Monday, 24 November 2014

Indonesia and UNCRC: 25 years of progress and challenges.

A note from an activist-researcher.

Irwanto, Ph.D.
Professor, Faculty of Psychology - Atma Jaya Catholic University
Co-director, Center on Child Protection - Faculty of Political and Social Sciences, University of Indonesia

Indonesia has made significant progress to implement the Convention on the Rights of the Child (CRC) in the past two decades but serious challenges remain. To understand what has been achieved and the remaining and emerging challenges, let us walk through the CRC’s history in Indonesia.

The UNCRC was ratified by the Republic of Indonesia on 5 September 1990. The ratification, however, was performed in an ad hoc and pragmatic manner to avoid difficult political hurdles in the House of Parliament Although unusual, the decision to ratify the Convention by a Presidential Decree (number 36, 1990) was accepted by the United Nations (UN)

Moreover, the ratification was performed under the condition that the CRC and its principles were consistent with the Constitution of the Republic of Indonesia from 1945 which meant ratification with a number of reservations. These reservations were subsequently withdrawn in 2005.

The first decade after ratification was dedicated to looking into how the CRC could best fit in the legal, political, and societal systems, values, norms, and practices in a country known for its vast diversities. 

A small number of concerned NGOs and individual activists welcomed the ratification and soon engaged in dialogues and studies to advocate for the Convention. The bureaucrats were more reluctant to accept (what for many of them appeared to be) “foreign imposed” values and norms related to children and families, i.e. to subjects they considered primarily as their own business.

The government was almost single-minded in its perception of the problem. Children were “in difficult circumstances” as the result of unresolved poverty and because parents failed to carry out their responsibilities. The understanding that child well-being is influenced by a multitude of factors, including, societal norms, certain adult life-styles, and even government policies only evolved much later.

The first five years after the ratification was an important period of enriching the political field with data. Studies on children who need special measures of protection (especially child engaged in child labour, children in prostitution, trafficked children, children living and working on the street) were commissioned to universities and NGOs[1]. Government officials were engaged in the discussion of the studies and the development of response plans. Through the UN and other development partners key government representatives were invited to participate in the national and international dialogue around child rights.

In 1995, Bappenas was interested to include a small paragraph on “children in difficult circumstances” for the REPELITA VII[2] under the supervision of the Menko Kesra[3]. During this policy dialogue the pro-CRC critical mass of key government officials has been growing slowly but significantly. Many more officials from related departments were convinced when they participated in the First World Congress against Commercial Sexual Exploitation of Children, held in Stockholm, Sweden, from 27 to 31 August 1996. Participants met regularly with civil society to ensure follow-up actions to the Stockholm Agenda.

The Global March against Child Labour (1998) movement provided activists in Indonesia with a platform to work on rescuing children from and eliminating the Jermal fishing platforms in North Sumatra. In fact, a governor decree was enacted to provide a legal mandate for dismantling the Jermals[4].

The second period of important trajectory for the CRC in Indonesia may be called a period of building resilience. This period started from 1998 and lasted until 2010. However, this period may be divided into two shorter related trajectories. From 1998 to 2004, Indonesia plunged into a complicated regional economic and monetary crisis, political chaos, and stagnating, if not regressing development. The collapse of the ruling regime and the following turmoil, however, also opened up opportunities for democratization and to further profile and advance the realization of human rights.

In response to the crisis, serious measures were undertaken to secure the availability and accessibility of basic services for children and to improve child protection structures and mechanisms[5]. In 1998, the Human Rights Commission and the Ministry of Women Empowerment were established (MoWE). In fact, a National Commission on Child Protection[6] was established as an NGO. Relevant ministries such as Bappenas, MoSA, MoWE, MoH and MoE benefitted from safety-net programs to maintain achievements in improving children’s well-being. The 1945 Constitution was amended four times (1999-2002) to incorporate human rights provisions and principles.  In 2003, the law on Child Protection (No. 23/2002) was enacted, followed by the establishment of the monitoring and reporting body KPAI through Presidential Decree No. 77/2003.   All of these are measures to bolster safe guardianship of children in times of crisis. Special attention was directed at children without parental care – especially those living on the street, children living in poor families, and children working in hazardous conditions[7]. The MoSA and MoMT spearheaded safety net programs for these children. 

The following period 2005-2010 was yet another test of resilience for Indonesian children. In 2004, the Indian Ocean tsunami struck Aceh province and the nearby regions, followed by a number of further earthquakes, and other natural disasters which altogether killed almost 200,000 people and impoverished many more individuals and families. A country that was starting to recover from monetary and political shocks had to mobilize its limited resources to support humanitarian responses in different regions of the country.

Despite these natural disasters, Indonesia was able to avoid further waste of valuable resources by ceasing the moment for peace in Aceh province. Indonesia’s representative to the UN withdrew all reservations to the CRC on 2  February 2005, making the CRC fully adopted by the Government of Indonesia.

With the assistance from developing partners, child focused responses were designed to assist children in emergencies, including children who lost parental care due to armed conflict or natural disaster, those previously recruited as combatants, and those who lost access to basic services due to those disasters. Along with this, policy makers are learning that such crises also increase the incidence of child abuse, exploitation and neglect.       

Still on a positive note, it should be recognized that during the period 1988-2010 Indonesia witnessed flourishing progress with regards to child related legislation and policies. The following were UN Conventions ratified during this period.

 UN Conventions[8]
ILO C. 138 (Minimum Age Convention), 1973
Law No. 20 / 1999
ILO C. 182 (Worst Form of Child Labour Convention), 1999
Law No. 1 / 2000
Convention against Transnational Organized Crime (Palermo Convention), 2000
Law No. 5 / 2009
The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, 2000
Law No. 14 / 2009
The Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000
Law No. 5 / 2009

In addition to that an impressive number of ground-breaking laws were enacted, i.e.:

National laws and related regulations[9]
Law No. 39/1999 on Human Rights
Law No. 23/2002 on the Protection of the Child (revised by Law No. 35/2014)
Law No. 13 Year 2003 on Manpower which includes a provision against the worst forms of child labour
Law No. 39/2004 on Placement and Protection of Indonesia Workers in Foreign Countries (Migrant Workers Law) which sets minimum age of 21 years old
Law No. 23/2004 on the Elimination of Domestic Violence
Law 12/2006 on Citizenship, which protects stateless children and children born out of wedlock
Law No. 13/2006 on Protection of Witness and Victim
Law No. 23/2006 on Population Administration which has provisions for the rights for every child to have a legal identity.  Supported by a Government Regulation No. 37 Year 2007, revised by Law No. 24/2013.
Law No. 21/2007 on the Elimination of Human Trafficking
Law No. 44/2008 on Pornography, which includes a provision on child pornography
Law No. 11/2008 on Electronic Information and Transaction that includes up and downloading of child pornographic materials.
Related Regulations
Presidential Decree No. 12/2001 on the National Action Committee for the Elimination of the WFCL
Ministerial Decree (MoHA) No. 5/2001 on the Elimination of WFCL
Presidential Decree No. 87/2002 on the National Action Plan for the Elimination of the Sexual Exploitation of Children
Ministerial Decree (MoMT) No. 235/2003 on Types of Work that are hazardous to the Health, Safety, or Morals of Children
Regulation of the Minister of Home Affairs No. 6/2009 on Guidelines on the Formation of Regional Action Committees, the Establishment of Regional Action Plans, and the Empowerment of Communities in the Elimination of the WFCL to support Presidential Decree No. 12/2001

When the New Order regime collapsed, the new – more democratic regime, promised a better governance though deepening democratization, greater participation of civil society, and legal and institutional reform to support democratization and to support expedient recovery from the multidimensional crises[10]. Unfortunately, legal and institutional reform was very slow. Power struggle in the political system and wide-spread corruption prevent meaningful systemic improvement. Development felt like business as usual. Most good legislation and plans were not seriously implemented. National Action Plans and related Tasks Forces could not materialize and deliver expected outcomes. Sectoral approaches, poor coordination to solve child-related problems and lack of significant investment in the implementing institutions and human resources are identified as the major reasons for a lack of performance and results. In fact, there was some evidence of mismanagement of safety net programs[11].

NGO shadow reports (2004 & 2010) also indicated lack of oversight with regards to the status of the ratified CRC. As per Presidential Decree, the CRC was adopted with lower status than a national law according to Law No. 24/ 2000 on Hierarchy of the National Legislation. Consequently, in the eyes of the legislators, the CRC could not be used as a “legal consideration” at the same level as any other national law when the legislators draft new laws or revise existing laws. This reality has been a real hurdle towards ratification of two of the Optional Protocols to the CRC that which were signed in 2001[12].

The decision not to do anything to improve the ratification (meaning the legal) status of the CRC seems embedded in a wishful thinking that by constructing and implementing Law No. 22/2003 which adopts most basic principles of the CRC – the problem is solved. In reality, the Law itself fails to be fully compatible with the CRC on the definition of the child and with regards to the principles of the best interests of the child and respect for children’s views. The problem remains even after the revision through Law No. 35/2014. Currently, because of the enactment of Law No. 32/2004 on Regional Autonomy – many subnational regulations are not consistent with the Law No. 23/2002 nor with the CRC. Even if the legal status of the CRC is improved in the future, the number of regulations that are not compatible with the CRC is already staggeringly high.  

2010 marks the beginning of a period of critical reflection of child protection issues. Almost every government official in child protection related sectors now believes that the CRC should be mainstreamed into national legislation and policies. The Ministry of Women Empowerment is now officially the Ministry of Women Empowerment and Child Protection. Child Protection and related issues have gotten the attention of the highest authority and are considered among the priorities of national development. In 2011, GOI ratified the Convention on the Rights of Persons with Disabilities. Learning from the slow progress towards  achieving MDG number 1 on “eradicating hunger and extreme poverty” and learning from disability issues, policy makers and activists are convinced that safeguarding our children cannot be performed in a piecemeal manner driven by categories of special protection issues.

We need to look at vulnerabilities and risks that are faced by children in a systemic fashion. During these decades of CRC implementation we all grow to understand that unless we address the basic underlying factors, such as legal identity, multi-dimensional child-poverty, family and other enabling (safeguarding) environments, and spaces for child participation – we may not be able to protect our children.

In the construction of the RPJMN 2015-2019, Bappenas is not only looking at vulnerabilities and risks in the close environment of the child, but is also looking at government policies that may have increased children’s vulnerability, such as assistance to “Panti Sosial”, for example, which have beenfound to be a significant driver of separation of children from their families[13].

Although progress has been made, certain laws and policies continue to hamper children’s rights. The 1974 Marriage Law, for example, allows girls to be married at 16 years or younger. Law 2012 on Juvenile Justice raises the minimum age of criminal responsibility to only 12 yars; still very low by international standards. More systematic information on vulnerabilities and risks faced by children is needed in order to define innovative approaches and effective public policy to deal with these vulnerabilities. All this said, home work in two important areas needs to be done to ensure better success in protecting our children in the future. One that needs immediate attention is to look for ways to seriously enforce the existing laws and regulations. We have a lot of laws and regulations, we now need improved capacity (institutions and human resources) to implement them. To enable this, we must simultaneously work step-by step to harmonize the existing laws and implement what can be used to protect children.

The other serious challenge is learning to work together. No one department or ministry can resolve problems around children’s wellbeing by itself. We are all aware of this, but have not found the best way of working together in a  coordinated way. The coordinating mechanism (MoWECP) needs to strengthen its mandate (authority) and improve its capacity to bring all stakeholders, government and  civil society, to work together in conjunction and coordination. Since the private sector has been opening up for constructive partnerships, more resources and potential innovations may be available.

25 years seems like a long time. But to learn the best ways to safeguard our children, we may need much more time. Our children never set any conditions for their birth among us. They have unconditional trust in their prospective caregivers. Once they are there with us, therefore, we are bound by moral obligations as caregivers and legal obligations as citizens to ensure their safety and well-being. At least that’s how I, as an activist researcher, look at my position vis a vis (my) children.

Bintaro, 19 November 2014.

[1] Irwanto, Farid, M. & Anwar, J. (1998). Situational analysis of children in need of special protection. Jakarta: CSDS Atma Jaya & UNICEF.
[2] Medium Economic Development Plan (1996-2000).
[3] Coordinating Ministry for Social Welfare.
[4] The decree was able to reduce the number of Jermals from over 369 units in 1995 to 201 units in 2000 (PKPA, 2000).
[5] Irwanto (1998). Anticipating of the impacts of monetary crisis on children and adolescents. In R. Rusman, et al. (Ed.). Prihatin lahir batin: Dampak krisis moneter dan bencana El Nino terhadap masyarakat, keluarga, Ibu dan anak di Indonesia dan pilihan intervensi. 2nd edition.  Jakarta: Puslitbang Kependudukan dan Ketenaga kerjaan LIPI bekerjasama dengan UNICEF (h. 99-124).
[6] Komnas Perlindungan Anak
[7] Irwanto (2004). People in the shadow. Victims of development in Indonesia. In U. Butalia (Ed.). The Disenfranchised: Victims of development in Asia. Hongkong: ARENA Press (p. 7-60).

[8] Source: Irwanto & Siska Natalia (2011). Review on legislation and policies on the worst form of child labour in Indonesia. Monograph report for ILO-IPEC Jakarta.

[9] Irwanto & Natalia (2011), op cit.
[10] Harvard Kennedy School (2010). From Reformasi to Institutional Transformation: A strategic assessment of Indonesia prospects for growth, equity, and democratic governance. Jakarta: ASH Center for Democratic Governance and Innovation, Rajawali Foundation Institute for Asia.
[11] UNESCAP (2001). Strengthening policies and programs on social safety net: issues. Recommendation, selected studies. Social Policy Papers No. 8
[12] The optional protocol  to the CRC on the involvement of children in armed conflict ratified by Law No. 10/2012 and the optional protocol to the CRC on the sale of children, child prostitution and child No.9/2012.
[13] Save the Children, D. R. (2007). “Someone that matters” The Quality of Care in Childcare Institutions in Indonesia.