Legal Aid Scheme in Indonesia: Between the Policy and the Implementation

In the legal policy level, the government of Indonesia has already had the policies to assist the justice seekers who are financially weak to have an access to justice through court. There are two research problems in this matter. First, does the policy on the legal assistance as stipulated in Law Number 16 of 2011 work optimally for the justice seekers who are financially weak? Second, how is the implementation of the policy on the legal assistance in the practices? The normative research was conducted to answer those two questions, through document data such as Law No.48 of 2009 on The Principles of Justice Power, Law No. 8 of 2003 on Advocate, and Law No. 16 of 2011 on Legal Assistance, and the implementation of those regulations in the practices in several places. The conclusion obtained from the research is: First, it is not yet optimum since the policy especially in terms of budget allocation of the legal assistance is still low. The professional lawyers tend to avoid their obligation to free give legal assistance to the poor. Second, in practice, the legal assistance is not yet enjoyed by the poor justice seekers. The economic and good will are the influencing factors.


The Legal Problem
Based on the background, it can be decribed two legal problems. First, whether the legal aid policy as set out in the Act No 16 of 2011 will provide access to justice for the poor optimumly. Second, how is the implementation of that policy in practices.

The Goal of the Research
First, to explain whether the legal aid policy as set out in the Act 16 of 2011 will provide access to justice for the poor optimumly; Second, to describe the implementation of that policies in practices.

The Method of the Research
This research is a normative legal research. The main data is a documentary data which were compiled from legal policies concerning with legal aid scheme in Indonesia, as provided in Act, No 48 of 2009, in Act No.8 of 2003 on Advocate, and Act No 16 of 2011 on Legal Aid, and the implementation of those legal policies in some situation and some places, such as in Yogyakarta province, in Jakarta Province, in Sleman General Jurisdiction, and Yogyakarta General Jurisdiction Court. The samples are chosen on the consideration of comparing the condition between metropolitan city (Jakarta) and a general city (Yogyakarta Province).The data were analized qualitatively and were concluded deductively.

The Data and Analizing Part One. Optimizing Legal Aid Through the Policy
Access to justice is a part of human rights, which could be inferred from the provisions in r7, r8 and r21(2) of the Universal Declaration of Human Rights 1948 (UDHR). 4 Access to justice through the right to obtain legal assistance free of charge 4 Article 7 UDHR: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection againts any discrimination in violation of this declaration or againts any incitement to such discrimination". Article 8 UDHR: "Every one has the right to an effective remedy by the competent of national tribunals fot acts violating the fundamental rights granted him by the constitution or by law". R21 (2) UDHR: "Every one has the right to equal access to public service to his country". for those who can not afford, is also a part of human rights, as can be interpreted from the provision in r14.3.d of International Covenant on Civil and Political Rights (ICCR). Indonesian Constitution 1945 admit it well, which could be interpreted from the provision in r28D(1) of the Indonesian Constitution 1945 (Second Amandment), that states: "Everyone has the right to recognition, security, protection, and fair legal certainty and equal treatment before the law".
One of the principles in the protection of human rights is, the State responsibility.
It is the State that must hold protection rights of its citizens. That principle is consistent with the concept of the welfare state. 5 Welfare state and state responsibility principles in the implementation of human rights are shared by Indonesia, which could be seen in the fourth paragraph of Preambule of Indonesian Constitution 1945 and the provisions in r28 (4)  like the right to food, clothing, health services, education services, employment and housing. From those provisions, it can be interpreted that Indonesian Government wishes to provide legal aid for the poor, both economically and structurally, because the orientation is the creation of 'equitable social change' and the target is the citizen who can not meet the basic rights, including the public service. ' A just social change' is part of the structural or social justice, which is the target of legal aid for the poor structurally.
On the other part, the provisions in r4(2) and r14(1)c of Act No 16 of 2011, can be interpreted to mean that the orientation of legal aid which would be built by the Act No 16 of 2011 is only legal aid for the poor people economically. R4 (2) limits the scope of the legal problems that can be requested for legal aid, namely the civil law issues, criminal and administrative. It does not include public service issues or constitutional law issue. For instance, the problem of access or injustice in the public service policies for the poor. Yet, precisely the legal aid for the poor structurally is the one that can realize an equitable social change as mandated by the preamble letter c. R14(1)c of Act No 16 of 2011 which determines that legal aid services to obtain legal aid recipients must attach the letter from the Village Head or equivalent official at the applicant's residence, clearly emphasizing the notion of 'poor' as the poor economically. From the scope of legal aid as set forth in r4, and r5 of Act No16 of 2011 gives less attention to the provision of legal aid for the poor structurally, 6 who face legal problems, namely social injustice or structural injustice. The scope of legal aid in the Act No 16 of 2011 thus, is less than optimal in providing access to justice for the poor structurally. Moreover, the structural or social injustice faced by the poor in general is done by the government that has the duty to enforce social or structural justice for its citizens.
The scope of legal aid in the Act No 16 of 2011 is also limited to consulting and legal services by lawyers or other legal aid officer, and does not include a "litigants on a pro deo" for those who can not afford the cost of the case. The policy of free of charge in litigation actually has been known since the enactment of the HIR (r237) and Rbg (r273) and reinforced by the provisions in r56 (2)  or the accused about the existence of such rights, because there is no provision that requires law enforcement officials to notify the existence of such rights. The rights of the suspect or the accused to obtain legal aid then could be lost due to their ignorance and none of them were informed their rights. Eventhough he was notified, no further provisions about how the suspect or the accused may obtain the right to legal aid, who will give, where to look for it, wether the legal aid free of charge or not, and so on.
The law enforcement officials are required to notify the suspect or the accused and appoint legal counsel to provide legal assistance free of charge in terms of: 7 a.
The offenses alleged or charged is punishable by death or lifetime imprisonment, without looking at the economic background of the suspects or defendants; b. The suspect or defendant have the poor background economically and are suspected criminal offenses or charged that is punishable by imprisonment for five years or more.
The Act 16 of 2011 makes no mention of how the technical implementation of legal aid in more detail at the level of investigation, prosecution, courts of first instance, appeal and cassation.
Losses that were clearly experienced significantly due to changes in the legal beneficiary organization of the legal aid authority are: a. The existence of legal aid post as newly initiated by the Supreme Court to assist justice seekers who can not afford, becomes unclear; b. Legal aid programs by way of a free of charge litigation was no more element in the legal aid scheme which actually should be enjoyed by litigants. The provision of legal assistance through Legal Aid Post engaged the Chairman of the original Court to provide space for the Legal Aid Post, establish a picket advocate that working with legal aid institute,who will provide legal assistance, appoint a professional advocate to provide legal assistance free of charge (pro bono) which will obtain legal aid assistance fund. The encouragement for individual advocates to provide legal assistance in free of charge is actually going to support the optimization of the quality in giving the legal aid for the poor. Litigants are not only entitled to legal assistance in free of charge, but should at the same time the access be granted in a professional manner.

Act
Do not grant the legal aid into the low quality, just because it was given for free of chrage.

Providing legal aid budget
In management, budget support is one important element to support the achievement of the goal. Horngren and Foster argued that budget and performance report are very helpful in evaluating whether the target is achieved. 9 The goal can not be separated from policy and strategic plan. The strategic plan further embodied in the targets set out in the work program. The work program elaborated and realized in the form of money that was expressed in terms of budget. Javanese proverb also says: Jer Basuki Mowo beyo, which means that to achieve the safety, efficacy, desired objectives, requires effort, including the cost of. The existance of legal aid budget, will support the fulfillment of the rights of the poor to obtain access to justice, 10 as part of human rights and as the ultimate goal.
Since the budget is an important element in achieving the goal, then the lack of budget will influence the achievement of optimum goal. In r3c of Act No 16 of 2011 stated that the purpose of the law is to ensure that the provision of legal aid certainty held evenly in all regions of the country of Indonesia. In order to achieve the goal, the budget allocation for the legal aid programs to support the implementation of the law should be sufficient. How was the allocation of budget in legal aid scheme?
The These principles in legal aid program must be able to support the achievement of its objective, namely access to justice for poor people equally. 13 By using a target or objective-based management as stated by Peter F.Drucker 14 there must be a strategic plan and work program of the organization of legal aid that is directed towards the goal. The role of the manager is focused on the achievement of the goal: the legal aid beneficiaries gain equitable access to justice.
Of the provisions contained in Act 16 of 2011, there are some things that less to support the achievement of these objectives, namely: a. the scope of legal aid is not extensive, which only focus on legal aid for those who can not afford economically, and does not include legal aid to fight injustice structurally, as well as pro bono litigation; b. the requirement for legal aid institute are quite hard and more emphasis on formality, make it less effective or less conducive to support the achievement of the optimum goal, both in the quantity of legal aid institute that is considered to pass the certification test as well as the quality of legal assistance provided. As specified in the Act No 16 of 2011, legal aid institute that can provide legal assistance must meet the requirements as specified and supervised its implementation by the government. Terms as legal aid providers place more emphasis on formality, 11 See the provision in r6 (2)  namely: 15 1) incorporated ; 2) accredited by the law; 3) have a permanent office or secretariat; 4) has the board; 5) has the legal aid program. Of these requirements, only strong legal aid institutions will have more opportunities to receive assistance budget. Due to be incorporated as well as for the preparation of certification every three years it needs great cost. Only the institution who has title to the land and buildings that can have a permanent office. Terms of incorporated legal aid will also preclude legal aid institute of the Faculty of Law and agencies, such as the legal aid post, in legal aid participation. These conditions provide opportunities for the wrong target, such as: giving legal aid funding to institute that entirely has a new 'legal aid programs' and doesn't provide the program yet but even passed the certification, rather than giving legal aid funding to long-working legal aid institute that is un-incorporated, or does not qualify for certification, or does not have a permanent optimally. At the pratices, that legal aid scheme has not been much enjoyed yet by the poor. 18 Here are some factors.

Minimum budget from the Government
Once the litigant wants to file civil lawsuit, he/she has to retain some money to be paid to the court, as the court-cost. The court-cost that should be paid included: the cost of commencing of lawsuit, confiscation cost, property inspection cost, subpoena cost, non monetary judgement's enforcement, monetary judgement's enforcement, 'payment-in' fee, photo-copying of decision. 19 The provision concerning with the court-cost in civil litigation are constituted in Het Herziene Indonesisch Reglement, Staatblad No 44 of 1941 (HIR, Ind) andReglement Buiten Gewijsten, Staatblad No 227 of 1927 (Rbg, Ind). 20 Based on r121(4) of HIR or r145(4) of Rbg, the court-cost should be paid in the beginning by the plaintiff, as the initiator.
The Supreme Court provides that the court-cost is regulated by each court. 21 Based on this provision, each court may then make a regulation relating to the court-cost components and scale, regarding to the circumstances of each court's region. The general component and scale of the court-cost in civil lawsuits can be studied from two original court' regulations, as shown comparatively in Table 1 below. 18 In Sleman General Court, 57% of the poor litigants in criminal cases enjoyed the legal assistance but there was no data about the legal aid program in civil cases. See, Elisabeth Sundari, the Implementation of Act No 16 of 2011 in Sleman General Court, Research Report, 2012. 19 See, r20(3) of Appendix-A of SEMA No 10 of 2010 (Ind) 20 These two Reglement are the old provisions made by Netherland Colonization Authority in Indonesia, that concordancely adopted from Netherland' own. Now are still be valid for Java and Madura (by HIR), and out of Java and Madura (by Rbg). None of these Reglements provide class proceeding, since those were from civil law system jurisdiction. 21 See, r3 (2)   Based on that scale, the cost to commence lawsuit is 47.67% of the Jakarta minimum wage of worker per-month, that is Rp. 1. 290.000, 23 and 63.11% of the Jogjakarta minimum wage of worker per-month, that is Rp. 808.000. 24 Accordingly, it can be said that the filing cost of civil lawsuits is still daunting for the poor litigants.
Based on the scale above, the plaintiff has to retain approximately Rp. 510.000 to Rp. 615.000 in the beginning to bring civil lawsuit, or about 47,67% to 63,11% of their wage per-month. At the other side, one of the principle of court procedure is to abandon the defficiency of the administration of justice. 25 With this in mind, the efficiency of bringing lawsuit ought to be borne in mind.
The judge has a role to conduct the judicial process efficiently. Indonesia has the principle of 'the judge should become involved', that implicitly can be seen in r4(2) of Act No 48 of 2009, that states: 'The court should assist litigants and make every effort to overcome all obstacles to meet the aims of a simple, speedy, and cheap administration of justice'. R132 of HIR or r156 of The Rbg, also expresses that principle, which states that '[t]he judges should assist litigants who do not understand the procedures in filing a lawsuit'. These provisions express that the judges have a role to promote the 'efficiency of justice' principle.
The source of funding for legal aid seems good when it is allocated in Government budget. While, how much is allocated, this is a classic problem. In fact, the budget in legal aid scheme cannot be relied upon, since the total budget to be shared for all programmes is very limited.  is insufficient to cover the cost of all civil lawsuit in legal aid scheme.
The Indonesian Government normatively has a good legislation which provides the state responsibility to bear the court-cost in general cases for poor litigants.
However, it creates an expectation but cannot be met, since the budget is very limited in implementation.

Advocates avoided their obligation
Professional Advocate through r22 paragraph (1)  The regulation has not been enacted yet up till now.
Based on the research, 28 even obliged, many advocate didn't fullfill their duty to provide legal assistance free of charge to clients who can not afford. Two main factors namely the lack of interested incentives and lack of sanctions.

The absence of interested incentives
Time, effort and cost of necessary to provide consultation, assistance and/or legal defense in a case is much enough. The provision of legal assistance free of charge becomes less intereting to professional advocates since the incentive was insufficient to cover the entire cost for such operations in order to provide a defense. They would prefer to defend a case with enough cash honorarium or more.
From the lawyers' organization, there is no budget allocations that are fixed to support the implementation of the obligation to provide legal assistance free of charge.
Although r8(c) and r11 of Appendix-A of SEMA No 10 of 2010 provides that "The provision and the implementation of the legal aid budget in the general jurisdiction are included for ...the cost assistance for the duty-lawyer..", in fact, the Government budget in legal aid scheme cannot be relied upon, since the total budget to be shared for all programmes is very limited.

The absence of sanction
If the lawyer is not willing to provide legal assistance free of charge as required by Act No18 of 2003 with a variety of reasons that can be made, there are no sanctions.
The Ethic Code of each advocates organization did not set sanction for member who is not willing to provide legal assistance free of charge. 29 The absence of sanction does not support the fulfillment of the rights of the poor to obtain legal assistance free of charge.
In the law governing the Company, there are obligation for companies to implement CSR (Corporate Social Responsibility) accompanied by sanctions, which is attached to the existence of the company in question. 30 The existence of sanction would support the effectiveness of CSR obligation. Can the provision of the obligation to provide legal aid for free of charge be analogous to the social responsibility of the lawyers, along with sanction for violator? As Paton viewed, 31 the existence of strict sanction for a norm will support the effectiveness of the norm.

Conclussion and Proposals
From the analysis of the legal policies relating to legal aid and its practices, it can be concluded that the legal aid policy and its practices in Indonesia didn't conduct the optimum result to provide equitable access to justice for the poor, both economically and structurally. There are some proposals that may be submitted as an effort to guarantee the fulfillment of equal access to justice, namely: 1. extending the scope of legal aid. Not only for those who are economically poor, but even for those who are structurally poor; 2. sufficient budget allocation. The average number of cases that need to be assisted by legal aid scheme in any court can be estimated each year.
The amount of appropriate incentives for lawyers who provide legal assistance can be calculated. The amount of budget allocation to support the achievement of equitable access to justice can be determined then by these two things. The right to access to justice is a part of human rights, so that the local government is also responsible to allocate the budget to fulfill that human right in their Region; 3. organization management of legal aid that support the achievement of the objectives. Legal aid should be obliged, not only to legal aid institution, but also to professional advocates when they are appointed; 4. the formalistic requirements to obtain legal aid scheme should be directed to the terms that substantively support the achievement of the goals or the objectives to provide legal aid, such as: only the institution or profesional advocate who has done legal aid program activities that would have an incentive of legal aid fund. Terms of legal incorporated, accreditation, permanent office, can become facultative requirement; 5. the quality of legal aid services and the implementation of the performance should be evaluated based on the clients or recipient investigation. 32 The useless of legal aid fund, can be prevented by implementing the proposal principle: there the case, there the incentive; 6. coordinative and facilitative institutional support. Due to the fact that legal assistance is also given in the judicial process, the role of law enforcement institutions in the implementation of legal assistance should also be provided in the legal aid provision to support the more comprehensive and coordinative implementation.
Concerning to the reversal operation of legal aid from Supreme Court to the Government, there are two alternatives to prevent conflict of interest or abuse of power, namely: a. retruning the provider of legal aid scheme to the judiciary, or b. creating the provision which guaranting the independence in giving the legal aid fund, especially in the case that involving the poor and the Government as plaintiff and defendant.
Government (or judiciary) should push and facilitate the establishment of legal aid institutes in remote areas, for example, by setting up the Legal aid Post in court.