04 September 2009

Transmigration in Indonesia -- Amended Regulatory Framework...

This is something that was written for en.hukumonline.com. The original can be found here.

The era of “reformasi” was the spur for many changes in Indonesia, and this includes the drive to amend the 1945 Constitution of the Republic. There have been four amendments to date. These amendments were enacted in the period between 1999 and 2002. Furthermore, the amendments have since required that other legislation (laws and regulations) also be amended to ensure that those pieces of legislation comply with the amended Constitution.

The previous law on Transmigration Law No. 15 of 1997, has been amended in order to comply with the Constitution as it now stands, particularly with respect to matters of regional autonomy.

The Amendment Bill on Law No. 15 of 1997 was passed by the House of Representatives (Dewan Perwakilan Rakyat / DPR) and is currently awaiting the signature of the president before it can be promulgated as law. The amendments focus almost exclusively on the decentralization of certain transmigration related authorities from the Central Government to the relevant Regional Governments. The amendments also endeavor to create a more conducive transmigration sector; conducive to investment.

Articles 7 – 9, 13 – 15, 25, 26, 29, 30, 32, 33, and 35 have been amended, as has the Title of Chapter VII. Additionally, Chapter IX and Article 34 have been repealed. Finally, three Chapters have been inserted and replace Chapter XI, specifically: Chapters XA, XB, and XC.

One of the most notable changes is that the authority to: determine, establish, and develop areas for transmigration has devolved to the relevant regional governments. This is notable for two reasons; this places greater administrative control on the regional governments themselves to be pro-active in providing support for the transmigration program and accountability.

In effect, the amendments would provide the opportunity to enterprising regional governments to either go it alone or enter into private / public partnerships to develop and exploit their regional potential by enhancing opportunities for transmigration. Whether this eventuates remains to be seen. Nevertheless, the potential for such a development is clearly available under the provisions of the amended law.

The new law provides for sanctions to be imposed on anyone who breaches the prevailing provisions. This is irrespective of whether the breach is conducted by a government official, a business entity, a transmigrant, or some other individual or group. Generally, the sanctions provide for:

• Oral / written warnings;
• Cancellation of licenses (for business entities), transmigrant status (for transmigrants), and / or the Minister of Labor and Transmigration (for groups of people); and
• Criminal sanctions.
Not all of the amendments are significant in terms of size.

For example, the provisions of Chapter VIII have been amended to merely change one word; “guidance” (pembinaan) to “development” (pengembangan). Nevertheless, there is seemingly a significant difference in terms of what is required between providing guidance and facilitating development. Yet, the amendment is just one word.

The bill comes into immediate force once it is promulgated. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.


lawcon said...

Nice update. Im tempted to argue that such powers should remain with the central government given that it necessarily involves more than two regions in any transmigration event.

IN some way a transmigration law seems to contravene the constitution's guarantee of freedom of movement.

Rob Baiton said...


Then argue away.

Generally, transmigration is "voluntary" therefore would not violate the freedom of movement clause.

In any event, it is a contractual agreement where the transmigrant agrees to accept government assistance, and for that assistance they are required to stay in a particular location for a specified period of time.

Perhaps on the centralization issue. Yet, reading the law, the authorities and powers really relate to the provision of facilities and services in the destination location. This seemingly could be handled by that regional / local government.

lawcon said...

I will choose not to....argue. I guess what could result is some areas being gutted and others growing. I guess market forces will decide which.

Assisted passage - something "we" should know a bit about. Were the assisted orphans a beneficiary of the scheme?? For argument's sake.

Rob Baiton said...


I am guessing that you are referring to a specific case. Do tell!

At least part with some of the "facts" so I can work out which case you might be referring to.

lawcon said...

Sorry, I was referring to the recent "sorry" concerning the ozzie orphans earlier last century - some brought to the country by assisted passage. For their good.

I dont know much about transM but what I do know doesnt sound so good. Take the life of the Javanese migrant in Papua.

Im off to Manado for a few days.

see you when I get back.

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