LEGAL OPINION
Volume 02 No. 11 “Human Trafficking”
Author: IDewaGedeAgungKrishnaPutera ALSA Local Chapter Universitas Udayanaa. Facts
In the current era of globalization, humanexploitationisaverycomplexandoverlapping phenomenon. Conflicts, in this case, involve issues of employment, migration, poverty, violence, and crime.Womenandchildrenarethemostvictimsofhumantraffickingintheera of globalization, with the aim of sexual exploitation for thebenefitofthesexindustrywhich of course ignores the interests of the victims and treats them no longer as human beings but tendstobecommodities.
Mentioned a case of human trafficking in terms of sending TKI policies, although based on positive goals, such as overcoming unemployment, improving living standards, and increasingnon-oilanddasforeignexchange,italsohadanegativeimpact.Manyworkersend up suffering because this isalabortoutinggame.Manyformalandinformalworkersbecome objects of human trafficking. For example, in Malaysia, labor brokers withhold the passport of TKI, thus making the TKI very dependent on them. TKI are forced to fulfill their wishes either to become domestic helpers or to work on plantations. Ironically, many also work as commercialsexworkers.
Human trafficking crime, which mostly affects women, constitutes violence against women and violates human rights. Women’shumanrightseverywhereareincreasinglybeing seriously threatened by massive exploitation. It is necessary to understand that handling the problem of human trafficking requires a large contribution from the state as a legal system that is obliged to fully guarantee human rights to all citizens of itsstate.Donotletcountries that have political and economic authority also ignore human dignity so that human traffickingbecomesoneofthesectorsthatsupportlocalincome.
Human trafficking has received international and national attention because it degrades human dignity and puts them in a position of exploitation.Thisissueshouldalsoreceiveour attention at the regional level. It takes a clear commitment and a systematic program todeal with this problem because the people who take advantage of it arealsoverygoodatrunning thisbigbusiness.
b. Issues
Based on the chronological story explained above, these are issues thatwillbediscussed inthisargument:
1. Howabouttheroleofthestateinsolvinghumantraffickingcases?
2. Whataretherulesthatcanbeappliedindealing withcasesofhumantrafficking?
ALSA Local Chapter Universitas Udayanac. Rules/Regulations
Before stepping into the analysis, here are some legalbasisusedtoanswertheissuesand convincetheargument:
1. Act of Republic of Indonesia Number 21 of 2007 concerning Eradication of the HumanTraffickingCrime Article58
2. TheUniversalDeclarationonHumanRights(UDHR)
Article1 Article4
3. InternationalCovenantonCivilandPolitical Rights(ICCPR) Article7
4. ConventionontheRightsofChildren
- Article33 Article35
5. ILOConventionontheProtectionofDomesticWorkers
- ILOConventionNumber189
6. GeneralCommentoftheCommitteeoftheCRC
- Article19
7. UnitedNationsConventionAgainstTransnational OrganizedCrime
8. ProtocoltoPrevent,andChildren,SupplementingTheUnitedNationsConvention againstTransnationalOrganizedCrime
d. Application/Analysis
The phenomenon of human trafficking has become a social fact in addition to the economic crisis and natural disasters. The low level of education, limited employment opportunities, promiscuity, and family disharmony are some of the factors causing human trafficking, especially among women in Indonesia. So in this analysis, two analyzes will be presented on whether is possible to overcome, prevent and protect victims of human trafficking. Starting from prevention carried out in Indonesia as well as the existing legal basisfromIndonesiatotheinternationalrealm.
1. Theroleofthestateinsolvinghumantraffickingcases
In the state of Indonesia, an organization for the prevention of human trafficking was formed. One of the government’seffortstoaddresshumantraffickingcasesinIndonesiaisto establish a Task Force for Handling Victims of Human trafficking crime. The cross-ministerial coordination forum is chaired by the Coordinating Minister for Human Development and Culture, while the daily chairman is led by the Minister for Women’s EmpowermentandChildProtection(MinisterofPPPA).
Based on Presidential Regulation Number 69 of 2008, the task force aims to streamline and ensure the implementation of prevention and handling of human trafficking crime. So, through the establishment of the task force forhandlingthehumantraffickingcrime,makeit easier for TKI to report and receive protection through the government bybeingrepresented bythetaskforcehandlingthehumantraffickingcrime.
Not only that, the state in this case has the authority to eliminate instances of human trafficking crime, both through the laws and regulations that have been issued as well as efforts in terms of social linkages. In its efforts, the state’sauthorityisexplainedthroughthe process of social relations between the state and society. Where the first method is mapping the act of human trafficking crime in Indonesia for both domestic and foreign purposes. Second, improving public education, particularly alternative education for girls, including educational facilities. Third, increasing public awareness by providing the broadest possible information about the criminal act of human trafficking crime and all aspects related to it. Fourth, it is necessary to ensure accessibility for families, especially womenandchildren,to obtain education, training, income generation, and social services. Then another thing is eradicating poverty, gender inequality, limited employment opportunities, and increasing consumerism. From this effort of authority, the state will synergize with non-governmental organizations, international agencies, society organizations, individuals, and themassmedia. Government seriousness and involvement of all elements of the nation are expected to contributeinaparticipatorymannerineffortstoeradicatehumantraffickingcrime.
The state is making serious efforts for society to get alotofknowledgeandsocialization about the dangers of crime and human trafficking crime. The educationandsocializationare also about procedures and requirements that prospective migrant workers must know before leaving abroad. Candidate TKI is required to payattentiontothecompletenessoftheofficial documents to be brought, and adequate knowledge about theservicesofTKIsothattheyget securityguaranteesandarenotconstantlycheated.
ALSA Local Chapter Universitas Udayana2. Therulesthatcanbeappliedindealingwithcasesofhumantrafficking
Human trafficking is a classic problem that has always happened throughout the ages. People view human trafficking as a form of modern slavery. At the moment, human trafficking crime is also one of the five biggest crimes in the world that must be tackled because of the consequences not only on the economic aspect but also on the political, cultural, and humanitarian aspects. With this in mind, rules and conventions must be established that will protect various kinds of human trafficking to obtain legal justice for victims.
The main legal instrument regarding human trafficking inIndonesiaisActNumber21of 2007 concerning the Criminal Act of Human Trafficking Crime. Where in the chapter-4 concerning prevention and handling, Article 58 has explained that the state has the right to carry out the eradication of human trafficking crime by forming a task force consisting of representatives of the government, law enforcement, society organizations, LSM, professionalorganizations,andresearchers/academics.
Article 1 of the Universal Declaration on Human Rights (UDHR) stipulates that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should associate with one another in a spirit of brotherhood”. And Article4oftheUniversalDeclarationonHumanRights(UDHR)stipulatesthat“ no one shall be enslaved, all forms of slavery and the slave trade shall be prohibited”. They also emphasized it through the International Covenant on Civil and Political Rights thathasbeen ratified through Act number 12 of 2005 (Article 7) establishes that “ no one should be enslaved, that slavery and commerce ” slaves were forbidden, and that no one should be slaved, or required to do work forced or compulsory labor”. Fromtheexplanationofthelaw, it can be said that whatever profession anyone has, it must be respected. Likewise, with someone who works as TKI, there should be no intimidation in carrying out his work. Becausetheyarenotanimalsthatcanbetradedandenslaved.
The next rule regarding the criminal act of human traffickingcrimefromtheConvention on the Rights of Children. In Article 33 of the Convention on the RightsofChildren“States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances”.AndinArticle35 of (Convention on the Rights ofChildren)“States Parties shall take all appropriate national,
bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”. Then Article 19 explains the right of the child to freedom from all forms of violence in General Comment of the Committee of the CRC number 13 of 2011, to stipulate the rights of children to be free from all forms of violence, including trafficking. Through this rule, it is hoped that the government and states that implement this convention can protect children or minors from trafficking in children for anything, especially TKI. The government should provide goodeducationtoavoidsnegative things
Protection for workers in the domestic sector is regulated in the Workers in the Sector Convention Domestic WorkersConventionnumber89of2011.Thisconventionappliestoall workers in the domestic sector. This Convention requires that states ratify it to respect and properly realize the basic principles and rights at work, including (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the abolition of all forms of forced labor or labor required; (c) the effective elimination of child labor; and (d) elimination of discrimination in terms of occupations and ensuring that every domestic worker and employer enjoy the freedom of association and the effective recognition of the righttocollectivebargaining.
The last, by paying attention to the Palermo Protocol (Protocol to Prevent, Suppressing Punish Human trafficking crime, Especially Women and Children, SupplementtotheUnited Nation Convention Against Transnational Organization Crime/Protocol on Preventing, Taking Action and Punishing Human trafficking crime, Especially Women and Children, complements the existence of the United Nation Convention Against Human Trafficking Crime, Transnational Organization Crime)in2000andbyimplementingotherActsrelatedto the Eradication of Criminal Act of human trafficking crime, it is hoped that legal protection for Victims of Human Trafficking, especially TKI who cross national borders can be overcome.
e. Conclusion
The handling of the criminal act of human trafficking crime is complex, it requires a comprehensive mapping. The principle of earlier forms of protection talks about legal liability by referring to the general principle in which protection for Indonesian workers (TKI) is prioritized on two things, namely protection and prevention. The protection and prevention are more of a preventive aspect. This aspect explains the government’s efforts to
ALSA Local Chapter Universitas UdayanaeradicatehumantraffickingagainstIndonesianworkers(TKI),includingissuingvariouslegal instruments ranging from the constitution to implementing regulations. Cooperating bilaterally, regionally, and multilaterally with other countries, especially the destination country for the placement of TKI. And together with assistance from non-governmental organizations such as local and international Non-Governmental Organizations, society organizations,counseling,andtrainingtootherassistancetoTKI.
Meanwhile, in the repressive concept, it is more about strict rules. Several regulations have been explained including Act of the Republic of Indonesia Number 21 of 2007 concerning Eradication of thehumantraffickingcrime,TheUniversalDeclarationonHuman Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of Children, ILO Convention on the Protection of Domestic Workers, General Comment of the Committee of the CRC, United Nations Convention Against Transnational Organized Crime And Protocol to Prevent, andChildren,SupplementingTheUnitedNations Convention against Transnational Organized Crime. Then the state is expected to provide assistance or guarantee the rights of TKI victims of human traffickings, such as confidentialityofidentitytotherighttoreceiverehabilitation.
ALSA Local Chapter Universitas Udayana