Seeking a Global Commitment on the Rights of Migrant Workers and Their Families

Indonesian migrant workers returning from Saudi Arabia wait to disembark from a ship in Jakarta in this file photo. (JG Photo/Yudhi Sukma Wijaya)

By : Amanda Himawan | on 7:32 PM November 04, 2017
Category : Opinion, Commentary

Indonesia completed its dialogue with the United Nations Committee on Migrant Workers in September about the implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

The convention lays out the rights of migrant workers and their families that must be respected by both sending and receiving countries, including the right to life, freedom of opinion, right to transfer earnings (remittances) and the right to a safe and orderly return. It was Indonesia's first report to the committee since it ratified the convention with Law No. 6 of 2012.

While following the dialogue at the offices of the UN High Commissioner for Human Rights in Geneva, I could not help but think that the obligation to protect Indonesian migrant workers and their families are often attributed only to the sending country. While it is indeed crucial to strengthen laws and regulations and their implementation in the sending country, we need equal commitment and efforts to protect those workers' rights in destination countries.

Migration is a transnational issue, involving movement from one point to another, and violations of migrant workers' rights could occur at any point in the migration chain. However, so far only 51 countries have ratified the convention and perhaps unsurprisingly, most are sending countries, such as Indonesia and the Philippines.

The recently adopted Law on the Protection of Indonesian Migrant Workers stipulates that states that before workers can be sent to a certain country, the receiving country should either:

(1) Have laws on the protection of foreign workers;

(2) Have a bilateral agreement with Indonesia on the placement and protection of Indonesian migrant workers; and/or

(3) Have social security/insurance that protects foreign workers.

Furthermore, the new law also states that in providing protection, the government must respect the applicable domestic laws and that the Indonesian government can stop the placement of migrant workers for security and human rights protection reasons.

Those articles reflect the importance of adequate regulations on the migrant workers' receiving end.

Challenges due to differing national legal systems is reflected, for example, in attempts by the government and its missions abroad to save Indonesian migrant workers on death row in Middle Eastern countries.

Under shariah, there are several types of law: hadd (crimes mentioned in the Koran or Hadith); tazir (crimes for which the punishment is at the state's discretion); and qisas/diyya (retaliation/compensation money). Only in the case of qisas and tazir the Indonesian government can negotiate the revocation or commutation of capital punishment for its citizens. In the case of qisas, the government must approach the family of the victim as the sole authority to decide the punishment in order to gain forgiveness and/or change the punishment to financial compensation. If the relatives do not grant forgiveness, then not even the king could revoke the punishment.

Furthermore, irresponsible employers can abuse the sponsorship, or kafalah system. The system requires domestic migrant workers in some Middle Eastern countries to obtain written permission from the sponsor (usually the employer) if they want to leave the country or change employers within the contract period.

When migrant workers escape – for example from an abusive employer – they are considered to have violated the contract and are at risk of arrest or being fined until the employer is proven abusive. Although this system is considered part of the region's culture, safeguarding policies that protect migrant domestic workers in particular, are crucial when they indeed face abusive situations.

Another example is the rights of Indonesian migrant workers' children to get an education. Under Malaysian immigration and labor laws, foreign workers holding temporary passes, including workers in palm oil plantations, construction and manufacturing, are not allowed to "marry any local resident or migrant worker" working in Malaysia during their tenure.

When they do so and have children, their young are not eligible for residence permits, making them illegal immigrants who risk expulsion from Malaysia. Consequently, these children are unable to enroll at schools.

As an alternative, the state of Sabah in coastal Malaysia, which has a high concentration of Indonesian migrants working on palm oil plantations, has allowed the Indonesian government to establish community learning centers in cooperation with plantation companies and local nongovernmental organizations to provide informal education to migrant workers' children.

Although this is indeed an encouraging development, there are still challenges. The Indonesian Ministry of Education and Culture estimated last year that 28,000 migrant workers' children, including those in remote plantation areas, lacked access to education.

Furthermore, most of the learning centers only provide the equivalent of six years' primary education, with only a few reaching nine years, or secondary level. These children will still have to return to Indonesia to continue their education.

Other issues, including the rights of association and assembly, birth registration for migrant workers' children and punishment for abusive employers, also largely depend on the receiving country's laws and regulations.

In the global movement of work, it will be increasingly harder to label a country as a "sending" or "receiving" state. Countries traditionally labeled as sending states, such as Indonesia, India and Turkey, have been witnessing increasing numbers of migrant workers entering their territories over the past few years. On the other hand, countries such as the United Kingdom and China are steadily sending more migrant workers abroad.

It is about time the international community realizes the importance of an equal commitment at every end of the migration line to promote the protection of all migrant workers and their families.

Indonesia has at least three channels to utilize towards this end. First is through bilateral agreements that provide a framework in line with the specific situation in every receiving country. A recent agreement between Indonesia and Saudi Arabia's manpower minister on a new system for Indonesian citizens working in that country is one good example of this.

Second is through the regional arena. Although the Association of Southeast Asian Nations (Asean) is scheduled to soon adopt a consensus on the protection of migrant workers, Indonesia must ensure its implementation and even continue to pursue the adoption of legally binding instruments on migrant workers, particularly with the rise of migration within the bloc.

Finally, encouraging universal ratification of the convention on the protection of the rights of migrant workers is vital to ensure standardized protection for all migrant workers and their families worldwide.

Amanda Himawan currently handles economic, sociocultural and development rights at the Indonesian Ministry of Foreign Affairs. The opinions expressed here are her own.

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