PAN MOHAMAD FAIZ

ABSTRAK:

Brain drain atau human capital flight secara garis besar mempunyai pengertian migrasinya para cendekiawan terdidik dan terlatih dari negara asal ke negara lain. Makalah ini berusaha mengidentifikasi dan mengklasifikasikan konsep berikut akibat dari brain drain yang umumnya terjadi pada negara-negara berkembang. Secara khusus, makalah ini bertujuan untuk mengeksplorasi problematika brain drain dalam kaitannya dengan sumber daya manusia (SDM) dan masa depan Indonesia.

Karya ini juga menguraikan permasalahan dan tantangan Indonesia dalam pengembangan SDM beserta ilmu pengetahuan dan teknologi yang disebabkan oleh fenomena brain drain itu sendiri. Pada akhir makalah, penulis menyuguhkan pola pengembangan SDM guna mencegah dan mengatasi efek negatif dari brain drain dengan melakukan studi kasus terhadap reversed brain drain dari India.

Sebagai salah satu negara berkembang yang mempunyai karakteristik dan permasalahan bangsa yang serupa dengan Indonesia, India kini justru mampu memanfaatkan brain drain yang telah berlangsung sejak puluhan tahun yang lalu sebagai suatu mantra dan asset utama yang baru. Mereka tidak hanya sebatas mengubah konsep brain drain menjadi brain circulation, namun secara perlahan juga telah mengembangkannya menjadi brain gain terhadap negara-negara berkembang serta beberapa negara maju lainnya.

Dalam konteks tersebut di atas, makalah yang akan disampaikan pertama kali pada Konferensi Internasional Pelajar Indonesia (KIPI) 2007 di Sydney, Australia pada tanggal 7-9 September mendatang akan menganalisa faktor-faktor, strategi, dan pengalaman bangsa India dalam mewujudkan reversed brain drain khususnya di bidang industri information and technology (IT). Melalui penulisan yang disusun secara sistematik dengan ditunjang oleh berbagai data dan statistik, para pembaca diharapkan dapat memperoleh wawasan dan pelajaran berharga dalam rangka mengatasi permasalahan bangsa Indonesia yang tengah terserang virus brain drain. ***

Keywords: Brain Drain, India, Indonesia, Pendidikan, Sumber Daya Manusia

[1] Makalah lengkap akan disampaikan pada Indonesian Students International Conference di Sydney, Australia pada tanggal 7-9 September 2007.

[2] Penulis adalah Ketua Umum Perhimpunan Pelajar Indonesia di India (PPI-India) periode 2007/2008.

Daftar Pustaka Utama:

1. Bhandari, Dharmetra, Transfer of Knowledge through Expatriate Nationals (TOKTEN), 1987.
2. Brain Drain A projective Study, Indian Journal of Labour Economics, July 1981.
3. Brain Drain Gain : Indian Diasporic Roles in Development, Paper presented at the annual meeting of the International Studies Association, Hilton Hawaiian Village, Honolulu, Hawaii, Mar 05, 2005, available at http://www.allacademic.com/meta/p71533_index.html., last accessed on 10 June 2007.
4. Can India Plug Its Brain Drain? Technology Review: MIT Publisher, 24 March 2004.
5. Cervantes, Mario and Dominique Guellec, The Brain Drain: Old Myths, New Realities, Directorate for Science, Technology and Industry, 2002.
6. Ghosh, B.N. and Roma Gosh, Economics of Brain Migration, Deep & Deep Publications, 1982.
7. Glaser, William, The Brain Drain, Emigration & Return, UNITAR – Research Report No. 22, Pergamon Press, 1978.
8. Kurien, C.T., Brain Drain vs. Brain Gain, Sage Publication, New Delhi, 1999.
9. Study of Concepts and Causes of Brain Drain, AUN Report, 1992.
10. UNITAR Research Reports, The Brain Drain from Five Developing Countries, 1971.
11. etc.

A. Patriarchy

1. Definition

The word “Patriarchy” literally means the rule of father or the ‘patriarch’ and originally it was used to describe specific type of ‘male-dominant’ family. Recently, it is used more generally to refer to the dominant of male and to the power relationship by women is kept subordinate in number of ways.

Julliet Mitchell, a feminist psychologist, uses the word patriarchy to refer the kinship systems in which men exchange women and to the symbolic power that father exercise within these psychologist of women.

Sylvia Walbi, in her book “Theorising Patriarchy”, called it as the system of social and structure and practice of male dominate, oppress, exploit women.

2. Men’s Control

There are several part of men’s control over patriarchal system, namely:

• Women’s productive or labour power;
• Women’s reproduction;
• Women’s sexuality;
• Women’s mobility;
• Property and others.

Meanwhile, these are the various institutions controlled by men, as following:

• Family;
• Religion;
• The legal system;
• The economic system and its institution;
• The political system and its institution;
• Media;
• Educational institution and knowledge system.

3. Origin

To analyze the origin of patriarchy, we can categorize from three different perspectives, as following:

• Engel’s explanation: He believed that women’s subordination began with the development of private property, when “the word historical defeat of the female sex” took place.
• The Radical Feminist: Patriarchy preceded private property and they believe that the original and basic contradiction is between the sexes and not between economic classes.
• The Socialist Position: Patriarchy is related to the economic system, to the relations of production, but it is not causally related. In fact, there are many other factor which influence patriarchy, such as ideology.

B. Empowerment of Women

Besides for protecting women from discrimination, law can empower women through various ways by equipping the right and power as so to enable to fight against male hegemony. Apart from the Constitution which provides for the gender equality and also to lessen the gap between two sexes, law can create empowerment through other ways. There are as follow:

1. Empowerment through conferment of substantive rights or power;
2. Empowerment through institutional infrastructure;
3. Supporting, stimulating and monitoring the attitudinal and values change in society.

1. Empowerment through Conferment of Substantive

There are four methods of empowerment through conferment of substantive of rights or power on person to be empowered:

• By creating Penal Sanctions against certain types of behaviour that violate the dignity and liberty of women, such as in Indian Law section 376 on IPC for custodial rape and section 498-A for harassment and cruelty against women.
• By creating proprietary entitlement for women such as giving them a share on matrimonial property or giving them a right to work and an equal wage.
• By providing preferential treatment for women or providing compensatory discrimination in their favour by reserving jobs and seats in local self governing institution.
• By facilitating the exercise of liberty or freedom for such person.

2. Empowerment through Institutional Infrastructure

All disadvantaged section of society suffers from the lack of access to institution of grievance redressal. Therefore, one of the most important strategies to empowerment women is to facilitate access to grievance redressal and rights enforcing institution. For instance several measures from the Indian experiences as following:

• Family Court Act, 1984 was passed and provide an establishment of family court in the view of conciliation and securing the settlement of dispute relating to marriage and family affair.
• Another form of grievance redressal was set up by the National Commission for Women Act, 1990.
• Public Interest Litigation (PIL) is another device of grievance redressal through access to justice on the part of disadvantage section is facilitated.

3. Supporting, Stimulating and Monitoring the Attitudinal and Value Changes in Society

The movement to change public opinion and societal attitudes and values can at the most catalyze by law. But such change cannot come merely through legal prescriptions.

Presently, India has realized that they need a new movement for such change. It should aim to promoting humanism and respect to individual and liberty. The law can help by protecting the freedom of those people who crusade for the change and by firmly preventing those who try to subvert. Gender justice will be an important item on this agenda.

C. Judicial Response relating to Gender Justice in India

1. Legal Instrument

a. International Law

Before we discuss about the national legal instruments, it is better to know first about the international legal instruments which give guarantee and protection for women. There are in the following:

• Universal Declaration of Human Rights, 1948;
• Convention on the Political Rights of Women, 1953;
• Convention of the Elimination on of All Forms of Discrimination against Women (CEDAW), 1979;
• Optional Protocol to the CEDAW, 1999.

b. Constitutional Guarantees

Indian Constitution has provided so many provisions to give guarantees and safeguard for women and also in order to raise the dignity and strengthening the empowerment of women. Those articles are:

• Preamble: It contains the goal of equal status and opportunity for all citizen, either man or women;
• Article 14: It gives guarantee on equality before the law and equal protection of law;
• Article 15(1) and (2): Forbids discrimination on the ground of sex by the State;
• Article 15(3): State can provide special provision for women;
• Article 16(2): No citizen can be discriminated on the ground of sex for any employment under the State;
• Article 23: Prohibits traffic in human being;
• Article 29(2): This article gives guarantee for undiscriminating of the sex in educational institution;
• Article 39: Direct the State to secure equal pay to equal work for both men and women;
• Article 40: The Directive Principle of State Policy;
• Article 51A (e): It shall be the duty for all Indian citizens to protect and give a respect to the dignity of women.

c. Acts and Programme

There are also many acts and programme that support and favour on the interest of women to get a higher position and bigger opportunity and empowerment, such as:

• The Domestic Violence Act, 2005;
• The Hindu Succession Act;
• The Improvement of Nikah Nama Act, 2006;
• The Maternity Act;
• Gender Budgeting Programme;
• National Policy of Empowerment of Women Programme;
• Indian Penal Code with amendment and revision, i.e. Article 376, 374 and 498.

2. Landmark Cases

Several landmark cases which has been become jurisprudence in Indian legal system are:

• C.B. Muthamma v. Indian Foreign Services (IFS): The rules of IFS requiring a women officer to obtain a permission of the government for getting married were struck down by the Court as being violative of the fundamental right to gender equality.
• Air India v. Nargesh Mirza UOI: Service rule made by Air India International were challenge as being gender discriminatory. The Court struck down the rules on the ground of violative of equality.
• S. Vishnu v. India: The Court validated Section 497 of IPC which deals with adultery and held that it was not discrimination by not making woman complainant or accused. Through court said that if legislature may would the legislation with contemporary situation.

3. Other Problematic Provisions

Even though there has been empowerment in many institutions and provisions in Indian legal system, but there still exist other problematic provisions, such as:

• Divorce Act, 1864;
• Adultery in Section of 497 IPC;
• Restitution of Conjugal Rights on Section 9 of the Hindu Marriage Act;
• Maintenance in Section 36 of the Special Marriage Act.

***

References:

1. S.P. Sathe, Towards Gender Justice, Chapter I, II and III, 1993.
2. Kamla Bashin, What is Patriarchy, 1993.
3. Kamla Bashin, The Origin of Patriarchy: Some Explanations, 1993.
4. Brenda Cossman and Ratna Kapoor, Subversive Sites: Feminist Engagement with Law in India, Chapter. I, 1996.
5. Ratna Kapoor and Brenda Cossman, Women, Equality and the Constitution: Through the Looking Gass of Feminism, National Law School Journal, 1993.
6. Uma Ckakravorty, Conceptualizing Brahmanical Patriarchy in Early India: Gender, Class and State, Economic and Political Weekly, April 3, 1993.
7. etc.

A. Introduction

Liberty is usually defined as the obscene of coercion or constraint in the full existence of choice and activity. According to Mainland, Liberty is the absence of external restraints of human action which are themselves result of human action.

Liberty is a value in itself. It is a primary attribute of human life because it is only through provision of liberty that human personality can growth develop, self-direction becomes possible.

It is however, necessary to remember that liberty is a social conception. We don’t talk about the liberty of animal. Also no one can enjoy liberty without society. But, liberty of human actors cannot be absolute because it has to be enjoyed in the context of society.

Liberty of some depends on the restraint of others. Therefore, some sort of regulation and restriction of freedom are arranged in all society. Usually, it is the Government of the society who imposes the restriction. To avoid a misuse of their authority, it can be arranged by making the Government democratic.

John Stuart Mill, in his great work, “On Liberty”, was the first to recognize the different between Liberty as the freedom of action and liberty as the absence of coercion.

Similarly, in his book, “Two Concepts of Liberty”, Isiah Berlin formally formed the different between these two perspective as a distinguish between two conception of liberty, namely “Positive Liberty” and “Negative Liberty”.

B. Two Concepts of Liberty

1. Negative Liberty

The negative sense is involved to answers the question, “What is the area within the subject or a group person is or should be left to do or be what he is able to do or be without interfere by others?”.

Isiah Berlin called it as “the area within which man can act unobstructed by others”. According to F.A. Hayek, Liberty implies that “the individual has assured private sphere that there are some set circumstance in his environment within which alters cannot interfere”.

John Stuart Mill saw it as “a circle around every individual human being” or “reserved territory”. In this tradition, the negative liberty is upheld against the two minds of interference, namely: (a) Interference by State; and (b) Interference by Individual.

The notion of negative liberty being associated most strongly with the classical “British Political Philosopher”, like Locke, Hobbes and Smith.

Criticism

It is said that negative liberty is a counterpart ideological of market society. The market is sphere in Capitalist society where goods and services are exchanged by agents who are in unequal possession of it.

To consider negative liberty as substantial of a liberty today, it would serve only for a small fraction of dominant class worldwide. It has become a clock for corporate and empire free enterprise.

2. Positive Liberty

The positive sense of Liberty involves to answer the question, “What and who is the source of control or interference that can determined someone to do or be one thing rather than another?”

It refers to the opportunity and ability to act and to fulfill one own’s potential, as opposed from negative liberty which refers to freedom of coercion. It is also often described as a freedom to achieve certain ends, while negative liberty describes as from external coercion.

T.H. Green who identified Liberty as positive liberty says, “It is a positive power of capacity of doing or enjoying.” More recently, C.B. Macpherson has identified as “the capacity to maximize human power”. In the words of Isiah Berlin, “the positive sense on the word liberty is to whish on part of individual to be his own master”.

The notion of positive liberty being associated mostly with Continental European thinker, such as Hegel, Herder, Rousseau and Marx.

Criticism

The difficulty in this argument that it implies that someone else, i.e. government, knows what is good for you. Therefore he or it should have a right to impose you on your own interest. This can easily lead to dictatorship.

There will be conflict between ends or value in one hand and means in others. Positive liberty might involve isolating a value or imposing it on all, through specified means.

C. Indian Context

Fundamental Right Chapter of Indian Constitution is an attempt to guarantee and protect the liberties of citizens as well as of aliens too, so that they can exercise their choices and activity freely.

Article 21 of the Indian Constitution provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to life is one of the most prominent right and essential for the development of human personality.

Indian Constitution not only guarantees personal or political liberties, it also provides social liberty which was very necessary at the time of framing of our Constitution to develop into a nation.

Article 14 and its extension is the form of Article 15 and 16 along with Article 17 and 18 were incorporated to wash away the restraint and untouchability. These articles were very essential to bring social changes in India.

1. Cases

a. In Maneka Gandhi’s case: the fundamental rights represent the basic values cherished by the people of India since the Vedic times.
b. In Francis COralie v. Union Territory of Delhi: The right to life includes the right to live with human dignity and all that goes along with it (Justice Bhagwati).

2. Restriction

Part III of Indian Constitution imposes reasonable restrictions on the exercise of fundamental rights which obliges persons conduct or exercise their choices in a reasonable manner. Through reasonable restriction, i.e. Article 19 and 21, State tries to secure a social order in which social, economic and political justice can be maintained.

***

References:
1. Mathew K.K., Democracy, Equality and Freedom, pages 127-145 (1978).
2. Kent Greenwalt, “Free Speech Justification” in M.P. Singh (ed) on Comparative Constitutional Law (1989).
3. Hayek, F.A., The Constitution of Liberty, pages 11-21 (1960).
4. Freeman, M.D.A., Introduction to Jurisprudence, sixth edition, Sweet & Maxwell Ltd., 1994.