Rohingya refugee. Photo: Steve Gumaer on Flickr

Rohingya refugee. Photo: Steve Gumaer on Flickr

Assessing Indonesia's new decree on refugees

8 February 2017

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PhD Candidate

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On 31 December last year, Indonesian President Joko Widodo quietly issued a decree on the handling of refugees, breaking a long held silence on the issue.

The pronouncement outlines how relevant departments and organisations should administer refugees within Indonesia, including instructions for search and rescue, living arrangements, voluntary return and even funeral preparations for refugees found deceased.

This document is the first of its kind in Indonesia, a country which has limited legal provisions governing refugees and which has not yet signed the 1951 Refugee Convention. While the decree is a step in the right direction, it fails to provide the most fundamental protection for refugees. It also raises the question: why now?

There is a long history of refugees transiting through Indonesia’s territory, beginning with the Indochinese refugees in the 1970s. So why has Indonesia waited until now to issue this presidential decree? Initially drafted under former president Susilo Bambang Yudhoyono, the decree had been through a number of drafts and periods of neglect. There are likely a number of reasons for this delay including Indonesia’s relative disinterest in refugee issues, but it may have been brought to life again by the current Rohingya refugee crisis within the region. Indonesia initially avoided responsibility by turning around boats full of Rohingya fleeing Myanmar in 2015. But now Indonesia has stepped up to help Rohingya refugees, and the presidential decree provides a legal basis for donor funding in cases such as these.

According to one Indonesian government official, issuing the decree is a ‘response to the need for a legal basis for handling refugees because Indonesia is a non-signatory of the refugee convention’. So why not simply sign the Convention? Indonesia is concerned that ratification would be a pull factor, attracting more refugees to its shores. This is particularly troubling to Indonesian officials, as many of Indonesia’s citizens still live under the poverty line and precious state resources are devoted to building infrastructure and providing subsidies.

Ratifying the Convention would require Indonesia to conduct its own refugee status determination procedures and resettle refugees, owing them greater rights. While refugees deserve access to these rights, it is simply not a high priority for Indonesian policymakers, who can deflect such responsibilities to international organisations operating within its borders. Furthermore, resettling refugees from within the region, like the Rohingya, could be considered a breach of ASEAN ‘good neighbourliness’ by implying that the source country is guilty of persecution.

Interestingly, while Indonesia has not signed the Refugee Convention, the recent presidential decree appears to follow certain parts of the Convention. For example, the decree defines a refugee using the same definition in the Refugee Convention. The decree also states that the handling of refugee issues should be based on cooperation between the Indonesian government and the UNHCR, while taking into account generally accepted international conventions.

Importantly, the decree also considers immigration detention to be overseen by governmental ministries working in the areas of law and human rights, and sets a number of minimum standards for refugee shelters. Such standards include proximity to health care and worship facilities, as well as the provision of clean water, food, drink and clothing. The decree also states that refugees can be moved from one shelter to another for family unification, and also makes mention of refugees with disabilities and special needs.

Nevertheless, a noteworthy omission is the principle of non-refoulement, which prohibits the return of a refugee to a place in which they face persecution. Although the decree does require voluntary return to be implemented in accordance with the law, it does not specifically prohibit the return of a person to a place in which they face danger.

While Indonesia is a party to the Convention against Torture, which does specifically prohibit refoulement, Indonesia’s compliance with this principle has been questioned in the past. The omission of this standard in the country’s only refugee framework is a large and important oversight.

One major concern pertaining to Australia’s policies is that towing boats back to Indonesian waters could constitute ‘chain refoulment’, that is, though returning someone to Indonesia is not considered to be a direct danger, Indonesia may then return that person to a country where they do face danger. With the exclusion of non-refoulement in the presidential decree this is still a major concern and needs to be rectified. The issuing of the decree could mean that Australia can no longer dictate how refugees are to be dealt with in Indonesia (Australia has funded a number of detention centres in Indonesia and encouraged the country to criminalise people-smuggling).

The presidential decree on the handling of refugees is certainly a step in the right direction, for Indonesia and the region as a whole. While it intends to streamline the handling of refugees and clarifies the responsibilities of governmental departments, communities, and international organisations, it will be important to see how the decree is enacted in a large country that still struggles with corruption and bureaucratic inefficiency.

Carly Gordyn is a PhD scholar researching Australia and Indonesia’s cooperation in combating irregular migration in the Australian National University’s Department of International Relations, Coral Bell School of Asia Pacific Affairs.

Originally published in New Mandela, 9 February 2017.

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