Dimuat dalam Jurnal AMNA GAPPA Fakultas Hukum Universitas Hassanuddin, Makassar, Vol. 18 No.1 Maret 2010
Persoalan pekerja anak adalah persoalan yang menghinggapi banyak Negara terutama Negara-negara Dunia Ketiga. Anak terpaksa atau bahkan dipaksa bekerja demi membantu atau bahkan sebagai pilar utama ekonomi keluarga. Kebijakan untuk menghapuskan pekerja anak sama sekali dari tempat kerja dimaksudkan untuk member perlindungan pada anak dari kondisi yang membahayakan mental maupun fisiknya, tak terkecuali untuk memungkinkan anak mendapatkan haknya atas edukasi. Namun demikian kebijakan yang bermaksud baik tanpa memerhatikan kondisi di lapangan justeru dapat mendatangkan permasalahan yang lebih serius bagi anak. Tulisan ini mengajukan argument bahwa penghapusan pekerja anak hendaknya didahului dengan serangkaian kebijakan yang matang. Tanpanya, tulisan ini yakin, anak akan terbawa kepada keadaan yang justeru lebih buruk.
Kata Kunci: pekerja anak, hak asasi manusia
Indonesia is a country which is famously known of its huge number of child labor (ILO 2009). A report published by national labor survey found that some 2, 749, 353 children of the country aged 10-15 years in 33 province are working. Most of them are employed in very poor condition atmosphere. An estimation made by UNICEF for example, says that around 40.000-70.000 children are trafficked or being engaged in sex worker. Of that population, around 30 percent are children under the age of 18 (UNICEF 2009).
Considering the large number of children that work in bad forms of labor as mentioned above, it is therefore no doubt to say that the basic rights of those children are possibly under serious threat or even have been seriously violated. Children who work, especially those who work in a very bad condition are more likely to be ignored. The moral development of children who work in sex-related jobs for example, will be more likely affected which could cause negative effect in his or her future. A child’s health that works under a very extreme condition will deteriorate, not necessarily in an immediate time, but the effect could raise problems in his or her future.
This article focuses its attention on the current policy carried out through National Action Plan on the Eradication of Worst Forms of Labor adopted by the Indonesian government. The policy’s framework employs not only the spirit of ILO Convention No. 182 on the Elimination of Worst Forms of Child Labor, but also the ambition embedded in Convention Number 138 on Minimum Age for Admission to Employment to totally remove children from workplace, regardless the types of work they are working in whether in worst forms of work, in industries, and even in jobs which are essentially not causing harm. By adopting such policy, the government (and also the ILO) believes that the interest of child labor would be protected.
This paper will show not only that the highly social cost of the abolitionist policy will in turn be borne by the children themselves, but also potentially brings children to an even worst situation. This paper believes that the state should firstly consider the imminent consequence of the children before removing them from their workplace. Taking out the children from their job without considering its impact both to children and their families is like bringing children to another uncertainty. Unlike Bourdillon, White, and Myers (2009:106) who call for re-assessment of ILO’ policy in universalizing minimum-age this ILO-driven policy, this paper will show that the policy to eliminate all kinds of child labor on domestic level should firstly be tackled before removing the children from workplace.
In doing so, this paper will firstly exposes very briefly the background picture of the growing numbers of child workers in the archipelago as well as the effect of globalization and neo-liberalism which causes deprivation of children’s right. From this point, it will then critically assesses policies currently carried on by the government in relation to child labor and show how the abolitionist policy implemented by the state which was intended to guard and to protect the children’s basic rights are in fact contrast with the interest of children especially those who work. A feasible solution on how to protect the best interest of child workers within current legal as well as social context will be included to conclude this paper.
B. Human Rights, Globalization and The Growing number of Child Labor
As human beings, children are entitled to rights set out in the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948. The rights of the children are human rights, which in itself has at least four implications. First of all, is that state has no other choice but to respect children’s right. Human rights are not something which is given by the state since that the existence of human preceding the existence of state. Human rights exist simply because of the dignity of a person as a human. Therefore, state should respect these rights with no conditionality. Second, state should give the maximum protection to the enjoyment of the rights of children. This can be carried out by applying both repressive and preventive measures. Repressive actions can be accomplished by smashing down the violation of children’s right; while preventive measures can be achieved through the adoptions of legislations sufficiently protect the interest and fundamental rights of the children. Third, state has no other choice but to fulfil the right of the children. Human rights will loose its meaning if it is only written on the book but not being implemented. Giving the children their right by setting up conditions, and atmospheres needed for the greatest development of children are just examples of how state could fulfil its obligation under international law. Fourth, state should promote the human rights of children through various measures such as campaign and education. Campaign and education are not only directed to the society, but also to public officials so that both society’s attitude and public policy on children can help to achieve a greater Only in a society with a high awareness of rights can we hope a world with peace and harmony.
The fast growing number of labor in the process of production has become a common feature in a newly industrializing country like Indonesia. The decreasing amount of agricultural land and problems of overpopulation has transformed the country from basically agricultural to industrial society. Triggered by foreign direct investment, more and more Indonesian people are concentrated from the formerly agricultural sector into industries both in domestic and in the region. Lower tariff barriers, improved telecommunications, cheaper air fare has also made Third World countries like Indonesia as a promising place to invest.
People changed their jobs from formerly in the land field to factories. Big corporations plant their investment to Indonesia since the country has both rich natural resources as well as cheap labor. Child workers are not an exception, and even become the unique feature of industrialization of the nation. This phenomenon is in parallel with Marx who said that supply for child as well as women labor is critical for the early ages of industrialization due to their cheapness and suited to affine tasks that require little fingers (Edmond 2007:3).
Economic complexity becomes another factor for most Indonesian children to work as well as the motives for Indonesian people to press on their children into workplace. Indonesian children, especially those who are on the lowest level of society are really in a situation where they have no other choice but to drop themselves in the process of production for the survival of the family. Their parents might either have lost their jobs or simply left behind in a presently more very competitive labor market. The economic crises hit the country in the late 90’s brought economic turbulence, causes millions of Indonesian people suddenly fell into poverty. Suyanto (in Dwiyanti 2000) predicted that the number of children who work on street increased 10% during 1997-1998. At this point, one could really state that the economic difficulties have a relation with the increasing number of child worker.
There are of course many factors that contributed to the circumstance. Indonesian children are living in a society where there is a strong belief that to be a good child means that one should always be around to help their parents in need. This kind of belief leads children to a situation where they had no other choice but to give hands to their parents even if they are not mature enough to work. When a family live in poverty, all family members, including the children are expected bear the burden in order to survive.
Second, children are the most economic source of manpower available in the family. If a family has children, then they can push them to work without any significant refusal. Children in nature are fragile and weak, often cannot preserve their rights. Since they are relatively weak to deal with the grown-ups, they could easily be mobilized including to enter the labor market. In addition, child workers are seen as beneficial to the company since children are usually not aware of their rights compared to adult workers and not even know that they were exploited. Another factor which has a great share in shaping this phenomenon is that the country has lack a system to save those who are less fortunate in economic struggle. It means that if one fell into poverty, then there is no rescue boat to save their lives. They had to really struggle for their life and sacrifice their own assets, including the children in the family.
C. Public and Legal Policy To Eliminate Child Worker
In 2003, Indonesia published Law No. 23 Year 2003 on Child Protection which in between obliges the state to protect children disregard of their religion, race, sex, culture and language and physical/mental condition. Before the publication of this act, the country also has several laws related to children. Law No. 13 Year 2003 on Manpower for example, determines 15 years as minimum age to work and prohibits worst forms of labor. The Indonesian Criminal Law Code also gives adequate protection to children, although it does not specifically regulate child labor.
As a member of ILO, Indonesia has also ratified several important conventions adopted by the organization which deal with children. It ratified The ILO Convention Concerning Minimum-Age for Admission to Employment (No. 138 of 1973) and The ILO Convention on The Prohibition and Immediate Action for the Elimination of Worst Forms of Child Labor (no.182 of 1999). The two covenants are the core instruments of ILO which specifically deal with child workers. The ratifications of the conventions which in nature are international treaties have at least two legal consequences.
Firstly is that Indonesia should undertake necessary measures to ensure that the rights recognized by the convention could be realized and implemented. This can be accomplished through the adoption of legislations and policy in accordance with the two covenants. Not only adopting new legislations and policies, it should also have to remove all barriers which could hinder the full accomplishment of the covenant including taking out all legislations and policies which are not in favourable to the achievement of the convention’s ends. Second, since a treaty binds states who agree to bind themselves on it; non-cooperative conduct of a state to implement the conventions at domestic level can give ways to other state members to make a complaint to the monitoring body of the convention, namely the Committee of Experts on the Application of The Conventions and Recommendations. In addition, other member states could also push pressure through diplomatic approach by submitting a protest directly to the Indonesian government for its unwillingness to instigate the treaty.
While the Convention on the Eradication of Worst Forms of Labor is set up to save children from exploitation and inhuman work, the Minimum-Age Convention is basically opposing any kind of labor which involves children, those who by article 3 (1) are defined as everyone who are at age below 15. As a member of the treaty, Indonesia basically should also accomplish and put the aim of this universalized minimum-age policy on its national policies and legislations related to child issues. Even if the state was not a state of the convention, the treaty has become one of the core instruments of the ILO every member should respect, fulfil and realize regardless of whether member states have become parties of the covenant or not. In other words, there would be no more children of the country at below 15 of age become labor whatever forms of work it will be.
D. Abolitionist Policy: Some Critical Questions
There is no doubt that this paper supports the immediate elimination of worst form of labor, not only limited to children, but also to all workers. Every human being has the right to be treated as human, should be treated equally before the law as person and not merely as commodity which can be disposed every time it looses its economic value. This is in line with the philosophy stated in article 27 (2) of the Indonesian Constitution which says “every citizen is entitled to proper work and living condition.” The international community, this paper believes, shall work together so that the exploitation and inhuman work of children will become history. However, the eradication of worst forms of labor is not necessarily has to be achieved through the introduction of the abolitionist policy. As said by Udry (2004: 1 ) the vast majority of working children are engaged in less extreme activities, often in their own families’ farm .or business.
The first argument of the government to adopt the ILO policy to remove all people below the age of 15 from their workplace is quite identical to ILO‘s stand reflected in the article 1 and 2 (3) of Minimum-Age Convention, that if people below that age were successfully be removed from their work, they would be able to achieve the fullest mental and physical development as well as compulsory education. However, this oversimplified view could be questioned for some grounds.
Firstly, is it true that if children were removed from their workplace then they will automatically be able to afford education? This question deserves to have serious attention because children, especially those who spend most of their time in a full day to work are not engaged in an employment solely for the actualization of their aptitude. They work not because of being motivated to fill their spare time with some useful activities but because they are poor. Instead, they do that because they had no option to survive their life. They are indeed working to support the very basic needs of the family, they work because they are poor (Priyambada et al. 2002: 3). For them and their family, education is not a primary need that should be gained.
Furthermore, if we put it on the context, especially in a country where primary education is not free, one cannot expect that those who do not have money will afford education fees. Still if the primary education was free or will be provided through bridging program, it would not be easy for parents to let their children to go to school instead of working. Going to school or not, the family has to survive, they need food and housing. If there is no guarantee that the family would have alternative financial resource that supports the stability of the family, then even a free education would not even attract children or their family to leave the workplace.
Second, instead of bringing the children into a better situation, the removal of a child from his/her workplace could mean disaster for the family itself. Often, the whole family is absolutely dependent on the work of the children. A widow who had no job, for example would be really dependent her life from the money she got from her child who work in the factory or any other informal jobs. As an effect of the prohibition of child labor, she would probably seek for a secretive and illegal labor markets which of course could lead children into a worst circumstances.
Furthermore, there is also a forgotten social impact which would likely to appear if the universalized minimum-age or working would be implemented and enforced through criminal sanctions. Since the prohibition of child labor will cause scarcity on this type of labor while the demand of it is still high, especially in developing countries like Indonesia, what will follows next are easy to guess, black market of child labor will comes up. The prohibition of marijuana in the country could be used as analogy on how the demand of goods and services which are prohibited by law becomes the causing factor of unnecessary criminal conducts. As long as the demand of such goods and services still exist, then they will forever become latent problem that cannot even be tackled by law.
From the arguments pointed out above, it is clear that the universalized minimum-age convention which is now applied and promoted through domestic policy by the Indonesian government is on shaky ground. However, this paper realizes the obligation under the covenant the Indonesian government should accomplish. Instead of giving an unrealistic suggestion for the withdrawal of the treaty, this paper suggests that if such policy has to be implemented, then the government should firstly ensure that better services of education as well as social security for those who poor were provided, so that the implementation of the policy would be successful without having to sacrifice both the children and their families. In addition, there should be a guarantee that a proper and adequate measures will carried out anticipating facing socio-economic problems caused by the implementation of the policy.
The most feasible way to deal with this problem is in between to arrange an international cooperation to make education accessible to all of the Indonesian children, so that education fee would not become a barrier anymore. The problem of poverty should also be eradicated first in order to enable children to focus on their activity to develop their mental and physical health instead of finding money to support the family. Again Indonesian government could arrange or set up national and international cooperation with human /labor rights organizations as well as NGOs in order to improve the socio-economic condition of the less privileged society.
The implementation of anti child labor policy without having previously set up conditions supportive for the development of the children as well as improving the socio-economic conditions of the family will not likely to be succeeded. A policy which is intended to serve the interest of the children especially those who work, this paper believes, should be based on the real condition and circumstances faced by the children in the real world. It is an integrated implementation of both the improvement of education and welfare systems that should firstly be done before one can hope such abolition policy to be succeeded in removing children from workplace to school.
Bourdillon, et al. (2009) “Re-assessing Minimum Standards for Children’s Work, International Journal of Sociology and Social Policy Vol.29 No 3/4, 2009
Edmonds, Eric V. (2007) “Child Labor”, in T.P.Schultz & J.Strauss, eds, Handbook of Development Economics Vol 4, Enselvier, Amsterdam, North Holland, 2007.
ILO (2009) “ILO to Support the Indonesian Teacher’s Union Actions against Child Labor,” Press Release, 2 March
Priyambada, A. (2002) What Happened to Child Labor in Indonesia During The Economic Crisis? The Trade-off Between School and Work, SMERU Research Institute.
Udry, C. (2007) ”Child Labor”, Yale University, 2007.
UNICEF (2009) “Fact Sheet on Commercial Sex Exploitation and Trafficking of Children,” http://www.unicef.org/indonesia/Factsheet_CSEC_trafficking_Indonesia.pdf, accessed on May 21 2009.
White, B. (2004) “Constructing Child Labor Attitudes to Juvenile Work in Indonesia 1900-2000,” in Rebecca Elmhirst & Ratna Saptari (eds), Labor in Southeast Asia: Local Processes in a Global World, London: Routledge Curzon
 Dosen Hukum Hak Asasi Manusia pada Fakultas Hukum Universitas Jenderal Soedirman Purwokerto. Terimakasih diucapkan pada para pengajar di Institute of Social Studies (ISS) Den Haag terutama Jeff Handmaker dan Freek Schiporst atas masukannya.
 Article 2 (4) of the convention allows states whose economy and education facilities insufficiently undeveloped to lower down the initial minimum age until 14 years with prior consultation with the organizations of employer and worker concerned.