IV. Current Domestic Legal Framework

This chapter briefly reviews the existing domestic laws that apply to the treatment of child domestic workers in Indonesia. The degree to which these laws are discriminatory, incoherent, and poorly enforced, are discussed in Chapter VI. The international standards to which Indonesia's national and local governments should adhere, are outlined in Chapter VII.

Criminal Code

Indonesia's Criminal Code prohibits many of the abuses perpetrated against child domestic workers, including abuse, assault, the use or the threat of the use of violence to coerce action, sexual harassment, rape, sexual assault, kidnapping, slave trading, trafficking, and murder.[15]

Child Protection Act of 2002

The Indonesian government passed the Child Protection Act in 2002 with the stated purpose of guaranteeing the rights contained in the United Nations Convention on the Rights of the Child.[16] The law defines a child as anyone under the age of 18 and prohibits economic or sexual exploitation of children, as well as violence and abuse of children.[17] The penalties for exploiting a child economically or sexually are a maximum of 10 years imprisonment and/or a maximum fine of 200 million rupiah (US$15,600).[18] Persons who commit acts of violence, including torture, against a child can be imprisoned for up to three years and six months, and/or fined a maximum of 72 million rupiah ($5,600).[19] The penalty increases if the child is seriously injured (five years imprisonment and/or maximum fine of 100 million rupiah ($7,800)) or dies (ten years imprisonment and/or maximum fine of 200 million rupiah ($15,600)).[20]

The law also promises every child the right "to rest and enjoy free time, to mix with other children of his/her own age, to play, [and to] enjoy recreation."[21]

Presidential Decree of 2002

In 2002, two years after ratifying the Worst Forms of Child Labor Convention, the Indonesian government, by Presidential decree, launched a twenty-year National Plan of Action for the Elimination of the Worst Forms of Child Labor (National Action Plan). The plan identified children who are physically or economically exploited as "domestic servants," along with 12 other areas of child labor, as a worst form of child labor.[22]

The National Action Plan is divided into three phases with targets to be achieved in the first phase after five years, in the second phase after ten years, and in the third phase after twenty years. The objectives of the first phase of the National Action Plan for 2003-2007 were to increase public awareness of the worst forms of child labor; map the existence of the worst forms of child labor; and to eliminate the worst forms of child labor in five areas: children involved in the sale, production and trafficking of drugs; children trafficked for prostitution; and children involved in offshore fishing, mining, and footwear production.[23] In co-operation with the ILO, the government established programs aimed to eliminate the worst forms of child labor within these targeted areas.

The second phase of the National Action Plan, scheduled for 2008-2012, is intended to replicate models used to eliminate the worst forms of child labor in the first phase "in other areas"-including children who are physically or economically exploited as "domestic servants."[24]

As discussed in Chapter VI, assessments of the success of the first phase of the action plan have been mixed.

Manpower Act of 2003

The Manpower Act-Indonesia's primary labor law-deals with the issue of child labor by starting with the basic premise that no entrepreneur can employ a child under the age of 18.[25] The law then goes on to provide an exception for employing a child aged 13 to 15 to perform "light work" for up to three hours per day, as long as the parents grant their permission, the work does not interfere with the child's schooling, and as long as the work does not disrupt the child's physical, mental, or social development.[26] The law, on its face, makes no provision for children aged 16 and 17 to engage in either light work or general employment.

The law also prohibits anyone from employing and involving children in the worst forms of child labor, such as slavery or practices similar to slavery; jobs that use, procure, or offer a child for prostitution, pornography or gambling; jobs which use a child to procure, or involve a child for production and trade of alcoholic beverages, narcotics, or psychotropic substances; and all kinds of jobs harmful to the health, safety, and morals of a child.[27] The types of jobs which damage the health, safety, and morals of children are not defined in the Manpower Act, but were determined by a ministerial decree in October 2003,[28] discussed below.

The Manpower Act arbitrarily distinguishes between "entrepreneur" businesses and "employers," obligating only entrepreneurs to abide by requirements within the act for agreements, minimum wages, overtime, hours, rest, and vacation.[29] The law defines an "entrepreneur" as an "individual, a partnership or legal entity that operates a self-owned enterprise… [or] a non-self-owned enterprise." In contrast, an "employer" is defined as an "individual, entrepreneur, legal entities, or other entity that employ manpower by paying them wages or other forms of remuneration."[30] Employers of domestic workers are not considered entrepreneurs, and therefore domestic workers are not protected by these labor provisions.

Even though employers of domestic workers are therefore exempt from having to provide standard labor protections, there remains at least a basic obligation under the law for employers to provide "protection which shall include protection for their welfare, safety and health, both mental and physical" to those they employ, including domestic workers.[31] Employers who fail to provide such protections are liable to a criminal sanction of between one month and four years imprisonment and/or a fine ranging from 10 million rupiah to 400 million rupiah (US$985 to $39,360).[32]

Ministerial Decree of 2003

A 2003 Decree by the Minister of Manpower Regarding Types of Work that are Hazardous to the Health, Safety or Morals of Children stipulates that the minimum age of employment for non-hazardous work is 15.[33] The Decree bars only employers in the formal sector from employing children to work overtime.[34]

The Decree also prohibits children under the age of 18 from performing work that is hazardous to their health, safety, and morals.[35] Among the conditions of employment identified as posing a threat to a child's health, safety, and morals, includes working between 6 p.m. and 6 a.m. or working within a locked working place.[36] It is a felony to employ any child under such conditions, and anyone who does so is subject to imprisonment for two to five years, and/or a fine of between 200 million rupiah and 500 million rupiah ($19,700 and $49,250).[37]

Domestic Violence Act of 2004

The Domestic Violence Act prohibits physical, psychological, and sexual violence against a husband, a wife, children, family members living in the home, and persons working in the home, and provides for sanctions against perpetrators of the abuse.[38] Neglect of household members is also criminalized.[39] Live-in domestic workers are included in the law's protections as it encompasses individuals "working to assist the household and living in the household."[40] Under the law, the state is also required to prevent the occurrence of such violence, protect victims, and to prosecute the perpetrator. The law provides stiffer penalties to those available under the Criminal Code and lessens the evidentiary standard necessary to prove the relevant crimes in court, by stating that only one other form of admissible evidence is necessary to corroborate the testimony of the victim.

Anti-Trafficking Act of 2007

In April 2007, Indonesia enacted a new law to tackle domestic and international trafficking in persons.[41] The new law criminalizes the act of trafficking in person, as defined by article 1(1):

Trafficking in persons shall mean the recruitment, transportation, harboring, sending, transfer, or receipt of a person by means of threat or use of force, abduction, incarceration, fraud, deception, the abuse of power or a position of vulnerability, debt bondage or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, whether committed within the country or cross-border, for the purpose of exploitation or which causes the exploitation of a person.[42]

The law makes clear that "exploitation" can include forced labor, forced service, slavery or practices similar to slavery, repression, extortion, physical abuse, sexual abuse, or the use of another person's labor for one's own profit.[43]

The 2007 law includes positive provisions for child victims and witnesses such as court sessions closed to the public, the right to be accompanied by a parent or guardian during examination, the examination of child victims and witnesses in the absence of the defendant, and the possibility to be examined outside of the courtroom.[44]

The fact that the new law does not enact all the protections provided to children under international law, and the lack of public awareness about this new law are fully discussed in Chapter VI.