Is the 2016 Indonesian Presidential Regulation a potential 'game-changer’ on rescue of Rohingya boat refugees?

Introduction 

In 2015, after mixed responses by States in the region to the Andaman Sea crisis,1 including ‘push backs’ of boat-loads of asylum seekers and refugees, the Ministers of Foreign Affairs of Malaysia, Indonesia and Thailand called a meeting to pressure the Association of Southeast Asian Nations (ASEAN) to address the issue, and released a joint statement in which they pledged to uphold their ‘responsibilities and obligations under international law and in accordance with their respective domestic laws, including the provision of humanitarian assistance…’.  That show of solidarity was consolidated in an international Special Meeting on Irregular Migration in the Indian Ocean, held in Bangkok on 29 May 2015, which produced another statement of affirmations. Those affirmations were then substantially adopted by the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (‘Bali Process’).  In its 2016 Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, the Bali Process reinforced the need for solidarity amongst states, including by encouraging ‘states to work to identify more predictable disembarkation options’ (paragraph 5).  

This call recognized that in crises such as that of 2015, and that which the region is seeing again now, the provision of humanitarian assistance requires that asylum seekers be allowed to disembark in places of safety to receive such assistance. As the joint statement by UNHCR, IOM and UNODC of 6 May 2020 stressed: ‘Search and rescue must be combined with arrangements for prompt disembarkation to a place of safety.’ But five years later there is no evidence of better practices or renewed solidarity, including cooperation on the issue of disembarkation; rather, the attitudes of Malaysia and Thailand towards Rohingya refugees arriving by boat appear to have hardened, whilst that of Indonesia is not clear.  

Thailand appears to be turning a blind eye to the current crisis, whilst Malaysia – which is the ‘target’ of the boats2 – has reportedly turned back one boat carrying 300 asylum seekers which was provided with fuel and food.  As the monsoon season approaches, grave concerns have been expressed about the threat to the lives of at least 500 asylum seekers at sea.

In light of regional State responses to the current crisis, in this commentary I focus on the scope and potential national and regional effect of President Regulation of the Republic of Indonesia Concerning the Handling of Foreign Refugees, No. 125, adopted on 31 December 2016 (PerPres 125/16), which was made in the wake of the 2015 Andaman Sea crisis. PerPres 125/16  includes a provision (article 9) which endorses the lead role of BASARNAS (Badan Nasional Pencarian dan Pertolongan - the National Search and Rescue Agency) in search and rescue operations.  It has been suggested that the failure to carry out search and rescue operations during the 2015 Andaman Sea crisis was a ‘catalyst’ for PerPres 125/16,3 so the question arises: is the new PerPres 125/16 likely to result in better practices? First, I consider how PerPres 125/16 frames protection for asylum seekers and refugees and focus on the significance of its search and rescue provisions. I explain how PerPres 125/16 and its search and rescue provisions endorse a policy consistent with the non-refoulement principle. I also explain countervailing provisions in PerPres 125/16 which detract from that policy by alternatively framing asylum seekers and refugees as ‘illegal’ or ‘irregular’ migrants, consistent with other Indonesian laws and policy.  I argue that this popular framing of asylum seekers and refugees diminishes their status in law – both under Indonesian law and in international law – and has a negative influence on how some officials approach their protection roles. I conclude that PerPres 125/16, in its current framing and as interpreted by many Indonesian administrators and policy makers, may not live up to its promise in practice.

This analysis incorporates discussion and papers presented at a Workshop on ‘Presidential Regulation No. 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia: Opportunities and Challenges’, held at the Fakultas Hukum (Faculty of Law), Universitas Indonesia, in March 2018 (‘Workshop’).4 The Workshop attendees included participants from the Coordinating Ministry for Political, Legal, and Security Affairs (see below), representatives of national and international organisations and Indonesian scholars. 

Responses to the current crisis

The current crisis, which has seen boats of Rohingya asylum seekers once more stranded at sea, is fueled by operations led by security forces against the Rohingya population in Rakhine State, Myanmar, since 2017.  The Thai government’s response to the new crisis has been to close its border to Rohingya people. As mentioned above, there are reports of boats being refused entry to Malaysia, and turned back at sea. The response in Malaysia is exacerbated by fears that Rohingya may be carrying the COVID-19 virus. Bangladesh is a new ‘player’ in this situation; boats carrying Rohingya have met with mixed responses from Bangladeshi authorities. According to one report, in April 2020 Bangladesh's Coast Guard rescued 396 starving Rohingya refugees who had been drifting at sea for weeks after failing to reach Malaysia. According to another report, in the same month the Bangladesh Navy and Coast Guard prevented two boats carrying an estimated 500 Rohingya refugees from disembarking and seeking asylum in Bangladesh.  More recently, the Foreign Minister of Bangladesh said that it would not accept back any of the asylum seekers pushed back by Malaysia.

In light of PerPres 125/16, Indonesia’s stance is of extreme interest.  One response from the government to reports that boats carrying Rohingya refugees had recently been sighted near Indonesian waters, approaching Aceh, was not very positive.  When asked whether Indonesia would accept the refugees if they requested to disembark in Indonesia, Foreign Ministry spokesperson Teuku Faizasyah said it was still a ‘hypothetical situation’.  

The spokesperson reportedly said: 

Actually, Indonesian policy is to prevent [refugees] from [making the journey] as boat people, right from the beginning.  The voyage will jeopardize the safety of anyone on the boats, even more so if there is an element of trafficking in persons.

This statement makes no mention of PerPres 125/16, which endorses the lead role of BASARNAS in search and rescue operations.  By the reference to trafficking in persons, the Foreign Ministry spokesperson appears to endorse the popular view (explained below) that asylum seekers in Indonesia are survivors of trafficking or smuggling and/or irregular migrants rather than persons entitled to international protection. 

To explain why Indonesia’s response to the current crisis is important both nationally and regionally, it is necessary to put PerPres 125/16 in context.  

Whilst like Malaysia and Thailand, Indonesia is not a signatory to the Refugee Convention, it is a State party to the Convention Against Torture, the International Covenant on Civil and Political Rights and Convention on the Rights of the Child, and is bound by their non-refoulement obligations as well as by customary law obligations.5 Indonesia uniquely has a number of laws and policies dating from 19566  which recognise the existence of refugees within its borders, and their need to claim asylum or protection in Indonesia from the state.  Laws created in 1999 recognise that the granting of asylum is a sovereign right of the Indonesian state, and confer power on the Indonesian President to formulate refugee policy.  PerPres 125/16 is an exercise of power conferred by article 27(2) of the Foreign Relations Law 37/1999, which empowers the President to create policy for foreign refugees through a Presidential Decree.7  

Further, in 2000, the 1945 Constitution of the Republic of Indonesia was amended to insert article 28(G), which provides: 

Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country. 

This provision has not been implemented in Indonesia; rather under a Regional Cooperation Arrangement (RCA) dating from 2000, the Indonesia government allows UNHCR to conduct refugee status determinations in Indonesia.8 In lieu of implementing the Constitutional provision, the Indonesian government decided to create PerPres 125/16.9   

How does PerPres 125/16 frame protection for asylum seekers and refugees?

PerPres 125/16 consists of 40 articles divided amongst four Chapters.  Chapter I includes article 1(1), which contains a definition of a refugee mirroring that in the Refugee Convention:

A refugee from abroad, hereinafter referred to as a refugee, is a foreigner who resides within the territory of the Republic of Indonesia due to a well-founded fear of persecution for reasons of race, ethnicity, religion, nationality, membership of a particular social group, and different political opinions, and does not wish to avail him/herself of protection from his/her country of origin and/or has obtained asylum seeker status or refugee status from the United Nations through the United Nations High Commission for Refugees in Indonesia.  (emphasis added)

Many commentators and participants at the Workshop optimistically read much into this provision, and saw it as a promise of refugee rights.10  Importantly, in this definition both ‘refugees’ (pengungsi) and asylum seekers (pencari suaka) are described as ‘refugees’.11  This definition has made a difference to UNHCR processing of asylum seekers post PerPres 125/16.  Previously, only those asylum seekers whose applications for refugee status were successful received a UNHCR identity card.  Thus, those with applications pending were at risk of arrest and possible deportation. Post PerPres 125/16, asylum seekers whose applications are under consideration also receive identity cards from UNHCR while their applications are being processed, (and gain refugee status if their application is successful).  That is, the international law status of both asylum seekers and refugees is recognised through UNHCR identity cards post PerPres 125/16. 

Despite the promise of the definition in article 1(1), other provisions of PerPres 125/16 appear to endorse what is called the ‘immigration law’ approach in Indonesia.  As I explain below, the ‘immigration law’ approach frames protection for asylum seekers and refugees as an exception to strict application of immigration law.  This is also the prevailing approach in Malaysia and Thailand.  In Indonesia this view downplays or ignores the international law status of asylum seekers and refugees, and arguably, the significance of the right to asylum in the 1945 Constitution.12   

Chapter II of PerPres 125/16 is headed ‘Detection’, Chapters III and IV contain provisions for ‘Shelter’ and ‘Safeguarding’ respectively, but Chapter V tellingly deals with ‘Immigration Supervision’.  As Mahardhika Sjamsoe’oed Sadjad explained in the paper she presented at the Workshop, by framing refugees passively as persons to be ‘detected’ or ‘discovered’, ‘sheltered’ and ‘safeguarded’, PerPres 125/16 treats refugees as persons to be managed, or as irregular migrants.  Sadjad analysed at least six earlier drafts of PerPres 125/16 dating from November 2011, and demonstrated that in the drafting process the promise of rights for refugees had been whittled down.  While earlier drafts had envisaged that refugees would be granted a permanent status in Indonesia, these provisions were omitted from later drafts.  She also noted the absence of references to or provision for human rights (which had been included in earlier drafts),13 although article 3 of the final text does state:

The handling of refugees must duly observe generally applied international provisions and be in accordance with the provisions of laws and regulations. 

In its final form, PerPres 125/16 envisages only two durable solutions for refugees: voluntary repatriation or ‘return’ (art 38), and resettlement in a third country (art 37(a)) or ‘country of destination’ (art 33(2)). Local integration has disappeared as an option. Voluntary repatriation is referred to in a number of articles as ‘voluntary return or deportation in accordance with the prevailing laws and regulations’ (art 29(1), emphasis added). Although a clear procedure for voluntary return is provided in article 38, article 43 specifies that a return can be involuntary for ‘refugees whose applications are ... finally rejected’. This raises the question of whether PerPres 125/16 upholds the principle of non-refoulement which applies to Indonesia.14   

Although PerPres 125/16 does not expressly prohibit refoulement,15  Malahayati et al. suggest that its search and rescue (SAR) procedures do prevent refoulement.16  Like other commentators, however, they admit that Indonesia’s record on non-refoulement is mixed.17  Before moving to consider the scope of the SAR provisions in PerPres 125/16, I note that the residential requirement in the definition (emphasised above) appears to limit the scope of article 1(1) of PerPres 125/16 to ‘landed’ refugees who are already ‘residing’ in Indonesia.  Although the definition could also apply to those who are in Indonesia’s territorial waters, discussion at the Workshop suggested that it does appear to be understood in this way. 

The SAR provisions in PerPres 125/16 and the role of BASARNAS

BASARNAS’s role is described in Chapter II (‘Detection’) of PerPres 125/16.  Article 5 describes BASARNAS’s role in ‘the finding of refugees in emergency situations in Indonesian waters’ or who ‘transmit distress calls’ (article 6).  As to what must be done, article 9 sets out the measures: if a ‘carrying boat is about to go under’ the refugees must be transferred to a rescue vessel and taken to nearest port if their lives are in danger.  Those in need of emergency medical attention must be identified.  But overall and otherwise, ‘foreigners suspected of being refugees’ must be hand over to the nearest Immigration Detention Facility (article 9 (d)) or, if there is none, to the National Police (article 11).  

Although these provisions are consistent with Indonesia’s requirement to carry out adequate and effective SAR operations under article 98 (2) of the UN Convention on the Law of the Sea (UNCLOS)18 they send a mixed message in the framing of ‘suspected’ refugees and the requirement that they be detained once rescued and ‘landed’ (articles 9(d), 11).  Further, article 1(1) of PerPres 125/16 (the definition section) applies to ‘landed’ refugees who are already residing in Indonesia (note the residential requirement in the definition, emphasised above).  Thus UNHCR, which is not involved in SAR, does not have access to asylum seekers and refugees in Indonesia’s territorial waters. This highlights the importance of SAR and the limits of the application of PerPres 125/16.  Being ‘landed’ is a prerequisite to protection in Indonesia.  Discussion of this issue at the Workshop suggested considerable frustration over this impasse. 

A feature of BASARNAS’ role is that it is a coordinating one.  Article 7 describes the coordinating institutions with which BASARNAS works, including the Indonesian Armed Forces, Indonesian National Police and the Maritime Security Agency.  At the Workshop, presentations and comments from some participants from some of the institutions coordinating with BASARNAS suggested that there was lack of clarity about their roles and responsibilities to coordinate and engage in SAR in relation to refugees.  It was unclear whether participants understood that principles of SAR and non-refoulement supplement international maritime law; there was confusion about how to describe asylum seekers and refugees (whether as irregular migrants or in securitized terms as smuggled/trafficked persons), and overall a very negative perception of refugees as a risk to social harmony.19  Although the representative from BASARNAS said that it is committed to respecting the non-refoulement principle, comments at the Workshop from participants from other agencies suggested that boats carrying asylum seekers are encouraged and assisted to continue their journeys onward from Indonesia to other destinations.  

A representative from UNHCR Indonesia was quick to point out that it is a breach of Indonesia’s international obligations to encourage boats to move on by providing food and fuel, and that it is absolutely necessary that asylum seekers be brought on land to be processed by UNHCR under its mandate (and in accordance with PerPres 125/16).  However, discussion at the Workshop suggested that the message that the Rohingya’s greatest need is to be rescued and allowed to disembark safely has not been enhanced by PerPres 125/16.  That is, PerPres 125/16 needs a stronger and clearer commitment to and statement of Indonesia’s duty to allow asylum seekers to disembark following SAR operations.  

The ‘Immigration Law’ framing of PerPres 125/16

As another paper presented at the Workshop by Avyanthi Asiz showed, there are instances post-PerPres 125/16 where (landed) asylum seekers (pencari suaka) have been treated as ‘illegal immigrants’ (imigran gelap) and their rights to refugee status determination by UNHCR have been ignored. Thus, the positive effects of the article 1(1) definition are diminished and the possibility of refoulement is real, not only through inadequate SAR operations but also through failure to process in Indonesia.  

The framing of asylum seekers as ‘illegal immigrants’ (imigran gelap) arises from Immigration Law No 6. of 2011 (‘Law 6/2011’), which focuses on irregular migration and the creation of smuggling offences. Article 119(1) makes it an offence punishable with a maximum sentence of five years prison and a fine of Rp 500 million (A$50,000) for a foreigner to stay in Indonesia without a valid travel document and visa. It is also an offence for a foreigner to knowingly use a false travel document. A report authored by Graeme Hugo in 2014 found that 84% of asylum seekers entered Indonesia ‘illegally’ following the enactment of this law because they could not comply with the legal immigration requirements.  Hugo et al suggest that Law 6/2011 is designed to make asylum seekers ‘irregular’.  

Article 86 of Law 6/2011 is the only provision which indirectly recognises refugees and asylum seekers (as persons who have been smuggled or trafficked). It creates an exception to the law’s punitive provisions for victims of human trafficking and smuggling. Therefore, under a securitised framework, asylum seekers are perceived either as victims of smuggling and/or as illegal immigrants.20  Further, at the Workshop asylum seekers and refugees were persistently described as a threat to social harmony.21   

Discussion at the Workshop indicated that amongst many Indonesian policy makers and scholars, Law 6/2011 is now seen as the main law governing refugees. The significance of this approach is that protection of asylum seekers and refugees is perceived as a ‘humanitarian’ discretionary exception to immigration law.22  This is despite the sovereign right to grant asylum in article 28(G) of the 1945 Constitution, which is supplemented by power vested in the President under the Foreign Relations Law (Law 37/1999), in particular article 25, to implement article 28(G).23  Instead the Indonesian state has delegated its sovereign right to grant asylum to UNHCR24 and created PerPres 125/16. 

As explained above, PerPres 125/16 is an exercise of the power vested in the President under article 27(2) of Law 37/1999), which provides the legislative power of the Ministry for Foreign Affairs to create refugee policy.  However, PerPres 125/16 further created the Coordinating Ministry for Political, Legal, and Security Affairs and placed the treatment of refugees under its authority.25 The Coordinating Minister is responsible for coordinating between the Ministry of Foreign Affairs and the Ministry of Law and Human Rights (arts 1.3, 1.6 and 42), with the latter overseeing the Directorate General for Immigration, the Immigration Office and Immigration Detention Centres.  The involvement of these two ministries (and the requirement for inter-ministry coordination) are new features of PerPres 125/16, as is the specific authorisation of the Directorate General for Immigration to handle refugee issues.26   

Thus, PerPres 125/16 embodies the tension between the framing of asylum seekers and refugees as persons entitled to rights and protection arising from their status in international law and their ‘illegal’ status under existing Indonesian immigration law.  Many Indonesian policy makers and scholars (including those who attended the Workshop) argue that the ‘immigration approach’ trumps Indonesia’s constitutional obligations under article 28(G), which sets out the right to grant asylum.  Some Indonesian scholars have argued that PerPres 125/16: 

[J]ustifies the transplantation of immigration legal framework for emergency entry of asylum seekers and refugees, rather than the genuine legal framework to grant asylum.27

The ‘immigration approach’, as explained above, is described by many Indonesian policy makers and scholars as a discretionary ‘humanitarian’ and non-legally binding response.28  A spokesperson for the Minister of Foreign Affairs at the Workshop perceived PerPres 125/16 as essentially implementing a ‘humanitarian emergency aspect’ and emphasized that its successful implementation will depend on strong coordination. Moreover, unless PerPres 125/16 is applied and interpreted consistently with the non-refoulement principle and norms of international protection, it will not be effective. 

Conclusion: What are the prospects of change at the regional level?

The argument in this piece, namely that the PerPres 125/16 is unlikely to be effective, has been borne out by the action of fishermen from Aceh who recently landed 99 Rohingya refugees after the government of Indonesia refused to assist them. 

As I have explained, PerPres 125/16 does not contain a clear and unambiguous requirement to rescue and disembark asylum seekers found at sea; it merely empowers BASNARAS to do so.  There is a gap between that power and the mandate of the UNHCR to process refugees in Indonesian territory, as there is no expressed obligation to disembark asylum seekers for the purpose of refugee status determination.  Further, the contextual framing of PerPres 125/16 in terms of immigration law and security concerns does not provide much reassurance that search and rescue will lead to disembarkation for processing.  However, the symbolic importance of PerPres 125/16, including its connection to the Andaman Sea crisis of 2015, raises the issue of its possible impact regionally (and in particular on Malaysia and Thailand).  

UNHCR has worked persistently with countries in the region over many years to strengthen search and rescue measures for asylum seekers and refugees found at sea.  Arguably, States in the region are familiar with the importance of the principles and the need for disembarkation and ‘first asylum’ from their experiences with the Comprehensive Plan of Action for Indochinese Refugees (1989-1998).  

Since at least 2004, UNHCR policy has encouraged States in the Asian region to strengthen refugee protection in mixed migratory movements, including through rescue at sea.  Around 2004, UNHCR policy appeared to shift away from focusing on encouraging states to sign the Refugee Convention to more practical measures. Then, in November 2010, it organized a regional meeting on the 10-point Plan of Action on Refugee Protection and Mixed Migration in Manila.29 In April 2014, it held an ‘International Workshop on the Protection of Irregular Movements of Persons at Sea’ in Jakarta.  According to the Co-Chairs’ Summary, discussions focused on three areas, namely: building capacity to promote timely search and rescue operations through information sharing and coordination; developing a protection-sensitive migration management system, including for irregular movements by sea; and mobilizing necessary resources.  The Workshop included a number of simulated exercises.  According to the ensuing report, key international law principles were confirmed with respect to ensuring the protection of life at sea and disembarkation of those rescued at the place of safety.  It was stressed that: 

The principle of international cooperation requires putting in place a comprehensive and coordinated approach to respond not in an ad hoc manner but as part of regional cooperation solution involving countries and relevant international organizations namely UNHCR, UNODC and IOM. (para 16) 

In Indonesia Haidar Bagir of Risalah (Community) Jakarta Forum recently declared: 

The Government must … uphold the established commitments based on regional declarations, including the 2016 Bali Declaration, which states that a comprehensive regional approach to tackle irregular migration – such as the case of Rohingya – will be pursued based on shared burden and collective responsibility. 

As the joint statement of UNHCR, IOM and UNODC of 6 May 2020 stressed, there is a need to develop a coordinated regional approach with states in the region. However, in the current crisis, where attention is focused nationally on the threat of the COVID-19 virus, there appears to be little appetite for collective action transnationally between States or from regional organisations such as the Bali Process and ASEAN.  In this environment, where the perception of asylum seekers as a security threat is heightened, PerPres 125/16 may not in practice live up to its promise.