Press Release

[Press Release] Constitutional Court: Migrant Seafarers are Indonesian Migrant Workers

Jakarta, December 3, 2024 – Indonesia Ocean Justice Initiative (IOJI) commends the Constitutional Court (MK) for its ruling in Case Number 127/PUU-XXI/2023 regarding the judicial review of Article 4, paragraph 1 (c) of Law No. 18 of 2017 on the Protection of Indonesian Migrant Workers (Law 18/2017), which protects Indonesian Migrant Seafarers and Fishers. 1

The MK rejected the petitioners’ request, which, in principle, sought to exclude migrant seafarers and fishers (hereinafter referred to as “Migrant Seafarers”) from the legal regime of protection for Indonesian migrant workers based on Law 18/2017.

“The migrant seafarers and fishers are also recognized as part of migrant workers, with the aim of providing full protection for them to meet their rights as migrant workers,” stated the Constitutional Court’s reasoning. Thus, legal recognition as migrant workers is a prerequisite to protect and fulfill the constitutional rights of every Migrant Seafarers, including the right to decent work and livelihood. 2

The Constitutional Court’s reasoning aligns with Indonesia’s position at the international and regional levels. Indonesia ratified the International Convention on the Rights of Migrant Workers and Members of their Families (ICRMW) in 2012 and domesticated this convention through the promulgation of Law 18/2017. Article 2 paragraph 2 (c) of the ICRMW includes migrant seafarers as part of migrant workers.

At the regional level, Indonesia’s leadership in ASEAN in 2023 has ensured the adoption of the ASEAN Declaration on the Placement and Protection of Migrant Fishers. In this Declaration, migrant fishers are recognized as migrant workers and entitled to the same rights as land-based migrant workers.

The Constitutional Court further opined that the protection of Migrant Seafarers under Law 18/2017 is fundamentally in line with international conventions, including the ICRMW and the Maritime Labour Convention (MLC) 2006. This protection includes basic worker rights, decent working and living conditions, social security, and other essential rights.

“In implementing Law No. 18 of 2017, the Indonesian government has adopted and harmonized international protection rights and standards for migrant seafarers based on the ICRMW, MLC, and ILO C-188 into Government Regulation No. 22 of 2022 concerning the Placement and Protection of Migrant Seafarers and Migrant Fishers. Through the ratification of ILO C-188, Indonesia’s bargaining position would be strengthened in the negotiation process vis a vis destination states or flag states to ensure respect for and protection of the rights of Migrant Seafarers in line with ILO C-188 standards,” said Mas Achmad Santosa, Chief Executive Office of IOJI.

The MK also concluded that the enactment of Government Regulation Number 22 of 2022 (GR 22/2022) put an end to the overlapping license for Migrant Seafarers placement. 3 This long-standing problem had made it difficult for government agencies at the central, regional, and village levels to monitor the placement of Migrant Seafarers and law enforcement agencies to investigate and punish exploitation and human rights violations during migrant seafarers’ migration.

Specifically, the MK emphasized the obligation of Migrant Seafarers placement companies to adhere to licensing requirements under Law 18/2017 and GR 22/2022. “Articles 43 and 45 of GR 22/2022 stipulate that the Ship Crew Recruitment and Placement Business License (SIUPPAK), which was previously required for placement companies, is now replaced by the License of Indonesian Migrant Workers Placement Agency (SIP3MI). Therefore, recruitment and placement companies that previously held SIUPPAK must adjust to the SIP3MI,” the MK stated. 4

First, there needs to be clarity on the role of policy makers and the implementers of migrant worker protection after the establishment of the Ministry of Indonesian Migrant Worker Protection (Ministry of P2MI). 5 According to Presidential Regulation No. 165 of 2024 (Perpres 165/2024), one of the Ministry’s functions is to formulate and establish policies related to the protection of migrant workers. Meanwhile, Article 45 of Law 18/2017 attributes this task to the Ministry of Manpower. Therefore, the provisions of Article 45 and pertinent articles regarding the Ministry of Manpower in Law 18/2017 should be revised.

Second, technical regulations on the derivatives of Law 18/2017 and GR 22/2022 must be developed to specify detailed forms of protection throughout the entire migration process for Migrant Seafarers. Technical regulations are also expected to provide the responsible placement process for Migrant Seafarers in line with human rights protection principles and norms set out in Law 18/2017 and GR 22/2022.

Third, there is a need to improve the effectiveness of the institutions responsible for the protection of Migrant Seafarers. “Law 18/2017 mandates a multi-institutional approach (whole-of-government) in the protection of migrant workers. According to its function in Perpres 165/2024, the Ministry of P2MI must establish a coordination mechanism among all relevant institutions at the central, regional, and village levels, ensuring that each institution performs its duties and responsibilities in accordance with the Law 18/2017 and PP 22/2022,” said Tasya Nur Ramadhani, IOJI researcher.

Lastly, the protection of Migrant Seafarers cannot be achieved absent the strong international cooperation. This is especially true given the complexity of jurisdiction over the operations of foreign-flagged ships on which Migrant Seafarers work. In the case of Indonesian Migrant Seafarers, official reports show that the majority of them work on distant-water fishing vessels. These vessels operate across countries and involve many jurisdictions based on the flag state, domicile, and nationality of the operators and manning agents, the maritime zones the ships pass through, and the nationality of the migrant crew.

“When worker rights violations occur on these vessels, the Indonesian government faces challenges in identifying and holding accountable the perpetrators, let alone the ultimate beneficial owners of these vessels,” said Harimuddin, Senior Advisor at IOJI.

In the future, the Ministry of P2MI, together with the Ministry of Foreign Affairs, must intensify the formulation of bilateral agreements with main destination countries for Migrant Seafarers. These countries include flag states, port states, transit states, and coastal states frequently visited by these foreign-flagged ships. Bilateral agreements can also strengthen Indonesia’s negotiating power in ensuring the fulfillment of human and labor rights, such as decent working conditions on board, standardized wages, social security, dispute resolution, and safe repatriation.

Contact: Jeremia Humolong Prasetya – Programme Manager (jeremiahp@oceanjusticeinitiative.org)

Footnotes:

  1. The court verdict on the case number 127/PUU-XXI/2023 was delivered on Friday, 29 November 2024
  2. This right stipulated on Article 28D (1) and (2) Constitution of the Republic of Indonesia 1945
  3. The overlapping license referred to means that, prior to the enactment of PP 22/2022, there were two regulations governing the licensing of companies that place migrant seafarers and migrant fishers. These were SIUPPAK issued by the Ministry of Transportation, SIP3MI issued by the Ministry of Manpower
  4. The court verdict on the case number 127/PUU-XXI/2023
  5. Presidential Regulation Number 139 of 2024 on the Structuring of Tasks and Functions of State Ministries in the “Merah Putih” Cabinet for the 2024-2029 Period and Presidential Regulation Number 140 of 2024 on the Organization of State Ministries