On Tuesday, September 26, 2023, the Government of Indonesia issued Presidential Regulation No. 2023 on the National Action Plan on Business and Human Rights (NAP-BHR). NAP-BHR is expected to be a reference for the state’s obligation to protect human rights, the responsibility of business actors, and the rights of victims for remedies that are “effective, legal, accessible, provide certainty, fair, transparent, and accountability, both through judicial and non-judicial mechanisms.”
Moh Abdi Suhufan, the National Coordinator of Destructive Fishing Watch (DFW) Indonesia, said that the government’s initiative in issuing the NAP-BHR needs to be appreciated because it can be a reference for the responsibilities of companies, governments, and the rights of workers exploited by employers. “Ironically, NAP-BHR was issued shortly after the Constitutional Court (MK) rejected a formal defect lawsuit over the Job Creation Law and a series of human rights violations in the midst of national strategic projects,” Abdi said.
However, NAP-BHR cannot be the only solution to human rights violations committed by corporations or merely become a label in determining who is a ‘responsible’ company. “Business and human rights need to be understood as the responsibility of companies to sacrifice their profits in order to improve the standards of protection of their workers and the environment in which a company operates,” Abdi said. In addition, NAP-BHR will not be implemented if the government continues its pro-development policies and perpetuates impunity for business actors.
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DFW Indonesia researcher, Miftahul Choir, said that NAP-BHR still needs to be critically examined so that it can be implemented properly. “DFW sees that NAP-BHR has not included the context of the marine and fisheries industry,” said Miftah. Destructive Fishing Watch (DFW Indonesia) noted that there are three main issues that need to be criticized concerning NAP-BHR, especially in the context of seafood industry:
Land Perspective Bias
NAP-BHR stated the document is based on baseline studies in three sectors, namely plantations, mining and tourism; the capture fisheries industry, which is also filled with human rights violations and the potential for forced labour, is not represented in the study.
In fact, the fishing industry has its own uniqueness that cannot be equated with the land industry. Supervision is difficult for fishing vessels that conduct fishing operations in the Indonesian sea for months. As a result, no one has a clear idea of the condition of the fishing vessel workers (AKP) and how they are treated. In other words, employers can more freely violate the human rights of their workers.
Unlike land-based workers who have fixed contracts and monthly salaries, AKPs have uncertain, short-term contracts and a profit-sharing salary system. This means that the wage received by AKPs depends on how many catches are made from a single trip, rather than the regional minimum wage that they will receive monthly. Working 9-5 also does not apply to fisheries workers who have to work for more than ten hours without breaks to prepare and throw nets, move catch fish, and clean nets.
While mainland workers get job vacancies from job search channels and various requirements, AKP recruitment is riddled with fraud and intimidation from brokers (calo). Instead of providing AKPs with contracts and competencies, brokers burden AKPs with debt.
Due to short-term contracts, long working hours, and financial and logistical limitations, AKPs find it difficult to unionize and consolidate like mainland workers. In fact, unionized workers are the most important requirement in the implementation of NAP-BHR.
Following the path of Fisheries Human Rights?
Prior to the NAP-BHR, the Government already had Fisheries Human Rights certification through the Minister of Marine Affairs and Fisheries (MMAF) Regulation No. 35 of 2015. However human rights violations continue to occur. This raises the question of whether NAP-BHR can make a difference in the implementation of Fisheries Human Rights certificates.
“Business actors are still reluctant to spend more money to obtain human rights certificates,” said Abdi. On the other hand, the government has also not given awards to entrepreneurs to conduct human rights assessments in companies. While in fact, human rights certificate ownership can be a selling point for business actors and encourage Indonesia’s fisheries industry which lags behind neighboring countries.
Compared to the fisheries human rights certificate, business actors are more interested in using the Fishery Vessel Crew Expertise Certificate and Fishery Vessel Certificate of Fitness as stipulated in PP No. 27 of 2021, a derivative of the Job Creation Law. Both certificates only regulate the skills and competencies required by the PPA, not the company’s responsibility to protect its workers and improve the way the company does business.
Monitoring
For now, NAP-BHR will only last for three years and focus on capacity building, awareness raising, evaluation of regulations, and formulation of technical regulations.
In the future, the government must ensure that technical regulations regulate the supervision mechanism, the parties responsible and authorized to supervise the implementation of NAP-BHR, and the parties authorized to impose sanctions. This is important to force business actors to comply with NAP-BHR and the government can collect the responsibility of business actors.
Based on the above, DFW Indonesia found that land perspective bias is a major issue in NAP-BHR and will have implications for other aspects ranging from worker protection to monitoring mechanisms.
DFW Indonesia demands the government to: i) Ensure that Ministerial Regulations, especially the Ministry of Manpower, the Ministry of Maritime Affairs and Fisheries, and the Ministry of Law and Human Rights contain the perspective of the capture fisheries industry; ii) Guarantee that there will be supervision and sanctions against parties who violate human rights, and; iii) Ensure a clear division of tasks, authorities and responsibilities between ministries and the BHAM task force.
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