The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia

Abstract

The issue of people smuggling is one of global concern that many states have responded to by introducing a specific criminal offence of people smuggling. In Indonesia, a country that is a key transit point for asylum seekers heading to Australia, new offences have been introduced since 2011 in order to criminalise people smuggling. In this article we analyse the legal framework that has been established to combat people smuggling in Indonesia, both before and after the reforms of 2011. We consider how arrests for people smuggling have been dealt with by the public prosecutor and the judiciary in practice. We argue that the implementation and outcome of the new offences for people smuggling in Indonesia must be considered within the broader social and political context in which courts are situated. We demonstrate that sentencing practices in people smuggling trials are informed by a range of factors in addition to corruption, including judicial discretion and broader social attitudes towards people smugglers.