Political economy of pragmatic refugee
policies in Indonesia as a transit country
Yanuar Sumarlan1
Abstract—After some influence by the Australian government
through the Bali Process, Indonesia—out of its typical pragmatismcum-flexibility type of approach to refugee issues—began obviously
to apply a more securitization-based refugee and asylum-seeker
policy in the early 2000s. This paper asks a simple question, “Has
Indonesia been truly capable of (1) restricting refugees and asylum
seekers’ movement and (2) to processing the refugees’ and asylum
seekers’ claims to concluding parts?” This paper argues that the
alleged securitization-based policy on refugees or asylum-seekers has
had little impact on refugee rights such as freedom of movement
and the right to get a claim processed. The simple reason is that
Indonesia has no capacity to launch such a paradoxical mix of ironfist and refugee-spoiling policy. Through some historical accounts
of how this iron-fist policy has come about, and how it actually has
little impact on the right to claim to be refugees and asylum-seekers,
this paper reveals the natural order of this set of policies has failed
to restrict refugee movement and to fulfill their right to claim [to
be refugees or asylum-seekers] to be processed. The paper finds that
Indonesia’s incapacity and thus its failure to limit freedom of movement and to expand refugee status determination has affected the
overall achievement of fulfilling refugee and asylum-seeker rights
negatively. In a way, this finding corroborates what Missbach (2017)
found to be the Indonesian Government’s “inconsistent and ad hoc
approaches.” As this paper has revealed by these facts, the national,
regional and global actors and contributors of all kinds to the refugee
and asylum seeker issue need to rethink the way to understand the
policy stagnancy that this paper dubs a “fossilized refugee policy.”
Keywords: rights to movement, claims to be refugees/asylum-seekers,
Bali Process, Indonesia’s refugee policy.
Asian Review 32(3), 2019, pp. 63-93.
Political economy of pragmatic refugee policies in Indonesia as a transit country
Introduction
When the first Indochinese refugee crisis broke in the mid-1970s,
right after the end of the Vietnam War, Indonesia quickly decided
to be a ‘broker’ between the hundreds of thousands of refugees and
asylum seekers wanting to evade the victorious communist regime
and those third countries who were willing to accept them. The Indonesian Government, still fresh from its role in the invasion of East
Timor, needed salvation—among other reasons—from its damaged
reputation among its neighbors through a conscientious humanitarian
response to a human rights crisis. Sixty-five nations suddenly threw
their full support behind Indonesia’s initiative to turn an island near
Singapore into a refugee processing center for those who wanted to be
resettled to willing third countries all over the world. Thinking that
the whole tragedy would end within ten years (after 1979), the Indonesian authorities were soon caught up in a nasty surprise. After 1988,
the boat people from Indochina had returned to the South China Sea
to look for refuge and asylum in third countries; however, this time,
the compassion of the third countries had dwindled.
This time, in the era categorized by “post-compassion fatigue,”
the third countries that had previously been so generous in providing
asylum decided to add a screening process and a door through which
to return refugees and asylum seekers to where they came. Then the
concepts of detention, restriction of movement, the right to get claims
processed, securitization of refugee issues, repatriation, and others
began to appear in the refugee status determination parlor. Indonesia,
in a way, had become the victim of its previous success in brokering
between the players and actors that had come around later in the
ASEAN theater of refugee conflict. Indonesia’s evident lack of capacity
to both restrict the movement of refugees and asylum seekers and to
process/determine refugee and asylum seeker status has never been
discussed nor exposed so far.
After some time, from the mid-1970s to the end of the 1990s,
some authors and critics started to judge and comment on Indonesia’s decision to be part of the hidden “brokerage” around this set
of refugee issues. After a long period of discretion and observation,
Indonesia’s approach to its refugee policy as “inconsistent and ad hoc”
(Missbach 2017, 34) because “it vacillates among a permissive laissez64
Yanuar Sumarlan
faire attitude that allowed thousands of asylum seeker to pass through
Indonesia freely; a hasty and heavy-handed use of incarceration in
an overcrowded system in keeping with the interests of Australian
government funder; and a pragmatic shift to Alternatives to Detention
(ATD).” Nethery and Gordy pointed out that the Detention system
in Indonesia was an “incentivized policy transfer” (2014). Disagreeing
that Australia is a “hegemon” that practices “burden-shifting” to its
ASEAN neighbors, Kneebone (2015, 36) claimed that the supposed
circuit of power relations could easily be broken through “circuit
breakers” launched by ASEAN members or Indonesia in particular.
Vis-à-vis these sets of explanations, this paper attempts to offer a
different perspective to expose Indonesia’s failures and incapacity to
deal satisfactorily with refugees and asylum seekers. In other words,
Indonesia was merely a broker in an international or regional crisis for
fulfilling its political-economic agenda. Indonesia’s principled position
in the refugee crisis has been stated once and will never be changed for
a long time to come: Indonesia is merely a transit country, and the fact
remains despite some devolutionary changes. All the higher expectations that other countries had put on Indonesia’s shoulder were merely
the product of activities that had been set to create the illusion of a
capability to deal with refugees and asylum seekers.
This paper is made up of two premises and one conclusion. The
first premise is that “Indonesia has little capacity to restrict freedom of
movement as the sheer size of refugee waves is beyond its capacity to
handle.” The second premise would be as follows: “For some reason, the
Indonesian authorities are only trying to mobilize external resources to
fulfill refugee rights to have their claims determined and asylum seekers
to have resettlement in a third country.” The following simple conclusion concludes this simple syllogism. The “simple supports through
the training of officers to detain or facilities to keep refugees or asylum
seekers in detention centers indefinitely (official or community-based)
are not sufficient to deal with the problem of never-ending waves of
refugees flowing through Indonesia.” Without real support in terms of
refugee movement restrictions (which is not encouraged by any international standards) and the fulfillment of claim processing (which is
given by the third countries), Indonesia is helpless.”
After this Introduction, this paper is divided into the following four
parts. First, the paper begins with the earliest approach of Indonesia’s
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Political economy of pragmatic refugee policies in Indonesia as a transit country
official policy on refugee management at the end of the Vietnam War
that was fertile ground for a set of similar security-based approaches
to refugees and asylum-seekers. Second, the paper shows the dialectical metamorphoses of Australia’s refugee policy into the early 90s.
Third, the paper reveals the historical phases of Indonesia’s refugee
policy under the allegedly strong influence of Australia’s immigration
policy—besides Indonesia’s political and economic agenda— since the
1970s to 1990s. This revelation should be an eye-opener as to why the
securitization policy has always been claimed as “close” to Indonesian
policy-makers’ hearts—although it is not. Fourth, the paper analyzes
the real [in]capacity of Indonesia in its refugee policy devolution
to deal with the two most important rights of refugees and asylum
seekers: freedom of movement and claims determination.
Indonesia’s earliest opening gambit: An
island for Indochina crises
Before the fall of Saigon in April 1975, around 140,000 Vietnamese who had been associated with the former South Vietnamese
Government were evacuated to resettle in the United States (UNHCR
2000, 81). This US-organized evacuation was followed by the personal
exodus of Vietnamese by boat to Thailand (5,000 refugees), Hong
Kong (4,000 refugees), Singapore (1,800 refugees), and the Philippines (1,250 refugees) (UNHCR 2000, 81). The Vietnamese government evicted the fleeing refugees (70 percent of whom were of Chinese
descent) through scare tactics (“anti-bourgeoisie and reactionary”) by
forcing them into concentration camps for forced labor (Fandik 2013,
165). The UNHCR, for example, opened an office in Beijing and
donated USD8.5 million to the Chinese Government to settle more
than 250,000 Vietnamese refugees by the end of 1979 (UNHCR 2000,
82). At the end of 1978, around 62,000 Vietnamese boat people were
scattered in camps throughout Southeast Asia (UNHCR 2000, 82).
On 20-21 July 1979, 65 governments answered the invitation of
the UN Secretary-General to an international conference in Geneva
on Indochinese refugees (Robinson 2004, 319). When worldwide
resettlement pledges increased from 125,000 to 260,000 [resettlements], Vietnam agreed to try to halt illegal departures of its distressed
population (Robinson 2004, 319). The first refugees or boat people
66
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arrived in Tarempa Island in Riau Province (92 refugees) on 19 May
1975 on their “way” to Singapore; the first group of refugees who
wanted to stay in Indonesia’s territory arrived on 25 May 1975 in a
horrible condition in Pulau Laut (Laut Island) in the Natuna Islands
(Fandik 2013, 166). Wave after wave of incoming refugees kept local
government units very busy. Actually, on 28 April 1975, Lt.Gen.
Poniman, the commander of naval territorial defense, mobilized an
island in Riau Province called Pulau Bintan to be accommodation for
the incoming Indochinese refugees (Fandik 2013, 167).
After the Geneva conference on Indochinese refugees, Indonesia
and the Philippines pledged to establish regional processing centers to
speed up resettlement, and new pledges were made to the UNHCR
for around USD160 million in cash and in-kind (Robinson 2004,
319). Australia, for instance, decided to admit almost 150,000 Indochinese refugees out of over 2,000,000 refugees and asylum-seekers
after the end of the Vietnam War (Coughlan 1991, 84)2.
Complaining loudly in June 1979, five members of ASEAN (Indonesia, Malaysia, the Philippines, Singapore, and Thailand) warned
that they had “reached the limit of their endurance and decided that
they would not accept any new arrivals” (in a joint communique
at the 12th ASEAN Ministerial Meeting in Bali, 28-30 June 1979)
(UNHCR 2000, 83). The UN Secretary-General quickly called an
international conference in Geneva on 20-21 July 1979 and invited 65
governments. With no formal commitment made regarding asylum,
this Conference endorsed the general principles of asylum and nonrefoulement (Robinson 2004, 320). In this case, countries of first
asylum, nevertheless, expected that no refugees would stay in their
territories for more than a specified period. A quid pro quo was set:
first, asylum countries would keep refugees, and second, asylum take
them later (‘an open shore for an open door’) (Robinson 2004, 320).
The pushback of refugee boats was reduced, and arrival rates fell as
Vietnam stopped clandestine departures to allow the direct departure
of willing refugees. After around 450,000 Indochinese refugees were
resettled in Southeast Asian camps within 18 months (from 1980
to 1986), refugee officials began to be optimistic about solving this
regional crisis (Robinson 2004, 320).
To follow up on the UNHCR conference on Indochinese refugees
in July 1979, the late President Soeharto met Thailand’s Prime Minister,
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Political economy of pragmatic refugee policies in Indonesia as a transit country
Kriangsak Chomanand, and sent Foreign Ministry Kusumaadmadja in
April 1979 to Geneva to meet UNHCR Commissioner Paul Harthing
(Fandik 2013, 167). Indonesia’s proposal to offer an island (either
Rempang or Galang Island) as a refugee processing center was agreed;
on 15-16 May 1979, UNHCR opened an office in Jakarta and invited
24 countries to set a processing working team made up of Indonesia’s Public Works Department, Ministry of Defense and Ministry of
Internal Affairs (Fandik 2013, 167). On 2 July 1979, the Ministry
of Defense appointed a team called the Vietnam Refugees Management (P3V or Penanggulangan dan Pengelolaan Pengungsi Vietnam) led
by Maj. Gen. Moerdani and run by one Navy Rear Admiral and a
police Lieutenant Colonel (in Presidential Decision No. 38/1979/11
September 1979)3. All refugees scattering around Indonesia’s places
and islands were relocated to Galang Island to isolate and avoid the
refugees’ impact on the local population. Japan’s Foreign Minister,
Sunao Sonoda, offered USD 57 million to all countries that built
shelters for Vietnamese refugees (Fandik 2013, 167). The plan was to
build barracks to hold 100 refugees (for 10,000 refugees in the first
wave of development of barracks with some electricity and another
10,000 refugees for the next round).
Western countries were growing fatigued and suspicious of the Vietnamese boat people’s motives for leaving their motherland (UNHCR
2000, 86). In the late 1980s, international willingness to resettle all
Vietnamese asylum seekers waned, and resettlement numbers hardly
kept pace with the rate of arrivals in the first asylum countries (ASEAN
members). In mid-1987, suddenly, the arrivals of Vietnamese began
to rise again. Thousands of Southern Vietnamese discovered a new
route that took them through Cambodia and then to Thailand’s east
coast (UNHCR 2000, 88). Tens of thousands of others from North
Vietnam took another route to Hong Kong, and more than 18,000
boat people poured into Hong Kong (UNHCR 2000, 88). On 15
June 1988, the Hong Kong administration announced a plan to detain
any Vietnamese arriving after that date to await a “screening” process;
Malaysian authorities resumed the pushback against Vietnamese
boats toward Indonesia in May 1989. The regional and international
consensus set in 1979 was collapsing; another formula was required,
although this time, it had to preserve asylum but without guarantees
of resettlement [for refugees] (UNHCR 2000, 88).
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Thus, in June 1989 began the era of The Comprehensive Plan of
Action (CPA) to reconfirm some of the elements of the 1979 Agreement such as the commitment to preserve the first asylum, to reduce
clandestine departures and promote legal migration, and to resettle
refugees in third countries (UNHCR 2000, 88). Some new elements
were introduced such as the commitment to institute regional refugee
status determination procedures and to return those whose applications were rejected (UNHCR 2000, 88).4
Despite the massive mobilization of military resources and
manpower to deal with this Indochina refugee crisis in the mid-1970s
to late-1980, the Indonesian government under the strongman Gen.
Soeharto appeared to de-emphasize the securitization of the refugee
issues.
Australia’s quick dialectical metamorphoses of refugee policy
Although a signatory to the 1951 United Nations Convention
Relating to the Status of Refugees and the 1967 Protocol Relating
to the Status of Refugees, Australia narrowed its interpretation of
the term refugee after the Indochinese refugee experience (Coughlan
1991, 85). This section explains the evolution of Australia’s refugee
policy after 1996 (under Prime Minister John Howard of the Liberal
Party) and securitization. This history of policy evolution over time is
essential as the Australian Government is one of the most significant
sources of capacity for the Indonesian Government to deal with refugees and asylum seekers in terms of a willing third country to resettle
the refugees stranded indefinitely in Indonesia.
The term “securitization” appeared after the Liberal Party Government led by John Howard (1996-2007) began to tighten the treatment of refugees and asylum seekers to accommodate the perennial
‘fear’ (skepticism and rejection against non-Anglo-Celtic immigrants)
held by Australians. During the Howard Government, for example,
Watson (2009) claimed that the issue of boat arrivals after the Tampa
incident was securitized successfully by the Government. When the
Labor Party Government led by Kevin Rudd replaced the Howard
Government in 2007, however, this new Government (2007-2010,
2010-2013) de-securitized the issue of asylum seekers (McDonald
2011). Eventually, only a sharp increase in the refugee influx in 2009
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Political economy of pragmatic refugee policies in Indonesia as a transit country
forced the Labor Party-led Government to take security-centered
measures. When the Liberal Party-led Government resumed power in
2013 (until recently), the Australian Government re-securitized the
asylum seeker issues (Paulsen 2016, 64).
These changes and transformations of Australia’s refugee and immigration policy have seeped into Indonesia, among others, through a
process called “incentivized policy transfer” (Nethery and Gordyn
2014) or “exporting detention” (Nethery, Rafferty-Brown, and Taylor
2012).
Contextual devolutionary transformation of Indonesia’s refugee policies
For simplification purposes, this process of transformation will be
divided into five landmarks or turning points of policy life. This type
of staging of the policy lifecycle is picking the stages offered by Kneebone (2014, 31-35) to Indonesia’s refugee policy during a rather short
period between the early 2000s and 2015: Pragmatic Acquiescence for
Securitization (2001-2008), Prevarication for Conflicted Responses
(2008-2013), and the Regional Approach to the Andaman Crisis
(2015).
This paper marks the refugee policy of Indonesia into five critical
phases: (1) the Indochina Crisis (1975), (2) Mandatory Detentioncum-Tolerance, The Third Wave (1992, 1999-2001), (3) the influence of Australia’s Detention-Centered Policy (2009/2011), (4) the
Andaman Crisis (2015), and (5) President Jokowi’s Political Turn
(2017). This section will explain these stages. However, these phases
do not mean that every phase marks a fundamental turn or change
from the previous phases. Indonesia’s governments’ basic tenet on
refugee issues has been constant.5
The more critical issue connected with the evolution of Indonesia’s refugee policy over time is the impact of these transformations
and changes on the two most important or key rights of refugees and
asylum seekers (MacIntosh 2012, 181): to have their claim determined
(claim determination) and not to be detained (freedom of movement).
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The Indochina crises (1979-1992)
Pre-compassion fatigue (1979-1989).
Galang Island (80 sq.km) was set to be the refugee processing center
of three refugee sites (camps) in an area of 16 sq.km. The UNHCR
equipped the Galang Camp with a camp administration office, PMI
(Indonesian Red Cross) Hospital, schools, a Catholic Church, a
Buddhist temple, a cemetery, and a Youth Center (set up and run by
refugees). The Camp was divided into three sites: Site IA, Site IB, and
Site II to accommodate about 250,000 boat people from Cambodia,
Laos, and Vietnam from 1975 to 1996. With the full support of
many countries, the UNHCR and other institutions, and resettlement pledges for 125,000 to 260,000 refugees (and pledges totaling
about USD160 million), Indonesia had no trouble in processing the
refugees’ claim determination through UNHCR assistance. In fact,
more than 450,000 Indochinese refugees were resettled from Southeast Asian camps within 18 months (Robinson 2004, 320).
When the refugees were forcibly relocated from the scattered islands
by Indonesian naval vessels, their freedom of movement was severely
curtailed. Nevertheless, the refugees’ right to their asylum seeker or
refugee status to be determined was widely respected. From the estimated 145,000 to 250,000 refugees who had passed through Galang
Island, around 132,000 had resettled to a third country; around
6,000 to 8,000 long-time residents remained in the camp in 1996
(most were later forcibly repatriated to their home country) (McBeth
1994). Although the processing center was run with a heavily militarized system and security-centered methods, Indochinese refugees
were getting their claims or right to be determined. Furthermore, the
then President Soeharto only used the term “refugees” to represent the
forced migrants and never “illegal immigrants” (Lee 2015, 44). The
Refugee Processing Center in Galang Island was fully operational in
December 1980 (Hargyono 2015).
Post-compassion fatigue (1989-1992).
When Vietnamese arrivals were peaking again in 1987 and 1988,
most countries knew that the old consensus was crumbling. Facing a
rising tide of asylum seekers at their doors and convinced that Indo71
Political economy of pragmatic refugee policies in Indonesia as a transit country
chinese refugees no longer deserved automatic refugee status, Western
countries reduced their resettlement quotas and set more selection
criteria (Robinson 2004, 320). Another Conference on refugees was
set in June 1989 in Geneva; this time 70 governments agreed to adopt
a new regional approach, which was known later as the Comprehensive Plan of Action (or CPA)6 (Robinson 2004, 320). This Plan finally
established inter-locking and inter-dependent commitments among
the first asylum states in Southeast Asia, the resettlement countries,
and the governments of Vietnam and Laos. Some commitments were
similar to the ones of the 1979 agreement, such as the preservation
of the first asylum, reduction of clandestine departures [of refugees],
promotion of legal migration, and resettlements of refugees in third
countries (Robinson 2004, 320). However, this new Plan offered a
set of radically new ingredients: screening (Refugee Status Determination) and repatriation (voluntary and mandatory).
The last two ingredients drastically reduced the chances for refugees’ success in getting resettlement in a third country. Those arriving
after 17 March 1989 had to undergo a procedure to determine their
genuine refugee status under the Refugee Convention of 1951; asylum
seekers who arrived after that date were facing the chance of being
repatriated to their home country if the determination process failed
(Hargyono 2015). In June 1993, out of 9,000 refugees who had not
been granted resettlement in the third country, only 2,000 agreed to
return home to Vietnam (Hargyono 2015).
Around this time, Australia’s Hawke Government was committing
itself to resettle 11,000 long-term Vietnamese [in refugee shelters on
their way to Australia] boat people during 1989-1992. Nevertheless,
when some boatloads of not only Vietnamese but also Cambodians
arrived quietly on Australian shores in late 1989, both the Australian public and Government were agitated. Calling these refugees
“economic migrants” and “queue jumpers,” in 1992, the Australian
Government decided to announce a new method of mandatory detention for all types of unlawful non-citizens (Phillips and Spinks 2013).
This year marked the seeds of the beginning of the heavy influence of
Australia’s refugee policy on its Indonesian counterpart.
Noticing the reduced support for its relaxed approach to the refugee
crisis in this post-compassion fatigue stage, Indonesia reignited some
moves to re-securitize the issue through a new launch of discursive
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practices by some agencies, namely the Police and the DirectorateGeneral of Immigration. To attract dwindling resources from the tired
third countries, Police and Immigration officials fired some salvos
through media to demand a budget increase to tackle the “threat”
of the transit forced migration (Lee 2015, 49). These two agencies,
however, worked their discursive practices through different themes:
Immigration officials typically focused on the demand for basic needs,
faster status processing procedures or refugees’ escapes from camps;
Police officials pounded their media messages on the sophistication
of people-smuggler networks run by international actors, locals, state
apparatuses and corrupt security forces (Lee 2015, 49). The two agencies, nevertheless, shared something in common. Both argued through
rehearsed media reports that the geographical condition of Indonesia
was peppered with “ratlines” (or hidden passages) ready to be used by
the people-smuggling networks (Lee 2015, 50). Both agencies kept
their media statements to three themes: lack of detention centers’
quality and quantity, lack of funding, and lack of personnel.
As part of the legal history related to the repercussions of the
Comprehensive Plan of Action of June 1989, Indonesia’s refugee
policy evolved into a very tolerance-based set of treatment for refugees
or asylum seekers who were living in its territory. Immigration Law
No. 9 of 1992 epitomized this security-cum-tolerance-based approach
to deal with non-criminal refugees or asylum seekers. Allowing the
UNHCR to build an office in Jakarta for accommodating the Galang
Island’s Refugee Status Determination during the Indochinese refugee
crisis (1975-1992), the Indonesian Government let people--seeking
refugee status--to apply in the UNHCR Jakarta’s office that would later
issue UNHCR attestation letters or identification cards. These cards or
letters protected the refugees and asylum seekers living in Indonesia
while waiting for the results of their claims (resettlement) (Taylor and
Rafferty-Brown 2010a). Although appearing as tolerant, Indonesia
provided refugees or asylum seekers little chance for local integration
(Taylor and Rafferty-Brown 2010a). Some asylum seekers and refugees had been residing in Indonesia for many years in a kind of limbo
or death or ‘dying’ slowly. This trouble had motivated asylum seekers
and refugees to pay people smugglers and to travel to Australia by boat
to secure a more meaningful life (Taylor and Rafferty-Brown 2010b).
In a way, Indonesia was a place where a lot of residing asylum seekers
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Political economy of pragmatic refugee policies in Indonesia as a transit country
and refugees were waiting for their chance to go to Australia illegally—
through a set of well-organized human smuggler networks—whenever
the chance appeared7.
Half-mandatory detention-cum-tolerance approach (1992-2001)
Immigration Law No. 9 of 19928 itself was using “detention”,
although loosely, for foreign nationals. For example, this Law provides
that a foreign national in Indonesian territory could be placed in
immigration detention when (1) they did not have a valid immigration
permit, (2) they were awaiting expulsion or deportation, (3) they had
filed an objection to an immigration action and were awaiting a ministerial decision, and (4) they were subject to immigration law enforcement, and (5) they had completed a sentence or period of punishment
but had not yet been repatriated or deported (Article 44:1, Article 31
of Government Ordinance No. 31 of 1994). However, in ‘particular
circumstances,’ a person could be accommodated outside of detention
(Article 44:2 of Law No. 9 of 1992); in practice, Indonesian officers
rarely detain asylum seekers (Lawyers Committee for Human Rights
2002, 45-47).
Research in Australia and at a global level has revealed that detention policies affect very little in asylum seekers’ decision-making
processes to migrate (Koser 2010; Richardson 2010). Furthermore,
Australian officials attributed the failures of Australia’s domestic policies to the ability of asylum seekers to live in relative freedom in Indonesia, thus allowing these people to set up and wait for opportunities
to use people-smugglers syndicates to come to Australia (Nethery and
Gordyn 2014, 186). Australia also actively encouraged Indonesia to
detain asylum seekers in the Immigration Detention Centers. In 1995,
as part of Australia’s role in supporting Indonesia in the East Timor
case, Indonesia signed a surprising “security agreement” with Australia
that shocked its ASEAN neighbors.9 This agreement, however, went
from bad to worse when, in 1998, Indonesian President Habibie
opened the chance for East Timor to either remain part of Indonesia
or become independent. When a referendum through ballots (mediated by UN Mission in East Timor) produced the decision to be independent, civil unrest ensued. Australia sent humanitarian intervention
to East Timor with 4,500 personnel of the Australian Defense Force;
in September 1999, the relationship between Australia and Indonesia
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was at rock bottom (Paulsen 2016, 48). This sour relationship was
quickly restored through diplomatic and ministerial missions from
both countries from 2000 to 2001 (East Timor was freed in 2002).
Wave after wave of refugees from the Middle East coming during
the late 1990s, the terrorist attack of 9/11, and the Bali Bombings
suddenly regrouped both Australia and Indonesia into another form
of the alliance into the early 2000s. The flow of asylum seekers from
the Middle East began pouring in around 1999. Indonesia’s proximity
to Australia (around 120 nautical miles from Java’s southern shore
to Australia’s Christmas Island) turned the archipelagic state into a
porous transit point before refugees’ embarking on sea journeys to
Australia. Taking measures to discourage these waves of boat people,
Australia engaged in intense cooperation with Indonesia by producing
some laws and policies (Crock et al. 2006). Accidentally, just a few
days before the 9/11 Attack, Australia sent an envoy of the Foreign
Minister, Defense Minister and Immigration Minister to Jakarta on 6
September 2001 to secure future cooperation with Indonesia (Paulsen
2016, 49). Four months after the 9/11 Attack, Australia and Indonesia
signed an MoU on combatting international terrorism through cooperation, including intelligence sharing and building capacity between
government agencies (Kemlu 2015). Two terrorist bomb attacks in
Bali’s tourist spots on 12 October 2002 (202 lives taken), the JW
Marriot Hotel bombing in 2003, the Australian Embassy bombing in
2004, the second Bali bombing in 2005 and the JW Marriot and Ritz
Carlton Hotels bombings in 2009 finally cemented a greater cooperation between Australia and Indonesia particularly in counter-terrorism
(Paulsen 2016, 50). The landmark of this big cooperation was the
Lombok Treaty signed in 2006 to cover defense, law enforcement,
counterterrorism, intelligence, maritime, aviation, non-proliferation
of weapons of mass destruction, emergency cooperation, International
Organization cooperation, people-to-people cooperation and community understanding (Kemlu 2006).
These agreements and cooperative gestures were smoothly precedented in the late 1990s through the mid-2000s through two important arrangements between the two countries: The Regional Cooperation Arrangement (RCA) in 2000 and the Management and Care of
Irregular Immigrant Project (MCIIP) in 200710. The Regional Cooperation Arrangement (between the Australian and Indonesian Govern75
Political economy of pragmatic refugee policies in Indonesia as a transit country
ments with the International Organization for Migration or IOM)
dictated that the Indonesian authorities intercept people thought to
be planning to travel irregularly to Australia or New Zealand and then
refer these people to IOM for ‘case management and care’ (IOM Indonesia 2010). Refugees or asylum seekers who revealed their wish to
claim asylum were referred by IOM to the UNHCR that later determined such claims according to UNHCR’s mandate (Nethery et al.,
2012, 95). The IOM maintained material supports for these individuals pending the determination of their asylum claims and the finding
of any durable solution; the IOM also offered repatriation assistance to
individuals who wished to return home any time (under the funding
by Australia) (IOM Indonesia 2010).
Thus, the smooth path to the full mandatory detention was
prepared long before the Immigration Law of 2011 (to run this “new”
approach) was launched. For example, Indonesia let most asylum
seekers who fell under the RCA to live in Australian-funded accommodation under IOM management in five designated areas: Cisarua/
Cipayung (West Java Province), Jakarta (DKI Jakarta Province),
Medan (North Sumatera Province), Pontianak (West Kalimantan
Province) and Lombok (West Nusa Tenggara Province (Stenger 2011).
Moreover, people living in the IOM accommodation had to respect
curfews (Biok 2009), agree to be monitored as to their whereabouts
(UNHCR 2005), and need travel permission from their area of residence (Nethery et al. 2012, 95).
Full mandatory detention (2009-2015)
After quite some time of “warming-up,” the vision of a full-blown
version of a full mandatory detention system was begun through the
new Immigration Law No. 6 of 2011 (enacted in May 2011 to replace
the former Immigration Law No. 9 or 1992). This new Immigration
Law of 2011 had at least five differences compared to its 1992 Version
(Nethery et al., 97-98). First, if the 1992 Immigration Law stated that
officials may deny entry to foreign nationals, including those without
valid travel documents, the 2011 Immigration Law stated that officials shall deny entry to certain foreign nationals and those involved
in international crime, prostitution, human trafficking, and people
smuggling activities (Article 13:1) (Nethery et al., 2012, 97). The
change in the wording might indicate the removal of discretion from
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officials over whether to detain or not to detain a suspect. Second, if
the 1992 Immigration Law stated that ‘in particular circumstances,’ a
person may be detained outside of the detention centers (Article 44:2),
the 2011 Immigration Law provided that any foreigner in Indonesian territory be placed in immigration detention in cases where the
foreigner (a) had no valid immigration permit or travel document, (b)
was subject to immigration law enforcement or the cancellation of any
permit, (c) was waiting for expulsion or deportation (Article 83:1).
Moreover, the 2011 Immigration Law only allowed accommodation
outside of the detention for children, sick people, women about to
give birth, and the victims of human trafficking or human smuggling
(Articles 83:2 and 87).
Third, the Immigration Law of 2011 was made in eight years with
its passage owing much to the persistent diplomatic efforts of the
Australian Government over the period (Alford 2010; Brown 2011).
The focus was on combatting people smuggling and human trafficking that the previous 1992 Immigration Law lacked; some provisions appeared to be modeled on Australian immigration law (Nethery
et al. 2015, 97). Fourth, noticeably, the Indonesian language used in
the new 2011 Immigration Law is very clearly derived from English
equivalents such as detention referred to as “detensi” or “pendetensian,” immigration detention houses as “rumah detensi imigrasi” and
detainees as “deteni” (Nethery et al. 2015, 97). Fifth, for the Indonesian Government, asylum seekers have never been a policy priority as
they have been in Australia; the older 1992 Immigration Law allowed
the detention of asylum seekers; yet, Indonesian officials rarely did
that until the Australians began to encourage such an action (Nethery
et al. 2015, 97).
Shortly before the application of the newer 2011 Immigration
Law, for example, Australia funded both the UNHCR and IOM for
budget year 2008-2009 as much as USD807,727 to the UNHCR for
capacity-building, USD1.6 M to the IOM for interpreting services for
displaced persons, and USD386,000 to the IOM for educational and
social services for refugees and irregular migrants in Indonesia (Kneebone 2017, 34). Then later, in 2014, IOM Indonesia (2014) reported
13 Immigration Detention Centers in 13 provinces, operating under
“arbitrary rules.” However, the deterrent effect of such anti-smuggling
laws was debatable (Missbach, 2015). (By June 2015, Indonesia had
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Political economy of pragmatic refugee policies in Indonesia as a transit country
5,277 refugees and 7,911 asylum seekers registered in UNHCR Indonesia as reported by the UNHCR (2015).)
The Andaman Sea crises (2015)
Some estimated 6,500-8,000 refugees had departed from Myanmar
and Bangladesh by boats in 2015 alone (Petcharameesre et al., 2016).
In May 2015, the authorities found 26 bodies in the mass grave of
smuggled Rohingya near a trafficking camp in southern Thailand, and
this signaled an emergency to tackle.11 Without authority, fisherfolks
from a village called Seunuddon near Lhokseumawee port brought
578 passengers to shore; later Indonesian authorities warned them not
to engage in such rescue operations (McNevin and Missbach 2018,
295). Despite the warning, fisherfolks from two other villages near the
port of Langsa brought in more boats to land on 15 and 20 May 2015.
Totaling 1,807 passengers (578, 820, and 409 people per boat), the saved
boat people reported 23 of them had perished on board on the way
(UNHCR 2015b). Most of the 500 Bangladeshi nationals were repatriated to Bangladesh, but the rest (Rohingya) were taken to Langsa and
housed in a converted warehouse in Langsa Port (Thom 2016, 47).
The three most affected countries (Malaysia, Thailand, and Indonesia) began to work cooperatively to broker a solution (Kneebone
2017, 36). The Ministers of Foreign Affairs of these countries met
on 20 May 2015 ahead of an international meeting on 29 May to
discuss this “irregular movement of people” into the countries (Kneebone 2017, 36). Trying to “find a solution to the crisis of influx or
irregular migrants and its serious impact on the national security of
the affected countries,” the meeting produced a joint statement that
“the three countries had taken necessary measures … on humanitarian
grounds, beyond their international obligations”12 as the issues “cannot
be addressed solely by these three countries” (Kneebone 2017, 36).
This issue had been prolonged because the focus of the Bali Process
(reconvening in March 2016) was a mere “Declaration on People
Smuggling, Trafficking in Persons and Related Transnational Crime”
(Bali Declaration on People Smuggling, Trafficking in Persons, and
Related Transnational Crime or the Bali Declaration, 23 March 2016).
The Declaration itself was labeled as “Australia’s initiative to counter
this terrible trade in human beings” (Kneebone 2017, 37). As Indonesia itself was burdened with around 13,000 refugees and asylum
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seekers waiting in limbo for resettlement, the Indonesian Foreign
Minister Retno Marsudi could only call for refugee-receiving countries
to be more receptive to the migrants who had been waiting for resettlement—by the way, the Declaration produced no outcome on resettlement (Kneebone 2017, 37). Then soon, the scene moved to the next
stage where the Indonesian President Jokowi decided to “change” the
rules of the game slightly. The country (Indonesia) needed a safeguard
to face more waves of refugees from never-ending humanity crises in
Myanmar-Bangladesh border areas.
President Jokowi’s political turn (2017)
As the much-celebrated Presidential Regulation No 125 of 2016
was signed on 31 December 2017 by President Jokowi, the term
refugee as in the 1951 Refugee Convention was de jure accepted in
the Indonesian legal system. This Presidential Regulation (or Peraturan
Presiden or Perpres in local terms) decentralizes authority to the provincial governmental units to accommodate refugees temporarily. Nevertheless, Baskoro (2018) reported that some immigration officers
complained that although they had already called the provincial or
district governmental units for help, the governmental units’ responses
were very poor. This Regulation No. 125 of 2016 sets a presumably
“better” set of refugee and asylum seeker policies such as rescue procedures at sea, standard detention facilities, and shelters with health
and religious facilities (Afghanistan Analysts Network 2018). The
individual heads of detention centers and shelters, however, were
still in charge of Standard Operating Procedures, and this Regulation
mentioned no provisions that address refugee integration. The Regulation’s Article 26 merely stipulates that shelters for refugees should be
located near a health clinic and religious service, but no other facilities
are mentioned (Afghanistan Analysts Network 2018).
Analysis and conclusion: The reasons and Indonesia’s true capacity to fulfill rights to claim determination and restrict refugees’ freedom of movement
During the first stage of the Indochinese refugee crisis (19751996), the capacity of Indonesian officials to restrict refugee movement and determine refugee status claims was so much reliant on the
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Political economy of pragmatic refugee policies in Indonesia as a transit country
external resources. To ensure that the refugees and asylum seekers
were kept in a place, for example, the Indonesian authorities set three
sites/camps in a 16 sq.km-large complex with facilities like religious
services, churches, temples, schools, barracks for refugees, barracks for
staff, the UNHCR office, etc. These facilities were set in 1980 and, in
reality, served around 250,000 to 260,000 refugees. The capacity of
the officials to monitor the refugee movement was severely curtailed
because of a lack of personnel and equipment to cover thousands of
islands that were spread widely in territories of at least three countries (Malaysia, Singapore, and Indonesia). The fulfillment of claims
determination in the earlier part of the Indochinese refugee crisis or
pre-compassion fatigue (1975-1989) was smooth and relatively fast
with the support of many third countries that were willing to resettle
these refugees. During this “easy” time, the Indonesian authorities,
with their agencies, tended to de-securitize the immigrant issue in
their media stunts by labeling the refugees openly as “refugees” who
needed “humanitarian” assistance.
Unleashing a media content analysis, Lee (2015, 40) offered five
reasons for Indonesia’s benign refugee policy during this Indochina
Crisis (in two phases, i.e., pre- and post-Comprehensive Plan of
Action): subconscious drivers, cost-benefit calculation, good public
relations, attracting resources and maintaining legitimacy. Around a
decade before the Vietnamese boat people arrived in Indonesia’s territory, a failed coup allegedly staged by the Indonesian Communist Party
was crushed by President Gen. Soeharto who later portrayed communists as “evil.” Seeing the poor Vietnamese were cruelly treated by a
communist regime, arguably it served as the subconscious driver for
the Indonesian elite not to securitize the migrants fleeing the communist Vietnam government (Lee 2015, 40). Karyotis (2012, cited by Lee
2015, 41) claimed that “subconscious drivers” in policy-making might
be based on certain values which might have come from Indonesia’s
state official ideology called Pancasila (Five Principles: Monotheism,
Humanity, Unity in Diversity, Representative Democracy and Social
Justice).
“Cost-benefit calculation” appears within three themes. First, the
Indonesia Government’s non-security approach in handling Indochinese refugees was intended to neutralize the negative portrayal of
Indonesia for the annexation of East Timor (Lee 2015, 41). Second,
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Yanuar Sumarlan
a non-security approach fitted the regional and global atmosphere
that allowed for attracting resources. Third, the approach was meant
to maintain state legitimacy by showing that the government was
controlling the inflow and outflow of forced migrants; it also showed
the government’s active role at the global and regional levels (Lee
2015, 41).
“Good public relations” were represented by providing a refugee
processing center and taking an active role in solving the refugee issues
in the Southeast Asia region. The vast majority of Indonesian government officials, especially the Minister of Foreign Affairs, highlighted
the humanitarian aspect of the Indochinese refugees’ issues (Lee 2015,
43).13 The Indonesian government’s decision was “soft” compared to
that of other neighboring countries like Singapore (total rejection), or
Thailand and Malaysia (rejection, pushbacks after increasing surges
of refugees in 1979). Despite the refusal to openly accept the link
among the benign refugee policies, the Foreign Affairs Ministry’s, the
Military’s and Gen. Soeharto’s repeated insistence on a “humanistic”
approach to helping Indochinese refugees provided enough “consistency” (Lee 2015, 44). An official openly announced that “offering an
island could elevate Indonesia’s position because it was a humanitarian
offer” (Tempo Magazine 31 March 1979).
“Attracting resources” from the international community was one
of the motivations for the Indonesian government to de-securitizing
the issues of Indochinese refugees (Lee 2015, 45). The increase in resettlement quotas from developed countries was important to ensure that
all refugees would leave Pulau Galang as soon as possible (Lee 2015,
45). In the news reports, Indonesian officials proposed USD18.5
million for the Refugee Processing Center in 1979; the representatives
of 24 countries like the US, Japan, and Australia accepted the proposal
(Tempo Magazine 20 May 1979, Kompas 16 May 1979 cited by Lee
2015, 45). Not only care for refugees but also financial support were channeled into the development of facilities on the island and its economic
activities; the Indonesian Navy also worked as suppliers of refugees’ food
(Tempo Magazine 1 March 1980 cited by Lee 2015, 46).
“Maintaining legitimacy” meant that a centralized authority
to isolate and manage refugees—who were mostly Vietnam’s Hoa
minority ethnic or Chinese descendants—was very important when
the suspicion against anything Chinese was high (after the alleged
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Political economy of pragmatic refugee policies in Indonesia as a transit country
failed coup in Jakarta ‘supported’ by China’s Communist Government
in 1965) (Lee 2015, 47). Soon after ‘victoriously’ stopping the coup,
Gen. Soeharto took power and suspended diplomatic relations with
China in October 1967 until 1990. The ways in which the Indonesian
government highlighted the fact that the issue of refugees was not easy
to handle (but still under Government’s control) sent a message that
the Government was still comfortably in control (Lee 2015, 47).
This discursive analysis by Lee (2015), however, only claimed that
the de-securitization of refugee issues by the Indonesian Government
was launched deliberately on the media discourse of a few actors
among the rank and file of the Government at that time. At the practical level, the enormous size of military and civilian resources mobilized for the single purpose of controlling refugee movement and of
securing the fulfillment of investigation of their asylum-seeking or
refugee status claims spoke volumes about the high alertness in dealing
with such security-relevant issues. Furthermore, ten years after the
first wave of Indochinese refugees, the Indonesian Government, just
like other governments, suffered from “compassion fatigue” (coined
by Coughlan 1991). The Indonesian Government returned to securitize the refugee issues both at a discursive level (labeling refugees as
“illegal immigrant”) and an implementation level of forced repatriation (scrapping the non-refoulement principle) (Lee 2015, 49-55).14
This smoothness and willingness from the third countries went
down sharply during the post-compassion fatigue time (after 1989)
when Vietnam was failing to keep its earlier commitment to monitor
illegal departures of its people (from Vietnam or Cambodians or
Laotians from conflict areas where the Vietnamese were involved).
When the usually open third countries like Australia or Hong Kong
decided to set a screening process to exclude “economic migrants,”
these countries also reduced the refugee intake. Malaysia even resumed
its usual “pushbacks” against any boats that came to its shores. Against
the protests of the US and other big countries, ASEAN members
agreed to re-open the refugee repatriation system either voluntarily
or mandatorily for those who failed to pass the screening processes.
Obviously, the capacity of a transit country to deal with refugee and
asylum seeker flows was mainly reliant on the willingness of the third
countries to absorb the refugees and the cooperation of the home
countries to accept their fleeing citizens back. As Indonesia has never
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Yanuar Sumarlan
ratified the 1951 Refugee Convention, it fully allowed the UNHCR
(and the IOM or other capable institutions) to process the refugee
claims and then set any resettlement process for asylum seekers to any
third country (Taylor and Rafferty-Brown 2010b, 145-157).15
During the troubled time of the post-compassion fatigue, the
Indonesian authorities, through the Police force and DirectorateGeneral of Immigration, began the discursive practice of securitization
of the refugee issues. The media messages that these two agencies kept
sending were “lack of personnel, lack of facilities, and lack of funds”
to keep up with the increasing “threat.” The Indonesian authorities
returned to their usual labeling of refugees as “illegal immigrants” and
the discursive practice and treating them harshly with a kind of antinonrefoulement action through a policy of “forced repatriation.”
When the stage of half-mandatory-cum-tolerance began in 1992
to 2001 through an Immigration Law of 1992 that allowed ample
room for officials not to detain a foreign suspect under “particular
circumstances,” research in Australia linked the failure of Australia’s
policy to curb the irregular movement of refugees there to this looselyapplied Immigration Law of Indonesia. The refusal of Indonesian officials to detain all foreign suspects spoke volumes about the inability
of the officials to restrict the refugees or asylum seekers’ movement (or
to pin them down somewhere with sufficient facilities) and to fulfill
their rights to have their claims processed. Nevertheless, knowing that
this loose approach by the Indonesian authorities would create a pool
of refugees or asylum seekers eager to find their ways to Australia,
the Australian authorities quickly sent envoys to Jakarta to offer some
assistance (in funds or in kinds) for Indonesians to curb and detain
the refugees from making movements. For some years after 1992 and
2011, despite the worsening relationship between Australia and Indonesia around 1999 to 2002, Australia successfully convinced the Indonesian Immigration to build or refurbish its 14 main detention facilities in 14 provinces (“detention facilities” can cover prisons, police
stations, warehouses, or any places deemed proper to house refugees
and asylum seekers).
These detention centers and other facilities and services to detain
the refugees and asylum seekers in Indonesian territory finally got fullblown activation under the fresh Immigration Law No. 6 of 2011.
Overcrowding, among other things, is a significant problem with some83
Political economy of pragmatic refugee policies in Indonesia as a transit country
times reports of 25 refugees being crammed in two rooms supposedly
for 11 people or 59 detainees staying in a room for 30 (Nethery et al.,
2012, 100). This massive problem has led to even further incapacity
to monitor or limit the movement of the detainees in every Detention
Center. Australia’s decision to stop accommodating asylum seekers or
refugees who pass through Indonesia after July 2014 broke most of the
capacity of Indonesian Immigration to provide rights of claims determination despite the existence of the UNHCR and IOM in Jakarta
and other places. Indonesia was left alone to deal with the detention
of refugees, to limit their freedom of movement and the right to get
claims determined or processed.
When these two capacities had been cut off almost totally, in 2015,
another wave of refugees in boats from Myanmar and Bangladesh
became the straw that broke the camel’s back. During the so-called
Andaman Sea Crisis, Indonesia quickly mobilized its closest neighbors Malaysia and Thailand to solve the crisis through a call regionally
(ASEAN) and internationally for another meeting. The Bali Process,
however, reconvened with a cold shoulder and offered a resolution to
“condemn the human smugglers, traffickers and international criminals” involved in the Andaman Crisis.
Without much hope left to both detain the refugees (already
staying or incoming from unresolved conflicts somewhere else) and
to offer determination or processing for asylum seekers and those with
refugee status, Indonesia needed to improve its capacity to face the
coming waves of boat people from the region’s conflicts. For its Political Turn in early 2017, President Jokowi used the power endowed
in him by the law to set a gambit called a Presidential Regulation
(Peraturan Presiden or Perpres) signed on the eve of the last night of
2016 to finally “acknowledge” refugees’ existence in Indonesia. This
Presidential Regulation No. 125 of 2016 defines “refugees” along
with the definitions used by the 1951 Refugee Convention. However,
the real intention was to expand the capacity of the state apparatuses
beyond Immigration and the use of standard detention centers. This
Regulation mobilizes all Armed Forces and Police Force (even community members) to rescue (intercept) refugees wherever they are found
and authorizes community-based detention centers whenever necessary. This Regulation seems to revoke the old and fossilized rule that
“Indonesia will never acknowledge refugees legally” in the hope of
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creating some illusions that the system “is evolving somewhere.” An
increased capacity to detain or house more refugees and asylum seekers
with more personnel and “detention centers” in many kinds and forms
did not automatically translate into the better capacity to restrict the
freedom of movement of refugees and asylum seekers and to process
or determine their refugee or asylum seeker claims.
Therefore, this paper will end by answering the very question
stated at the beginning. Having passed through the different stages
of different levels of commitment, involvement, and intention, Indonesia has proven to be unable to (1) restrict the freedom of movement of refugees and asylum seekers staying or waiting in the country
and (2) provide satisfactory process and determination of refugee and
asylum seeker claims for status (refugees and resettled asylum seekers).
The illusion of the capability to restrict the movement of refugees
through a functional immigration system and detention centers was
produced only after some assistance from the Australian Government
to refurbish or build the Immigration Detention Centers as well as
any other forms of detention facilities in many Indonesian provinces.
The total breakdown in the whole system of refugee and asylum seeker
claim-processing happened when the Australian Government closed
the resettlement door for all who passed through Indonesian territory
after July 2014.
Endnotes
1 This paper is written under a Project Entitled “A Comparative Study of the State
Policies and Practices Towards Asylum Seekers and Refugees in ASEAN: The Cases
of Thailand, Indonesia, and Malaysia (Principal Investigator Dr. Sriprapha Petcharameesre of IHRP Mahidol University).
2 For Coughlan (1991, 84-85), Australia’s refugee policy was more of a foreign
policy tool than an implement of Government humanitarian concern. The overwhelming determinant of Australia’s Indochinese refugee policy has not been
domestic or humanitarian consideration but rather the political desire of the Australian Government and the Department of Foreign Affairs and Trade to improve
Australia’s relations with Asia, especially with the ASEAN members like Brunei,
Indonesia, Malaysia, the Philippines, Singapore, and Thailand.
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Political economy of pragmatic refugee policies in Indonesia as a transit country
3 Suspiciously, to guard an island as small as 80 sq.km., Indonesia needed to mobilize a military operation codenamed Halilintar (Thunderbolt) using one destroyer,
two frigates, one submarine, three tanker ships, three Nomad military planes, and
some military units of the Air Forces. Around 20 ships were operating around the
areas (Fandik 2013, 168-169).
4 Carruthers and Huynh-Beatie (2011) reported that from 145,000 to 250,000
refugees who passed Galang Island, around 132,000 had been resettled to third countries; the majority of around 6,000 to 8,000 long-term refugees who remained there
until 1996 had been repatriated forcibly (part of the Comprehensive Plan of Action
of June 1989). During the visit of Vietnamese President Le Duc Anh in April 1994
to persuade the refugees to come back “home,” around 500 refugees protested against
repatriation, and 79 refugees launched a hunger strike; one refugee burned himself to
death and some hanged themselves (Hargyono 2015). The “screening” process under
the CPA was notoriously corrupt, with officials asking for USD1,000 to 7,000 from
asylum seekers waiting for their claims to refugee status (Hargyono 2015). The camp
on the island today is part of a pilgrimage site—for some 100 to 200 tourists per
weekend—of the “dark tourism” (coined by Stone and Sharpley 2008 to represent
tourism to locations associated with death, suffering, violence or disaster) dreaded by
the Vietnamese government (Carruthers and Huynh-Beatie 2011 citing Fadli 2009).
5 Indonesia has traditionally been a transit country for refugees and asylumseekers, rather than a destination country. This claim was one important reason why
it had not ratified the Conventions Related to the Status of Refugees. The commitments arising from ratification, in particular, covering the prohibition on refoulement or expulsion would overburden an archipelagic state with a large ocean territory
and one which had many internally displaced persons as a result of disasters and
conflict (Committee on the Elimination of Racial Discrimination 2007 on Summary
Record of the 1832nd Meeting held at the Palais Wilson, Geneva, on Thursday 9
August 2007: Consideration of Reports, Comments and Information Submitted by
State Parties under Article 9 of the Convention, UN Doc CERD/C/SR.1832 (14
August 2007) para 34).
6 The five main objectives of the CPA (United Nations 1989) were (1) reduction of clandestine departures through official measures against boat organizers and
through mass information campaigns as well as opportunities for legal migration
under the Australia-sponsored Orderly Departure Program, (2) provision of first
asylum to all asylum seekers until their status had been established and a durable
solution found, (3) determination of the refugee status of all asylum seekers in accordance with international standards and criteria, (4) resettlement of those who are
found to be genuine refugees in third countries as well as all Vietnamese who were
in first asylum camps prior to the regional cutoff date, and (5) repatriation of those
found not to be refugees and re-integrating them in their home countries (Robinson
2004, 320).
7 The staggering size of 1,440 Indonesian boat crew serving in Australian jails
between September 2008 and September 2013 (Indonesian Foreign Minister, Diplomasi Indonesia 2013: Fakta dan Angka, Jakarta 2103, 17) and 568 Indonesians
reported by the Australian Federal Police (Missbach 2016) show the sophistication
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Yanuar Sumarlan
and size of the smuggling network on the Indonesian side alone.
8 The Indonesian Government used many lower regulations rather than Acts/
Laws to run this Law, such as Government Regulation (President-made) No. 31 of
1994 on Alien Control and Immigration Action, Ministerial Regulation (Ministermade) of Minister of Justice and Human Rights No. M.05.IL.02.01 of 2006, etc
(Nethery et al. 2012, 94-95). The most significant change from this Law of 1992 to
its successor (Immigration Law of 2011) is the use of the phrase “the authorities may
detain …” (in Immigration Law of 1992) and the phrase “the authorities shall detain
…” (in Immigration Law of 2011).
9 After restoring diplomatic ties with China in August 1990 and becoming the
Chairman of the Non-Aligned Movement for 1992-95 period, as well as hosting the
Asia-Pacific Economic Cooperation (APEC) Summit in November 1994, Indonesia
agreed with Australia (Prime Minister Keating) to signing a “security agreement”
quietly in December 1995 (Sukma 1997, 235). The agreement officially termed the
Agreement on Maintaining Security (AMS) consists of three points. First, both sides
agreed to consult regularly at a ministerial level on matters affecting their common
security. Second, both agreed to consult in the case of adverse challenges to either
party or to their common security interests and, if appropriate, consider measures
that might be taken either individually or jointly and following the processes of each
party. Third, the two countries would promote beneficial cooperative security activities (Sukma 1997, 235).
10 One of the first components of this MCIIP was the renovation and refurbishment of Indonesia’s two largest Immigration Detention Houses (Rumah Detensi
Imigrasi or rudenim) in Jakarta and Tanjung Pinang up to international standards
(IOM Indonesia 2009, 88-89). Another part of MCIIP was the collaboration
between Indonesian Immigration and IOM of ‘Standard Operating Procedures’ or
SOPs Manual for all detention houses, detention rooms, and border checkpoints
(IOM Indonesia 2009). These SOPs “use human rights instruments for their framework, provide guidance on the care of all detainees (on food, healthcare, communication, grievances and other aspects of life), and provide for the needs of special groups
including individuals with disabilities and unaccompanied minors” (IOM Indonesia
2009).
11 With the refusal by Australia to resettle refugees processed in Indonesia and
UNHCR after 1 July 2014, Indonesia was facing the grim prospect of refugees
residing in its territory indefinitely. When the authorities found out about mass
graves in Thailand near the Malaysian border known as reception points for Rohingya
smuggled out of Myanmar, the crisis began in May 2015. The Rohingya were held,
beaten, and murdered in camps in Thailand unless and until payments extorted from
their families abroad were received (by smugglers) (McNevin and Missbach 2018,
295). Smugglers en route to the camps abandoned their Rohingya ‘cargo’ at sea.
When some of the abandoned passengers steered their vessels towards the coasts of
Indonesia, Malaysia, and Thailand, the authorities refused them permission to land.
(The Bali Process stayed silent, and Australia refused to get involved.) Indonesian,
Malaysian and Thai authorities provided these boats with fuel, water, and other provisions and returned them to the sea (Amnesty International 2015).
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Political economy of pragmatic refugee policies in Indonesia as a transit country
12 Ministry of Foreign Affairs, Malaysia, “Joint Statement: Ministerial Meeting on
Irregular Movement of People in Southeast Asia,” available at:<https://www.kln.gov.
my/archive/content.php?t=3&articleId=5502813>.
13 This island-lending policy might have something to do with the Indonesian
government’s military intervention in East Timor in 1976. Indonesia had been seen
by the International community as an abuser of human rights (Lee 2015, 43). On
10 May 1978, Vice President Walter Mondale met Gen. Soeharto in Jakarta and said
that the Carter Administration “does not question the incorporation of East Timor
into Indonesia … There are problems with how to deal with our mutual concern
regarding East Timor and how to handle the public relations aspect of the problem”
(US Department of State 1978, 36-37).
14 Later, in 1989, when more “economic refugees” appeared in Galang Island,
two main actors began a new discursive practice of complaining about the “threats,”
demanding more “budget” for increasing “problems,” or complaining of “lack of
personnel”; these were the Indonesian Police and Directorate General of Immigration (Lee 2015, 49-55).
15 Taylor and Rafferty-Brown (2010b, 145-157) gave the five stages of refugee or
asylum-seeker handling through the Immigration and UNHCR’s system that are still
relevant to this day. The first stage is “registration” that takes place whenever asylumseekers want the Attestation Letter or Asylum Seeker Certificate (both in English and
Indonesian) (with a photograph, necessary details like name, date of birth, statement
that a holder is a person of concern by UNHCR). To get this Attestation Letter,
the refugees complete a Refugee Status Determination form (RSD) with help from
UNHCR’s implementing partners (usually NGOs) that will submit this completed
form to UNHCR. The second stage is “interview” (around six months) after the
initial registration stage. In Indonesia, this interview is usually done by a UNHCR
protection officer, via an interpreter if necessary (Taylor and Rafferty-Brown 2010b,
153). Third, after the “interview,” the interviewing officer makes a “refugee status
determination” based on the information procured through the interview and other
information from all the sources available to UNHCR on conditions in the countries
the asylum-seekers are applying. Asylum-seekers are assessed against the definition
of refugee in Article 1A(2) of the Refugee Convention (Taylor and Rafferty-Brown
2010b, 154). If the asylum-seekers fit into the exclusion clauses in Article 1F of the
Refugee Convention, their applications will be rejected. For the fourth stage or the
“notification of the initial decision,” generally in UNHCR’s procedural standards
manual, the decisions should be issued within a month of an applicant’s interview
(Taylor and Rafferty-Brown 2010b, 155). This decision must take the form of a letter
written in English stating the reasons for the decision in very generic terms and, in
the case of rejection, advising that they have 21 days to seek review of the decision
(Taylor and Rafferty-Brown 2010b, 156). The availability of a “review” stage or the
fifth stage is an essential safeguard against incorrect decisions; unfortunately, an independent review is something that the UNHCR is incapable of providing as it is not a
state. Typically, the review of an initial unfavorable decision/rejection is conducted by
another UNHCR officer (UNHCR, ‘Procedural Standards for Refugee Determination
under UNHCR’s Mandate’ [Procedural Standards, 1 September 2000) [2-17]-[2-18]).
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Yanuar Sumarlan
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