4.1 Refugees framed as migrants, specifically transiting migrants

As explained in the second section of this article, the PR marks a progressive shift in recognizing the definition and legal status of asylum seekers and refugees in Indonesia. However, in practice, there are still ambiguities regarding refugees’ social and legal statuses. During my fieldwork, I also observed ambiguities in the ways in which people referred to asylum seekers, refugees, and migrants. In some cases, people I interviewed used the word migran (migrant) instead of pencari suaka (asylum seeker) or pengungsi (refugee). When I asked why, some explained that it was to emphasize the fact that refugees came from abroad and were distinct from Indonesian pengungsi (IDP); meanwhile, one volunteer said it was because the term “migrant” includes both asylum-seeker and refugee categories,Footnote ³⁰ while most people simply said that they were not aware of the difference.

One official from the Immigration Detention Centre (IDC) in Tanjung PinangFootnote ³¹ explained that his preference to use the term “migrant” was due to the fact that the term “refugee” is not recognized in Law No. 6 of 2011 on Immigration, which only recognizes documented and undocumented foreigners.Footnote ³² Several officials from IDCs and the Immigration Office that I interviewed believed that the PR’s recognition of refugees and asylum seekers is inconsistent with Law No. 6 of 2011 on Immigration. According to their interpretation, by virtue of being foreigners, refugees and asylum seekers should be regulated under Law No. 6 of 2011 on Immigration, and not the PR, which is only a Presidential Regulation and thus lower than a higher “Law” in the legal hierarchy.Footnote ³³

This view was refuted by Febi Yonesta (Jakarta, 25 February 2019) from SUAKA, an Indonesian civil-society network of lawyers for refugee protection, who stated:

The debate on whether refugees are subjects of the Law No. 6 of 2011 on Immigration or the Law No. 37 of 1999 on Foreign Relations was the subject of a court case in 2018, when two Afghanistan refugees were prosecuted under the Law No. 6 of 2011 on Immigration and found guilty of entering Indonesia without legal travel documents, despite declaring that they were seeking asylum and obtaining refugee status from the UNHCR.Footnote ³⁵ This decision concerning the Qasemi couple is discussed in the Introduction.

The practice of framing refugees as migrants who are regulated under Law No. 6 of 2011 on Immigration is further complicated by the (perceived and/or actual) temporary nature of refugees in “transit” in Indonesia. The PR is structured around the stages of the process through which refugees are received and handled in Indonesia: from when refugees are received (Chapter II: “Detection/Discovery (Penemuan)”), sheltered (Chapter III: “Shelter (Penampungan)”), “secured” or monitored (Chapter IV: “Securing/Safeguarding (Pengamanan)”), until they leave Indonesia (Chapter V: “Immigration Supervision (Pengawasan Immigration)”). Articles 37, 38, and 39 of the PR regulate three pathways for refugees to exit Indonesia: voluntary repatriation, deportation for those whose request for refugee status is declined, and resettlement in a destination country. The option to integrate locally into Indonesia is not mentioned in the PR and is therefore not conceived of as a possibility.

By contrast, when analyzing earlier drafts of the PR, I came across attempts to include the option of local integration as a possible permanent solution for refugees. In a draft of Peraturan Tetap (Protap) Penanganan Pencari Suaka dan Pengungsi di Wilayah Indonesia (Standard Operating Procedure (SOP) for the Treatment of Asylum Seekers and Refugees in Indonesian Territory) dated 8 November 2011,Footnote ³⁶ local integration was mentioned in Article 8: “Permanent Solution (durable solution),” which statedFootnote ³⁷ :

1. a) Permanent solution consists of: voluntary repatriation, resettlement and local integrationFootnote ³⁸ ;

2. b) The Republic of Indonesia government facilitates repatriation and resettlement if needed (consistent with point (a) above and recommended by the 1951 Refugee Convention);

3. c) Local integration for refugees is realized according to the Laws Concerning Citizenship;

4. d) Indonesia gives precedence to voluntary repatriation as a permanent solution.

Similar references to local integration as one of three possible permanent solutions can also be found in five other drafts leading up to the enactment of the PR.Footnote ³⁹ However, by 2015, local integration ceased to be mentioned at all. In a draft of the PR dated 20 April 2015, Articles 1.12 and 1.13 specifically define voluntary repatriation and resettlement as the only two options for refugees.

There are a number of possible contributing factors behind the removal of local integration as a possible durable solution for refugees in Indonesia. First, it could be argued that Law No. 12 of 2006 on Citizenship does not offer any pathways for refugees to become citizens,Footnote ⁴⁰ which means that earlier drafts of the PR might have been unworkable. Another possible explanation is that, historically, Indonesia’s engagement with foreign refugees has been limited to being a temporary host for the processing of refugees’ resettlement to third countries. In the late 1970s, faced with the influx of refugees from Vietnam, Indonesia upheld the principle of non-refoulement and established Galang Island as a temporary refugee-processing centre during the period of the Comprehensive Plan of Action,Footnote ⁴¹ but left the facilitation, management, and resettlement of refugees to Western states via the UNHCR.Footnote ⁴² In doing so, Indonesia has consistently distanced itself from direct responsibility for the processing of refugee claims or associated resettlement.

Indonesia’s experience in dealing with Vietnamese refugees in the 1970s still colours the treatment that refugees receive today. When I raised the question of local integration for refugees in Indonesia during the workshop on the PR at the University of Indonesia in March 2019, the keynote speaker and former minister of foreign affairs, Nur Hassan Wirajuda, responded: “Indonesia has adopted an already rigid position about asylum seekers. We can see this in the case of the Vietnam refugees. None of them could be settled in Indonesia because we are not a party to the 1951 Convention.”

During my fieldwork, similar views were consistently reiterated by interview respondents, from government officials to volunteers leading grassroots initiatives. While opinions may differ with regard to whether Indonesia should host refugees and what assistance refugees are entitled to while living in Indonesia, there is a general reluctance to allow refugees to permanently integrate.Footnote ⁴³

The framing of refugees in the PR is thus problematic, as it reproduces the discourse of Indonesia as a transit country whereby refugees are only temporary residents. The phrase “transitory migrants” assumes that migrants have clearly defined intentions and routes, and expects migrants to stay for relatively short periods at in-between locations before they move on to their final destinations.Footnote ⁴⁴ These assumptions do not always fit migrants’ dynamic and often erratic realities, which are unpredictable, time-dependent, and context-specific.Footnote ⁴⁵ Transit presumes eventual settlement elsewhere. Meanwhile, resettlement opportunities in third-party countries for refugees are declining,Footnote ⁴⁶ meaning that their “transit” in Indonesia could potentially continue indefinitely. By identifying refugees in Indonesia as transitory, the focus is on refugees’ presumed intention and the assumed ability to move on, while ignoring the fact that the options to return, stay, or legally settle elsewhere are often not available.

4.2 Refugees framed as passive objects, not subjects with rights

The PR uses several terms to refer to refugees. It uses the term “foreigner”/“foreign citizen” (mentioned seven times) when referring to people whose refugee status has not yet been granted or, in Article 30.2, when referring to refugees who have violated rules and regulations. The term “victim” is used 25 times to refer to refugees who have passed away, such as when referring to “jenazah” (corpse/dead body). A refugee (pengungsi) is also referred to as an “asylum seeker” (pencari suaka) eight times. In some instances, such as in Article 1, the labels “refugee” (pengungsi) and “asylum seeker” (pencari suaka) are used to describe distinct but related legal statuses. Asylum-seeker status is held by a person if they are claiming to be a refugee (they receive temporary protection while their application is being processed) and gain refugee status if their RSD application is successful. However, in other instances (i.e. if their application for refugee status is rejected and any avenues for appeal have been exhausted), an unsuccessful application is again referred to as an asylum seeker (pencari suaka). In the latter context, although an unsuccessful applicant is referred to as an “asylum seeker,” their legal status is distinct from a pre-RSD “asylum seeker.” Specifically, an unsuccessful applicant may be the subject of deportation. Finally, a refugee is referred to as a “detainee” (one time) in reference to those who undergo voluntary repatriation to be deported without sufficient travel documents.

In the PR, refugees are not attributed much agency. The only active verbs associated with refugees are “to call for help” (when found at sea),Footnote ⁴⁷ “declare self as a refugee,”Footnote ⁴⁸ “obey,”Footnote ⁴⁹ and “self-report.”Footnote ⁵⁰ Their agency relies on their vulnerability, their claims for help, and their obedience in following the system. All other references to refugees in the PR position them as objects that other actors act upon unless they are choosing to voluntarily return to their country of origin.

While the lack of acknowledgement of human agency is perhaps not uncommon in legislative discourse, the framing of refugees as passive objects is made stronger through the absence of any explicit reference to the human rights of refugees in the PR. In Chapter III: “Shelter (Penampungan)”, the PR sets the standards that must be met by regency/municipal governments when deciding on a shelter’s location. According to Article 26.2, refugee shelters must be in close proximity to medical and worship facilities, located in the same city as an IDC, and set in adequately secure locations. Even though the PR assigns the authority to determine the locations of shelters to regency/municipal governments, it does not impose any obligation on local authorities to set up or provide these shelters.

Instead, the facilitation of shelters and basic necessities for refugees may be provided by international organizations working in the field of migration through the Ministry of Law and Human Rights (Articles 26.3, 26.4, 26.5). When passing the responsibility of facilitating refugees’ shelters and basic needs to international organizations, Article 26.3 uses the Indonesian auxiliary verb “dapat” (may) instead of, for example, “harus” (must). The use of the word “dapat” in legislation is very intentional, as it puts into writing what may be done without the burden of guaranteeing that it must be done. The word “dapat” is also used in Article 26.6:

Chapter III in the PR allows the Indonesian government to continue the practice of relying on international organizations, specifically the IOM, to facilitate refugee shelters and falls short of ensuring that refugees living in Indonesia have access to basic rights such as education, health facilities, and livelihood. While the involvement of international organizations ensures that certain standards are met when selecting shelters for refugees, over a third of refugees in Indonesia are not registered as beneficiaries of the IOM.Footnote ⁵¹ Therefore, thousands of refugees, who are commonly referred to as “independent refugees” or “unsupported refugees,” must finance their own living costs outside of shelters in an environment in which they may face punishment if they are found to be working.

The absence of human rights discourse in the PR sits in contrast to earlier drafts. In two of the earliest drafts on Protap (SOP), dated 8 November 2011 and 7 December 2011, there were references to higher laws that emphasize the protection of human rights, such as:

1. 1. Law No. 39 of 1999 on Human Rights;

2. 2. Law No. 23 of 2002 on Child Protection, Articles 59–61;

3. 3. Universal Declaration of Human Rights, Article 14;

4. 4. The 1951 Refugee Convention;

5. 5. The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Article 3;

6. 6. The Convention on the Rights of the Child, Article 22; and

7. 7. Fourth Geneva Convention on the Protection of Civilian Persons in Time of War, Article 44 and Additional Protocol I 1977.

However, references to most of these laws were not included in later versions. Among these laws, only the Law 39 of 1999 on Human Rights was included in the PR draft dated September 2013. Meanwhile, as mentioned earlier, the preamble of the PR only mentions two higher laws: the 1945 Constitution and Law No. 37 of 1999 on Foreign Relations. Article 26 of Law No. 37 of 1999 guarantees the right to seek asylum to people from abroad in accordance to international customary law, although neither of these laws specifies what rights refugees have while living in Indonesia.

The PR excludes any mention of “human rights” in its text. Instead, it consists of technical and administrative instructions in response to the presence of refugees in Indonesia. Enny Soeprapto (Jakarta, 18 April 2018), former Commissioner for Indonesia’s National Human Rights Commission (Komnas HAM), stated during an interview with me: “The Regulation does not touch the root of the problem. It is procedural, it is already obsolete.”Footnote ⁵²

The PR lacks any guiding principles with regard to refugees’ rights, despite the fact that such principles can be found in earlier drafts. Protap (SOP) draft, dated 8 November 2011, included in Paragraph 2: “Principles (Prinsip)” the following points:

1. 1. Non-refoulement: Indonesia will not deport asylum seekers to locations where their lives and freedoms could be threatened. Deportation will only be done to those who underwent the refugee status determination process and did not fulfil the criteria to receive international protection as refugees, and therefore are considered undocumented immigrants, to be treated in accordance to national regulations on immigration (and in line with Article 33 (1) of the 1951 Refugee Convention);

2. 2. Indonesia will not prosecute/conduct immigration action towards asylum seekers/refugees for unofficially entering or exiting Indonesian territory (in accordance to Article 31(1)of the 1951 Refugee Convention and Law No. 6 of 2011 on Immigration, Article 86); and

3. 3. Non-discrimination: Indonesia will provide the same treatment to all asylum seekers/ refugees, without discrimination based on race, religion, or nationality/country of origin.

A later version of this Protap (SOP) draft, dated 7 December 2011, added to this list of principles:

1. 1. Respect towards asylum seekers and refugees’ rights; and

2. 2. Treatment of asylum seekers and refugees will not be less [or “not lower,” which would be the literal translation of “tidak lebih rendah”] than other foreign residents.

As a product of these principles, both Protap (SOP) drafts included suggestions from the Legal Aid Institution Indonesia (Lembaga Bantuan Hukum (LBH) Indonesia)Footnote ⁵³ to guarantee the right to access education for underage asylum seekers and refugees (see Paragraph 7: “Waiting Period (Masa Tunggu)”). Protap (SOP) draft, dated 7 December 2011, went even further and added, in square brackets, refugees’ rights to receive an adequate income as long as it does not violate existing laws and regulations. These drafts included in their notes that these suggestions came from LBH Indonesia and the HRWG (Human Rights Working Group),Footnote ⁵⁴ indicating that representatives of civil-society organizations were consulted in formulating earlier drafts.

The same principles included above can still be traced in the PR draft dated 3 April 2013, Article 14, which states that: “Treatment towards asylum seekers and refugees is based on principles of international law that are universally applied and relevant national laws of the Republic of Indonesia.”

Article 12 of this draft also included a provision on care (perawatan) that constitutes livelihood support and medical assistance, guarantees the right of asylum seekers and refugee children to access education, and accommodates civil-society organizations that provide or facilitate access to education. Later drafts continued to include the same guiding principles and rights, although the rights of asylum-seeker and refugee children to access education was no longer included in the PR draft dated 20 April 2015.

None of these aforementioned principles relating to the protection of asylum-seeker and refugee rights was retained in the final version of the PR, suggesting that recommendations from civil-society organizations were not heeded. Febi Yonesta from SUAKA explained, during an interview in Jakarta on 23 May 2018, that several civil-society organizations, including SUAKA, were involved in initial meetings discussing the PR on the treatment of refugees.Footnote ⁵⁵ He then recalls that the Directorate General for Immigration influenced the final version of the PR rendering it devoid of any guiding principles and only offering technical instructions for government institutions and international organizations. However, I could not confirm this account during interviews with officials from the Directorate General for Immigration.

Paying attention to what governments include and exclude in a political agenda sheds light on the ways in which the terms of a discourse limit what can be discussed as possible or desirable, or impossible or undesirable.Footnote ⁵⁶ Therefore, the absence of refugee rights in the PR text speaks volumes, as it exempts the government from the responsibility to protect refugees’ rights while they are living in Indonesia through omission of civil-society organizations’ suggestions found in earlier drafts of the regulation. The exclusion of human rights discourse from the PR is even more problematic considering its framing of refugees as potential threats to security, which will be discussed below.

4.2 Refugees framed as a potential security threat

In the PR, the word aman (safe/secure) and its varieties, pengamanan (security measures), keamanan (security), and mengamankan (securing/safeguarding), are mentioned nine times in Chapter IV, which is entitled “Pengamanan.” Chapter IV, Article 31 of the PR states (emphasis added):

1. (1) The process of securing refugees upon detection is carried out by the National Police of the Republic of Indonesia.

2. (2) Government agencies and local communities (masyarakat setempat) that find refugees shall undertake necessary security measures and coordinate with or report to the National Police of the Republic of Indonesia.

3. (3) Government institutions as referred to in paragraph (2) are obligated to create secure conditions in order to avoid criminal actions.

The word “pengamanan” in the Indonesian context can be ambiguous. Carrying out security measures (pengamanan) towards refugees could either mean safeguarding refugees from potential threats towards them or securing refugees before or when they become a threat towards others. The language in the quoted text above suggests the latter. It emphasizes a need for security measures when dealing with refugees—one that obliges the government to undertake pre-emptive steps to avoid criminal actions—thus acting based on the assumption that a crime might occur, rather than to act when one has occurred.

This interpretation of “pengamanan” in the PR is supported by earlier drafts of the PR. In a draft from 2014, Article 5.1 defined pengamanan (security measures) as “every effort, work, and activity done with the purpose of preventing, deterring, eradicating and upholding the law towards every threat and disorder.” Based on this definition, the securing of foreign asylum seekers and refugees in the draft Article 5.1 is driven by the assumption that refugees are a potential source of threat and disorder. While this definition is not explicitly included in later drafts, it is not farfetched to assume that this definition continued to inform the words used by policy-makers in later drafts, including the PR.

The positioning of refugees in the PR as objects that need to be secured (which justifies the need to take action in the name of security) is a frame commonly examined within critical security studies as the securitization approach.Footnote ⁵⁷ The securitization of refugees and other migrants is more broadly a well-known tool of government utilized by different institutions to manipulate unease felt by some citizens towards the foreign “other,” or to foster it if it does not yet exist.Footnote ⁵⁸

According to Febi Yonesta (Jakarta, 29 February 2019) from SUAKA, the fact that the PR places the authority to co-ordinate the handling of refugees with the Coordinating Ministry for Political, Legal, and Security Affairs is significant:

In the context of Indonesia, the securitization of refugees is accomplished by associating them with criminal activities, by instilling moral panic, and by creating fear of competition between Indonesians and refugees, particularly in relation to employment.

By employing the language of security,Footnote ⁶⁰ the PR can potentially be used to further stimulate a sense of hostility towards refugees. In a personal blogpost,Footnote ⁶¹ Muhammad Alvi Syahrin, an Immigration Officer and Head of Research and Community Service Centre at Polytechnic of Immigration, wrote in his analysis of earlier drafts of the PR:

Not only does Syahrin frame many refugees as engaged in criminal activities, but his critique of the PR draft suggests that, in his opinion, refugees and asylum seekers’ mere entrance into Indonesia should be categorized as illegal.

Furthermore, Article 30.1 of the PR states: “Every refugee shall comply with the rules of conduct at the shelters as referred to in Article 25 (h), the customs prevailing in the local community, and relevant laws and regulations” (emphasis added). Religion and customs, however vague and abstract, are perceived as essential to the stability of Indonesian society and the presence of a foreigner, the “other,” is therefore deemed as a potential threat. Within this frame, a “good refugee” is expected to exist without causing any challenge to prevailing customs in society.

During my interviews with officials at the Directorate General for Immigration and IDCs, I encountered accounts of the criminalization of refugees for obtaining employment and for behaviour that was deemed immoral. In Tanjung Pinang, for example, I was told that a male refugee was placed in solitary confinement at the IDC for “immoral behaviour” (tindakan asusila) with a married woman, while another refugee had been transferred to a shelter in another city by the IDC for similar reasons. A selection of cases in which some individual refugees have broken national laws or local norms is often used to discredit entire groups of refugees—whilst ignoring the challenges and circumstances that some refugees face that explain why individual refugees have made these personal decisions. By doing so, refugees’ complex realities are reduced to simplified binaries of good and bad, deserving and non-deserving, thus further alienating the host society from the refugee “other.”Footnote ⁶²

The word “society” (masyarakat) is mentioned only three times in the PR and is always linked to the act of reporting encounters with refugees to police for security reasons. The attribution of this role to masyarakat can be interpreted as an extension of community members’ expected participation in surveillance of state-society “border control” that has been spurred by public-information campaigns funded by Australia since 2010.Footnote ⁶³ Such public-information campaigns are conducted to train state authorities and civilians in some coastal communities on people smuggling and on detecting and reporting “suspicious foreigners.”Footnote ⁶⁴ The PR positions masyarakat (society) as actors whose role is limited to reporting refugees to authorities when found on land or at sea.

While the PR acknowledges the role that international organizations may play in facilitating the sheltering of refugees, it makes no mention of Indonesian civil-society organizations (organisasi masyarakat sipil). The omission is striking considering that earlier drafts of the PR mentioned the role of civil-society organizations.Footnote ⁶⁵ During my fieldwork, refugees and staff members of civil-society organizations I interviewed would often comment on the increasing number of organizations and initiatives set up to support refugees living in the capital city of Jakarta and surrounding areas. These initiatives included providing temporary shelters, distribution of food, and learning centres for unsupported refugees. The supportive role played by some civil-society organizations does not fit with the limited framing of Indonesian society or local community involvement with refugees in the PR, which is to report their presence as potential security threats.Footnote ⁶⁶

During the workshop on the PR at the University of Indonesia (March 2019), a representative of a government institution overseeing immigration framed responses to refugees in Indonesia as falling into two factions: those who saw refugees as a security issue and those who saw refugees as a humanitarian issue.Footnote ⁶⁷ He then attributed the humanitarian perspective to advocates and activists, while government officials’ responsibility was limited in this frame to the role of ensuring security. The final draft of the PR could be read as consistent with such a frame, as it reflects only a securitized framing to the exclusion of the humanitarian frame, as discussed earlier.