This article focuses on the criminalization of migrant smuggling in Indonesia. The authors examine how new offences have been introduced since 2011 to criminalize migrant smuggling in a major transit country for migrant smuggling to Australia. The article analyses the legal framework that has been established to combat migrant smuggling in Indonesia, both before and after the reforms of 2011. The authors reflect on how arrests for migrant smuggling have been managed by both the public prosecutor and the judiciary in practice and how sentencing practices in migrant smuggling trials are influenced by a range of factors including corruption, judicial discretion and broader social attitudes towards migrant smugglers.
The research methodology involved analysis of legal processes and practices concerning migrant smuggling in Indonesia. The authors surveyed the court cases between 2007 and 2012 that were accessible either at Indonesian courts or online. The authors also reviewed documents obtained from police and the Office of the Public Prosecutor and conducted interviews with officials working in those areas. Fieldwork was carried out over a period of eight months, between March 2010 and December 2012. The authors focused their research on the provinces of West Java and Nusa Tenggara Timor in particular because both areas are known exit points for irregular migrants to leave Indonesia on their clandestine sea journey to Australia.
Indonesian authorities managed to use Law No. 9 of 1992 on Immigration as well as the Criminal Code and Law No. 17 of 2008 on Shipping to prosecute some migrant smugglers. Individuals convicted under the old Law No. 9 of 1992 generally held low-to-middle positions within smuggling networks and were frequently employed as field coordinators, recruiters and boat crew. According to the authors, the low rate of smuggler arrests and the light sentences imposed on those found guilty reduced any deterrent effect the law might have had.
The article finds that the new Law, No. 6 of 2011 on Immigration, has the potential to be a more effective tool in the punishment and deterrence of migrant smugglers because it specifically criminalizes migrant smuggling. Law No 6. of 2011 does not, however, differentiate between the various actors involved in migrant smuggling operations. This is problematic because it imposes a relatively high minimum sentence on anyone found guilty of smuggling offences, including those who have only had minor roles.
The authors also find that corruption and social attitudes towards asylum seekers influence a judge’s exercise of discretion in sentencing. Law enforcement efforts, both pre- and post-2011, against migrant smuggling may be the result of corruption among government officials and that there is an absence of clear evidence that migrant smuggling trials have been conducted in a fair and transparent manner.
The strength of this article is its detailed analysis of recent Indonesian migrant smuggling cases and how Indonesian migrant smuggling law reform has affected the migrant smuggling phenomenon.
