JAKARTA RECOMMENDATION ON ENGENDERING THE ASEAN FRAMEWORK INSTRUMENT ON THE PROTECTION AND PROMOTION OF THE RIGHTS OF MIGRANT WORKERS
We, a number of Indonesian non-governmental organizations (ADBMI East Lombok, ASPEK, ATKI, HRWG, Kalyanamitra, KOFS, KPI, LBH Jakarta, LBH Apik, Solidaritas Buruh Migran Karawang, Solidaritas Buruh Migran Cianjur, Solidaritas Perempuan, Peduli Buruh Migran), together with Indonesian National Commission on Violence Against Women (Komnas Perempuan) and regional organizations (Asia Pacific Forum on Women, Law, and Development (APWLD) and Coordination of Action Research on AIDS and Mobility in Asia (CARAM Asia), developed recommendations directed to relevant parties who are involved in the process of the development of ASEAN Instrument on the protection and promotion of the rights of migrant workers to integrate gender perspective in the instrument. These recommendations are particularly directed to the Government of the Republic of Indonesia, ASEAN Secretariat, ASEAN Committee on the Implementation Declaration of Migrant Workers (ACMW), ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), and ASEAN Intergovernmental Commission on Human Rights (AICHR).
OUR CARE AND CONCERN 1.
There are various gender unfair legislations on migrant workers in the ASEAN region. Examples from Indonesia are, among others, Law No. 39/2004 on the Placement and Protection of Indonesian Migrant Workers in Foreign Countries, and Bylaw of Cianjur District No. 15/2002 on the Protection of Indonesian Migrant Workers from Cianjur District in Foreign Countries. These legislations are proved to have weakened the position of women migrant workers since their rights to migrate are limited (permission from husband is required for them to migrate) and they put women migrant workers in vulnerable position to various exploitation, trafficking, violence, discrimination, marginalization and stereotyping.
2.
The guarantee of the fulfillment of normative rights for women migrant workers in the ASEAN region is weak, including, disregarding and/or violating: •
the right to fair remuneration, the right to overtime work remuneration, the right to day off, the right to work safety and health, the right to perform their religions/beliefs, the right of association, the right of freedom of expression, the right to communicate, and the right to hold their own passports;
•
the right of sexual and reproductive health of women migrant workers (no menstruation leave, not allowed to work due to pregnancy, including canceling their departures or deporting them due to pregnancy), and the right to enter marriage;
•
the right to work for women migrant workers infected by HIV/AIDS (it is mandatory for prospective migrant workers to take HIV/AIDS test, and they are deported once they are identified infected by HIV/AIDS);
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•
the right of legal aid for migrant workers facing legal problem in the countries of employment.
3.
The guarantee of the fulfillment of reproductive health of women migrant workers in the ASEAN region is weak. Women migrant workers are required to take pregnancy test prior to departure, and they can be deported if the result is positive. In some cases, they are even forced to do abortion, or have no opportunity/facility to get safe reproductive health care and abortion when their health as mothers/prospective mothers is in danger, or even if they are sexually abused; they are not granted pregnancy leave and pregnancy allowance, or if it is given, it is not sufficient; and they do not receive treatment from obstetricians due to expensive cost, which creates serious health risk. Women migrant workers might also face work termination if their pregnancy is revealed; this matter then affects their immigration status, to be unclear, and they might even be deported.
4.
Women migrant domestic workers are in the most vulnerable position in the ASEAN region: •
Domestic work is considered as the work done by women without any productive value. Local labor laws often do not recognize domestic workers as workers who are entitled to decent working conditions as any other workers. Consequently, migrant domestic workers do not receive sufficient legal protection.
•
Women migrants working as domestic workers in the ASEAN member states do not have remuneration standard, do not enjoy the right to work safety and reproductive health, do not get day offs, do not have the opportunity to join labor unions, and are not free—or in many cases, are limited—in communicating with the outside world, including their own families. Due to the imbalance power relations between the employer and the migrant domestic worker, migrant domestic workers often receive physical abuses, sexual abuses, or even rape. Migrant domestic workers also do not have the access to information on various available international mechanisms (CEDAW, ILO, UN Migrant Workers 1990) as well as regional mechanisms (ASEAN declarations). In addition, the Government and employers still hold the view that if migrant domestic workers are granted with day offs, domestic workers are likely to get pregnant, and/or they are going to fight back, against the employers.
•
Indonesian diplomats and government representatives in foreign countries that are supposedly responsible on the protection of Indonesian citizens in foreign countries have not fully integrated gender and human rights perspectives in handling the migrant workers' problems; this is in turn detrimental to Indonesian women migrants working as domestic workers.
5.
There is no free integrated service (psychological and medical services, legal aid, and shelter) which can be accessed easily by women migrant workers who are victims of violence and trafficking in women in the countries of employment in the ASEAN region.
6.
There is no social security or protection mechanism which is specifically directed to women migrant workers whose rights are violated.
7.
The insurance scheme for Indonesian migrant workers does not have gender perspective; specific needs and conditions of women, such as reproductive health, pregnancy and
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delivery expenses, are not included in the insurance for migrant workers (or in any other social insurance, for examples the education and the health of migrant workers’ children). 8.
In the medical check up, women migrant workers are vulnerable to sexual abuses. HIV/AIDS tests are conducted without 3C (Consent, Confidentiality, and Counseling).
9.
Social costs of women who migrate to foreign countries should be put into consideration; for instance, the fulfillment of the needs of their children in education, health and personal development during the working period of their mothers in foreign countries.
REFFERENCES 10. We refer to various instruments related to the protection of human rights, women's rights, and migrant workers’ rights which have been agreed universally in international conventions and in ASEAN regional commitments as the materials used in developing the recommendations on the ASEAN instrument for the protection and promotion of migrant worker's rights. 11. International conventions we used as references are, among others: •
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including General Recommendation of CEDAW Committee No. 26 on Women Migrant Workers, and Concluding Comment of CEDAW Committee to the Indonesian Government issued in 2007;
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Beijing Platform for Action;
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8 ILO core conventions and ILO Recommendation No. 91 on Collective Agreements; and
•
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN Migrant Workers Convention 1990).
12. ASEAN commitments we used as references are, among others, Cebu Declaration towards One Caring and Sharing Community, ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, AICHR's TOR and AICHR’s work plan 2010-2015.
OUR RECOMMENDATIONS 13. ASEAN mechanism on the protection and promotion of the rights of migrant workers should adopt non-discrimination, gender equality (substantive justice), and state's accountability principles as required in CEDAW, General Recommendation of CEDAW Committee No. 26 on Women Migrant Workers, and as in line with principles in 8 ILO core conventions, as well as UN Migrant Workers Convention 1990. 14. The ASEAN mechanism should be conducive to any effort to create a migration system which protects the rights of migrant workers—particularly women—to be invulnerable to various kinds of exploitation, trafficking, violence, discrimination, marginalization, and stereotyping. In this context, the ASEAN mechanism is expected to encourage/support ASEAN member states: •
to ratify the UN Migrant Workers Convention 1990, and ILO Conventions No. 97, 143, and 181;
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•
to review labor migration regulations and policies by putting concern on the specific needs of women migrant workers as mandated by General Recommendation of CEDAW Committee No. 26, to repeal and amend regulations/policies which are discriminative against women migrant workers, and to diminish the limitation which requires women to ask for permission from husbands or male guardians to get their passports or to migrate;
•
to bring regulations on migrant workers in line with international human rights instruments;
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to increase the understanding and the skill of officers in the domestic as well as in foreign missions who deal with migrant workers, in terms of gender (gender sensitivity) and human rights perspectives;
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to establish legal aid and integrated service center for women migrant workers victims of violence and trafficking in women, including to provide arbitrary/negotiation mechanism, dispute settlement based on deliberation, social reintegration, and to not require anyone to be kept in rehabilitation centers—rehabilitation and remedy process should be by migrant workers' consents;
•
to establish an effective monitoring system in order to ensure that the placement of Indonesian migrant workers, as well as employers, upholds the rights of women migrant workers, and to prosecute those conducted violence, coercion, deception, exploitation and/or extortion.
15. The ASEAN mechanism which is going to be developed should contribute to the process of standardization of the protection of the migrant workers’ rights at the regional level, including by creating: •
the labor standards (normative rights) for all migrant workers regarding decent remuneration, overwork remuneration, day offs, health insurance and work safety, freedom of association, freedom of expression, communication, practicing their religions, and prohibition to wage discrimination based on race, ethnicity, gender, religion, and language in the ASEAN region;
•
the standard criteria for employers to be allowed to employ domestic workers: ensuring that everyone who is going to employ domestic workers does not have any track record of violence against his/her employees, is able to pay the wage according to the standard, and is able to meet the working condition standards as set by ASEAN;
•
the standard of education curriculum for migrant workers based on human rights and gender justice: ensuring that the right to information and education or self-development of migrant workers are fulfilled. Governments should take over the role of providing pre-departure education and should work together with labor unions or NGOs in carrying out the education. The requirement to stay in shelters during the education period should be repealed;
•
the medical service standard and the fulfillment of the reproductive rights of women migrant workers in the whole process of migration, starting from the medical check up process prior to the departure and in destination countries, to the public health services in the work place and in the return terminal at the airport, as well as in detention places and shelters/rehabilitation centers, both in origin countries as well as in destination countries. Medical check up should be free from sexual abuse practices, HIV/AIDS mandatory tests for prospective migrant workers should be eliminated, the right of migrant workers living with HIV/AIDS to work should be guaranteed, the right of pregnant women migrant workers to work should be guaranteed,
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those living with HIV/AIDS or pregnant should not be deported, and access to VCT services, counseling and pregnancy tests for women migrant workers should also be provided in destination countries; •
the standard of deployment costs for working abroad. Government of destination countries should set regulations prohibiting employers deducting the wage of migrant workers up to 100% every month.
16. The ASEAN mechanism which is going to be developed should open the space for cooperation as wide as possible for governments and societies of destination countries and origin countries in the ASEAN region in: •
providing free legal aid and integrated services for migrant workers, including providing shelter, social and psychological rehabilitation process, and indemnity;
•
promoting the ASEAN mechanism and relevant international mechanisms to migrant workers community and related parties;
•
eliminating trafficking in women and human smuggling practices;
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increasing the knowledge and capacity of migrant workers to participate in the whole process of creating regulations on migrant workers in origin countries and destination countries (starting from the formulation, discussion and decision making process);
•
standardizing competency certification of Indonesian migrant workers which is valid in and/or issued by a state, to be recognized and accepted in other ASEAN member countries.
SPECIFIC RECOMMENDATIONS TO THE GOVERNMENT OF INDONESIA 17. As an initiator, a leader and a respected member of ASEAN, the Government of Indonesia should give good examples in adopting international human rights values and instruments for the protection of migrant workers. Indonesia should immediately ratify the UN Migrant Workers Convention 1990 which has been signed since 2004 as planned in the Human Rights National Action Plan (RANHAM) 1998-2004 and 2004-2009. 18. The Government of Indonesia should speed up the revision process of Law No. 39/2004 on the Placement and Protection of Indonesian Migrant Workers in Foreign Countries; and should repeal or revise bylaws on migrant workers which are discriminative against women and limit women's freedom of movement (based on the values in CEDAW, 8 ILO core conventions and other ILO conventions related to the protection of migrant workers and women; and the UN Migrant Workers Convention 1990 ). 19. The Government of Indonesia (both the central and regional governments) should immediately repeal regulations which are discriminative against women migrant workers; for instance, the regulation concerning the requirement of permission to work from their husbands/parents. 20. The Government of Indonesia should emphasize its role in protecting migrant workers, both documented and non-documented, in the whole process of migration and maximize the role/responsibility of the State in order to optimize the public services for migrant workers in the migration process and decrease the migration costs as low as possible for women migrant workers.
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21. The Government of Indonesia should create a standard of education curriculum for prospective migrant workers (in the pre-departure phase) based on human rights and gender justice. The Government of Indonesia should also conduct an education program on the rights of women migrant workers, forms of discrimination based on sex and gender, exploitation which might happen to women and the responsibility of placement agencies to women, in order to raise the awareness of prospective women migrant workers concerning the potentials to exploitation. The education program should be done in the pre-departure phase, should be free of charge or at lowcost, and should be accessible to women migrant workers. 22. The Government of Indonesia should create a regulation and should establish an effective monitoring system to ensure that the placement process of migrant workers respects the rights of women migrant workers. 23. The Government of Indonesia should put in legislations a complete and comprehensive definition regarding what is meant by irresponsible placement of migrant workers and add a provision on strict legal sanctions if there is any legal violation done by placement agencies of migrant workers.
24. The Government of Indonesia should revise and re-formulate the Minimum Services Standards (SPM) which is sensitive to gender to be used as a reference for Indonesian representatives all over the world in providing services and protection for migrant workers, particularly women. 25. The Government should place attachĂŠs who have diplomatic rights in countries whereby there are at least 100 Indonesian migrant workers. 26. The Government should refine the education curriculum for diplomats to ensure that Indonesian diplomats have a comprehensive understanding and ethos of gender equality. Jakarta, 4-5 October 2010
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