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29 (S2) 2021 IIUMLJ 143 – 165
PREVENTING CHILD TRAFFICKING BY CUSTOMARY
INSTITUTIONS AND LOCAL WISDOM IN ACEH
PROVINCE, INDONESIA
Sri Walny Rahayu
Teuku Ahmad Yani
Azhari Yahya
ABSTRACT
This paper aims to explain the causes of child trafficking in Indonesia
and the efforts made by the Customary Institutions in preventing Child
Trafficking in line with local wisdom values. This paper adopts
normative juridical research by using the data collected through library
research on regulations for child trafficking. The approach used is the
historical approach and the conceptual approach. The role of Customary
Institutions in Aceh and community involvement to prevent acts of
violence and child exploitation is provided in the local law. The position
and function of the Aceh Customary Institutions are dominant and can
be used as a model of prevention of trafficking in children. Local wisdom
is traceable in society despite some of these basic values are fading due
to globalization and consumerism.
Keywords: child trafficking, customary institutions, local
wisdom, Aceh, Indonesia.
Associate Professor, Faculty of Law, Universitas Syiah Kuala (USK).
Email: ayoe_armans@unsyiah.ac.id.
Associate Professor, Faculty of Law, Universitas Syiah Kuala (USK).
Email: teuku_yani@unsyiah.ac.id.
Associate Professor, Faculty of Law, Universitas Syiah Kuala (USK).
Email: azhari.yahya@unsyiah.ac.id.
144 IIUM LAW JOURNAL VOL. 29 (S2) 2021
MENCEGAH PEMERDAGANGAN KANAK-KANAK
MELALUI INSTITUSI ADAT DAN KEPRIHATINAN
TEMPATAN DI PROVINSI ACEH, INDONESIA
ABSTRAK
Makalah ini bertujuan untuk menerangkan punca pemerdagangan kanak-
kanak dan usaha yang telah dilakukan oleh institusi adat bagi mencegah
jenayah pemerdagangan kanak-kanak. Usaha ini selari dengan nilai-nilai
keprihatinan tempatan yang diamalkan oleh penduduk Provinsi Aceh.
Makalah ini ditulis berdasarkan penyelidikan normatif yang dilakukan
melalui pembacaan bahan-bahan yang diperolehi di perpustakaan. Ianya
mencakupi peraturan dan undang-undang yang melibatkan
pemerdagangan kanak-kanak. Penyelidikan ini juga mengguna pakai
pendekatan sejarah dan menganalisa konsep sedia ada. Peranan penting
yang dimainkan oleh institusi adat dan keprihatinan dan penglibatan
terus dikalangan masyarakat Aceh adalah diantara sebab mengapa
pemerdagangan kanak-kanak dapat dicegah di sini. Penyelidikan
mendapati ianya diperuntukkan di dalam undang-undang setempat.
Kedudukan dan penggunaan institusi adat adalah diminan di Aceh dan
boleh digunakan sebagai model bagi mencegah pemerdagangan kanak-
kanak. Sementara itu, keprihatinan masyarakat setempat masih dapat
dikesan dan diamalakan di Aceh walaupun terdapat sedikit kesan
pemudaran disebabkan oleh globalisasi dan kepenggunaan.
Kata kunci: pemerdagangan kanak-kanak, institusi adat,
keprihatinan masyarakat setempat, Aceh, Indonesia.
INTRODUCTION
Global trade in the 21st century has definitely brought tremendous
benefits to the world. Alas, with it there has also been the rise in various
forms of transnational crime. In 1995, the United Nations identified 18
types of transnational crime namely money laundering, terrorism, theft
of art and cultural property, theft of intellectual property, illicit arms
trafficking, aircraft hijacking, sea piracy, insurance fraud, computer
crime, environmental crime, trafficking in persons, trade in human
body parts, illicit drug trafficking, fraudulent bankruptcy, infiltration
of legal business, corruption, and bribery of public officials.
1
More
1
Sri Walny Rahayu, “Customary Model After the LoGA Faces Transnational
Crime,” in Not Ordinary law: Reflection on 10 years of the Law on the
Preventing Child Trafficking 145
recently this includes more serious crimes such as human trafficking,
which is made more heinous when it involves women and children.
The number of cases of violence and trafficking in children is
increasing. In this regard, the actual number of cases of child
trafficking that have not been revealed are more than those that have
received public attention and brought to justice in Indonesia.
Trafficking of women and children is a form of organized and
systematic crime, with networking from big cities to remote areas. This
form of crime has targeted children as the main victims because they
are weak and helpless.
2
Besides, as the impact of globalization is
offering a practical and consumptive lifestyle, where there is a
tendency of changing the public attitudes to become apathy, skeptical,
individualistic, and selfish.
3
Furthermore, there are eight types of transnational crimes in the
Southeast Asia regulated by the ASEAN Plan of Action to Combat
Transnational Crimes (ASEAN-PACTC) established in 2002. These
crimes include illicit drug trafficking, human trafficking, sea piracy,
arms smuggling, money laundering, terrorism, international economic
crime, and cybercrime.
4
Child trafficking is not just an ordinary social
phenomenon, but is a serious crime for victims, their families, society,
and the state.
5
It is considered a violation of human rights and
Government of Aceh, ed. Sulaiman Tripa (Banda Aceh: Bandar
Publishing, 2016), 80.
2
Sri Walny Rahayu, “Potential Government Institutions in Gampong, Adat
and Education as Strategies for Local Resource-Based Prevention and
Community Strength in the Issue of Human Trafficking in NAD,” in
Workshop Collaboration of the Gender Study Center Syiah Kuala
University with Unicef (Banda Aceh: 2007) 8.
3
Sri Walny Rahayu, “Potential Intervention on Local Wisdom in
Indigenious for Child Traffiking Prevention” in, International
Proceedings Faculty of Law University” (Semarang: , 2018) 793-798.
4
Agus Subagyo, “Kesiapan Polri Menghadapi MEA 2015,” accessed, Jan,
27, 2020, shorturl.at/sQR49.
5
Noer Indriati, “Pengembangan Model Perlindungan Hukum Terhadap
Anak Sebagai Korban Perdagangan Dikaitkan Dengan Protokol
Perdagangan Orang Pelengkap Konvensi Tindak Pidana Transnasional
Terorganisasi 2000 Di Indonesia”, (Dr. Diss, Faculty of Law Padjadjaran
University, 2013), 2.
146 IIUM LAW JOURNAL VOL. 29 (S2) 2021
categorized as an extraordinary crime. Indonesia in particular, is
targeted as a source, transit, and destination country of trafficking in
men, women and children, especially for prostitution and forced
labour. Based on data from the International Organization for
Migration (IOM), at least 76% of women and children are lured by
traffickers with an offer to work abroad as Indonesian Migrant
Workers. At present, it is estimated that 6.5 million to 9.0 million
migrant workers are working outside Indonesia, including 2.6 million
in Malaysia and 1.8 million in the Middle East.
6
In addition, the
International Labor Organization (ILO) reports that 215 million
children are trapped in hazardous work which puts them at risk of
injury, illness or death, and vulnerable to being victims of trafficking.
7
According to the data from the Indonesian Child Protection
Commission (ICPC) 2018, from 2011 to 2017, there were 422 cases of
child trafficking with the highest cases recorded involving sexual
exploitation. It is similar to the data compiled by IOM which reported
that, from 2005 to 2017, there were 8.876 trafficking victims, 15
percent of which were children.
8
Furthermore, according to ICPC, in
the first three months of 2018, there were 32 cases of human trafficking
and commercial sex exploitation on minors in Indonesia. From this
number, eight cases involved children trafficking, 13 on child
commercial sex exploitation, 9 for child prostitution, and 2 for
economic exploitation.
From the records of the National Commission for Women in
2018,
9
there were various spectrum of violence against women
6
United States Department of State, “Trafficking in Persons Report 2010
Indonesia”, UNHCR, accessed November 22, 2019,,
http://www.unhcr.org/refworld/docid/4c1883ecc.html.
7
Deputy for Women's Protection, Policy on Prevention of People through
Local Wisdo (Jakarta: Ministry of Women Empowerment and Child
Protection, 2011), 20.
8
Chyntia Sami Bhayangkara, “Ada 32 Kasus Trafficking dan Eksploitasi
Anak di Indonesia pada Awal 2018”, Okezone, accessed January 27,
2020,, https://news.okezone.com/read/2018/04/03/337/1881471/ada-32-
kasus-trafficking-dan-eksploitasi-anak-di-indonesia-pada-awal-2018.
9
Komnas Perempuan Tergerusnya Ruang Aman Perempuan Dalam
Pusaran Politik Populisme, “Catatan Kekerasan Terhadap Perempuan
Tahun 2017” Komnas Perempuan, accessed August, 6, 2019,
Preventing Child Trafficking 147
throughout 2017; some of which included violence against girls. The
violence occurred through using cyberspace media platform, such as
online prostitution sites and applications under the guise of religion (for
example, ayopoligami.com and nikahsiri.com), and sexual exploitation
of girls in cyberspace. The threat of exploiting children is rising
massively, but there is a minimal reporting and handling of the issue.
10
Crimes against children can have long-term psychological,
sociological, physical, and bodily effect. Victimisation of these
children will leave lasting impressions on the victims and it is possible
that they too will one day become perpetrators of similar crimes.
Indonesia has a set of preventive regulations for child
trafficking, including law of the Republic of Indonesia No. 19 of 2016
concerning the Electronic Transaction Information (ETI law). The ETI
law should be able to protect victims from crimes that use electronics
devices as a medium.
The teachings of religion encourage every human being to help
one another and have noble deeds. Noble behaviour is the characteristic
that must be possessed by every Muslim both in relation to God and
His creatures. With noble morality, human beings will be happy in their
lives in the world and in the hereafter.
11
The development of national identity, such as appreciation of
cultural values, social solidarity values, and kinship values began to
decrease. Besides, the weakness of the law-abiding culture, the
ineffectiveness of national character formation, the lack of leaders'
model, the rapid absorption of negative global cultures that are not in
line with the national character, and the inequality of social and
economic capacity are some of the issues that yet to be resolved by the
Indonesian government.
12
https://www.komnasperempuan.go.id/read-news-siaran-pers-catatan-
tahunan-catahu-komnas-perempuan-2018.
10
Ibid.
11
Syarifah Md Yusof, Abu Bakar Hamed, Raziah Md Tahir, and Azizah
Othman, “Usahawan Wanita Muslim Berjaya: Amalan Gaya Hidup
Islam,” International Journal Of Islamic Business 3, no. 1 (2018): 01-18.
12
Sri Walny Rahayu, “Customary Justice in Aceh as a Model for
Revitalizing the Establishment of Customary Legal Systems in
Indonesia,”, in Restorative Justice; A New Paradigm Of Criminal Law,
148 IIUM LAW JOURNAL VOL. 29 (S2) 2021
There are other regulations related to child trafficking such as
the Law of The Republic of Indonesia No. 21 of 2007 concerning
Eradication of Criminal Acts on Trafficking in Persons, State Gazette
of The Republic of Indonesia Year 2007 Number 58 (hereinafter
Eradication of Criminal Acts on Trafficking in Persons), Law of The
Republic of Indonesia Number 23 Year 2002 about Child Protection
(Child Protection 2002) as amended by Law of The Republic of
Indonesia Number 35 Year 2014 concerning Amendment to Child
Protection Number 23 Year 2002 concerning Child Protection,
effectively commenced on October 18, 2014 (The Modification of Law
Number 35 Year 2014 concerning Child Protection; The Modification
of Law Number 35 Year 2014).
Indonesia is a party to the Convention on Transnational
Organized Crime 2000 and Convention Against Transnational
Organized Crime 2000. Aside from that, Indonesia is also a party to the
Convention Against Corruption 2003, namely Protocol to Prevent, Act
and Punish Traffickers, especially for Women and Children. This
protocol aims to prevent, the suppression and punishment of traffickers
and supplements the Convention on Transnational Organized Crime,
which was adopted by the General Assembly Resolution United Nation
55/25. This protocol came into force on December 25, 2003.
The Convention Against Transnational Organized Crime 2003
requires participant countries, including Indonesia, to take action to
harmonize legislation and administrative procedures relating to the
Convention by regulating trafficking of persons and child protection.
The regulations must integrate and prioritize the general principles
accepted by nations without abandoning the principles of original law
or customary law that are still valid and relevant. According to
Kamaruzzaman Bustamam-Ahmad, society in Indonesia has local
wisdom (local wisdom-local genus), in the form of values that grow
and develop in societies and has an impact in daily life both in the form
of thought and behavioral patterns.
13
ed. Ferry Fathurokman and Rena Yulia, (Jakarta: Inca Publishing, 2016)
158-185.
13
Kamaruzzaman Bustamam Ahmad, “Local Wisdom in Irfani's
Epistemological Perspective, In Kearifan lokal di Laut Aceh”, ed. by M.
Adli Abdullah (Banda Aceh: Syiah Kuala University Press, 2010) 4-26.
Preventing Child Trafficking 149
This article wishes to concentrate on the Aceh Province and
analyses how the problem of child trafficking is dealt with within the
province. In Indonesia, the constitutional guarantees the basic rights of
indigenous peoples (customary community) and their protection is
regulated in Article 18 B paragraph (1) and (2) and Article 28I of the
1945 Constitution. Hence, Aceh, as a province has been endowed with
special autonomous power compared to the rest of the provinces. This
is evident from Law No. 44 of 1999 concerning Implementation of
Privileges of Aceh Province (Speciality Act of Aceh Province Law)
that defined privileges as the special authority to organize religious,
customary, education and the role of religious leaders in determining
regional policies. Furthermore, Law 11 of 2006 concerning the
Government of Aceh was formed, to regulate various aspects of lives
in Aceh Province in terms of Islamic religion, economics, politics,
social, law, customs, and culture. Thus, based on these laws, Aceh is a
Province adopting legal pluralism, namely national law/state law,
religious law, and customary law simultaneously. The system of
government, customary institutions of Aceh and the role of religious
leaders in Aceh are the central figures in the axis of society. This
approach is a system that operates under the principles and concepts of
the development of Indonesian national law.
14
The position and authority of the Customary Institutions of Aceh
lies within Article 98 of Law Number 11 of 2006 on Aceh Government
(UUPA). This provision is supplemented by the implementation of
Article 98 of UUPA, namely Qanun Number 9 of 2008 concerning the
Establishment of Customary Life and Qanun Number 10 of 2008
concerning Customary Institutions. In Qanun Number 9 of 2008, it
explicitly states that the duties and authorities of Customary
Institutions in Aceh do not only function as traditional institutions, but
also have the authority to try and resolve customary disputes in court
(Customary Court). The Qanun was substantiated by the Governor
Regulation Number 60 of 2013 concerning the Implementation of
Settling Customary Disputes. Besides, other important rules regarding
the authority of customary institutions can be found in Qanun Number
14
Sri Walny Rahayu, “Lembaga Penyelesaian Sengketa Adat Laut,
Panglima Laot di Aceh Sebagai Bentuk Pengembangan Alternatif
Penyelesaian Sengketa dalam Sistem Hukum Indonesia,” Padjadjaran
Journal of Law- PJIH-Bandung (2014): 448-467.
150 IIUM LAW JOURNAL VOL. 29 (S2) 2021
4 of 2003 concerning the Government of Mukim (a customary region
within a sub-district) and Qanun Number 5 of 2003 concerning
Government of Gampong (village).
In relation to the discussion on child trafficking within the
province, various crimes against children still occur although child
protection, especially of girls in Aceh, has been covered in Qanun No.
11 of 2008 concerning Child Protection and Qanun Number 6 of 2009
concerning the Protection and Women Empowerment. It has been
discovered that, crime against children is frequently committed by the
person having closest relationship to the victim. In a case that occurred
in the West Aceh District, for example, the sexual exploitation of
minors was done by the victim’s parents. The public prosecutor
demanded each defendant to be punished with 50 times of caning, or
fined 500 grams of pure gold, or 50 months in prison. The panel judges
of the Syariah Court (Islamic Court) of West Aceh Regency decided a
more severe decision than the prosecutor's indictment, namely a
sentence of 75 months (6.3 years) imprisonment for each defendant.
15
The problems described above are very serious. Even though
Indonesia has some regulations regarding the Eradication of Criminal
Acts on Trafficking in Persons Law and Child Protection Law, child
trafficking continues to occur. Therefore, customary institutions in
Indonesia are expected to understand the mode of trafficking in
persons, as well as other forms of crime related to child protection. The
role of Customary institutions is to maintain public order in the village,
optimize the role of religious leaders and the local wisdom of
Indonesian people in order to protect the society against various crimes,
including child trafficking. Based on the facts stated above, the
purpose of this article is to explain the position of customary
institutions within Gampong as customary justice in positive law,
efforts made by the customary institutions within the Gampong to
prevent child trafficking in Aceh and the impact of information
technology and globalization in child trafficking in Indonesia.
15
“Pasutri divonis 6,3 tahun penjara,” Aceh Tribunnews, accessed January
27, 2020, https://aceh.tribunnews.com/2018/08/04/pasutri-divonis-63-
tahun-penjara.
Preventing Child Trafficking 151
RESEARCH METHODS
This article is based on a study uses a type of normative juridical
research, a method in which the main data comes from secondary data
or the primary legal material of legislation relating to the study.
Secondary legal material referred to consists of books, journals,
articles, while tertiary legal materials originate from websites and
dictionaries. Employing the historical approach and the conceptual
approach, the research utilises an analytical approach to the sources, in
which the data is analyzed based on a qualitative juridical approach,
then presented in the form of a description.
RESULTS OF THE STUDY
1. The causes of child trafficking in Indonesia
All countries in the world have experienced the problem of trafficking
in persons with varying levels of seriousness. In this regard, there are
the destination, transit, and source countries for trafficking in persons,
as experienced by Indonesia.
16
Trafficking in persons is a new form of
slavery in the modern era. It was also noted by John Wagley
17
that adult
trafficking is synonymous with slavery in the modern era.
18
Women
and children are the target of trafficking in persons to be sexually
exploited or used for forced labor, in their country and abroad. The
phenomenon of domestic trafficking in persons is also increasingly
diverse in form and mode. Prostitution, both in the formal area and
hidden prostitution is increasingly widespread, both in big cities and in
rural areas. IOM database (March 2005-2011) reported that there were
749 girls and 150 boys being child victims of prostitution.
19
Additionally, in urban areas, beggars and street children are exploited
for economic purposes. Ironically, it was found that the perpetrators in
such a case were adults, and sadly, their respective parents.
16
Kevin Bales, Disposable People: New Slavery in the Global Economy
(Berkeley: University of California Press, 1999), 34.
17
Wagley, R, Human Trafficking, An Overview Washington, DC: 2002,
(Wasington, DC: Center for Advanced Defense Studies, 2007), 2.
18
Ibid.
19
International Organization for Migration, Counter-Trafficking Database,
(March 2004-December 2010).
152 IIUM LAW JOURNAL VOL. 29 (S2) 2021
The mode of entanglement of victims of child trafficking
targeting young women through cyber sites is also very upsetting .
Actors communicate with victims through various social networking
applications. Furthermore, the perpetrators of the crime commit
deception, subsequently leading to sexual exploitation. For example,
Facebook is one of the social media platforms to trick victims. Victims
were lured by their friends with whom they became acquainted through
Facebook.
20
Another mode is that more adult women and adolescents
are victims of trafficking by becoming drug couriers because they are
promised a number of prizes in the form of money, dating or marriage
opportunities by the perpetrators.
It is submitted that communities need to be aware of the various
modes that may trigger these crimes. Peer invitations in the community
of children or other people outside the child’s family, should alert the
parents. In addition, transactions through electronic or social media
need to be observed closely. The use of advanced technology has made
it possible for commercial sexual exploitation and even children have
been involved in these prostitution networks. Traffickers use private
spaces such as hotels, apartments, and private residences for
prostitution. This also made it more difficult for the apparatus to detect
the occurrence of crimes against children. Hence, there is an urgent
need for the community to play its role in preventing these crimes from
happening within their communities. This can be done in collaboration
with the leaders of the community as well as the ulama and traditional
institutions. The role of the community in keeping a watch over these
children may help prevent or reveal cases of child trafficking. This is
called participatory prevention of early detection of Gampong
(village).
21
Poverty can also be a factor leading to child trafficking. Some
poor children are married off quickly to reduce the responsibilities of
20
Sri Walny Rahayu, “Indigenous Institutions and the Local Wisdom Values
in Indonesia as one of the Prevention Strategies of the Child Trafficking
in the AEC, Proceeding International Conference (SBC-MEA)”.
21
Noer Indriati, “Pengembangan Model Perlindungan Hukum Terhadap
Anak Sebagai Korban Perdagangan Dikaitkan Dengan Protokol
Perdagangan Orang Pelengkap Konvensi Tindak Pidana Transnasional
Terorganisasi 2000 Di Indonesia,” Fakultas Hukum Jenderal Soedirman
(2017): 7.
Preventing Child Trafficking 153
parents economically.
22
This is based on the assumption that Indonesia
is a poor country, so that it becomes a sender even though the
assumption of poverty does not necessarily guarantee the reason for
trafficking, because Indonesia is also a destination for trafficking. In
2010, it was reported that poverty is a driving factor for people to
migrate and look for alternative income outside their villages, regions,
and countries or residence. Although the poverty rate has declined in
2010 from 14.2% to 13.3%, it has not significantly reduced the number
of victims of trafficking in persons in Indonesia.
23
The weakness of
individuals and families in preventing trafficking causes people to
easily become victims.
24
Poverty, low levels of education, the desire
to improve income, and changes in lifestyle also weaken individual
power to deter such incidences from occuring.
Other than poverty, the absence of a birth certificate is also a
contributing factor to this heinous crime. According to the data from
UNICEF in 2007, around 37 per cent of toddlers in Indonesia do not
have birth certificates and low birth registration especially in the
village/gampong community. The absence of a certificate causes
forgery of age when arranging documents for migratory departure
equipment. In 2014, based on the results of a study in Aceh Besar, it
was found that 55per cent of children did not have birth certificates,
while those who had birth certificates consists of 45 per cent of the
population.
25
It is also submitted that the lack of government attention in
improving the education system where the curriculum is burdensome,
22
Sri Walny Rahayu, “Potential Intervention on Local Wisdom in
Indigenious for Child Traffiking prevention,” Jurnal Abulyatama (2016):
7-8.
23
Linda A, Kebijakan Pencegahan Perdagangan Orang Melalui
Pendekatan Kearifan Lokal (Jakarta: Kementerian Pemberdayaan
Perempuan dan Perlindungan Anak Republik Indonesia, 2011), 4.
24
Noer Indriati, “Pengembangan Model Perlindungan Hukum Terhadap
Anak Sebagai Korban Perdagangan Dikaitkan Dengan Protokol
Perdagangan Orang Pelengkap Konvensi Tindak Pidana Transnasional
Terorganisasi 2000 Di Indonesia,” Fakultas Hukum Jenderal Soedirman
(2017): 5.
25
Unicef and Bapeda Aceh Besar, Assessment Akte Kelahiran Di Aceh
Besar (Aceh: 2013) 5.
154 IIUM LAW JOURNAL VOL. 29 (S2) 2021
confuses current and prospective students. This complex situation
influences their tendency to choose to work in the informal sector or
get married early. These are easy options that does not to require
administrative prerequisites and is accompanied by the lure of material
aspects that is utilized by brokers.
Apart from this, Indonesia is a multicultural country, where most
of the cultural values potentially weakens the position of women and
children. For example, because poorer people get married sooner it is
better to reduce the responsibilities of parents economically. In the
article written by Grace Agonda Akolokwu and Barakat Adebisi Raji,
discriminatory customary practices against the protection of gender
rights still thrive in many developing states including Indonesia despite
various domestic and international legal regimes to prevent them.
26
The
patriarchal system that is usually promoted by various customary laws
emphasising the father’s line has worsened the fate of the women who
are conditioned by the society to play a second fiddle role to the male.
27
With an assured traditional role in the kitchen, which does not require
any kind of education, the sentiments provoking the idea that a girl does
not need to go to school to become a good wife and mother as long as
she has the cooking, cleaning and sewing skills still persist in the 21st
century.
28
Another more nefarious reason is where the law enforcement is
under the influence of traffickers. In 2018, Komnas Perempuan, stated
that trafficking actors who have the authority and power politically and
spiritually tend to be underreported and minimally documented. For
example, religious leaders and spiritual figures, pesantren owners,
members of the House of Representatives, military officials, and
26
Grace Agonda Akolokwu and Barakat Adebisi Raji, “Discriminatory
Customary Practices Against Women’s Rights: An Account Of
Intervention Strategies By Southern African Developing States,” IIUM
Law Journal 27, no. 1 (2019): 89 – 120.
27
Mikateko Joyce Maluleke, "Culture, Tradition, Custom, Law and Gender
Equality," Potchefstroom Electronic Law Journal/Potchefstroomse
Elektroniese Regsblad 15, no. 1 (2012): 33-48.
28
Grace Agonda Akolokwu and Barakat Adebisi Raji, “Discriminatory
Customary Practices Against Women’s Rights An Account
Ofintervention Strategies Bysouthern African Developing States.” IIUM
Law Journal. 27, no. 1 (2019): 91-92.
Preventing Child Trafficking 155
corporate actors may very well fall prey to being controlled by these
traffickers.
2. Regulations of Child Trafficking in Indonesia
International treaties, whose enforcement is also applicable under
domestic law, have been promulgated in order to protect the legal
interests of citizens (individuals). Some examples are the United
Nations Convention Against Corruption 2003 and the United Nations
Convention Against Transnational Organized Crime 2000, which are
often referred to as standard or harmonized-setting treaties. They do
not create norms but only requires the State to create these norms in its
national law.
29
The UN Convention on (Transnational Organized Crime 2000
Convention Against Transnational Organized Crime 2000, is a United
Nations Convention against Acts) transnational organized crime. The
consequence of the ratification of the Convention is that States commit
to take a series of actions against transnational organized crime,
including criminalisation in their own country.
Each participating country, including Indonesia, is obliged to
take necessary actions or steps, such as harmonising laws and
administrative procedures relating to the convention without ignoring
the principles of territorial sovereignty, territorial integrity, and non-
intervention. The obligation that must be carried out by Indonesia as a
participant of the convention, and a reflection of the participation of
Indonesia is evident from the establishment of the Eradication of
Criminal Acts on Trafficking in Persons.
The UN Protocol on Trafficking in Persons defines the
trafficking in persons. Article 3 of the UN Protocol as organized
crimes states the following:
Record, transportation, shipping, transit or acceptance of people
with threats or use of power or other forms of coercion, kidnapping,
fraud, abuse of power or position vulnerable, or giving or receiving
29
Damos Dumoli Agusman, Hukum Perjanjian Internasional – Kajian
Teori dan Praktik Indonesia (Bandung: Refika Aditama, 2010), 99.
156 IIUM LAW JOURNAL VOL. 29 (S2) 2021
payments or profits to get permission from someone who has control
or someone else, for the purpose of exploitation.
Further, article 4 of the United Nations Trafficking Protocol states the
purpose of the Protocol. It states:
This protocol has the scope of entry into transnational criminal
trafficking and involves transnational criminal groups, as well as
protection of victims of crime. The protocol also regulates the
obligation of States parties to carry out the contents of the protocol,
namely by issuing legislation and taking steps to provide protection.
In reference to Article 3 of the UN Protocol on Trafficking in Persons,
the Eradication of Criminal Acts on Trafficking in Persons Act in
Indonesia, "Trafficking in Persons" is defined as regulated in Article 1,
as follows:
Human trafficking is the act of recruiting, transporting, sending,
transferring or receiving with someone the threat of violence, the
use of violence, kidnapping, confinement, forgery, fraud, the use of
power or vulnerable positions, debt bondage or providing payments
or benefits, so that the person who has control over another person
obtains approval, both within the State, for the purpose exploitation
or causing people to be exploited.
The above provisions are general provisions that seek to protect all
victims of human trafficking. There is also additional protection that is
afforded to children. Such protection of children is an effort to create a
condition so that every child can obtain his rights.
30
The definition of
child protection is regulated by Article 1 Paragraph 2 of the Child
Protection Act, as follows:
All activities to guarantee and protect children and their rights
so that they can live, grow, develop, and participate optimally in
accordance with human dignity and dignity, and receive protection
from violence and discrimination" Next Article 76 F said Child
Protection Law " Everyone is prohibited from placing, letting, doing,
ordering, or participating in kidnapping, selling, and / or trafficking of
children.
30
Arif Gosita, Masalah Korban Kejahatan (kumpulan karangan) (Jakarta:
Bhuana Ilmu Populer Kelompok Gramedia, 2002), 246.
Preventing Child Trafficking 157
The definition of trafficking in women and children in the
Presidential Decree of Republic of Indonesia Number 88 of 2002
concerning the National Action Plan (NAP) for the Elimination of
Trafficking in Women and Children provides:
All acts of traffickers that contain one or more recruitment
actions, transport regional and inter-state, transfer, departure,
temporary reception and shelter or in women and children - by means
of threats, use of physical verbal violence, kidnapping, fraud,
deception, exploiting the position of vulnerability (for example, if
someone has no other choice) , isolated, drug dependence, debt trap,
etc.), providing or receiving payments or benefits, where women and
children are used for the purpose of sexual prostitution and exploitation
(including pi), legal and illegal migrant workers, adoption of children,
work, bridal orders, housemaids, begging, porn industry rafi, the
circulation of illegal drugs, and the sale of organs and other forms of
exploitation
The efforts of the international community or countries to
prevent and eradicate transnational crimes can be carried out in
cooperation with Aceh Customary Institution. Important legal
developments at the international level have resulted from a
multilateral international agreement known as the Convention on the
Rights of the Child 1990 with the power to bind countries both
juridically and politically. The Convention on the Rights of the Child
contains four fundamental general principles that must be implemented
by every country in the context of protecting children's rights, namely
the principle of non-discrimination, the best interests of children, the
right to live, survive and develop, and the right to participate. There is
a need to raise community awareness on the right of children to
anticipate such trafficking of children and the need to prevent them
from happening.
2. Aceh Customary Institutions and Local Wisdom Values in
Preventing Children Trafficking
The juridical foundation, constitutional and idealism principles
together with the concept of national legal development are explicitly
stated in the preamble of the 1945 Constitution. The fourth paragraph
contains the main points of thought, which are the elaboration of values
158 IIUM LAW JOURNAL VOL. 29 (S2) 2021
contained in Pancasila, reflecting the characteristics and patterns of
indigenous peoples and customary laws in Indonesia. The preamble is
in line with the principles of regional sovereignty, territorial integrity,
and non-intervention.
31
Every country has a strong foundation to
protect its people
32
according to their local philosophy and wisdom.
Indonesia has local wisdom which is passed down from
generation to generation, a hereditary ancestral wealth in the form of
values that grow and develop in society. These values must be
maintained properly in facing globalisation which offers a more
pragmatic and consumptive lifestyle.
33
“Local wisdom” is defined as a
wealth of local culture that contains a policy of life that accommodates
wisdom. Local wisdom does not only apply locally to certain cultures
or ethnicities but can be said to be cross-cultural or cross-ethnic,
forming a national cultural value. For example, almost in every local
culture in Indonesia recognises local wisdom that teaches cooperation,
tolerance, work ethic, and so on. In general, ethics and moral values
contained in local wisdom are taught and passed down from generation
to generation through oral literature, among others in the form of
proverbs, folklore, hadih maja,
34
and manuscripts.
31
Padmo Wahjono, “Pembangunan Hukum di Indonesia”, 153-155,
Jakarta: Ind-Hill Co, 1989, in Marine Bussiness Dispute Resulotion
Associated with The Indigenous Community of Panglima Laot as
Development Efforts of Aternative Dispute Resolution in the Indonesian
Legal System, ed. Sri Wahyuni (Bandung: Faculty of law Padjadjaran
University, 2014): 63.
32
Ho Peng Kwang, Johan Shamsuddin Sabaruddin and Saroja Dhanapal,
“An Overview Of The Rule Of Law Values Within Malaysia’s Anti-
Terror Law: A Legal Perspectives From India And The United
Kingdom,” UUMJLS 8, (2017): 57-85.
33
Sri Walny Rahayu, “Marine Bussiness Dispute Resulotion Associated
with The Indigenous Community of Panglima Laot as Development
Efforts of Aternative Dispute Resolution in the Indonesian Legal
System,” (PhD diss., Universitas Syiah Kuala, 2013). 79.
34
This means traditional oral literature (traditional sayings) which are
thought to have existed since ancient times and used for various reasons.
It is a particularly well-known form of literature that is practiced in Aceh.
For further reading see Erwina Gusti and Siti Aisah Ginting, “The Fading
of Hadih Maja in the Vernacular Language Among Acehnese Teenagers
in Banda Aceh”, English Education International Conference Vol. 1, No.
Preventing Child Trafficking 159
It is submitted that customary institutions can play a role in
disseminating values through local wisdom and providing awareness
to the community members so that they do not easily accept potential
traffickers’ invitation to work overseas especially through unofficial
channels, which may lead to being trapped in the practice of child
trafficking. Traditional institutions and figures should understand
various modes and criminal acts of trafficking in persons and other
forms of crime related to child trafficking, which are contrary to the
values of local wisdom. In Aceh, the customs and teachings of Islam
are portrayed as Hukôm ngon Adat lagee Zat ngon Sifeut (law with
custom is inseparable like substance with nature). Law (hukom) as a
substance, therefore it is difficult to change. Law is a substance that is
derived from Islamic law, while custom patterns of behaviour are
essentially unchanged. The model for preventing child trafficking by
customary institutions may be as follows:
a. Potential of Customary Institutions and Local Wisdom Values in
Aceh Province
Religion and Islamic culture have an important role and greatly affect
the daily lives of the Acehnese people, which is why Aceh is known as
Serambi Mekah (Seuramo Mecca). The name was given because those
who want to perform the pilgrimage to Mecca depart from the Aceh
region.
35
Acehnese people have chosen to make Islam as a guide in all
aspects of their lives and is an inseparable part of life. Hence, Islamic
teachings gave birth to the value of local wisdom and Acehnese culture,
which is reflected in their traditional life and traditional institutions.
36
Furthermore, Abd Ghani Ahmad mentions that the influence of the
2 (2016), available at
http://www.jurnal.unsyiah.ac.id/EEIC/article/view/16283/0.
35
Hasjmy, A, Sejarah Masuk dan Berkembangnya Islam di Indonesia,
(Bandung: Al-Ma'arif, 1981), 193-196.
36
Sri Walny Rahayu, “Alternative Dispute Resolution Through Customary
Tribunal In The Context Of Legal Pluralism In Aceh,”, International
Journal of Civil Engineering and Technology (IJCIET) 9, no. 1, (2018) :
472–483.
160 IIUM LAW JOURNAL VOL. 29 (S2) 2021
Islamic religion can be found within customary laws enforced in
Aceh.
37
Local wisdom that is widely recognised in customary law,
continues to thrive and develop within indigenous communities,
making it an inseparable part of the dynamics of indigenous peoples
themselves. Generally, the local wisdom absorbed in customary law
and customary institutions in Aceh is maintained through two ways,
namely community members' behavioural practices and oral
maintenance. Oral maintenance by implanting custom expressions -
hadih maja,
38
is maintained until now for generations.
Traditional institutions developed in the life of the Acehnese
people have long played an important role in fostering cultural values,
customary norms, and rules for realizing security, order, peace,
harmony, and prosperity for the people of Aceh in accordance with
Islamic values. The role of customary institutions needs to be increased
not only to function as a means to preserve adat and customs as a
manifestation of the implementation of Aceh's specificity and privilege
in the field of customs, but also as an institution that can intervene in
various forms of prevention from trafficking crimes.
39
Law on Aceh Government No. 11 of 2006 Chapter XIII Article
98 paragraph (1) - paragraph (3) opens the space for potentially active
institutions as the initial guard in the prevention of various forms of
crime in the village community. In the 98 Law on Aceh Government,
customary institutions function and serve as a vehicle for community
participation in the administration of the Aceh provincial and
district/municipality government in the fields of security, peace,
harmony and public order. Other things are also regulated in resolving
customary social problems through customary institutions. The
primary customary institution in Aceh is the Aceh Adat Assembly.
According to Nico Ngani, the village head called Keuchik also serves
37
Abd Ghani Ahmad and Nuarrual Hilal Md Dahlan, “Mengandung Anak
Tak Sah Taraf: Kajian Kes Di Daerah Kubang Pasu, Kedah,” UUMJLS
8, no. 1 (2017): 17-55.
38
Aboe Bakar, Kamus Aceh Indonesia (Jakarta: Balai Pustaka, 2001), 273.
39
Sri Walny Rahayu, “Potential Intervention on Local Wisdom in
Indigenious for Child Traffiking Prevention,” in International
Proceedings Faculty of Law University 17 Agustus 1945 (Indonesia :
University August 17, 1945, 2018) 793-798.
Preventing Child Trafficking 161
as a justice representative for the village, who is allowed to react to
offenses that do not fall within the competence government.
40
It is worth mentioning here that Aceh has passed Qanun Number
11 of 2008 concerning child protection, which regulates the issue of
violence, trafficking and exploitation of children. customary
institutions in Aceh can play a role in prevention efforts of trafficking
in children through rules that are further regulated in the Qanun of
Child Protection in Articles 28, 29, 31 and 33.
Article no. 28 of Qanun for Child Protection, issued in 2008,
mentioned that legal subjects in the form of bodies and or adults are
prohibited from carrying out acts of violence against children in the
form of physical, psychological and sexual violence. Furthermore,
what is meant by child trafficking is regulated in article 29 of the Qanun
for Child Protection 2008, in which the agency and/or persons are
prohibited from performing child trafficking. Bodies and/or people are
prohibited from adopting children through forced withdrawal, fraud,
and kidnapping from the power of their parents/guardians or families
that eliminate the child's basic rights. The Qanun for Child Protection
requires the provincial/district/city government to prevent violence and
trafficking in children as referred to in article 28 and 29 of the Qanun
for Child Protection 2008.
The forms of exploitation of children are regulated by article 30
(1) and (2) 2008 Child Protection Qanun, namely, sexual exploitation,
forced labour, involvement in political activities, slavery, retrieval/sale
of children's organs for personal or group benefits. Anyone is
prohibited from exploiting children by depriving them from
independence, as well as the right to life and develop their children
properly and fairly.
Victim's rights are protected and mentioned in article 31 of the
2008 Child Protection Qanun that every child who experiences
violence, trafficking and exploitation has the right to protection;
informed by the public to the authorities, has access to integrated
service institutions to the extent of obtaining rehabilitation assistance
40
Nico Ngani, Perkembangan Hukum Adat Indonesia (Jakarta: PT. Buku
Seru. 2012), 12.
162 IIUM LAW JOURNAL VOL. 29 (S2) 2021
and they must be handled in secret both from individuals, groups or
institutions both government and non-government.
In the event of violence, trafficking and exploitation of children,
each victim has the right to receive protection and assistance,
psychologically and they can also obtain guarantees for his rights
relating to his status as a child, family member or community member
provided in article 32 of Qanun on Children Protection 2008. This law
also regulates the obligation of the Aceh government and the
district/city government to be responsible for implementing efforts to
prevent violence, trafficking and exploitation of children. As stated in
Article 33 paragraph (1) - paragraph (4), this can be carried out by:
(a) collecting data and information about children’s
victims of violence, trafficking and exploitation under
the provisions of the legislation;
(b) educating values of anti-violence, trafficking, and
exploitation of children;
(c) Disseminating legislation relating to the protection of
children victims of violence, trafficking and
exploitation; and
(d) conducting monitoring and evaluation of the protection
of child victims of violence, trafficking, and
exploitation.
In anticipating criminal acts of violence, trade, and exploitation, the
government of Aceh and the district/city government are obliged to
provide services for victims through:
(a) establishing and facilitating the implementation of
integrated service institutions for victims involving
community elements; and
(b) encouraging public awareness of the importance of
protecting victims. (Article 33 paragraph (2) Qanun for
Child Protection of 2008)
The Aceh and the district/city government are obliged to provide
services for victims by first establishing and facilitating the
implementation of integrated service institutions for victims involving
community elements, and second, by encouraging public awareness of
Preventing Child Trafficking 163
the importance of protecting victims. (Article 33 paragraph (2) Qanun
for Child Protection of 2008)
In carrying out their obligations, the Aceh government and
district/city governments must pay attention to the rights and
obligations of parents, guardians or other people who are legally
responsible for victims as stated in Article 33 paragraph (3). It is also a
duty upon every member of the community to report all actions that
lead to acts of violence, trafficking, and exploitation of a child as
mentioned Article 33 paragraph (4) Qanun for Child Protection of
2008).
The role of Customary Institutions in Aceh and community
involvement to prevent acts of violence and child exploitation has been
contained in the provisions of local law. Thus, the actual role and
contribution of the customary institutions should be sought optimally
so that the position and role can be felt directly by the community. Adat
institutions in Aceh can incorporate elements of tradition and values of
local wisdom in Reusam Gampong involving traditional leaders and
ulama in the prevention of violence and exploitation of children. It is
therefore clear that the role of customary institutions is not merely a
symbol, but an effective village campaign that can serve as an early
prevention model. The source of reusam comes from the values of local
wisdom which are still maintained and developed according to the
needs of the times.
b. Local Wisdom in Aceh
In Aceh, advice given by seniors or religious scholars through imagery
or hadih maja is considered as local wisdom. In philosophy literature,
those who can issue wisdom to others are called wise men. Charles
Taylor states, "the practically wise man (phronimos) the knowledge of
how to behave in a particular situation which can never be equated
with knowledge of general truths”.
41
Social status, religion and the experience or thoughts of the
ulema are very influential when issuing wise pronouncements. The
41
Taylor and Charles, Sources of Self: The Making of the Modern Identity,
(Cambridge: Harvard University Press, 1989), 175.
164 IIUM LAW JOURNAL VOL. 29 (S2) 2021
thought of a wise man is viewed as advice or mahfudhat (aphorisms).
Thus, wisdom is produced by wise men at the local level, or those who
come from the heads of adat institutions, religious advisors, community
leaders, or local scientists often known as poets. Local values which
later become local wisdom can be interpreted as a reproduction of the
thoughts of the authorities, which in turn are able to influence the local
community.
42
In the context of Aceh, the existence of hadith as a
representation of local knowledge is local wisdom. The value of local
wisdom is an afterthought to be gentle to children, with songs to lull
children, many of which are sung by the Acehnese in the past.
The value of local wisdom that protects children from child
trafficking,
43
namely, "...... ngoen haba mangat, geu tanyoe meukeumat
bak saboh period, menyoe geu tanyoe na ta remember tentei seulamat
tub deception…”, which means, “…don't be fooled by sweet promises
because someday we will be in trouble. But if we can be wary of course
we will be safe from deception".
44
CONCLUSION
The position and function of the Aceh Customary Institutions are
dominant based on positive law, by involving local scholars and
villagers, thus it can be used as a model for the prevention of trafficking
in children in Indonesia. Local wisdom that is widely recognised as
customary law that lives and develops in indigenous communities,
42
Kamaruzzaman Bustamam-Ahmad, “Local Wisdom in Irfani's
Epistemological Perspective, In Kearifan lokal di Laut Aceh,” Jurnal
Biologi Edukasi 7, no. 1 (2015): 47-55.
43
Sri Walny Rahayu, “Potential Intervention on Local Wisdom in
Indigenious for Child Traffiking Prevention,” LPPM University of
Abulyatama (2016): 20-13.
44
Sri Walny Rahayu, “Potential Government Institutions in Gampong, Adat
and Education as Strategies for Local Resource-Based Prevention and
Community Strength in the Issue of Human Trafficking in Nanggroe
Aceh Darussalam”, in Workshop Collaboration Gender Study Center
Syiah Kuala University with Unicef (Banda Aceh : Syiah Kuala
University, 2007) 15.
Preventing Child Trafficking 165
making it an inseparable part of the dynamics of the indigenous peoples
themselves. The role of customary institutions in Aceh and community
involvement to prevent acts of violence and child exploitation has been
contained in the provisions of local law. The customary institution is
the forerunner as an agent of renewal and change within the society by
empowering the values of local wisdom and having the authority to
maintain order at the village level. The provincial or city-level
regulatory agencies should have an ontological, epistemological, and
axiological understanding of the Qanun arrangement or the Regional
Regulation. Such understanding can allow the incorporation of the
values of the local wisdom in positive law. This would allow the
growth and evolution of local values in society as a meta-norm. This
could ensure prevention of crime and contribute to the effectiveness of
law enforcement in cases chil trafficking not only in Aceh but also in
Indonesia as a whole.