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14 Austl. J. Asian L. 183 (2013)
The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia

handle is hein.journals/ajal14 and id is 183 raw text is: Australian Journal of Asian Law, 2013, Vol 14 No 2, Article 1: 183-201 The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia Antje Missbach* and Melissa Crouch* The issue of people smuggling is one of global concern that many states have responded to by introducing a specific criminal offence of people smuggling. In Indonesia, a country that is a key transit point for asylum seekers heading to Australia, new offences have been introduced since 2011 in order to criminalise people smuggling. In this article we analyse the legal framework that has been established to combat people smuggling in Indonesia, both before and after the reforms of 2011. We consider how arrests for people smuggling have been dealt with by the public prosecutor and the judiciary in practice. We argue that the implementation and oulcome of the new offences for people smurggling in Indonesia murst be considered witllin the broIer social arnd political conext in hIlicI c<oulrls are silualed. \We demonstralte lhal sentencitg praclices in people siggling trials are informed by <i range o>ctors in addition to <or pItpionl, including jud<icial diset'lion and broader social attiludes tolwards people suIgglers. The 1pressing issue of people smugglers and asylum seekers in the .sia-P'acifll region has been overshalowedI by the reactions o the Australian melia anI the inability od Australian governments to reach a consensus on the most appI rop)riate response. The increase in numbers of' asylum seekers and the humaniarian crises crealed by sinking boats have ledI to one pxolitical crisis after another in \ustralia (\1arr and\ Wilkinson. 2003). In response. some analysis has been undlerlaken about the p)rosecution of people smugglers in Aust ralia (Ilunyor. 2001; \Iartin. 2011; Schloenharl anI \Iartin. 2012). IBy compnison. ihere is little analysis v ailable of the efforts taken by other countries in the region. such as Indonesia, to adIIress the (lilemma presentedI by people smuggling. In this article we analyse legal proceesses andi practices concerning p~eop~le smuggling in Indlonesia. W\e do0 so through a survey of court cases between 2007 anI 2012 that could be accessedI by the authors. either in person at Inlonesian courts or. less oflen. online. It is also basedl on (locuments obtainedI f'rom police and the Office of the 'ublic Proseculor (Kejaksaa .\gung), as well as interviews with ofTicials working in these Fieldwork for this research was conluctedI over a p)eriod oleight months between \Iarch 2010 anI I)ecember 2012.' We focused on the p)rovinces of \est Java an Nusa Tenggara Timor in particular. because both areas are notorious exit points fir irregular migrants allempting to reach Australia by boat. The nearest point f'rom Nusa Tenggara Timor is .ustralia's .\shmore reel'. which is only 12 hours by boat or 110 km away from the final border island,. Rote. whereas ChrisImas IslanI is about 100 km from the south coast of Java. Both destinations have, however, seen high numbers of interceptions over the last few years. Irregular migrants were arrested by Indonesian authorities either on their way to the coast or when their boats failed due to technical problems or bad weather conditions. Arrests by maritime police, the authorities responsible for policing Indonesian waters, rarely occur.3 * Melbourne Law School, the University of Melbourne, antje.missbach@unimelb.edu.au. Antje would like to acknowledge the support of her McKenzie Postdoctoral Fellowship at the University of Melbourne and the Fritz Thyssen Stiftung. Law Faculty, National University of Singapore, melissacrouch@nus.edu.sg. Melissa would like to acknowledge the support of the International Institute for Asian Studies, Leiden, during her time as a Postdoctoral Fellow from July to August 2012. All translations in the article are the authors' own. The titles of all laws and court cases have been translated into English. 1 While every attempt has been made to include all cases that occurred during this period, our data is limited by the willingness of personnel in the courts, the police force and the public prosecutors' office to share this information with us. We therefore do not claim that our data is comprehensive. 2 The field research for this article was conducted by Antje Missbach. 3 We have only been able to identify five court cases brought under Law No 17 of 2008 on Shipping, the statute usually applied in the case of arrests by the maritime police.