How to cite:
Ibrahim Nainggolan (2021). Criminal Liability for Placement Actors
Illegal Female Labor. Journal Eduvest. 1(12): 1397-1404
E-ISSN:
2775-3727
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Eduvest – Journal of Universal Studies
Volume 1 Number 12, December 2021
p- ISSN 2775-3735 e-ISSN 2775-3727
CRIMINAL LIABILITY FOR PLACEMENT ACTORS ILLEGAL FEMALE
LABOR
ARTICLE INFO ABSTRACT
Received:
November, 26
th
2021
Revised:
December, 17
th
2021
Approved:
December, 19
th
2021
The distribution of Indonesian workers carried out by
individuals, not by the government or by official private
companies distributing Indonesian workers, still occurs. The
placement of workers in Indonesia abroad needs to be carried
out in an integrated manner between government agencies,
both central and regional and the participation of the
community in a adequate legal products to provide maximum
protection. The state is obliged to guarantee and protect the
human rights of its citizens who work both at home and abroad
based on the principles of equal rights, democracy, justice,
social, gender equality, and anti-discrimination. know the
criminal responsibility for individual perpetrators who
participate in the placement of illegal female workers to
Malaysia. This research is a normative legal research taken
from secondary data in the form of library research. Based on
the results of the study, it is understood that legal
arrangements regarding legal practice have not been able to
explain the doctrine of participating in criminal acts. On the one
hand, participating in doing so is equated with acts together so
that it does not distinguish between participating in committing
as a form of participation and criminal acts in general. The
target of the placement of workers is directed at placing
workers in the right positions according to their expertise, skills,
talents, interests and abilities by taking into account the
dignity, rights, and legal protection.
KEYWORDS
Criminal Liability, Perpetrators, Female Workers, Illegal
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International
Ibrahim Nainggolan
Criminal Liability for Placement Actors Illegal Female Labor 1998
INTRODUCTION
The 1945 Constitution of the Republic of Indonesia in particular Article 27
paragraph (2) states that every Indonesian citizen has the right to work and a decent
living. Work is a way for humans to get their dignity by working to improve one's welfare
even though they must be faced with the reality of limited employment opportunities in
this country (Prasetyo, 2014). In this case the State is responsible for work and a decent
living for citizens to live (Engkus, 2016). This formulation means that citizens are entitled
to constitutional rights.
Work carried out at home and abroad is a working relationship to produce goods
or services to meet the needs of the community (PUTRAWAN, 2018). This is contained
in Article 2 paragraph (2) of Law no. 13 of 2003 which explains that the workforce is
every man or woman who works to meet the needs of life (Sugiyanto, 2018). According
to (Asyhadie, SH, & Rahmawati Kusuma, 2019) the position of workers can essentially
be viewed from two aspects, namely from a juridical aspect and from a socio-economic
perspective. From a juridical point of view, workers need a decent living, from a socio-
economic point of view, workers need legal protection from the state in the event of
arbitrary actions by employers (DJUMIARTI, 2015).
(Ismatullah & Bambang, 2013) in his book explains that labor law is a regulation
of labor relations, both individual and traditional. The law covers issues such as the
application of wages, job security, occupational health and safety. Labor law focuses on
workers who work in an employer-employer relationship (Mulyadi, 2017).
The legal rules regarding individual perpetrators of Illegal Workers are contained
in Article 82 of the Law on the Protection of Indonesian Migrant Workers (PPMI) which
states that the threat of imprisonment is a maximum of 10 years and a fine of 15 billion.
such as workers who have complete documents and are registered in the social security
membership number, have a physically and mentally healthy body. The threat of
imprisonment is a maximum of 10 years and a maximum fine of Rp. 15 billion is also
given to individuals who place or send migrant workers.
The fact is that Illegal Workers are back in the conversation today in society,
which places Indonesian Workers Abroad using individuals and not through the
Government. This violates the provisions contained in Law no. 39 of 2004 concerning the
Placement and Protection of Indonesian Migrant Workers, this condition cannot be
tolerated because it will threaten the protection of workers.
The condition of illegal placement of Indonesian workers is now more
widespread and does not follow the rules set by law, which is carried out for individual
actors in placing Indonesian workers illegally. The position of women is highly respected
in Islam, women should not be treated harshly and burdened with something that is not
their responsibility, as explained in Surah an Nisa verse 19 which means "O you who
believe, it is not lawful for you to inherit women by force. and do not trouble them
because they want to take back some of what you have given them, unless they do a real
heinous work. And get along with them properly. Then if you don't like them, (then be
patient) because maybe you don't like something, even though Allah has made it a lot of
good."
The fact is that women often have to be the backbone of the family so that
sometimes women are forced to work out of town or abroad (Nurgina, 2019). Because of
this situation, there are opportunities for crimes committed by certain elements to seek
personal gain against the perpetrators (Anastasia, 2012). Women are directed to work
abroad with tempting promises by individual labor suppliers, so that women are trapped
as illegal workers abroad.
Eduvest – Journal of Universal Studies
Volume 1 Number 12, December 2021
1399 http://eduvest.greenvest.co.id
The distribution of Indonesian workers carried out by individuals, not by the
Government or by an official Private Indonesian Migrant Worker Distribution Company,
is still happening, one of which is contained in Decision No. 2422/Pid.Sus/2017 on behalf
of Goodstar Mozes Banik who took individual actions that participating in the illegal
placement of female workers in Malaysia on behalf of the victim, Serlin Agustina, by
distributing female workers abroad without using the requirements of the applicable laws.
The judge's decision against Goodstar Mozes Banik at the Kupang District Court
stated that the defendant Goodstar Mozes Banik was convincing according to law guilty
and proven to have committed a criminal act as an individual perpetrator who carried out
the Placement of Female Workers in Malaysia. Serlin Agustina, who is known to be a
victim of a violation of work placement abroad as stipulated in the indictment of Article 4
of Law No. 39 of 2004 concerning the Placement and Protection of Indonesian Migrant
Workers.
(Ida Hanifah, 2018) in her book explains that the problem is the difference
between das sein and das sollen. The questions in the problem formulation must be
problematic, to answer them must require analysis of the research raised in the title.
Therefore, this study aims to analyze how criminal liability is for individual actors who
participate in placing illegal female workers.
RESEARCH METHOD
The method in this study uses a qualitative method, namely where the data
obtained in the decision study (research library) on legal materials will be described and
linked in such a way that it can be presented in a more systematic form of writing in order
to achieve the desired target. Processing of legal materials is carried out deductively,
namely drawing conclusions from a concrete problem that is being faced.
RESULT AND DISCUSSION
1. Criminal liability for individual perpetrators who participate in placing illegal
female workers.
The application of the teaching of participating in criminal acts in Indonesia is still
a problem. This is due to the pattern of relationships in participating in committing
criminal acts which is increasingly complex in practice which is not followed by doctrinal
development of the teaching of participating in committing crimes, while legal practice
does not describe the teachings of participating in committing crimes in a holistic manner.
adequate in court decisions so as not to be able to explain the position of the maker in
participating in committing a crime.
Thus, legal practice is often unable to explain the doctrine of participating in
criminal acts. On the one hand, participating in committing crimes is simply equated with
acts together so that it does not distinguish between participating in committing crimes as
a form of participation and criminal acts in general. In this context, the purpose of
participating is to expand a criminal act that fulfills all elements of the offense, because
the joint act of participating still requires determining the quality of the role and position
of the maker, while in a convergence offense all those involved in a criminal act are
criminals.
the existence of participating in doing which is identified with a joint act is not able
to cover the gap from the principle of a criminal act which is only aimed at one criminal
act. On the other hand, the court has also not been able to find new breakthroughs in
Ibrahim Nainggolan
Criminal Liability for Placement Actors Illegal Female Labor 1400
constructing complex participation so that legal practice is included in the series of
unlimited participation. This is due to the understanding of the notion of an act as a
physical movement so that joint implementation in participating in committing is still
interpreted as the implementation of all parts of the offense element or acts outside the
offense element which play a very important role in realizing the offense. thus giving rise
to inclusion of participation to reach complex criminal acts.
The formulation of the teaching of participating in the Criminal Code emphasizes
the expansion of criminal responsibility so that people who do not fulfill all the
formulations of the offense can be punished based on the determination of participation.
Therefore, the doctrine of inclusion in the Criminal Code is placed within the framework
of the criminal responsibility function which provides guidelines for judges to determine
certain circumstances under which the perpetrators are accountable and therefore can be
punished. participation and participation because in principle the interpretation is
intended to expand the principle of adjudication used by judges as a guide in determining
certain circumstances that are responsible for to the perpetrators of the crime.
The formulation of the doctrine of participation and participation does not explain
the forms of participation and participation, on the contrary, the formulation only takes
over from the formulation of the Criminal Code which regulates that participants can be
punished, even though the Criminal Code is built on two contradictory fundamentals. On
the one hand, the subjective inclusion theory states that the punishment of the makers
(perpetrators, servants, participating actors and advocates) has the same degree based on
the subjective intentions of the makers. This theory underlies the regulation of
participation and participation in Article 55 of the Criminal Code which penalizes the
same participant as the perpetrator.
On the other hand, objective inclusion theory bases different penalties on objective
actions that are manifested in inclusion. This building is used in Article 56 of the
Criminal Code which punishes the assistant more lightly than the maker. At first glance,
it can be seen that the objective inclusion theory is a theory that discusses criminal acts
because it is oriented to objective actions, but in principle the objective inclusion theory
only makes objective actions as a measure of criminal responsibility (punishment) against
the perpetrators of the crime. Therefore, the objective inclusion theory remains centered
on criminal liability and is not a theory of criminal acts.
The occurrence of substantive participation does not have to be followed by a
procedural process in determining the people involved in participating as suspects,
defendants and even convicts, although it must be proven that participation occurred.
Thus, the main problem in participating is the existence of certain legal events and the
extent to which certain people are involved in these events. A person is only responsible
for his own involvement in the event. The intentional participation in the act serves as a
measure of criminal imposition of the perpetrators of participating.
Intentional cooperation in participating must be distinguished from participation
offenses, because intentional involvement is related to criminal liability issues, while
participation is related to offense issues. This gives birth to the consequence that
procedurally the imposition of a criminal offense against the perpetrators of participating
in committing crimes does not have to wait for the imposition of a criminal offense
against the perpetrators of a criminal act first. In other words, the imposition of a crime
against a participating actor can be carried out first from the perpetrator of a criminal act
as long as it is proven based on the process of investigation and investigation that there
was participation in the conduct involving several people, although it does not have to be
followed by the determination of the person involved in participating as a suspect.
According to some experts, there are some opinions of criminal law about mistakes
Eduvest – Journal of Universal Studies
Volume 1 Number 12, December 2021
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which are essentially criminal liability, namely:
a. Metzger
Mistakes are all conditions that provide the basis for personal reproach against
perpetrators of criminal law (Metzger, 2011).
b. Van Hamel
The error in an offense is the relationship between the mental state of the
perpetrator (psychological) and the realization of the elements of the offense due to his
actions (Van Hamel, 1911).
c. Pompe
The nature of being against the law from the outside is a violation of norms
committed by mistake (Pompe, 1994). In this case, the act is against the law. Meanwhile,
in terms of dealing with the will of the perpetrator, it is a mistake. Errors can be seen
from two angles, namely:
1) From the consequences; mistakes are reprehensible.
2) From its essence; Mistakes are things that are unavoidable by acts against the
law.
d. Moeljatno
According to (Moeljatno, 2021), a person can be said to have committed a crime at
a certain time. The criminal act in question is an act that harms the community so that the
result of the act is reproached by the community. Of course the act was deliberately done
and the blame is why he did the act, while he understands that the act is detrimental to the
community a criminal act, even though it is unintentional, but is negligent of the
obligations that society considers ought to be (duly) carried out by it.
With regard to errors of a psychological nature and normative errors, as well as
elements of criminal acts and the opinions of experts regarding errors, it can be concluded
that errors have several elements:
a. The existence of the ability to be responsible for the perpetrator, in the sense that
the soul of the perpetrator is in a healthy and normal condition;
b. There is an inner connection between the perpetrator and his actions, whether
intentional or due to negligence;
c. No forgiving excuses can erase mistakes.
Errors and criminal liability, still leave various problems in criminal law. This is
not only in the theoretical field, but even further in legal practice. The science of criminal
law has long recognized the notion of unlawful nature, guilt, crime, criminal
responsibility, and sentencing which in Indonesia has adopted many of the Dutch criminal
law which regulates civil law. law system. Criminal liability is very necessary in a
criminal law system in relation to the principle of dead dadestrafs reach.
Intentional and negligence are two forms of error in criminal law. The articles in
the Criminal Code mostly contain errors in the form of intentional use of various
formulations in addition to several criminal acts committed by negligence, for example in
the case of traffic accidents as stated in Articles 359 and 360 KUHP.
Deliberation is an act of willing and realizing or knowing in full a person who
commits an act intentionally and must realize or know the consequences that will result
from his actions. The element of intent only applies to crimes and not to violations.
Regarding the meaning of will above, the will can be addressed to:
a. The prohibited act
b. The result is prohibited
c. Circumstances which constitute a criminal element.
Intentions that are only aimed at prohibited actions are called formal intentions,
while those aimed at the consequences are material intentions.
Ibrahim Nainggolan
Criminal Liability for Placement Actors Illegal Female Labor 1402
Judging from the inner attitude of the perpetrator, there are three patterns of
intentionality:
a. Intentional Purpose (Dolus Directus)
The simplest form of intentionality is the act of the perpetrator who is desired and
also imagines the consequences of the act. If what is desired and imagined does not exist
then he will not do the act.
b. Intentional with Awareness of Certainty
The intentional pattern of knowing certainty is a separate offense. As a result, there
are other undesirable consequences that will inevitably occur. The intentional pattern with
conscious certainty rests on the consequences.
c. Deliberately Conscious of Possibilities
This intentional pattern of consciously allows the perpetrator to act by
wishing/imagining certain consequences, besides that, other consequences are prohibited
and are not desired or imagined. Sometimes this mode of intentional awareness of the
possibility can also be called conditional intentionality.
The defendant challenged the sense of justice which was taken into consideration
by the honorable panel of judges, in making a decision against the defendant. Regarding
the abuse of power, even though the defendant is only a minor employee with a customer
service position who is tasked with serving the community at the Kupang Immigration
Office. The verdict was that the sentence was sentenced to 4 years in prison, if
accumulated, the defendant was sentenced to 10 years in prison, and during that sentence
was there a sense of justice for the defendant's wife and children, while the victim Sarlin
Agustina Djingi had the opportunity to improve the cost of his life by working as a
migrant worker in Malaysia.
The defendant as a Class I Immigration officer in Kupang collaborated with Simon
Alfred in making passports for Indonesian workers, victim witness Sarlin Agustina
Djingi. However, the criminal conviction of the defendant Godstar Mozes Banik was too
severe compared to the severity of the crime committed by the defendant, because the
matter that Yohanes and Angelin Wijata were able to send the victim's witness as a
migrant worker to Malaysia through a public passport, is a matter that cannot be simply
delegated to the defendant.
The Court of Cassation rejected the petition for cassation from the defendant
Godstar Mozes Banik which stated that the defendant was still legally guilty of
committing a crime, so he was sentenced to imprisonment for 1 (one) year 6 (six) months
and a fine of Rp. 200,000,000.00 (two hundred million) if the fine is not paid, it will be
replaced with imprisonment for 10 (ten) days, stipulating that the defendant remains in
custody.
In conclusion, at the Kupang District Court the defendant was clearly found guilty
and imprisoned for 6 (six) years, at the Appeals level the decision was still strengthened
and on cassation the sentence was reduced because it could be stated that the worker was
called an independent TKI, he dispatched himself, and economically, physically and
mentally there is no loss from within the victim, the defendant has long worked as a Civil
Servant for 30 years at the Kupang City Immigration, therefore the judge eased his
sentence on appeal and was sentenced to 1 (one) year 6 (six) months in prison under
Article 4 and Article 102.
CONCLUSION
Based on the results of the discussion, it can be concluded that the legal provisions
for the placement and legal protection for TKW who will be placed abroad have not been
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fully implemented. There are still several cases that show that there are attempts to place
TKW abroad not through the mechanism as regulated by Law no. 39 of 2004. There are
still individual placements of TKW abroad so that in this case the act is considered a
criminal act.
The mode of crime committed by individual actors who participate in the
placement of illegal female workers includes helping to produce fake documents against
these workers and is carried out in an organized and sustainable manner by using various
ways to get what they want by avoiding the law. In accordance with the Criminal Code,
the modus operandi of the crimes committed includes those who commit, order to do,
participate in doing, encourage and help commit.
Criminal responsibility for the violation of the placement of TKI abroad which was
decided by the Judges of the Kupang District Court in the case of the criminal act of
placing TKI abroad who was accused of violating the provisions of Law no. 39 of 2004,
based on the facts revealed at the trial and based on the judge's conviction, the decision
handed down by the Panel of Judges was to apply criminal sanctions in Law no. 39 of
2004, because of the element of experimentation in placing TKI abroad as individuals,
which is prohibited under the provisions of Article 4 of Law Number 39 of 2004.
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