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These reservations were subsequently withdrawn in 2005.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]
|
Means/Year
|
|
1
|
ILO C.
138 (Minimum Age Convention), 1973
|
Law No.
20 / 1999
|
2
|
ILO C.
182 (Worst Form of Child Labour Convention), 1999
|
Law No. 1
/ 2000
|
3
|
Convention
against Transnational Organized Crime (Palermo Convention), 2000
|
Law No. 5
/ 2009
|
4
|
The
Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially
Women and Children, 2000
|
Law No.
14 / 2009
|
5
|
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]
|
|
1
|
Law No.
39/1999 on Human Rights
|
2
|
Law No.
23/2002 on the Protection of the Child (revised by Law No. 35/2014)
|
3
|
Law No. 13
Year 2003 on Manpower which includes a provision against the worst forms of
child labour
|
4
|
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
|
5
|
Law No.
23/2004 on the Elimination of Domestic Violence
|
6
|
Law 12/2006
on Citizenship, which protects stateless children and children born out of
wedlock
|
7
|
Law No.
13/2006 on Protection of Witness and Victim
|
8
|
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.
|
9
|
Law No.
21/2007 on the Elimination of Human Trafficking
|
10
|
Law No.
44/2008 on Pornography, which includes a provision on child pornography
|
11
|
Law No.
11/2008 on Electronic Information and Transaction that includes up and
downloading of child pornographic materials.
|
Related
Regulations
|
|
12
|
Presidential
Decree No. 12/2001 on the National Action Committee for the Elimination of
the WFCL
|
13
|
Ministerial
Decree (MoHA) No. 5/2001 on the Elimination of WFCL
|
14
|
Presidential
Decree No. 87/2002 on the National Action Plan for the Elimination of the
Sexual Exploitation of Children
|
15
|
Ministerial
Decree (MoMT) No. 235/2003 on Types of Work that are hazardous to the Health,
Safety, or Morals of Children
|
16
|
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.
