the only pre-requisite for a state in
protecting refugeeRefugees in Indonesia?41
As a member of the UN, Indonesia is a signatory to eight-core international human
rights conventions, some of which have been adopted in domestic regulations. Apart from
international conventions, presidential regulation 125/2016 on the treatment of
refugeeRefugees and asylum seekers in Indonesia has acknowledged and recognised
refugeeRefugees in a national legal context, even though protection clauses are lacking
within the said regulation.42
Ratifying an international convention may require the state to do more work, but
further research is needed on the potential impacts on the state’s readiness in adhering to
the international standards of human rights fulfilment, among other things. What are the
current solutions for refugeeRefugees and asylum seekers in Indonesia?43
According to Castor, The UN cites three main durable solutions: assisted voluntary
repatriation, resettlement and integration with the local community. A first choice is hardly
a possible option as the conflicts in refugeeRefugees’ country of origin rarely subside; while
the non-refoulment principle under international customary law considers making
refugeeRefugees return to their own country and endangering their safety a breach of
international law. Resettlement, which is highly hoped by refugeeRefugees as the best
solution for them, also does not seem possible with the rise of extreme nationalism,
Islamophobia and resistance from countries such as Australia, the United States as well as
European countries who used to accept refugeeRefugees from Indonesia.44

40
Ibid.
41
Ibid.
42
Ibid.
43
Ibid.
44
Ibid.

15
 This situation leaves the third option. As a non-signatory member of the 1951
RefugeeRefugee Convention and its Optional Protocol of 1967, the government might say
integration with the local community is not a possible option. However, integration is
inevitable between the refugeeRefugee community and Indonesian society. The
refugeeRefugees have already started integrating into society ever since they arrived in
Indonesia.45
“Ending the conflicts in the respective countries would be a utopic solution for
refugeeRefugee migration in general. With a minimum chance of going back to their
countries and being resettled, living in limbo for more than eight years as the average
waiting time to be resettled, has greatly affected the mental health of refugeeRefugees in
Indonesia. Assuming the average waiting time is lengthened due to the minimal
successful resettlement cases and a steady influx of refugeeRefugees into Indonesia, the
government must start preparing for the unavoidable consequences of the current
situation by starting to provide basic rights to refugeeRefugees and legal recognition.”46

Castor made an example in India. Tibetan refugeeRefugees’ right to residency is

contingent upon a Registration Certificate (RC) which is a legal document issued by Indian
authorities, equivalent to an identity card. RC issuance to Tibetans started in 1956 when
the Dalai Lama was exiled, followed by a mass exodus of Tibetan refugeeRefugees into
India. RCs are valued as they allow Tibetans to legally travel and work within the country,
serving as an identity document and a prerequisite for an Identity Certificate. Although
currently, the process to acquire an RC is arduous, the legal recognition remains clear for
Tibetans in India.47
on 2000, Malaysia, as the host of more than 150,000 refugeeRefugees and asylum
seekers, provided nonrenewable six-month work permits for Rohingya refugeeRefugees
from Myanmar. on 2015, Malaysia had considered, in multiple cases, the creation of
temporary work permits. The licenses were supposed to benefit Rohingya refugeeRefugees
to be legally employed in Malaysia, though the plan did not materialise. 48

45
Ibid.
46
Ibid.
47
Ibid.
48
Ibid.

16
Castor recommends Indonesia’s government to learn from the practices in India and
Malaysia as progressive commitments from states who are not signatory to the 1951
RefugeeRefugee Convention and its 1967 Protocol. For instance, Indonesia can create a
kartu izin tinggal sementara untuk pengungsi (RefugeeRefugee Temporary Stay Permit
Card) or collaborate in partnerships with local and international agencies to establish
livelihood opportunities. Indonesia has to adopt long-term strategies rather than ad-hoc
policies to prevent a bottleneck in providing legal recognition as well as sufficient
protection for refugeeRefugees and asylum seekers.49

closingClosing
The Constitutional rights of refugeeRefugees and asylum seeker have shown by the
1945 Constitution. As a member of the UN, Indonesia is a signatory to eight-core international
human rights conventions, sJome of which have been adopted in domestic regulations.
Unfortunately, the parliament and government as a join legislature never made Law for
strengthening the constitutional right of refugeeRefugees and asylum seeker. The only law
about the handling of foreign refugeeRefugees in Indonesian national law is Law No. 37 of
1999 concerning Foreign Relations (Law on Foreign Relations). It was said that related to
refugeeRefugees was regulated later by Presidential Regulation. In late 2016 the President
of the Republic of Indonesia signed the Presidential Regulation on the Handling of
RefugeeRefugees, which contains vital definitions and sets out processes for the detection,
shelter and safeguarding of refugeeRefugees and asylum-seekersAsylum-Seekers.
Even Indonesia is not a party to the 1951 RefugeeRefugee Convention or its 1967
Protocol, it has a long tradition of hosting refugeeRefugees and asylum‐seekers, and the
government has authorised UNHCR to help protect and find solutions for them. Regulation
ensures that refugeeRefugees and asylum‐seekers have access to UNHCR and allows them
to stay temporarily in the country until their refugeeRefugee status can be confirmed, and
appropriate solutions can be found for them. 50 Unfortunately, refugeeRefugees and asylum
seekers (and stateless people) in Indonesia have difficulty living in this country. They do
not have work permits and do not receive enough social assistance from the Indonesian
government. The Indonesian government allows refugeeRefugees and asylum seekers to
49
Ibid.
50
Read more UNHCR, “Indonesia Fact Sheet February 2016 Final, https://www.unhcr.org/50001bda9.pdf.

17
stay in Indonesia as long as they have registration documents from the UNHCR. The
government need to provide work permits to refugeeRefugees and asylum seeker to support
their additional necessity.

referencesReferences

Luthfi Widagdo EddyonoEddyono, Luthfi Widagdo, 2021Dinamika Konstitusionalisme di Indonesia, Rajawali

Press, Jakarta.

Jimly Asshiddiqie, “The Role of Constitutional Courts in The Promotion of Universal Peace and Civilization
Dialogues Among Nations”, the paper was presented in the International Symposium on “the Role of
Constitutional Courts on Universal Peace and Meeting of Civilizations”, Ankara, April 25, 2007.
Jimly

Luthfi Widagdo Eddyono, “The Constitutional Rights To Water And Food In Indonesia”,
http://www.ocerints.org/intcess19_e-publication/papers/104.pdf.

Moh. Mahfud MD, “Speech” in the World Conference on Constitutional Justice, Cape Town, 2009.

Penny Naluria Utami, “IMPLEMENTASI PERATURAN PRESIDEN NOMOR 125 TAHUN 2016
TENTANG PENANGANAN PENGUNGSI DARI LUAR NEGERI DI PROVINSI KEPULAUAN RIAU”,
Jurnal Legislasi Indonesia, Vol 16, No 3 (2019), http://e-jurnal.peraturan.go.id/index.php/jli/article/view/509/pdf.

Syamsudin Noer, “Recusal at the Constitutional Court of Indonesia”, JOURNAL ON CONTEMPORARY

ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7, http://jcil.lsyndicate.com/wp-content/uploads/2018/08/Recusal-
at-the-Constitutio.

UNHCR, “Indonesia Fact Sheet February 2016 Final, https://www.unhcr.org/50001bda9.pdf.

Yuliana Primawardani and Arief Rianto Kurniawan, “PENANGANAN PENGUNGSI DARI LUAR
NEGERI OLEH PETUGAS RUMAH DETENSI IMIGRASI DI PROVINSI SULAWESI SELATAN
(Treatment to International RefugeeRefugees by the Officuals of Immigration Detention Center in the
Province of South Sulawesi)”, Jurnal Ilmiah Kebijakan, Vol 12, No 2 (2018).
Pan Mohamad Faiz, 2019, amendemen konstitusi, Rajawali Press, Jakarta.

Indonesian Constitution (1945, Consolidated) - Asian Human .., http://www.humanrights.asia/indonesian-

constitution-1945-consolidated/.

https://www.hukumonline.com/berita/baca/lt597853eb3280a/ada-masalah-regulasi-penanganan-pengungsi-di-
indonesia/

https://www.unhcr.org/id/en/unhcr-in-indonesia.

https://news.detik.com/berita/d-3442963/14425-imigran-ilegal-penuhi-indonesia-ini-langkah-pemerintah .

https://www.unhcr.org/id/en/unhcr-in-indonesia

https://www.theguardian.com/world/2019/sep/13/its-impossible-to-do-anything-indonesias- refugeeRefugees-in-
limbo-as-money-runs-out

18
https://suaka.or.id/2017/02/22/resettlement-information-for-asylum-seeker-and- refugeeRefugee/

INDEX

A ……….
B ……….
C ……….
D ……..

19