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Landmark Legal Decision May Open U.S. Border to Chinese from Indonesia

Jemma Purdey, Ph.D. - 2/1/2005

A recent decision by the U.S. Court of Appeals in San Francisco provides historic precedent for claims for political asylum launched in the US by ethnic Chinese Indonesians. In early October 2004 the US court upheld the appeal for political asylum launched by Taty Sael, a Chinese Indonesian now living in Sacramento, California, on the basis that if she returned to Indonesia she would face persecution on the basis of her ethnicity. The San Francisco Chronicle reported that the court based its decision on 'the continued existence of anti-Chinese laws and a history of periodic attacks from the 18th century onward, including a series of riots in 1998 in which more than 1,000 people were killed and dozens of women were raped.'

Taty Sael's individual case was also, however, a large part of the reason the appeal was upheld. She cited being attacked or threatened with harm on several occasions between 1995 and 1998, before fleeing to the US in August 1998. She testified that before leaving, she was too afraid to even leave her house in Jakarta.

This decision, by a national court system, which one could estimate faces countless applications for asylum daily, has therefore, considerable political resonance. The decision by the Court of Appeals to grant Taty and her husband asylum, was against the directive of the immigration appeals board which argued that it found no grounds for the claim that ethnic Chinese faced persecution in Indonesia, citing the Indonesian government's formal endorsement of ethnic tolerance and a sharp decline in reported attacks on ethnic Chinese in 1999.

Indeed, and as the Jakarta Post has consistently reported, the laws and Presidential Decisions brought into existence under the Habibie, Wahid and also Megawati governments granting ethnic Chinese Indonesians greater cultural freedoms and recognition within the nationalist rubric - including public holidays for cultural festivals - the rhetoric has outweighed the reality of continuing prejudice and discrimination. NGOs like Solidaritas Nusa Bansga (SNB) continue to fight for the abolition of the demands for a Letter of Proof of Citizenship (Surat Bangsa Kewarganegaraan Republic Indonesia, SBKRI) from Chinese Indonesians when applying for documentation such as passports. They also continue to fight for equal rights in the public hospital system, where higher fees are regularly demanded of ethnic Chinese than those for non-Chinese. The laws abolishing these discriminative practises are in place, but they are not being enforced down to the level of bureaucrats who deal with the public.

Whilst this is the case, the question before the US court was whether there are grounds for ethnic Chinese to fear for their safety as a consequence? This is a controversial and it seems, extraordinary leap for the US Court of Appeals to make. Discriminatory practises such as these have been enforced by the state against ethnic Chinese since their introduction in the late 1960s.

Yet, more weighty it seems, was the ability of defence counsel to trace a pattern of violence against ethnic Chinese since the 18th century, culminating in the violence in May 1998, 'in which more than 1,000 people were killed and dozens of women were raped'. The presumption here is that firstly, anti-Chinese violence was continuous and secondly, that in May 1998 those numbers cites as raped and killed were all ethnic Chinese.

Violence against Chinese Indonesians has occurred across various regimes, rulers and political models. This history of anti-Chinese violence is commonly agreed to have begun with the 1740 massacre in Batavia, and includes violence against Chinese during the revolutionary period (1945-1949). The most catastrophic violence in Indonesia's history was experienced during the 1965-66 communist purges. Although in smaller proportions to the numbers of ethnic Indonesians killed, this also involved anti-Chinese violence. In the late 1960s Chinese were expelled from rural West Kalimantan and Aceh in North Sumatra and forced into refugee camps. Incidents of violence increased in frequency in the late 1990s culminating in the violence in May 1998. This list is by no means complete, with these representing only the more prominent and in some cases, deadly, examples. The most common variation of 'anti-Chinese violence' includes attacks on property, particularly places of business and places of worship. Moreover, since the end of 1999, reported cases of violence against ethnic Chinese have been very few.

There is a further assumption in the ruling, or at least in its reporting, that those killed and raped during the May 1998 violence were only ethnic Chinese. As the Joint Fact Finding Team on the May 1998 Riots and other NGO reports into the riots discovered, most of the people killed during the violence, primarily burned in shopping malls, were urban poor. Among the more than 100 women raped, whilst mostly ethnic Chinese, there were also pribumi and foreign victims.

This is not to understate the horror and the tragedy of this violence for ethnic Chinese, which displaces families, robs them of their livelihoods and further reinforces their feelings of marginalisation, neglect and discrimination as Indonesian citizens. Nor do I wish to negate the well-founded fears nor the experiences of violence experienced by Taty Sael and which forced her to seek asylum outside Indonesia.

The primary concern here is with the generalised grounds for the decision and its implications for the position of ethnic Chinese in Indonesia. How will the non-Chinese community respond to this finding? Potentially, the outcome will cause resentments within the Indonesian government, as it may open the way for many more applications to the US from ethnic Chinese. On the other hand, and hopefully, the US decision may prompt the Indonesian government and its new President to correct these failings and to enforce the rights of this ethnic minority and further promote their place as Indonesians vital to the future of the Republic.