Migrant Labor Trafficking

: Can Legal Pluralism Help?*)

Rita Dharani
_____________________________________________

Abstract

Today's Indonesian migrant workers1 fight for justice still focuses their
demand on the elimination of human trafficking in the process of
migration. Advocacy work carried out by NGOs as well as unions in
defending the rights of migrant workers mainly emphasizes the issue
that migration has turned Indonesian workers into "commodities for
export". Yet, globalization has turned the issue of labor migration into a
multifaceted problem. The workers themselves are plunked into a
quandary where they have to choose between their rights and their
need for survival. Different from the old slavery era, human trafficking
that occurs in today's labor migration is a contemporary socio-economic
problem holding transnational characteristics. At the international level,
there are numerous detailed and sophisticated regulations concerning
the crime of human trafficking. But at the national level the government
lacks a strong will to protect the migrant workers, as the state laws tend
to benefit labor suppliers. This, in turn, forces the NGOs working at the
grassroots level to approach the local government in order to legislate
better regulations in the areas where many migrant workers come from.
Can this effort be perceived to uphold the ideals of the legal pluralism
movement?

If legal pluralism is meant to uphold the ideal of a complementary

relationship, or ideal discussion, between laws created by the state and
those by the society, what can be expected from adat law, indigenous
law, and other similar laws to address the issue of "migrant workers
trafficking"? Can problems of migrant workers, which have such a
complex transnational dimension, be resolved through the ideals of
legal pluralism? What if the state laws are repressive? I agree with the
opinion that much legal pluralism thinking has overlooked the important
task of legal thinking, i.e. defining "justice".

In the attempt to answer these questions I have conducted a small

research project in the Bantul District where the local government has
already proposed local regulations concerning migrant workers. I

1
Migrant workers discussed in this paper are those the Indonesian government call
Indonesian Labor Force (TKI for male) and Female Labor Force (TKW for female). These
workers get jobs through labour suppliers based on work contracts and usually hope
to earn higher wages than they can earn inside Indonesia. There is another type of
migrant workers who come from communities that have the tradition to periodically
travel abroad from generation to generation.
interviewed migrant workers and inhabitants of Bantul to inquire into
their responses to the local regulations.

Warsih (not her original name), 47 years, is an ex-migrant worker in

Bantul, Jogjakarta.
She had been a migrant worker for at least 12 years when she decided
to retire in 2003. She began working abroad in 1989 as she perceived
that her skill in making leather bags in her village could not cover her
life expenses and fulfill her dreams anymore. She left her family and
worked in Singapore, United States, Dubai and Saudi Arabia. Each work
contract required her to stay abroad for 3 years. She was satisfied and
happy with everything she acquired outside the country. She felt lucky
because she could always cope with the discontent in the workplace,
finish the work contract properly, get good bosses, and bring a lot of
money home. Yet, she said that the money she brought from abroad
was quickly used up. When her last work contract expired, Warsih
decided not to continue her career as migrant worker. She now lives
once more in her village.

These days Warsih and her husband run a small business selling hair
accessories and cosmetics. She buys the goods from grocers in Pasar
Gede (Great Market) Jogjakarta and sells them in stalls in Bantul and its
vicinities. The profit is insufficient to buy the family’s daily needs. She
and her husband wish to expand their business. They want to buy a car
so that they can buy goods in larger quantities from the grocer. They
also hope that they can earn money from renting out a piece of land
next to their house. A major cellular phone network company has
expressed an interest in renting the land but they still have to negotiate
the price. If this company is willing to pay the rental price Warsih asked
for, it will build a high broadcast antennae to expand the cellular phone
network to the surrounding villages. Warsih is not aware of the danger
inflicted by the close proximity to the antennae; she only hopes the rent
money will add up the meagre capital she has in order to enlarge her
business.2

We often read or hear horror stories about the experience of female

migrant workers in mass media in Indonesia. They suffer from
maltreatment, sexual harassment or assault, rape, mysterious deaths,
overwork, unpaid wages/salaries, etc. But Warsih did not face these
types of violations. According to her, she was not only lucky, but also
smart in finding the right ways to “trick the market.” This village woman
was aware that her life as a migrant worker was entirely determined by
“market interests”.3

Warsih is Javanese, indigenous to Bantul. She concluded that migrant

workers from Jogjakarta and Central Java are ‘in demand at the market’,

2
Interview with Warsih, Bantul, 7 May 2006
3
Interview with Warsih, Bantul, 7 May 2006
unlike those from East Java or East Nusa Tenggara (NTT). From her story
I learned that there is a kind of stereotype being talked about at labor
supplier training centers for the migrant worker candidates. This affects
how the migrant workers see each other. It is said that migrant workers
from East Java are stubborn and not easy to be controlled, while those
from Jogjakarta/Central Java are easier to control, work more carefully
and can be trusted. Warsih had the experience of observing the
behavior of migrant workers from other areas because she stayed for 9
months at the training center before she was sent abroad for the first
time. With a hidden pride she said that she managed to behave well
during the wait. She thinks that this attitude is an important factor that
has to be ‘nurtured’ in the personality of a migrant worker.4

Warsih’s experience is a classic story from villages in Indonesia.

Globalization has unavoidably created many problems for village
communities in the third world countries. In Indonesia, we know of
problems about how agriculture cannot sufficiently provide earnings for
the peasants because imported rice is cheaper and can be found
everywhere. The low selling price of agricultural products has driven
many peasants out of business. Consequently, the wage for agricultural
workers, who are mostly women, is really low and cannot cover daily
expenses anymore. Village traditional economic systems have been
destroyed, village women have been marginalized, and agriculture has
become very unpopular among the youth. Going abroad as migrant
workers seems to be the only reasonable choice. The pace of
globalization is beyond the control of villagers. But they are often not
aware that this global economic and political situation actually has
determined their choices and limited their ability to respond to the
worsening economic condition in their villages.

When I inquired further about the process Warsih had to go through

before she got the job, it became clearer that she never received a work
contract in a smooth manner. It was not as trouble-free as she initially
pretended. She had forged contracts and travel documents, received
below standard salaries, was put in a quarantine for an indefinite period,
and was forced to work at the training center without a salary. And
Warsih was not the only one who experienced this. Yet, despite all the
inconveniences, Warsih thinks she was lucky to be able to get what
other workers might not get. This reality poses an interesting dilemma.
What strategy should migrant worker choose? Should they fight for their
rights as human being and citizens or they could just find ways to evade
unjust conditions and take the risk for the sake of survival?

4
Interview with Warsih, Bantul, 7 May 2006
About Human Trafficking

NGOs dealing with problems of migrant workers from Indonesia have

concentrated their efforts in demanding the abolition of the crime of
human trafficking in the process of migration and the government to be
more serious in providing protection for migrant workers as citizens.
Indeed, the process of sending migrant workers abroad is rampant with
manipulative collaboration among different parties. Agents of human
trafficking can be brokers for jobs, government officials, employers, or
even immediate relatives of the would-be workers themselves.5

Since the age of slavery there have been many regulations in the field of
international law concerning human trafficking. The latest definition
about it can be found in Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children (a supplementary
protocol for the UN Convention against Transnational Organized Crime).
In this Protocol, human trafficking is defined as the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of
the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for
the purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.6 In the context of workers
migration this protocol has been able to capture the modus operandi of
the crime commonly carried out by human trafficking syndicates.

As an international regulation, this Protocol however does not apply to

Indonesia because the government has not ratified it. This Protocol is
often considered too sophisticated for Indonesian conditions because
the legal infrastructure in this country is not yet ready to carry out the
method and functions preconditioned by the Protocol. 7 Nonetheless, as
a discourse, the principle of this Protocol has influenced the initiatives of
Indonesian human rights defenders and academician to explore further

5
Hong Kong-Indonesia Research Team (Asia Migrant Centre, Indonesian Migrant
Workers Organization, The Hong Kong Coalition of Indonesian Migrants Workers
Organization, Federasi Buruh Migran Indonesia, Konsorsium Pembela Buruh Migran
Indonesia, Jaringan Nasional Pembangunan Ekonomi untuk Buruh Migran dan
Keluarganya, Sahabat Pekerja Migran), Underpayment, Systematic Extortion of
Indonesian Migrant Workers in Hong Kong An In-Depth Study of Indonesian Labor
Migration in Hong Kong, 2005, p. 4
6
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children,
Article 3
7
Consider Chapter II (Article 6-8) of the Protocol which regulates the steps necessary
to be taken to protect victims of human trafficking and Chapter III (Article 9-13) which
regulates how the principle and mechanism for international cooperation in preventing
and eliminating the danger of human trafficking should be conducted.
the dynamics of human rights as well as to enrich their references when
identifying various forms of injustice in this country.

Indonesia does not have a special legislation concerning the elimination

of human trafficking. It was only two years ago that the government
began to specifically address the problems of migrant workers in Law
No. 39 Year 2004 on the Protection and Placement of Indonesian Labor
Force Outside the Country. One article of this law states that placement
and protection of migrant workers should be based on integrality, equal
rights, democracy, social justice, gender equality and justice, anti-
discrimination, and anti-human trafficking. Other than that, the rest of
the articles deal more with the technical and administrative aspects for
the placement of migrant workers outside the country. Many experts
state that this law still contains loopholes that will allow the practice of
human trafficking, does not provide enough protection for migrant
workers, and benefits the labor supplier companies more.8 Therefore,
NGOs continue to pressure the government to produce a law that
particularly regulates the elimination of human trafficking, or to ratify
the UN Protocol on human trafficking mentioned above.

Last year local government of Bantul published a regulation concerning

the Conduct for Placement of Labor Force in Bantul District (Local
Regulation of Bantul District No. 1 Year 2005). This legislation regulates
the technical procedure concerning the labor force in Bantul: the rules
for applying as a job seeker, obtaining a license for establishing a labor
supplier agency, obtaining a license for recruitment, levying fees for
labor services and the area in which the fees are collected, and
administrative sanctions for violations of the rules. This regulation rules
labor matters in general, from the Indonesian labor force, foreign
laborers in the district, and other job seekers in the area of Bantul.9 It
does not, however, address the issue of legal protection for migrant
workers, much less the elimination of trafficking practices in the process
of recruiting migrant workers.10

From the three legal products I discussed above we can get an idea of
the legal plurality faced by migrant workers in the Bantul area. Yet, in
the interviews I conducted with relevant people in Bantul area I can say
that the migrant workers themselves do not realize that they are facing
a situation of legal plurality. I think legal pluralism can only be
experienced by those who are involved in lawsuits and need to make a
legal choice to resolve their cases. In the study of legal pluralism this
issue is discussed in the concept of forum shopping.11 Migrant workers in
8
Op. Cit., p.12
9
Interview with Bapak Yoseph, Department of Labor Force and Transmigration Bantul
District, 27 April 2006
10
Interview with Bapak Sarman, Indonesian Migrant Workers Association (Paguyuban
Buruh Migran Indonesia), Bantul, 4 May 2006
11
Sulistyowati Irianto, Sejarah dan Perkembangan Pemikiran Pluralisme Hukum dan
Konsekuensi Metodologisnya, Pluralisme Hukum Sebuah Pendekatan Interdisiplin
Bantul do not have many opportunities to conduct forum shopping.
There is no other law for them to choose to resolve their cases except
the state law which, from the perspective of the victims of human
trafficking, is far from just.

If that is the case, why do they still put their hopes on the national laws?
I observe that there are at least three reasons for this. First, the
character of migrant workers issues is not accommodated in
local/communal laws. They have not offered the modern, transnational
character inherent in the problems of migrant workers trafficking.
Second, the arrangement for placement of Indonesian migrant workers
is the responsibility of the state at the national-level. Third, the
transnational placement of migrant workers is none other than a
bilateral “trade transaction” between states. Therefore, migrant workers
will ultimately demand state responsibility and the resolution for the
problem of trafficking within migrant workers placement is very much
dependent on state involvement.

Considering the research on legal choices people make in resolving their

cases, there is a tendency for people to opt for out-of-court resolutions,
such as the factory workers in Chile who chose mediation through an
institution called Inspectorat.12 I am of the opinion that the state has to
take care of problems of migrant workers trafficking. Regardless of the
effort to improve the conditions organized by migrant workers
themselves and other members of the community, the state must carry
out its responsibility.

Labour Trafficking in the Context of Legal Pluralism

If we take a look at the three legal products I discussed in the previous

section, we can easily conclude that there is a legal pluralism with
regard to the issue of migrant workers trafficking. I agree with Benda-
Beckman (1997) that legal pluralism is seen as a coexistence of local,
national, and international laws. But coexistence does not necessarily
create a balance, or a just and complementary condition. Coexistence
may merely means existing together, and not entered the realm where
the interaction promotes a sense of justice.13

[History and Development of Legal Pluralism Thinking and Its Methodological

Consequence, Legal Pluralism as an Interdisciplinary Approach], HUMA (Perkumpulan
untuk Pembaharuan Hukum Berbasis Masyarakat dan Ekologis), 2005, hlm. 54; Forum
shopping: “disputants have a choice between different institutions and they base their
choice on what they hope the outcomes of the dispute will be, however vague or ill-
founded their expectations outcomes of the dispute will be, however vague or ill-
founded their expectations may be.” (K. Benda-Beckmann, 1984: 37)
12
Ibid.;Inspectorat is a kind of independent mediation institution.
13
Louis Kriesberg, Changing Forms of Coexistence, Reconciliation, Justice, and
Coexistence: Theory and Practice, Mohammed Abu-Nimer, ed., Lanham/Boulder/New
York/Oxford: Lexington Books, 2001, hlm. 47.
Several thinkers of legal pluralism state that aside from state law and
folk law it is important to consider international law in legal pluralism.14 I
perceive that this opinion assumes that there is a clear separating line
between state law and international law. It is actually very difficult to
attempt a strict categorization among regulation/legal values existing in
the community. I think international law is none other than a derivation
of state law for two reasons. 1) The main spirit of international law is to
manage transnational conflicts through concession and negotiation
among state representatives. Regardless of the fact that in the process
of negotiation the states reach a consensus which then becomes an
international agreement/law, international law has “contained state law”
with the existence of state representatives. International law might not
be a state law, but it is many states law. 2) When a state is considering
whether an international regulation will be implemented within its
national territory or not, or at the time when the state decides with what
means and preconditions an international regulation can be
implemented at the national level, it will be obvious that the efficacy of
international law ultimately depends on the politics of state law.

In the beginning the drive behind legal pluralism was to challenge the
centralistic tendency of state law by respecting all regulations/legal
values cultivated within the society.15 The ideal of legal pluralism
presupposes the creation of dialog, interaction, and complementariness
between those laws. In its development, legal pluralism has faced
challenges due to various legal problems and the social reality of
modern society. It then began to study the dynamics of industrial
society, the international community, indigenous people, including
religious communities and caretakers of the environment.

With regards to the problems of Indonesian migrant workers, it appears

that thinking on legal pluralism has not helped much. Can the creation
of local law in Bantul mentioned above be considered as a manifestation
of interaction between local law and national law? Can this phenomena
be perceived as an accomplishment of the ideal of legal pluralism? It is
true that at the formal level, one of the introductory clauses in the Local
Regulation about the Protection and Placement of Labor Force at Bantul
District mentions Law on the Protection and Placement of Indonesian
Labor Force Outside the Country as an inspiration. But does a mention
necessarily fulfill the criteria of an “interaction”? And, what if the
interaction is just an interaction between laws/legal values, not an
interaction with the victims and their demands for justice?

14
Op.Cit., hlm. 62; 65
15
John Griffiths, Memahami Pluralisme Hukum, Sebuah Deskripsi Konseptual,
Pluralisme Hukum Sebuah Pendekatan Interdisiplin, HUMA (Perkumpulan untuk
Pembaharuan Hukum Berbasis Masyarakat dan Ekologis), 2005, pp. 71-75
A Little Story about Sumberagung

Sumberagung village, Jetis, Bantul, Jogjakarta, where Warsih lives, is

located about 20 km south of Jogjakarta. Many migrant workers come
from this village. It is a typical Javanese village not far from the city still
carrying out traditional ceremonies related to the agricultural cycle. For
example, there is a ceremony, “dekahan”, where villagers present
offerings to the earth as a sign of gratitude after the harvest. But, lately
the people in the village rarely carry out this ceremony because it is too
expensive.16 They said that the custom is in the end a waste of money.
Amidst the pressure of economic conditions, the village people are
cornered to be more pragmatic. Local values are swept off by the
current of globalization.

Pak Sarman is an active village caretaker, involved in several village

organizations and community activities. He is the manager of the village
cooperative unit, the head of the neighborhood at Balakan Hamlet,
activist in a migrant worker organization, and a keen soccer player.
About a year ago migrant workers at Sumberagung formed an
organization called Paguyuban Buruh Migran Indonesia (Indonesian
Migrant Workers Association). It already has 400 members and it still
tries to introduce the organization to the community at large. Pak
Sarman goes around the village, mobilizing people, and explaining the
significance of the organization to the community so that more
members are willing to join it. He faces various challenges. Some are
enthusiastic, others are more apathethic. Pak Sarman himself is not a
migrant worker but he confessed that he wants to pay more attention
the fate of migrant workers in his village by encouraging what he called
a medium to unify migrant workers. He continues to learn about the
problems and interest of migrant workers in his village.

As one of the activists of this association, Pak Sarman does not appear
to fully grasp the problems of migrant workers. He does not have
adequate knowledge about the evil circle of worker migration politics,
nor is he aware of migrant worker trafficking problems. He thinks that
there is only one migrant workers association in Indonesia, i.e. the
association in his village. He envisioned that the association would be an
embryo for a larger organization at the national level. Behind all those
ambitions I found something unique in him. If other migrant workers
organizations reject the position of migrant workers as commodity, Pak
Sarman dreams about establishing a laboratorium for migrant workers
candidates. This institution he hopes will produce skilled, agile, and
intelligent workers who will have “competitive values in the global
market.”17
16
Interview with Bapak Sarman, Paguyuban Buruh Migran Indonesia, Bantul, 4 May
2006; Interview with Warsih, Bantul 4 May 2006, Interview with Gunawan (the husband
of a migrant worker from the same hamlet), Bantul, 4 May 2006.
17
Interview with Bapak Sarman, Paguyuban Buruh Migran Indonesia, Bantul, 7 May
2006
If we take a look from other sides, this effort appears to be a resistance
towards the complexity of migrant workers trafficking in the era of
globalization. It is as if Pak Sarman decided that rather than attempting
any partial reforms he might as well capitulate completely. But his effort
can also be understood as a naïve attitude of a villager who wants to
take the chance to benefit from the “market in workers” which has
become more open for competition. He wants to enliven the arena with
more “success stories” of those migrant workers who have become
“gold mines” for their families in the kampong.

Pak Sarman wants this association to focus its attention to the effort in
developing an independent attitude among the workers. He and several
other activists of the association just distributed a questionnaire to find
out from the migrant workers what they want to do for their village with
all the money and experience they acquired from working abroad. Pak
Sarman mentioned that he plans to carry out a project called
“wirausaha mandiri” (independent business enterprise) where migrant
workers can manage their money for their independent future.18

Epilog

One afternoon I returned to visit Sumberagung. The villagers were

gathering around a grass field watching soccer game between Emba
Balakan Club and SAM Sumberagung Club in the final round of Division II
Ras Muda facing Bulus Kulon. The next morning, the news about this
competition was released in Merapi local daily which mostly covers
crime stories-law-sport-supernatural world with the motto “complete
without bias”.19

Just like FIFA World Cup this soccer competition at the kampong level
attracted its own supporters for each competing club from different
hamlets. Similar to the tradition at the international clubs where they
pay top players from around the world, Emba Balakan and SAM
Sumberagung are soccer clubs at the hamlet level whose players are
not from the respective hamlets. They come from different parts of
Indonesia. Each hamlet will mobilize funds from the community to
contract better players from other places. This is a portrait of
globalization in every arena of village life.

18
Interview with Bapak Sarman, Paguyuban Buruh Migran Indonesia, Bantul, 4 May
2006
19
Koran MERAPI, Yogyakarta, p. 15.
If we return to the problem of migrant workers trafficking, we can see
that because legal pluralism fails to fulfill its task to give meaning to
justice, it can only function as sensitizing concept.20 In this globalization
era it is the task of legal thinking to continuously formulate justice for
the society. This is necessary not only when the state law has a
repressive character, but also to ensure that in the dynamics of
society’s social movement law does not side only with the powerful.

*)
This essay is for Globalization, Market and Law Symposium on The 15th International Congress
on Legal Pluralism, Universitas Indonesia, 2006

Written based on observation and interview with several migrant workers in Sumberagung,
Bantul, Jogjakarta before the earthquake happened in the area. Now, the life of the people I
quoted in this paper has drastically changed as a result of the terrible disaster. Sumberagung
has been flattened to the ground. There is barely a single house still standing. A natural disaster
is one of life’s risks that cannot be predicted by humans as they plan for the future. I would like
to devote this paper for the migrant workers in Sumberagung. Hopefully their spirit and
liveliness will restore the life of that village!

Translated into English by Agung Ayu Ratih

20
Rikardo Simarmata, Mencari Karakter Aksional dalam Pluralisme Hukum, Pluralisme
Hukum Sebuah Pendekatan Interdisiplin [Searching for Action Character in Legal
Pluralism, Legal Pluralism as an Interdisciplinary Approach], HUMA (Perkumpulan untuk
Pembaharuan Hukum Berbasis Masyarakat dan Ekologis), 2005, p. 16