KADIN INDONESIA
Indonesian Chamber of Commerce and Industry
Introduced in 2011, Law No. 6 of 2011 on Immigration, as amended several times, most recently through the issuance of Regulation of the Government in Lieu of Law No. 2 of 2022 on Job Creation (collectively referred to as “Law 6/2011”), currently serves as the umbrella framework for applicable provisions on immigration, which range from prerequisites to entry into or exit from Indonesian territory to immigration crimes.
However, in response to several judicial review petitions on Law 6/2011 that were issued by the Constitutional Court (Mahkamah Konstitusi – “MK”), the currently deliberated Draft Bill on the Third Amendment to Law 6/ 2011 (“Draft Bill”) has now been approved as a legislative product on the initiative of the Indonesian House of Representatives (Dewan Perwakilan Rakyat – “DPR”).[1]
In its present state, the Draft Bill is set to amend six articles that currently feature under Law 6/2011. Among various adjustments introduced under the Draft Bill, holders of Permanent-Stay Permits (Izin Tinggal Tetap – “ITAP”) are now entitled to receive re-entry permits with validity periods that are in line with those of the relevant ITAP.[2] Currently, re-entry permits may only be granted for two-year validity periods that do not exceed the original ITAP validity periods.[3]
Against the above backdrop, this edition of Indonesian Legal Brief (“ILB”) summarizes the new provisions that have been introduced under the Draft Bill, specifically as they relate to the following matters:
Adjusted Prevention and Prohibition Measures
As outlined above, one of the justifications for the introduction of the Draft Bill is to ultimately ensure that provisions set out under Law 6/2011 are in line with the results of judicial review petitions that specifically address this framework. In this regard, the Draft Bill has now amended two aspects that specifically relate to preliminary immigration investigations and investigations, as currently feature under Law 6/2011, by bringing said provisions into line with the relevant judicial review decisions, as highlighted in the following table:
| Judicial Review Petitions | Considerations of Judicial Review Petitions | Implications for the Draft Bill |
| Decision of the MK No. 40/PUU-IX/2011 (“Decision 40/2011”) | As any preliminary investigation phase does not conclude that a crime has been committed, this verdict has ruled that preliminary investigations should not be used as a justification for immigration officers preventing individuals from exiting Indonesian territory, and thus this element has been ruled unconstitutional.[4] | In addition to not having valid travel documents and being listed on the immigration prevention list, immigration officers may only prevent individuals from exiting Indonesian territory for the purposes of investigations at the request of authorized officials.[5] |
| Decision of the MK No. 64/PUU-IX/2011 (“Decision 64/2011”) | As the MK has deemed that the prevention of an individual from traveling abroad may be extended each time for a maximum six-month period implies legal uncertainty for the imposed individual, this verdict has ruled that the phrase “each time” when used for immigration prevention extension purposes to be unconstitutional.[6] | Immigration prevention should be applicable for no longer than a six-month period and may only be extended for a single, further six-month period.[7] |
Moreover, the Draft Bill now states that immigration prohibition measures may only be imposed in line with a maximum 10-year period and may only be extended for a further, single 10-year period.[8] Currently, maximum validity and extension periods of six months are available.[9]
Additionally, the Draft Bill states that immigration prevention and prohibition measures will be further addressed under a forthcoming Regulation of the Minister of Law and Human Rights.[10] Differing from the currently applicable Law 6/2011, such details are currently addressed under Regulation of the Government No. 31 of 2013 as the Implementing Regulation to Law 6/2011, as amended several times, most recently through the issuance of Regulation of the Government No. 48 of 2021 (collectively referred to as “Regulation 31/2013”).[11]
Expanded Sources of Funding
Law 6/2011 mandates that funds for the implementation and enforcement of the current framework should be borne through the State Expenditure Budget (Anggaran Pendapatan dan Belanja Negara – “APBN”).[12] However, the Draft Bill now allows for funding to also be sourced from other legitimate sources of funding in accordance with relevant Laws and Regulations, including:[13]
Key Takeaways
If the Draft Bill ultimately comes into force, then the third amendment will provide greater legal certainty for individuals who are subject to the imposition of immigration prevention and/or prohibition measures. This improved clarity is in line with two judicial review petitions relating to Law 6/2011. Moreover, the expansion of the applicable sources of funding for immigration services should hopefully minimize dependence on the APBN, thus allowing for the further accommodation of other needs relating to the organization of immigration services by the Ministry of Law and Human Rights beyond those that are currently borne by the APBN. This, in turn, should ultimately improve the country’s various immigration services.[14]
Source: hukumonline.com
National Economy
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