February |
Indonesia
Exploitation and
Abuse: The Plight of Women Domestic Workers
1. Introduction
Ratna started working as a domestic worker when
she was 13 years old… "I stopped going to school because after my father died
my family didn’t have enough money to pay for my schooling… [I found my first
employer] through my neighbours… I was told that my salary would be Rp.350,000
(US$40) per month. But I was only paid Rp.150,000 (US$17) per month…"
She told Amnesty International that she felt ‘cheated’ during the
recruitment process because her female employer turned out to be violent:
"[My employer] threw hot water on me when she got angry. She said I was wrong…
my work was not good enough…She also threw the boiler at me and once she almost
used an iron to hit me"…
"I cleaned the house, cooked, swept the
floor, and took care of the children… every day from five in the morning until
midnight." No breaks were allowed. "The only time I could
go outside was when I hung clothes to dry… once a week… My employer said, ‘girls
are not allowed to go outside’."
"[I slept] in the kitchen... with
no mattress… just on the floor. I didn't have a key [to the room]. I felt cold…
scared… My employer locked me in the room [every evening], saying it was for my
protection. I couldn’t go to the bathroom during the night".
Ratna
was not allowed to make phone calls or send letters either. Her employer said it
was too expensive. She could not contact her family, and did not have any
news of them.
Ratna’s experience with two of her other employers was
similar. She suffered poor conditions of work and physical and psychological
abuse. Her second employer spat on her "in the morning, in the afternoon, in
the evening and at night", and did not give her any salary. While she was
there she slept in the storage room: ‘there was no door…and it was very
small. There were lots of things around and it was smelly". The third
employer shouted at her continuously and slapped her frequently. Once she was
not given food for three days. There, she was forced to work from 5am until 1am
without any day of rest.
Ratna recalls that when her eldest sister died
her mother managed to let her know and asked her to come home for the funeral,
but she was not given permission by her employer so could not go. Her mother
tried to find out why she was not coming but Ratna did not tell her the truth
about her situation. "Until now, she doesn’t know what happened to me.
[I feel] too scared and embarrassed to tell her [Even now] I don’t speak
about my experience... [I feel] too ashamed".(1)
Too many women domestic
workers in Indonesia like Ratna face human rights abuses at work. Often forced
to work from as young as 12 years of age, they suffer economic exploitation and
poor working conditions as well as gender-based discrimination. Many are
subjected to physical, psychological and sexual violence. Some are even killed.
Their misery often remains hidden from view. Not only are the workers
themselves ashamed of talking about their experiences, but the authorities and
general public appear oblivious to them. By contrast, the plight of Indonesian
domestic workers in other parts of Southeast Asia and the Middle East often make
headlines in Indonesia.
It is estimated that there are approximately 2.6
million domestic workers in Indonesia. Poorly educated, unskilled, from poor
backgrounds, conducting menial tasks and without career prospects, they are
often considered and treated as second-class citizens. Their lower status in
Indonesian society is also explained by gender prejudices and stereotypes which
exist in relation to their work. Domestic work is seen as less important than
other types of work as women have been doing it without formal payment for
centuries.
In Indonesia, women domestic workers are not protected by
current legislation safeguarding workers rights, in particular the 2003 Manpower
Act (No.13/2003, Undang-Undang tentang Kentenagakerjaan). The Act
distinguishes between workers employed by ‘businesses’ or ‘social or other
undertakings with officials in charge’, and other workers. Domestic workers fall
under the latter category but the Act only guarantees its extensive protections
of workers’ rights to workers who fall into the former category. Thus the
Manpower Act itself discriminates against domestic workers and leaves them
without legal protection of their workers’ rights, such as access to the minimum
wage, a 40-hour working week, and standards providing for regular breaks and
holidays.
Under international law, all workers are entitled to core
labour rights, including the right to wages which provide them with an adequate
standard of living, reasonable limitation of working hours, the right to rest,
the right to holiday, and the right to join a trade union.(2) Yet, Indonesian
domestic workers are denied these rights. Their conditions depend exclusively on
the goodwill (or otherwise) of their employer, a situation which in the case of
Ratna and many others has led to tragic consequences.
What is a
domestic worker?
Although there is no standard definition of a
domestic worker, definitions in legislation throughout the world seem to agree
that domestic service requires the following components: the workplace is a
private home; the work performed has to do with servicing the household; the
work is carried out on behalf of the direct employer, the householder; the
domestic worker is directly under his/her authority; the work performed must be
done on a regular basis and in a continuous manner; and the employer shall not
derive any pecuniary gain from the activity done by the domestic
worker.(3)
Women domestic workers are exposed to human rights abuses,
including denial of their rights to health, education, an adequate standard of
living and freedom of movement. They are also at risk of trafficking(4) and
violence. Despite a Domestic Violence Law (which applies to domestic workers)
passed by the Indonesian parliament in September 2004, the lack, so far, of
awareness and enforcement of the law has resulted in domestic workers remaining
vulnerable to violence in the household as their working environment.
This was the situation found by an Amnesty International delegation when
it visited the province of Java, Indonesia in February-March 2006. Delegates
travelled to central and eastern Java where they met 40 women domestic workers,
community representatives, medical and legal practitioners, civil society
organizations, local and international NGOs, UN agencies, and representatives of
the police and local government. During their visit to Indonesia Amnesty
International delegates also met government representatives in Jakarta.
This report focuses on women and girl domestic workers who work for
private employers throughout Indonesia, whether they work part-time or
full-time, and whether they live in or outside their place of employment. Using
detailed analysis and case studies, the report outlines the human rights abuses
they face and makes recommendations to the Indonesian government to take urgent
steps to ensure that this situation does not continue. In particular, it calls
on the Indonesian government to condemn violations and take measures to address
the abuse of domestic workers’ human rights, ensure fair conditions of work for
all workers, and operate a "zero tolerance" policy on violence against women – a
scourge which affects too many women domestic workers and constitutes a grave
violation of their human rights.
2. Background
The latest census conducted by the Indonesian National Institute of
Statistics (Badan Pusat Statistik, BPS) in 2001 places the number of
domestic workers in Indonesia at 570,000. But a 2002 International Labour
Organization (ILO) study concluded that there are about 2.6 million domestic
workers in Indonesia, the overwhelming majority being women and girls.(5) The
percentage of male domestic workers remains marginal. According to the ILO
estimate, they comprise less than five percent of the total number of domestic
workers. Approximately one third of domestic workers are girls below the age of
18. The vast majority of domestic workers in Indonesia come from Indonesia
itself. All the domestic workers Amnesty International interviewed were
Indonesian citizens.
Indonesian women domestic workers usually come from
rural and poor urban areas in east, central and west Java, Lampung, west
Kalimantan and Nusa Tanggara to work in populated cities like Jakarta, Surabaya,
Medan, Batam, Balikpapan, and Pontaniak. They are usually recruited informally
and meet their first employer through family, friends or neighbours. It is
estimated by local domestic workers organizations that only 10 per cent
on average are recruited through employment agencies.
2.1 Cultural and social context
Domestic work has ancient roots in Indonesia, as it does in many
countries in Asia. It is not unusual for a rich family to have one or two
domestic workers from poorer areas working for them. Considered "servants" or
"helpers", they are referred to as "pembantu" or "pembantu rumah
tangga" which literally means "helper" or "household helper". Their work
traditionally includes but is not limited to: cleaning, washing, sweeping,
cooking, taking care of children, doing the shopping, and on rare occasions,
doing the gardening or looking after the employer’s business.
Domestic
workers tend to start very young – when they are 12 or 13 years old. According
to the Javanese or "ngenger" tradition, it is normal to send children
from poorer backgrounds to wealthier members of their extended family, or to
people who will commit to providing the child with a decent education and a
place to live.(6) In exchange, the child helps with household work. From the
point of view of the public, domestic workers are considered members of the
family and not employees.
However, the hierarchical gap between domestic
workers and their employers is so great that the public views their status as
deeply inferior. Domestic workers are considered to be subordinate to their
employer. The harsh conditions they endure are tolerated not only by the public,
but by the workers themselves who have been influenced by this understanding of
their position. Domestic workers are seen effectively as second-class citizens
whose subordinate role excludes them from those rights enjoyed by other members
of the community.
In addition to being perceived as "helpers" or family
members and facing the perception of inferior status because of their work,
domestic workers find it very difficult to have the value of their work
recognized. As in other countries, they suffer from the fact that domestic work
is overwhelmingly seen as "women’s work" and is not recognized as worthy of the
social esteem accorded to many other types of work. As women have been
conducting this type of household work for centuries free of charge, society as
a whole tends to dismiss it, and judges it as "unproductive".
2.2 Push and pull factors in the decision to become a domestic worker
Although some of the girls and women interviewed wanted to continue
secondary schooling, they were forced to drop out at the age of 12 or 13, due to
limited financial means. Many told Amnesty International that their families
could no longer pay the required tuition fees and other related costs.(7) A few
of them reported that the 1998 economic crisis further worsened their situation
and compelled them to work earlier than expected to help their parents or allow
their younger siblings to go to school.
Indonesia is a state party to
the Convention on the Rights of the Child (CRC) which guarantees the right to
education regardless of a child’s sex.(8) Indonesia’s own law recognizes the
equal right of boys and girls to education.(9) However, a common belief that
boys have a higher status than girls and will be better able to make use of the
education they receive means that low attendance rates for girls are not
necessarily regarded as a problem. Although Indonesian figures on gender parity
in education compare favourably with the global average,(10) the Indonesian
government acknowledges that girls have higher rates of illiteracy and lower
enrolment and participation in higher education than boys.(11) They also admit
that the curriculum and teaching methods reflect gender bias.(12) The Indonesian
government has launched a few initiatives in the field of education to counter
this trend. They have taken special measures such as quotas, fellowships,
subsidies and guaranteed admission for girls to schools and institutions of
higher education. They have also undertaken to revise textbooks, curricula,
teaching and learning methods to make them more sensitive to gender.(13)
According to the Ministry of Education, statistics show that girls are
more likely than boys to drop out from primary and secondary school.(14) Many
girls are forced by their economic condition and other factors to work before
they reach the age of 15, losing – sometimes for life – opportunities for
education. Similarly, women who marry young are likely to end their education
early, thereby limiting their job opportunities. This situation is further
worsened by the high level of unemployment in Indonesia: in February 2005, the
unemployment rate was over 10 per cent, and over 28 per cent for 15-24 year
olds.(15) Once women and girls have started to work as domestic workers, they
will find few other job prospects along the way.
All domestic workers
interviewed by Amnesty International said that they themselves chose their
current profession. Most saw domestic work as an opportunity to earn money and
acquire experience outside their local neighbourhood or region. It is likely
that cultural, economic and social factors played a substantial role in
influencing their vocational choice. Domestic work is one of the most obvious
employment options for poor, unskilled girls and women with limited education
who are seeking paid work and to whom many other avenues of employment will be
barred due to their socio-economic and educational status.
According to
local NGOs, girl domestic workers are particularly sought after because they are
"cheap" and not as demanding as their adult counterparts.(16) In other words,
children are not paid equally for equal work. Although children should not
engage in work under the same working conditions as adults, where this does
happen, Amnesty International believes that they should be remunerated equally
for their work.
That women and girls in Indonesia start work at such an
early age clearly violates the international standards to which the government
has agreed. In 1999, Indonesia ratified ILO Convention No. 138 concerning
Minimum Age for Admission to Employment, and declared the minimum age for
employment in the country be 15 years old.(17) Although, according to the
declaration which Indonesia made upon ratifying ILO Convention 138 on the
Minimum Age of Employment, free and compulsory education should be guaranteed in
Indonesia until the general minimum age of employment, which is 15, (18) an
estimated 1.8 million children of primary school age (7-12 years old), and 4.8
million children age 13-15 years, remain outside schools.(19)
Some
organizations have also documented the role of recruitment agencies in
encouraging young girls to become domestic workers. Reports indicate that some
recruitment agents travel to villages specifically to recruit domestic workers
and that some lie about conditions of work or salaries to attract interest.
Recruitment agents reportedly convince some girls and their parents by claiming
that domestic work is an easy route out of poverty for the girl as well as her
family.(20)
2.3 Lack of data
The lack of comprehensive figures on the number of domestic workers
currently working in Indonesia, and of disaggregated data on their gender, age,
origin, socio-economic background and conditions, makes determination of the
extent of the problem, and therefore the level of response needed to address it,
impossible. Even the Indonesian government acknowledges that they do not have
access to detailed figures concerning domestic workers, and rely on ILO
data.(21)
Neighbourhood cooperative areas (Rukun Warga and
Rukun Tentangga), in charge of monitoring the well-being of households
and providing them with administrative support, exist throughout Indonesia. They
constitute the lowest level of administrative unit in Indonesia and are
regulated by law.(22) The leaders of the cooperative areas are chosen by the
people within the cooperative area, at a village or neighbourhood level. One of
their tasks is to register and monitor the number of people living in every
household. While they could have a valuable role in registering domestic workers
at a local level, they do not currently assume any such role. Local officials
argue that the domestic worker population is too mobile to be effectively
recorded and monitored. It may also be that it is beyond the capacity of these
cooperative areas to conduct effective recording of domestic workers. Amnesty
International believes that the recording and release of comprehensive figures
on domestic workers ought to be one of the first steps taken by the Indonesian
government in tackling the concerns about the treatment of domestic workers in
Indonesia.
3. Domestic workers are vulnerable to violence
The context of isolation in which domestic workers live, together with
their low social status and dearth of employment options makes them highly
vulnerable to a range of abuses, including physical, sexual and psychological
violence. Amnesty International has recorded some of the extreme situations
domestic workers may face in their daily work. These situations occur in the
broader context of denial of a range of rights of domestic workers (see chapters
4 and 5).
3.1 Violence against women domestic workers
3.1.1 Physical and sexual violence against domestic workers
"He forced me to have sex with him." A 22-year-old domestic
worker
In February 2006, a 13-year-old domestic worker fled her
employer’s home in Bogor, West Java. In the bathroom, her female employer had
hit her head repeatedly and poured water over her body. She was then pushed face
down against the toilet bowl. Over the course of the girl’s seven-month stay at
the household, she alleges that her employer ill-treated her on numerous
occasions, including beating her with a pan and burning her with cigarettes.(23)
The girl was among those lucky enough to break free from an abusive
employment situation. For 20-year-old Syahriani, there was no escape. In May
2006, her male employer was arrested in Makassar, South Sulawesi province, for
ill-treating her and causing her death.(24) Her employer reportedly beat her on
her arms, legs and head, with an iron bar. The abuse occurred twice over a two
day period, resulting in Syahriani’s death two days later.
Such cases of
abuse are under-reported to the police and rarely reach the public eye. Isolated
from their family and friends, women domestic workers risk losing their jobs if
they speak out – a risk most of them do not feel in a position to face. Their
fear, coupled with the failure of government authorities to protect domestic
workers’ rights and to prevent, investigate and punish abuses committed against
them (see 3.2.2), leaves much of the violence perpetrated against such
women and girls in the shadows.
Domestic workers also face an acute risk
of sexual abuse, including rape. A 22-year-old domestic worker was forced by her
employer in Jakarta to have sex with his younger brother between June and
October 2004. "He forced me to have sex with [him]," she recalled. "He
started by trying to seduce me, flatter me, embrace and kiss me all over my
body. He was getting excited and dropped my hand so I managed to run. But he
caught me again, forced me to go to the room and shut the door". When she
fell pregnant, the employer’s family held a meeting, where they asked the
brother to marry her. However, the brother refused, saying she was ugly. On 15
November, the family expelled the domestic worker from the household. She was
paid her outstanding wages and given Rp. 40,000 [US$ 4]
to cover transportation costs.
A 33-year-old domestic worker
reported that she had been raped repeatedly by her employer, an entertainer,
between December 2004 and January 2005 in Jakarta. She said that he would
approach her while she slept and take off his clothes. She said, "he was a
big man", and there was nothing she could do. After some time, she managed
to escape the house.
The UN Special Rapporteur on violence against women
has stated that in certain circumstances, violence against women by private
actors, including gender-based violence that is perpetrated against women and
girls in the domestic sphere, should be considered a form of torture if it is
severe and if the state fails to take appropriate steps to prevent and punish
it.(25)
Dewi: "Once the male employer called me while he was
in the bathroom… He only had a towel on… [I felt intimidated as] we were
alone in the house… He then came to the kitchen and touched me from behind while
I was cooking… I rejected him… He tried again two other times but I kept
rejecting him… [I felt that] if the female employer had been there, it wouldn’t
have happened… [A month later], I was alone in the child’s room, and he came
saying that he was looking for some clothes… The female employer was in the
bathroom then… The male employer tried to have sex with me but he didn't
succeed... After the incidents, I decided to leave this employer. I was too
afraid… I had no protection there… I didn't know who to talk to, and didn't feel
brave enough to go to the police, as usually they are all men… I was afraid that
it would become my problem". (26)
Like Dewi, many women and child
domestic workers are vulnerable to sexual harassment. According to data from a
local NGO, child domestic workers in Pamulang, Jakarta, have been forced to
massage their employers in intimate areas, embrace and kiss them, and watch them
take a bath. The isolation of the household and the difference in status between
the domestic worker and the employer create an environment where employers can
act with a belief that they will not face any consequences for their abusive
actions.
According to international standards, sexual harassment
includes:
3.1.2 The scale of domestic violence against women
In 2006, the National Commission on Violence against Women (Women’s
Commission, Komnas Perempuan) revealed that over the preceding year there
was a sharp rise in cases of violence against women (VAW) reported to women’s
organizations, hospitals, religious courts, district courts, special service
units and high prosecution offices.(29) In 2005, over 20,000 cases were reported
– a 69 per cent increase on the previous year. Although this rise partly
resulted from an increased number of agencies willing to provide data to Komnas
Perempuan, it also demonstrated an increased public awareness that domestic
violence is prohibited and that there now exist national mechanisms to counter
this type of abuse.
Komnas Perempuan acknowledges that this number
"merely reflects the tip of the iceberg". Because cases frequently go
unreported, the incidence of violence against women of various forms is
certainly much higher.
Box 1: Definition of ‘violence against women’
The term "violence against women" has been defined in the UN Declaration on
the Elimination of Violence Against Women as "any act of gender-based
violence that results in, or is likely to result in physical, sexual or
psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or in
private life." (30)
It encompasses, but is not limited to, the
following:
* Physical, sexual or psychological violence occurring within the
family, including battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other
traditional practices harmful to women, non-spousal violence and violence
related to exploitation;
* Physical, sexual or psychological violence
occurring within the community, including rape, sexual abuse, sexual harassment
and intimidation at work, in educational institutions and elsewhere, trafficking
in women and forced prostitution;
* Physical, sexual or psychological
violence condoned by the State wherever it occurs.(31)
In their General
Recommendation 19, the Committee on the CEDAW(32) states that gender-based
violence is a form of discrimination, which gravely affects women's enjoyment of
their human rights.
Although women are also reported to be
perpetrators of violence in the home, particularly against children, the
majority of victims of violence in the home are women and girls. In Komnas
Perempuan’s study 82 per cent of reported cases of violence against women
occurred in the household environment, and over 45 per cent of victims were
housewives. Violence against domestic workers remains poorly documented and
reported; only 87 cases (0.52 per cent of total reported cases of domestic
violence) were reported in the Komnas Perempuan’s study. Mirroring broader
patterns of under-reporting, the actual number of incidents is certainly much
higher.
3.2 Obstacles to protecting women domestic workers from violence
The Criminal Code (Kitab Undang-Undang Hukum Pidana, KUHP)
specifically prohibits a number of violent acts against women including rape and
sexual assault (art 285-91), trafficking (art 297), sexual harassment (art
294.2), slave-trading (art 324-7), kidnapping (art 328), using violence or the
threat of violence to force somebody to do something against their will (art
335), murder (art 338-50) and abuse (art 292-4 and 351-8).
The Criminal
Code has traditionally been the reference law in Indonesia in relation to
provisions on violence against women. Many critics have highlighted the need to
amend the legislation to better suit the particular needs and rights of women –
among other criticisms – and a new Criminal Code has been under discussion for
many years. According to the Legal Aid Foundation Apik (Lembaga Bantuan Hukum
Apik, LBH Apik), article 356.1 of the Criminal Code needs to be amended
because it refers only to wives, children or parents as potential victims of
domestic violence but not to other types of victims including domestic workers,
or those who live together in other relationships, including lesbian, gay,
bisexual or transgender people. Further, the Criminal Code does not include
psychological violence as a form of violence.(34)
In September 2004, the
government took concrete steps toward eliminating violence against women by
ratifying Law No. 23 Regarding Elimination of Violence in the Household
(Undang-undang penghapusan Kekerasan dalam Rumah Tangga, KDRT).(35) This
law defines violence in the household as:
3.2.2 The limited effect of legal remedies
Successful prosecutions of domestic violence and other forms of
gender-based violence against women are relatively rare considering the scale of
the phenomenon. Many women are reluctant to file formal complaints. The few who
do often retract their statements so that many cases never reach the courts.
According to a 2002 report to the UN Special Rapporteur on the Independence of
Judges and Lawyers prepared by Komnas Perempuan and partner organizations, of
548 cases of VAW handled by four women’s crisis centres in Jakarta in April
2001-02, less than 10 per cent (45 cases) were reported to the police.(36)
Police officers at the Women’s Desk of the Metropolitan Police Station of East
Jakarta confirmed that VAW cases were rarely reported.(37) Only two cases of
abuse of domestic workers had been reported to them between January and March
2006.
Women domestic workers’ reluctance to report incidents to the
police is grounded in cultural, economic and educational factors.
First,
women may be ashamed to disclose the incident to the police. One domestic worker
interviewed explained that she did not go to the police because she thought they
were all male (see Dewi’s case, p10). In Indonesia, it is still taboo to
speak openly about sex, and attitudes women and girls should adopt about sexual
relationships are carefully coded. Extra-marital relationships are criminalised
in law. Any married man or woman who commits adultery or who takes direct part
in the act knowing that the co-partner is married shall be punished by a maximum
imprisonment of nine months (art 254). This means that women domestic workers
may be reluctant to report sexual abuse if they are married themselves or if the
perpetrator of the abuse was married him/herself at the time of the incident for
fear of being accused of breaking the law. Although recent discussions over the
controversial pornography law have shown an increased divide within Indonesian
society over these issues, a conservative attitude nurturing gender stereotypes
whereby a woman is confined in the private sphere and should refrain from having
sexual relationships before marriage still prevails, especially among the least
educated. In this context, female domestic workers may feel too
intimidated to disclose particularly intimate incidents to the police, a male
dominated institution. Amnesty International notes that this reluctance by women
domestic workers to testify could perhaps be challenged if there was more
awareness about the recently established gender desks exclusively staffed by
female police officers in police stations. (38)
Secondly, domestic
workers may fear losing their jobs or not finding other jobs afterwards if they
speak out. This is especially true if the case goes to court, as the process may
take a long time and discredit the worker in the eyes of her current and any
potential future employers. Additionally, the legal process can be time
consuming, making it difficult for the domestic worker to continue working while
going through court proceedings.
Lastly, victims may not be aware that
domestic violence is a crime. Provisions within the Law on Domestic Violence
state that the government shall "organize communication, information, and
education regarding violence in household; organize socialization and advocacy
regarding violence in household; and organize gender-sensitive education and
training on the issue of violence in household and shall establish gender
sensitive service standard and accreditation" (art 12). However, much
remains to be done to publicize the law and to operationalise its
awareness-raising provisions. The Domestic Violence Law remains poorly known,
even among judges, and domestic workers are among the last to be informed about
their rights in this regard. An overwhelming majority of the domestic workers
interviewed had not heard about the Domestic Violence Law and did not know it
was applicable to their situations.
Cases of violence and other abuses
against domestic workers reported to the police rarely make it to court. Most
are instead settled through "mediation" outside the scope of the legal system.
Domestic workers and employers come to an agreement, usually financial, to
resolve the matter in private and any criminal charges against the perpetrator
are dropped. Amnesty International was told that these practices are facilitated
to some degree by the higher status and financial weight of employers compared
to those of domestic workers. While employers are often in a strong position to
bargain on a financial amount to settle the case and thereby avoid criminal
punishment, domestic workers have little option but to accept what their
employer offers. With corruption rife across the judiciary and police system,
these practices may lead to impunity for perpetrators and lack of access to
justice for victims, potentially fuelling a cycle of abuse whereby perpetrators
go free and commit abuse over again.(39) The Indonesian government should ensure
that domestic workers who come to an agreement with their employer after having
reported their case to the police do so with full awareness of their rights.
Allegations of criminal assault should be investigated and prosecuted by the
police wherever there is evidence. Their decision to pursue an investigation
should not be affected by whether or not compensation of any kind has been
offered to or accepted by the alleged victim.
If a case goes to
court, domestic workers may still face obstacles. There may be some reluctance
among police, prosecutor’s offices, judges and lawyers to tackle the case due to
a persistent belief that domestic violence remains a private issue which does
not require state intervention. Many believe that the victim herself, rather
than the perpetrator, is responsible for the violence she endured, having
provoked such violence by not carrying out her work properly.(40) According to
local NGOs these obstacles to victims’ access to justice are further exacerbated
by a lack of "respect" for domestic workers within the judiciary itself.
Domestic workers are again victims of their low status within Indonesian society
(see 2.1).
Sunarsih: In 2001, a 15-year-old domestic
worker who worked in South Surabaya, east Java, was repeatedly hit for over an
hour by her female employer until she died. She was attacked for taking fruits
without, according to the employer, ‘official’ permission. Sunarsih reportedly
took the fruits because she was desperate to eat something, and had no other
access to food: her salary had not been paid and her employer forbad her from
leaving the house. The female employer was given a four-year prison sentence for
ill-treatment resulting in Sunarsih’s death by the Surabaya district court. The
sentence was reduced to two years on appeal. By 2005, the employer, who had
already been released, was again accused of ill-treatment by the three domestic
workers in her employment. The domestic workers reported to the police that they
had to work every day from 3:00 am until 1:00am, and that if they were tired and
late in their work, they would be beaten by their female employer with a brush,
a broom, or an iron pipe. Also, they were deprived of adequate food, and some
days given only water. In April 2005, the 38-year-old female employer was
sentenced to seven months imprisonment by the Surabaya district court for her
treatment of the three workers. In August 2005, she was released and was waiting
for the outcome of an appeal she had submitted to the High Court.
3.2.3 Limited victims’ protection mechanisms under criminal law
Until very recently, the absence under Indonesian law of protections for
victims and witnesses during the investigation of a criminal offence and before,
during, and after trial, has proved a substantial impediment to the effective
investigation and prosecution of crimes involving violence against women. These
crimes have been difficult to prosecute successfully in the past because, among
other things, many times they occur in private where no witnesses are present,
and victims are often reluctant to report the crime or to testify in court for
fear of reprisals and/or stigmatization.
However, protections available
to victims and witnesses have significantly increased in the wake of the passing
of a Witness Protection Act in July 2006, and with the provisions of the
Domestic Violence Act which was passed in 2004 (Law 23/2004). The Domestic
Violence Act details extensively the protections and services to be provided to
victims of domestic violence. The Witness Protection Act and the Domestic
Violence Act may be used in conjunction with one another.(41)
The
Witness Protection Act includes the important provision that victims and
witnesses do not have to give their testimony in court for that testimony to
qualify as admissible evidence. The presiding judge has the discretion to allow
the victim or witness to testify in writing or via teleconference in the
presence of an authorized official. These specifications are crucial to the
protection of victims and witnesses, including in cases of sexual violence.
The Domestic Violence Act obliges the police to provide temporary
protection (up to seven days) to a victim within 24-hours of receiving a report
of violence in the household, and within 24-hours of beginning to provide that
protection, the police are obliged to request a protection instruction ruling
from a court. However, the Act does not to specify in practical terms what a
protection instruction ruling should encompass, except that protection should be
"all efforts intended to provide a sense of security to the victim"(42) to be
provided by the family and social and state institutions. The Act does specify
procedures for the detention of perpetrators who violate protection instruction
rulings, without expanding on what would constitute this violation.(43) A
protection instruction ruling lasts for one year, with the possibility of an
extension. The Act also provides for health, counseling, spiritual mentoring and
companionship services to be provided to the victim.
Article 15 of the
Domestic Violence Act also obliges any person who witnesses or is aware of the
occurrence of violence in the household, to seek to prevent the continuation of
the crime, and to provide protection and assistance to the victim. This
provision is important to domestic workers due to their isolation from family
and friends, and the invisible nature of their work and living arrangements.
These protections available to victims and witnesses, should contribute
positively to attempts to investigate and prosecute certain crimes, including
violence against women, and should contribute to lessening the trauma and fear
victims and witnesses may have about reporting and testifying against criminal
acts.
However, there are still deficiencies under criminal law in
Indonesia in addressing the particular challenges of investigating gender-based
crimes, including crimes involving sexual violence. These, in conjunction with
limitations in the provisions of services, will negatively impact on the ability
of a victim or witness to avail themselves of protection and
services.
The Criminal Procedure Code (Kitab Undang-Undang Hukum Acara
Pidana – KUHAP) determines the procedures and rights of individuals at the
different stages of investigation and trial, and was under revision at time of
writing this report. Amnesty International is concerned that the current draft
of the revised KUHAP requires that a victim or witness must be present in court
to make their testimony, in contradiction with the provisions in the Witness
Protection Act abovementioned. The Witness Protection Act will remain applicable
despite this incongruity, but nevertheless the revised KUHAP must be amended to
avoid any contradiction and confusion between the two laws. In particular, the
revised KUHAP must permit victims or witnesses, where necessary for their
protection or for other valid reasons, including in cases of sexual violence, to
give their evidence in camera (closed proceedings) or via video or
audio-link in a manner that fully respects the right of the accused to a fair
trial. However, closed hearings should not be mandatory in such situations. As
in the Witness Protection Act, the revised KUHAP must be amended to provide that
the presiding judge should have the discretion to allow the victim or witness to
testify in open court, having regard to all the circumstances, particularly the
views of the victim or witness.
In addition, the revised KUHAP must be
amended to contain sufficient provisions designed to address the challenges of
investigating gender-based crimes, including crimes involving sexual violence.
For example the revision of the KUHAP must include provisions banning courts
from drawing inferences about the credibility, character or predisposition to
sexual availability of a victim based on prior or subsequent sexual conduct of
the victim. The revision must also include provisions that regulate the
admission of evidence regarding the consent or lack thereof of the victim in a
crime of sexual violence. A closed hearing to consider the admissibility or
relevance of such evidence should be available as of right. Furthermore the
revision should expressly provide that, while a court must not convict a
defendant unless satisfied of his or her guilt beyond reasonable doubt,
corroboration is not required for any crime, particularly crimes of sexual
violence.
The Domestic Violence Act provides that various
services be offered to victims or witnesses of domestic violence, including that
they be provided with health care and taken to a safe house or an alternative
dwelling. Although government-sponsored and NGO-run crisis centres and shelters
providing support and secure accommodation for domestic worker victims of
violence are available in Jakarta and other major cities they are not widely
available in more isolated areas, especially outside Java. There are also only a
limited number of hospitals which have expertise in dealing with violence
against women, especially outside major cities. Health providers Amnesty
International met in Jakarta explained that currently treatment and counselling
are available for free in some hospitals for victims of domestic violence.
Although these are positive steps, Amnesty International is concerned that the
limited provision of the services required by victims of domestic violence may
mean that many domestic workers may not have access to these services. Domestic
worker victims of domestic violence may also be impeded in accessing these
services due to their geographical isolation, or may simply not know that the
services exist.
4. Domestic workers are denied workers’ rights
Box 2 International standards on decent
conditions of work
By ratifying the ICESCR, Indonesia has agreed to be legally bound by
its provisions. These form part of domestic law(44) and include state
obligations in relation to ensuring decent conditions of work. As
enshrined in article 7 of the ICESCR and other standards, everyone has the
right to enjoy just and favourable conditions of work.(45) State parties
to the ICESCR must ensure, in particular: |
In 2003 the Indonesian government passed the Act Concerning Manpower
(Manpower Act, Law 13/2003) to embody the rights and protections of both
employers and employees. The Act contains provisions regulating key workers’
rights including minimum wage and equal remuneration, limitations on working
hours, leave, and the right to join a trade union. It also contains provisions
pertaining to the specific needs of women, including maternity leave, and the
regulation of child labour. It enunciates arrangements for termination of
employment and for industrial dispute resolution, and specifies criminal and
administrative sanctions for the violation of provisions in the Act. However,
despite the expansiveness of the sentiments in the preamble, the rights embodied
in the Act are not extended to all workers in Indonesia, and domestic workers
are among those excluded from its protections.
The Manpower Act makes a
distinction between two entities which employ people – ‘employers’
(pemberi kerja) and ‘entrepreneurs’ (pengusaha). An
‘employer’ is defined as "individual, entrepreneur, legal entities or other
entity that employ manpower by paying them wages or other forms of
remuneration." This description clearly would include employers of domestic
workers. An ‘entrepreneur’ is then defined as "an individual, a partnership or a
legal entity that operates a self-owned enterprise… [or] a non-self-owned
enterprise," and an enterprise is "every form of business" or "social or other
undertakings with officials in charge."(48) A domestic household would not fall
into the definition of an enterprise, and therefore domestic workers do not
qualify as being employed by entrepreneurs.
All protections of key
workers rights in the Manpower Act, such as the rights listed above, are
specified to apply only to the employees of entrepreneurs. Therefore, domestic
workers, and other workers whose manner of employment does not fall within the
definition of employment by ‘entrepreneurs’, are excluded from the protections
of fundamental workers rights which are extended to other workers in Indonesia.
Domestic workers are consequently left without legal protections of their
employment rights.(49)
The Manpower Act does contain a small number of
provisions relating to the obligations of employers, but none of these relate to
the rights of any worker they employ. Only one sub-section of one provision
describes the obligations of an ‘employer’ vis a vis an employee,
stipulating that in employing people, the employers are "under an obligation to
provide protection which shall include protection for their welfare, safety and
health, both mental and physical."(50) Violation of this provision does carry a
specified penalty of "a criminal sanction in jail for a minimum of one month and
a maximum of four years and/or a fine of a minimum of Rp10,000,000 and a maximum
of Rp400,000,000."(51) However, without any specific benchmarks or specified
rights, these vague concepts are open to varying interpretation and signify a
huge and discriminatory divide from the wide range of specific guarantees which
apply to the employees of entrepreneurs under other articles of the Act.
Furthermore, in practice this provision has meant little to the daily reality of
Indonesia’s domestic workers. The limitations and vagueness of article 35
certainly does not allow domestic workers a legal basis on which to claim
minimum wage, the regulation of reasonable working hours, or other rights
guaranteed to other workers in Indonesia under the Manpower Act.
The
preamble of the Manpower Act declares that the "protection of workers is
intended to safeguard the fundamental rights of workers and to secure the
implementation of equal opportunity and equal treatment without discrimination
on whatever basis…"(52) The Act contains no explanation of why its own
provisions discriminate against a significant proportion of the national
workforce.
4.2 Inadequate and abusive conditions of work
Imah: "I started working as a domestic worker when I was 14
years old. At that time I was offered work by my neighbour as a child minder in
Jakarta with a salary of 150,000 Rp [US$ 16] per month. But I was only paid
40,000 Rp [US$ 4.3] per month and in addition to the work of child-minding I had
to do household tasks like cooking, cleaning, ironing, and all other housework.
I also had to clean two cars every morning, and take care of all nine members of
the family. These were the normal conditions for seven months.
After Lebaran [the last day of Ramadan, the fasting month] I moved to a second employer and worked in the Petamburan region in West Jakarta. … In this place I also experienced psychological violence, being abused, complained at, my employers were sullen with me, and I was often not allowed to speak. For two years my wages were withheld by my employer so that I could not leave the village and could not change jobs.
Around 2000 I moved work to the area of Srengseng-Kebon Jeruk, West Jakarta. With this third employer my suffering did not end because I suffered sexual harassment and attempts of rape by my male employer. During nine months of work, my salary was not paid by my employer. Repeatedly I asked for my wages, but my employer answered that my wages had already been sent to my village through his mother-in-law. But my parents never received any of my monthly salary. I complained about this to my parents, and not long afterwards, my father picked me up to return home to the village.
During 2001 I worked for a fourth employer, in the area of Pondok,
Kopi-Klender, East Jakarta. In that place too, I was not free from violence. I
had to work very hard, getting up at 4am and going to bed at 1am. I had no rest
time and I was not allowed to leave the house. A month later I left this place
because I couldn’t endure it."(53)
4.2.1 No contract - deception and lies
4.2.2 Not a living wage
Domestic workers are subjected to massive underpayment compared to other
workers, and often live in conditions which are inadequate and abusive (see
4.2.3 and 5.2). Salaries of women domestic workers are on average half to a
third of the national minimum wage. The domestic workers interviewed by Amnesty
International in Jakarta were paid on average between Rp.150,000 (US$16) and
Rp.300,000 (US$32) a month. By comparison, the minimum wage, set annually by
province, was Rp.700,000-750,000 (US$74-$80) in 2004-2005, during their period
of employment.
Under the Manpower Act, "entrepreneurs are prohibited
from paying wages lower than the minimum wages" (art 90). In April 2006,
Muzni Tambusai, a senior official at the Manpower and Transmigration Ministry,
admitted that "it was still difficult to live on a minimum wage of almost
Rp.800,000 (US$86) in Jakarta".(57) The Confederation of All-Indonesian
Workers Unions was reported as estimating that up to 70 per cent of the almost
110 million workforce in the informal sector – those not employed by
entrepreneurs and therefore excluded from the protections of the Manpower Act –
do not receive even the minimum wage.
In Indonesia, domestic
workers have traditionally been denied minimum wage protection. It is usually
argued that as domestic workers are provided with accommodation, food, and other
allowances, it is very difficult to calculate how much to deduct from their
salaries for such expenses. Government officials have further argued that
setting a minimum wage would prevent some employers from hiring domestic workers
thus it would be detrimental to employers who would no longer benefit from this
service and to domestic workers who would not find a job.
While
regulating the rights of domestic workers presents specific challenges, this
does not justify depriving such workers of their rights, which Indonesia has
undertaken to respect when ratifying relevant international conventions (see
4.3). The primary concern should be to ensure that all domestic workers are
guaranteed a wage adequate to secure their right to an adequate standard of
living.
Minimum wage laws protecting domestic workers in other
countries
A number of countries, including the Philippines, have
fixed legislation on the minimum wage for domestic workers. Others like Colombia
and Spain have applied the national minimum wage to domestic workers. Some
national laws also entitle domestic workers to certain benefits in kind. For
instance, in the Philippines, the law on domestic workers holds that lodging,
food and medical treatment should be added to the minimum wage rate determined
under the rule on Employment of Househelpers. A number of national laws on
domestic work ensure that domestic workers are paid on a regular basis, whether
weekly or monthly. In South Africa, the law refers to certain deductions which
are not permitted by law. For instance, an employer cannot receive or withhold
any payment from domestic workers for: their employment or training; supplying
them with work equipment, including work tools or clothing, or of any food while
they are working or at the workplace. (58)
During the recruitment
process, some were deceived about their salaries. Although they were told they
would be paid a certain sum, some were paid half of this promised salary (see
Imah’s case above, p21). Domestic workers also reported denial of pay, late
pay, and denial of compensatory pay for overtime.
4.2.3 Long working hours and no rest time
4.2.4 No holiday
4.2.5 Obstacles to joining a union
Some of the domestic workers Amnesty International interviewed suffered
severe restrictions on their freedom of movement and association. In some cases,
their conditions amounted to forced confinement as they were not allowed to
leave their employer’s house, had no day off and could not join meetings and
other social events outside the employer’s home (see 5.3).
In
this context, many domestic workers are unaware of the plight of their
colleagues, and unaware of their right to join a union. Although their rights to
freedom of association and collective bargaining are not directly thwarted by
the government, these rights do not receive much publicity in spite of recent
legal interpretations in favour of domestic workers’ right to association.(68)
Employers do not seem to know that they are contravening the right of domestic
workers to unionize by preventing them from meeting other domestic workers, or
stopping them from attending specific gatherings of domestic workers at unions
and other places.
According to the ICESCR and other treaties and
standards:
4.2.6 Health
Box 3: International Standards on
assurances of equal rights between men and women
|
4.2.7 Exploitation of children
In Indonesia, domestic workers start working as young as 12 or 13 years
of age. The Ministry of Women Empowerment acknowledges that child domestic
workers (below the age of 18) are subjected to a number of abuses, including
physical, psychological, economic and sexual violence, (78)child trafficking and
forced labour. A number of young domestic workers told Amnesty International
that they felt "exhausted" and "demoralized". Some, who were able, returned to
their family because they could not cope with the poor working
conditions.(79)
Box 4: International standards on Child
labour
|
· is sold or trafficked;
· is bonded to repay family debt;
· works
without pay;
· works excessive hours;
· works in isolation or during the
night;
· is exposed to safety or health hazards;
· is unreasonably
confined to the employer’s premises;
· suffers physical violence or sexual
harassment;
· is very young. (82)
The Indonesian Law on Child
Protection stipulates that "every child…shall be entitled to receive
protection from the following: a. discrimination; b. exploitation of an economic
or sexual nature; c. neglect; d. harsh treatment, violence and abuse; e.
injustice; and f. other forms of mistreatment" (art 13.1).(83) Specific
protection must be given to children who have suffered economic or sexual
exploitation; who are victims of kidnapping, sale or trading; and who are
victims of violence including physical, psychological and sexual violence.
Economic or sexual exploitation of children, sale of children and violence
against children are strictly prohibited (art 66, 68 and 69).
In July
2005, a joint public statement made by the Minister of Manpower and
Transmigration, and the Minister of Women’s Empowerment stressed the need to
tackle the issue of child domestic workers. Following the July declaration, the
Ministry of Women’s Empowerment took the lead on promoting a new programme to
ensure better protection of child domestic workers.(84) The aim of the programme
is to obtain a commitment from policy makers to:
· decrease the number
of child domestic workers below the age of 15; (85)
· increase the number of
child domestic workers who have access to education;
· ensure that
recruitment agencies have an ethical code of conduct and operational standards
and procedures;
· increase the number of regulations prohibiting child work
below the age of 15.
As part of this project, the Ministry of Women’s
Empowerment launched guidelines on the protection of child domestic workers in
March 2006. These require employers to treat child domestic workers fairly and
humanely, pay them a just wage on time, and allow them time to pray. Employers
are encouraged to provide domestic workers with access to schooling as well as
one day off per week. The guidelines also call on labour agencies to
train domestic workers before they are employed, draw up codes of conduct, and
monitor the living and working conditions of child domestic workers. The police
are expected to monitor recruitment agencies and employers.(86)
Amnesty
International welcomes the new guidelines, but is concerned that they constitute
recommendations rather than binding obligations in the form of law. The
timescale of the programme and the exact means by which it is to be deployed
remain unclear. Amnesty International is also concerned that this programme is
led by the Ministry of Women’s Empowerment instead of the Ministry of Manpower
and Transmigration, and that it focuses only on child domestic workers and not
on all domestic workers. By doing so it does not address the roots of the
broader problem, that is, that domestic workers are denied full access to labour
rights under national legislation.
4.3 Need for full legal protection of domestic workers
Minimum standards on domestic
workers According to the ILO, domestic workers should have as a minimum legal protection covering: · Clearly defined daily hours of work and rest periods; · Clear-cut standards on night work and on overtime, including adequate compensation and subsequent and appropriate rest time; · Clearly defined weekly rest and leave periods (annual leave, public holidays, sick leave and maternity leave); · Minimum wage and payment of wages; · Standards on termination of employment (notice period, grounds for termination, severance pay); and · Action against child domestic work. Child domestic workers should be provided special protection including: a clear minimum legal starting age; reduced number of hours of work in accordance with the worker’s age; rest periods; clear-cut limits on overtime and night work; legal authorization to work (parental and from the labour authorities); obligatory medical examination; and access to at least elementary education or vocational training."(87) |
Some regional governments have autonomy in the areas of labour relations,
trafficking, human rights, gender-equality and other related issues, and have
produced regulations which affect domestic workers.
In Jakarta, there
are two laws regulating domestic work: Local Ordinance on Improving the Welfare
of Domestic Workers (No 6/1993);(88) and Local Ordinance on Manpower (No
6/2004). The latter offers limited provisions pertaining to the labour rights of
domestic workers. It states only that recruitment agencies must provide domestic
workers with accommodation and "welfare facilities", while employers must make
written contracts and register them with the Governor’s office.(89) The Local
Ordinance No 6/1993 is a little more comprehensive. It sets obligations of
employers towards domestic workers, and obligations of recruitment agencies when
they are placing domestic workers.(90) Conflict can be resolved through the
Domestic Worker Dispute Resolution Team which is appointed by the office of the
Jakarta governor, and penalties for breaching the provisions of local ordinance
No 6/1993 are up to three months imprisonment.
According to a 2006 ILO
study on current regulations affecting domestic workers, the 1993 ordinance’s
impact is limited due to: poor socialisation of the regulation; lack of
enforcement; unclear legal value (as it predates the Manpower Act which was
passed in 2003); weak ‘naming’ of domestic workers (they are referred to as
pramuwisma -house attendant- instead of pekerja rumah tangga
–domestic worker) and; the absence of provisions on a range of labour rights
including rest days, rest time and overtime, minimum wage, right of domestic
workers to associate, organize themselves, and freely express their opinions for
the purposes of improving their working conditions. In addition, the ordinance
does not reiterate the national requirement of a minimum age for entry into
employment of 15 years, and contains no labour inspection provisions.
Recently, draft regional regulations concerning domestic work have been
submitted to Provincial Parliament in Yogyakarta, Semarang, Surabaya and Manado.
In Surabaya, the draft regional regulation on protection of domestic workers for
east Java (Draf Rancangan peraturan daerah, propinsi Jawa Timur tentang
pelaksanaan perlindungan rumah tangga) includes provisions on fair
conditions of work, such as adequate breaks and salary, freedom from violence,
safe and healthy working conditions, right to receive training, right to join a
union, and right to a day of rest or adequate compensation (art 3). Provisions
pertaining to a written or oral contract between the employer and the employee
are detailed (art 12). It also states maximum hours of work per day.
Despite the positive intentions behind these regional regulations,
concerns remain that they may still offer a lower level of protection for
domestic workers’ rights than the Manpower Act. For instance, the maximum number
of working hours per day under the Manpower Act is eight hours, whereas the
Surabaya act stipulates a maximum of 10 hours for domestic workers. This type of
treatment, which varies between domestic workers and other workers, may create a
two-tier system, which "legally" reinforces discrimination against domestic
workers.
4.3.2 Towards a law on domestic workers
Amnesty International has been informed that the Ministry of Manpower and
Transmigration drafted a law on domestic workers(91) in June 2006 to better
regulate the conditions of domestic workers. This step is following a general
global trend in favour of the creation of specific domestic workers legislation.
In at least 19 countries throughout the world, specific legislation or
regulations to regulate the work of domestic workers have been put in place.(92)
These laws are beneficial in many ways. They allow the state to regulate better
an important part of the workforce, and ensure that minimum standards of
employment are provided to these workers. This can be done in a way that
protects the rights of the workers while ensuring the regulation is suitable
given the type of work and living arrangements prevalent in this sector.(93)
The draft law on domestic workers includes provisions pertaining to the
age of domestic workers (art 6),(94) their rights (art 9),(95) and employers’
responsibilities and duties (art 13 and 14).(96) It also provides that a written
contract between a domestic worker and the employer must contain certain
elements(97) and that contracts may be oral or written (art 20). Salary will be
regulated by local authorities (art 21.1). It also says that domestic workers
have the right to rest one day per week (art 22.5) and have 12 days annual
leave. Provisions on termination of employment are contained in article 25.
Sanctions against employers who fail to abide by this law are administrative
(art 28).
Despite the positive aspects of the recent draft, Amnesty
International is concerned that some of the ILO minimum standards on domestic
workers are missing. In particular, there is no mention of minimum wage, clearly
defined daily hours of work and rest periods; of provisions on night work and on
overtime, including adequate compensation and subsequent and appropriate rest
time; of provisions on public holidays, sick leave and maternity leave.
Provisions pertaining to the special needs of women, which are included in the
Manpower Act, are also missing.
The Director General for labour
inspection at the Ministry of Manpower and Transmigration was reported as saying
that "the bill carried no physical sanctions against any violation of the
agreement between housemaids and their recruiting agencies, or any violation of
the labour relationship between workers and their employers because the job was
informal".(98)
According to the UN Committee on Economic, Social and
Cultural Rights, state parties to the ICESCR are obliged to progressively
regulate the informal sector to ensure rights at work to everyone who works in
that sector. The Committee specifies that:
During the drafting process, the Indonesian government should seek the active consultation and participation of all relevant parties, including domestic workers’ associations and support groups, employers’ organizations and recruitment agencies’ representatives.
4.3.3 Need for dispute resolution mechanisms
As the provisions in the Manpower Act relating to dispute resolution
mechanisms do not apply to domestic workers, they currently have no recourse to
justice and reparations through the judicial system. They have been deprived
until now of access to any formal mechanisms.(100) It is unknown whether the new
Industrial Court, which is currently being set up, will accept to mediate cases
of disputes over domestic workers’ rights.(101) Domestic workers are currently
forced to rely on informal dispute resolution mechanisms to settle claims
against their employers. For instance, some domestic workers may seek assistance
from family members, recruitment agents, neighbourhood cooperative groups
(see 2.3) or the village head to resolve conflicts over labour rights
with their employer.
Given the international conventions on labour rights
it has ratified (see box 2), and its obligation under international human
rights law to ensure access to justice and an effective remedy for violations of
human rights (including labour rights),(102) the Indonesian government should
put in place appropriate mechanisms to give domestic workers access to fair and
transparent legal remedies, including access to the new Industrial Court. Any
further mechanisms needed for the resolution of domestic workers’ labour
disputes should be established, and guarantee of access to these and other such
mechanisms must be included in the domestic worker legislation, alongside clear
and appropriate measures to deter individuals from breaching the law and
effective supervisory mechanisms. (103)
5. Domestic workers are subject to other human rights abuses
5.1 No access to information about sexual and reproductive rights
5.2 Inadequate standard of living
5.3 Restrictions on freedom of movement and communication
5.4 Restrictions on the right to practice one’s faith
Although most domestic workers were allowed to pray freely in their
employer’s house, some domestic workers told Amnesty International that they
were not allowed to practice their religion. Some of the Muslim domestic workers
interviewed said that they were given pork to eat even though this is against
their religious convictions. Some were also prevented from going to the mosque
or from praying five times a day in accordance with their religious convictions.
According to article 18 of the ICCPR:
The Human Rights Committee in its General Comment on article 18 has clarified that:
"the concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group".
The following recommendations are addressed to: the President of
Indonesia; the Minister for Manpower and Transmigration; the Minister for
Justice and Human Rights; the State Minister for Women Empowerment; the
Coordinating Minister for People's Welfare; the Minister of Health; the Minister
for Home Affairs; the Minister for National Education; the National Parliament;
and relevant regional authorities.
6.1 Official condemnation and prohibition of abuses
· Officially recognize and publicly condemn all human rights abuses
against domestic workers, including gender-based discrimination, psychological,
physical and sexual violence and other human rights abuses that they are subject
to;
· Ensure that domestic workers are recognized legally as workers and
enjoy all the rights that are provided in international law and standards,
including the ICCPR, the ICESCR and relevant ILO conventions;
· Ensure that
the law explicitly prohibits the employment of children below the age of 15 as
domestic workers, and that children under the age of 18 shall not be engaged in
the worst forms of child labour, as provided in the CRC and ILO Conventions 138
and 182;
· Ensure that the law prohibits restrictions on domestic workers’
rights to assembly, to collective bargaining and to freedom of movement;
·
Immediately undertake a thorough survey assessing the number of domestic workers
in every Indonesian province. Through the next Indonesian census gather data on
their gender, age, origin, socio-economic background and conditions of living
and employment.
6.2 ‘Zero tolerance’ for Violence against Women domestic workers
· Publicize the Domestic Violence Law and relevant services, such as the
recently established gender desks in police stations, to domestic workers, their
employers and recruitment agents, including through the media;
· Conduct
training to ensure that legal practitioners, including judges and prosecutors,
and police are fully briefed about the content and applicability of the Domestic
Violence Law;
· Make police aware that their decisions to pursue an
investigation should not be affected by whether or not compensation has been
offered or accepted;
· Courts must employ all relevant provisions available
in the Witness Protection Act and the Domestic Violence Act to minimise the
trauma and fear experienced by victims and witnesses, and to provide appropriate
protection for victims and witnesses;
· Ensure that medical responses to
violence against women are integrated into all areas of care (e.g. emergency
services, reproductive health services, mental health services, and HIV and AIDS
related services).
6.4 Ensuring protection of other rights
· Take measures to ensure that domestic workers enjoy freedom of movement
and of communication;
· Take measures to ensure that education is free and
compulsory for all until the age of 15 years old;
· Take measures to ensure
employers respect domestic workers’ enjoyment of the right to education; take
positive measures to enable and assist domestic workers to enjoy the right to
education;
· Devise an education programme on sexual and reproductive rights
to provide domestic workers with access to information on family planning and
contraceptives, forced marriage, early marriage and pregnancy, the prevention of
HIV/AIDS and other sexually transmitted diseases;
· Take measures to ensure
that all human rights of domestic workers are respected, protected and
fulfilled, including their economic, social and cultural rights including rights
to an adequate standard of living, including adequate housing, food and
clothing.
· Ensure that healthcare is progressively available, accessible,
acceptable and of sufficient quality. Take immediate and concrete steps to
ensure that no one, including domestic workers, is denied access to healthcare
due to an inability to pay;
· Take measures to ensure that domestic workers
are free to practice their religion in the home of their employer and in places
of worship, and that they are not subject to any form of discrimination on the
basis of their religion
.********
(1) Interview, 28 February 2006,
Jakarta. All the names of domestic workers interviewed have been changed to
ensure their security, and all testimonies have been translated from Indonesian
to English.
(2) International Covenant on Economic, Social and Cultural
Rights (ICESCR), art 7 and 8
(3) See Ramirez-Machado, José Maria, Domestic
work, conditions of work and employment: A legal perspective, International
Labour Organization (ILO), Conditions of Work and Employment Series No. 7, 2003,
pp. 9-15, http://www.ilo.org/public/english/protection/condtrav/pdf/7cws.pdf
(hereafter Ramirez-Machado, ILO study, 2003).
(4) See International Catholic
Migration Commission (ICMC), Trafficking of Women and Children in Indonesia, May
2003.
(5) The survey was conducted by the University of Indonesia and the ILO
International Program on the Elimination of Child Labour (IPEC). See ILO,
Bunga-bunga di Atas Padas: Fenomena Pekerja Rumah Tangga Anak Di Indonesia
(Flowers on the Rock: Phenomenon of Child Domestic Workers in Indonesia),
2004.
(6) See Indonesian Ministry of Women’s Empowerment, Panduan Kebijakan
Perlindungan Pekerja Rumah Tangga Anak (Policy pilot for the protection of child
domestic workers), 2006, p. 16.
(7) In Indonesia, there is no legal
guarantee of free education. The government acknowledges that not all children
are able to attend secondary school because of relatively high schooling fees,
inaccessibility and a selection system based on catchment areas. See Second
Periodic Report of State Parties due in 1997: Indonesia, UN Committee on the
Right of the Child, UN Doc. CRC /C/65/Add.23, 7 July 2003, para. 321.
(8)
See art 2(1) and 28.
(9) Art 5 of Law No. 20/2003 on the National Education
System.
(10) See: http://millenniumindicators.un.org/unsd/mdg/SeriesDetail.aspx?srid=611&crid=
(11) Combined fourth and fifth periodic reports of State parties to CEDAW:
Indonesia, UN Doc. CEDAW/C/IDN/4-5, 27 July 2005, para. 45. See also para. 52:
"Despite all efforts, women’s sex roles and stereotyping remain major challenges
to the implementation of the Convention." And para 96: "At the elementary school
level, there was no gender gap between girls and boys, but there was a gap at
the higher level of education: girls completing high school amounted to only
12.8 percent while boys reached 17.5 percent. Similarly there was a significant
gap with regard to illiteracy rates for both sexes in urban and rural areas.
Statistics compiled by the Ministry of National Education for 1999/2000 reveal
that the percentage of the drop-outs at the elementary level was 3 percent. At
the junior high school level, the percentage of drop-outs was 4.1 percent while
at senior high school level it was 3.4 percent, the majority of whom were girls.
Because of this, it is difficult for them to obtain better jobs."
(12)
Combined fourth and fifth periodic reports of State parties to CEDAW: Indonesia,
UN Doc. CEDAW/C/IDN/4-5, 27 July 2005. para. 95 "Gender inequalities also remain
to be reflected throughout the educational activities such as in the teaching
and learning process, in the textbooks as well as in the teaching aids."
(13)
UN Doc. CEDAW/C/IDN/4-5, July 2005, see para 48 and 53.
(14) See UNICEF,
"Fact-sheet – girls’ education in Indonesia", 2003.
(15) Preliminary results
from a National Labour Force Survey reported in: World Bank, Indonesia: Economic
and Social Update, October 2005, p.16.
(16) Interview with the Surabaya Child
Crisis Centre (SCCC), 8 March 2006, Surabaya.
(17) The Convention provides
for state parties to declare a minimum age so that "no one under that age shall
be admitted to employment or work in any occupation" (art 1).
(18) The age of
completion of compulsory education should be the same as the minimum age for
employment according to ILO Convention 138. When Indonesia ratified ILO
Convention 138, it specified 15 as that age, which means that the general
minimum age of employment is 15 and free and compulsory education should be
guaranteed in Indonesia until the age of 15.
(19) The National Economic
Survey, 2002, quoted in UNICEF, "Fact sheet – girls’ education in Indonesia",
2003. http://www.unicef.org/indonesia/girls_education_fact_sheet_final_ENG_1_.pdf#search=%22girls%20indonesia%20education%2015%20years%20old%22.
(20)
See Human Rights Watch, Always on Call: Abuse and Exploitation of Child Domestic
Workers in Indonesia, June 2005.
(21) See Indonesian Ministry of Women’s
Empowerment, Panduan Kebijakan Perlindungan Pekerja Rumah Tangga Anak (Policy
pilot for the protection of child domestic workers), 2006, p. 16.
(22) See
the regulation by the Home Minister No. 7/1983 about the establishment of ‘Rukun
Tentangga’ and ‘Rukun Warga’.
(23) The names of the perpetrators and places
have been withheld to protect the victims from possible reprisals.
(24) The
Jakarta Post, 10 May 2006.
(25) The inference is that such violence meets
all of the requirements of the definition of torture, including a prohibited
purpose such as discrimination or punishment. See, for example, Radhika
Coomaraswamy, UN Special Rapporteur on violence against women, Report to the
Commission on Human Rights, UN Doc. E/CN.4/1996/53, 6 February 1996, paras.
42-50.
(26) Interview, 26 February 2006, Jakarta.
(27) CEDAW General
Recommendation 19, A/47/38.
(28) The UN Special rapporteur on violence
against women described sexual harassment as a form of violence in the
community, a form of sex discrimination, and an assault on female sexuality that
served to perpetuate women's subordinate position in society. Radhika
Coomaraswamy, Special Rapporteur on violence against women, Report to the UN
Commission on Human Rights, UN Doc. E/CN.4/1995/42, 22 November 1994. Also see
the UN Declaration on the Elimination of Violence against Women, Art 2.
(29)
This study includes the following forms of VAW: domestic violence (acts of
violence committed in the family and by individuals familiar to the victim),
violence in the community (acts of violence committed outside of the household
e.g. workplace) and VAW in relation to the state (acts of violence committed due
to failure of the state to uphold its legal commitments and VAW in conflict
areas). See Komnas Perempuan, "Violence against women 2005: domestic violence
and restrictions in the name of morality", http://www.komnasperempuan.or.id/public/KP%20Annual%20Notes%202006%20_1_.pdf,
2006.
(30) Art 1, The UN Declaration on the Elimination of Violence Against
Women.
(31) Art 2, The UN Declaration on the Elimination of Violence Against
Women.
(32) Indonesia ratified CEDAW in 1984.
(33) Government of
Indonesia, Commitment and voluntary pledges of Indonesia in the field of Human
Rights, Doc. Ref. 306/SOC 101/IV/06, 28 April 2006, http://www.un.org/ga/60/elect/hrc/indonesia.pdf
(34)
See Legal Aid Foundation Apik website, at http://www.lbh-apik.or.id/gd-legislative%20advocacy.htm.
(35)
Official translation available at http://www.komnasperempuan.or.id/public/UU%20No%2023%202004%20PKDRT-%20English.pdf.
For the original version, see State gazette of the Republic of Indonesia of
2004, Number 4419.
(36) Of the 45 cases, 10 resulted in convictions; five
sentences of between six and eight years’ imprisonment and one maximum sentence
of 12 years were imposed. Of the 257 cases handled by the Jakarta Metropolitan
Police Women’s Desk between April 2001 and April 2002, only 18 per cent reached
the courts; almost 20 per cent of cases were affected by the reluctance of women
to file formal complaints and the subsequent retraction of complaints.
(37)
Interview, 6 March 2006.
(38) The police run more than 200 "special crisis
rooms" or "women's desks" throughout the country where female officers receive
reports from women and child victims of sexual assault and trafficking and where
victims find temporary shelter. In US Department of State, "Country reports on
human rights practice", Indonesia, March 2006, http://www.state.gov/g/drl/rls/hrrpt/2005/61609.htm
(39) See UN Special Rapporteur on the independence of judges and lawyers, Report
to the UN Commission on Human Rights on the mission to Indonesia of 15-24 July
2002, UN Doc. E/CN.4/2003/65/Add.2, 13 January 2003.
(40) See Legal Aid
Foundation Apik website, at http://www.lbh-apik.or.id/gd-legislative%20advocacy.htm.
(41)
Should they contradict each other, the most specific law relevant to that crime
will take precedence.
(42) Art. 1 (4) Law No. 23/2004 Regarding Elimination
of Violence in the Household (Undang-undang penghapusan Kekerasan dalam Rumah
Tangga, KDRT, Official translation available at http://www.komnasperempuan.or.id/public/UU%20No%2023%202004%20PKDRT-%20English.pdf.
For the original version, see State gazette of the Republic of Indonesia of
2004, Number 4419
(43) Art. 35 (1-3) and Art. 38 (1-2), Law No. 23/2004
Regarding Elimination of Violence in the Household (Undang-undang penghapusan
Kekerasan dalam Rumah Tangga, KDRT
(44) According to section 7(2) of
Indonesia’s Law No.39/1999 on Human Rights, provisions of international treaties
which concern human rights and which have been ratified by Indonesia form part
of domestic law.
(45) See in particular the eight fundamental ILO standards
which Indonesia has ratified: Freedom of Association and Protection of the Right
to Organize Convention (No.87); Right to Organize and Collective Bargaining
Convention (No.98); Forced Labour Convention (No.29); Abolition of Forced Labour
Convention (No.105); Minimum Age Convention (No.138); Worst Forms of Child
Labour Convention (No.182); Equal Remuneration Convention (No.100); and
Convention concerning Discrimination in respect of Employment and Occupation
Elimination (No.111). Indonesia has also ratified the ILO Employment Service
Convention (No.88), Workers Housing Recommendation (No.115) and Labour
Inspection Convention (No.81).
(46) Art 26 of the ICCPR.
(47) Act of the
Republic of Indonesia No. 13/2003 Concerning Manpower (Manpower Act), 25 March
2003, preamble, paragraph d. English translation available at the Ministry of
Manpower and Transmigration website, http://www.nakertrans.go.id/perundangan/undang-undang/UU-13_eng.pdf.·
(48) Art 1 (4-6), Act of the Republic of Indonesia No. 13/2003 Concerning
Manpower (Manpower Act)
(49) During interviews with officials from the
Ministry of Manpower, Amnesty International was told that domestic workers are
not covered at all by the Manpower Act and do not fall under the responsibility
of the Ministry.
(50) Art 35 (3), Act of the Republic of Indonesia No.
13/2003 Concerning Manpower (Manpower Act), 25 March 2003, preamble, paragraph
d. English translation available at the Ministry of Manpower and Transmigration
website, http://www.nakertrans.go.id/perundangan/undang-undang/UU-13_eng.pdf.
(51)
Art 186 (1), Act of the Republic of Indonesia No. 13/2003 Concerning Manpower
(Manpower Act)
(52) Preamble, paragraph d., Act of the Republic of Indonesia
No. 13/2003 Concerning Manpower (Manpower Act)
(53) Testimony, Jakarta, 20
July 2006.
(54) Interview, 5 March 2006, Surabaya.
(55) Interview, 5
March 2006, Surabaya.
(56) See Ramirez-Machado, ILO study, 2003, p15.
(57)
The Jakarta Post, 27 April 2006.
(58) See Ramirez-Machado, ILO study, 2003,
pp. 55-62.
(59) Interview, 4 March 2006, Jakarta.
(60) Interview with
Dewi, Jakarta, 26 February 2006.
(61) Art 1.1 Reduction of Hours of Work
Recommendation, 1962 (No. 116).
(62) Blackett, Adelle, Making domestic work
visible: the case for specific regulation, ILO, 2000, Chapter 4, Hours of Work.
See: http://www.ilo.org/public/english/dialogue/ifpdial/publ/infocus/domestic,
and Ramirez-Machado, ILO study, 2003, pp. 19-22.
(63) Under the 2003 Manpower
Act (art 77), workers shall not work more than seven hours a day or 40 hours a
week for six workdays a week, or eight hours a day or 40 hours a week for five
workdays a week. Although these provisions do not apply to certain businesses,
if entrepreneurs wish their workers to work longer, they are required to obtain
their approval, pay them overtime and not make them work more than three hours’
overtime in a day or 14 hours in a week.
(64) The ILO Night Work Convention,
1990 (No. 171) and Recommendation (No. 178), which are applicable to domestic
workers, call for the adoption of specific measures to be taken for night
workers to protect their health, assist them to meet their family and social
responsibilities, provide opportunities for occupational advancement, and
compensate them appropriately.
(65) Interview, 8 March 2006,
Surabaya.
(66) Under the Manpower Act (art 75), workers are not obliged to
work on formal public holidays unless the type and nature of their job must be
conducted continuously or there is specific agreement between the worker and the
entrepreneur. They must receive overtime pay for such work.
(67) See
Ramirez-Machado, ILO study, 2003, pp. 42-45.
(68) See the Elucidation to
Section 10 of Law No.21 of 2000 on Trade Unions which specifically mentions the
right of domestic workers to associate, cited in ILO Jakarta, "The Regulation of
Domestic Workers in Indonesia, Current Laws, International Standards and Best
Practices ", p. 11.
(69) See also Convention No. 87: Freedom of Association
and Protection of the Right to Organize Convention (1948), Convention No. 98:
Right to Organize and Collective Bargaining Convention (1949), and art 104 of
the Manpower Act.
(70) Interview with Susi Apriyanti, Chairperson of DW
(Domestic Worker) Union Tunas Mulia, Yogyakarta, 21 March 2006.
(71)
Interview, 9 March 2006, Surabaya.
(72) See Human Rights Watch, Always on
Call: Abuse and Exploitation of Child Domestic Workers in Indonesia, June 2005,
and ILO, Bunga-bunga di Atas Padas: Fenomena Pekerja Rumah Tangga Anak Di
Indonesia (Flowers on the Rock: Phenomenon of Child Domestic Workers in
Indonesia), 2004, pp. 109-110.
(73) See World Health Organization,
"Macroeconomics and Health initiatives in Indonesia" http://www.who.int/macrohealth/action/Indonesia_finalreport.pdf,
April 2006.
(74) See Subsection 5, Occupational Safety and Health, Manpower
Act.
(75) Several ILO conventions address the maternal health of women
employees, in particular hazardous working conditions and pregnancy-related
discrimination, including Maternity Protection Conventions, Nos. 3 (1919), 103
(1952) and 183 (2000), and Maternity Protection Recommendation, No. 95
(1952).
(76) UN Charter (Art 1, 13 and 55(b) and 55(c)); Universal
Declaration of Human Rights (art 2); ICCPR (Art 2(1) and 3); ICESCR (Art 2(3)
and 3). The UN Charter is a treaty binding on all UN member states, including
Indonesia.
(77) Also see ICESCR: "Special protection should be accorded to
mothers during a reasonable period before and after childbirth. During such
period working mothers should be accorded paid leave or leave with adequate
social security benefits" (art 10.2).
(78) The Ministry defines economic
violence as the withholding of and inadequate pay.
(79) See Human Rights
Watch, Always on Call: Abuse and Exploitation of Child Domestic Workers in
Indonesia, June 2005.
(80) The CRC was ratified by Indonesia in 1990. Also
see ICESCR, which provides for the protection of children from economic and
social exploitation, and harmful or dangerous employment, and requires states to
set age limits on child employment (art 10(3).
(81) Art 3, ILO Worst Forms of
Child Labour Convention (No. 182).
(82) See ILO-IPEC, Facts on Child Domestic
Labour, Geneva, March 2003, http://www.ilo.org/public/english/standards/ipec/publ/download/factsheets/fs_domesticlabour_0303.pdf
(83)
Law on Child Protection (No. 23/2002, Undang-Undang tentang Perlindungan
Anak).
(84) See Indonesian Ministry of Women’s Empowerment, Panduan Kebijakan
Perlindungan Pekerja Rumah Tangga Anak (Policy pilot for the protection of child
domestic workers), 2006, p. 16.
(85) In Indonesia, children between the ages
of 15 and 18 years old are allowed to work under certain conditions.
(86)
Inter Press Service, "Indonesia: Law awaited to protect child domestic workers",
12 April 2006, www.ipsnews.net/news.asp?idnews=32864
(87) Ramirez-Machado,
ILO study, 2003, p. 69.
(88) ILO’s legal analysis of current regulations
affecting domestic workers in Indonesia, pointed out that the Jakarta Local
Ordinance in Improving the Welfare of Domestic Workers, although providing
standards to protect domestic workers, is not well-known and its legal value is
unclear, given that it was passed before the entry into force of the Manpower
Act. See ILO Jakarta, "the regulation of domestic workers in Indonesia, current
laws, International Standards and Best Practices", http://www.ilo.org/public/english/region/asro/jakarta/download/dwregulation.pdf,
June 2006.
(89) See ILO Jakarta, "the regulation of domestic workers in
Indonesia, current laws, International Standards and Best Practices",
p17.
(90) The recruitment agencies must ensure that employers provide
domestic workers with accommodation, training, health care, a minimum of six
months employment, a choice of employment and a written contract. Equally,
employers are required to grant pay, food, drink, annual leave, a new set of
clothes per year, a decent place to sleep, humane treatment, an opportunity to
worship, basic health care, registration with the Lurah (urban district) Head,
and registration with the Jakarta Manpower Office (if an agent is not used). See
ILO Jakarta, "the regulation of domestic workers in Indonesia, current laws,
International Standards and Best Practices", p16.
(91) See "Rancangan
Undang-Undang Republik Indonesia Nomor: … Tahun… Tentang Perlindungan Pekerja
Rumah Tangga" (Draft Law on domestic workers).
(92) http://www.ilo.org/public/english/protection/condtrav/pdf/7cws.pdf,
p14.
(93) See the South African and Philippines model for best practices
models in ILO Jakarta, "The Regulation of Domestic Workers in Indonesia, Current
Laws, International Standards and Best Practices", pp 28-38 and Ramirez-Machado,
ILO study, 2003.
(94) A number of conditions must be filled before a
recruitment agency or a private employer is authorised to recruit a domestic
worker between the age of 15 and 17 years old (e.g. they must obtain prior
parents’ authorization, ensure the domestic worker can read and write, that she
will not work at night, that she will have the opportunity to continue studying
etc).
(95) It includes the right to adequate breaks, the right to a healthy
and safe working environment, the right to form or join a union, the right to
practice their own faith, and the right to be free from discrimination and
violence in the home.
(96) Employers must pay wages in accordance with the
work contract and on a monthly basis; grant adequate breaks; provide adequate
time to conduct acts of devotion in accordance with their religion and other
beliefs; provide due protection to ensure adequate health and welfare conditions
in the workplace; provide halal and nutritious food; provide minimum facilities
including clothes, and a place to sleep; and not make domestic workers conduct
work which may be harmful.
(97) A written contract must include the identity
of both parties, their rights and duties, the type of work which will be
conducted by the domestic worker, the working conditions (breaks etc), working
hours, religious aspects, health and welfare protection, dispute resolution
mechanisms, place and date of the agreement and signature of both parties.
(98) The Jakarta Post, 7 September 2006.
(99) Committee on Economic,
Social and Cultural Rights, General comment No. 18: The right to work (art 6 of
ICESCR), UN Doc. E/C.12/GC18, 6 February 2006.
(100) The Central Industrial
Dispute Settlement Panel (P4P) stated in 1959 that disputes involving domestic
workers are outside the jurisdiction of the formal employment dispute resolution
system. See Ramirez-Machado, ILO study, 2003, p. 11.
(101) Law No. 2 of 2004
on Industrial Dispute Settlement.
See: http://www.ilo.org/dyn/natlex/docs/MONOGRAPH/67355/64259/F716574065/IDN67355.PDF.
(102) The right to an effective remedy implies the right to seek and obtain
full reparation, including restitution, compensation, satisfaction,
rehabilitation and guarantees of non-repetition. "In accordance with its
domestic law and international legal obligations, a State shall provide
reparation to victims for acts or omission which can be attributed to the State
and constitute gross violations of international human rights law or serious
violations of international humanitarian law". Principle 15 of the Basic
principles and guidelines on the right to a remedy and reparation for victims of
gross violations of international human rights law and serious violations of
international humanitarian law, adopted by the Commission on Human Rights in its
Resolution 2005/35 of 19 April 2005.
(103) See Ramirez-Machado, ILO study,
2003, p. 70.
(104) Paragraph 96 of the Beijing Platform for Action, the
inter-governmental agreement reached at the end of the Fourth UN World
Conference on Women, 1995.
(105) The ICESCR was ratified in 2006.
(106)
Committee on Economic, Social and Cultural Rights, General comment No. 14: The
right to health (art 12 of ICESCR), UN Doc. E/C.12/2000/4, 11 August 2000, para.
44.
(107) Combined fourth and fifth periodic reports of State parties to
CEDAW: Indonesia, UN Doc. CEDAW/C/IDN/4-5, 27 July 2005, para 131,
p.45.
(108) Under section 348 of the Criminal Code, any person performing an
abortion is subject to imprisonment for five and a half years. Under section
346, a woman wilfully inducing her own miscarriage is subject to imprisonment
for up to four years. See UN Population Division, Department of Economic and
Social Affairs, ‘Abortion Policies: A Global Review 2002’,
www.un.org/esa/population/publications/abortion/index.htm.
(109) Combined
fourth and fifth periodic reports of State parties to CEDAW: Indonesia, UN Doc.
CEDAW/C/IDN/4-5, 27 July 2005, see for example para 130, 135, and 124
(110)
Combined fourth and fifth periodic reports of State parties to CEDAW: Indonesia,
UN Doc. CEDAW/C/IDN/4-5, 27 July 2005, paras. 129, 135 and 139, p. 44, 46 and
47.
(111) Committee on the Rights of the Child, General Comment No. 4:
Adolescent Health and Development in the Context of the Convention on the Rights
of the Child, UN Doc. CRC/GC/2003/4, 1 July 2003, para. 31
(112) See http://www.who.int/mediacentre/factsheets/fs239/en/index.html.
(113)
WHO Multi-country Study on Women's Health and Domestic Violence against Women,
http://www.who.int/gender/violence/who_multicountry_study/summary_report/en/index.html
(114)
Art 11.1, ICESCR.
(115) Interview, 11 March 2006, Surabaya.
(116)
Committee on Economic, Social and Cultural Rights, Sixth session (1991), General
comment No. 4: The right to adequate housing (art 11.1 of ICESCR).
(117)
Interview, 8 March 2006, Surabaya.
(118) Interview, 9 March 2006,
Surabaya.
(119) Indonesia ratified the ICCPR in 2006.
(120) Human Rights
Committee, Sixty-seventh session (1999), General comment No. 27, Freedom of
movement (art 12 of ICCPR) paras 1 and 6.